               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 14a0481n.06

                                       Case No. 12-2223                               FILED
                                                                                   Jul 03, 2014
                                                                             DEBORAH S. HUNT, Clerk
                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT


JOSEPH ROVESS STINES,                                 )
                                                      )
       Petitioner-Appellant,                          )        ON APPEAL FROM THE
                                                      )        UNITED STATES DISTRICT
v.                                                    )        COURT FOR THE EASTERN
                                                      )        DISTRICT OF MICHIGAN
UNITED STATES OF AMERICA,                             )
                                                      )
       Respondent-Appellee.                           )                  OPINION
                                                      )


BEFORE: BOGGS, COLE and McKEAGUE, Circuit Judges.

       McKEAGUE, Circuit Judge. This case presents an appeal from the denial of relief

under 28 U.S.C. § 2255 in relation to a 1999 conviction and sentence for conspiracy to possess

and distribute cocaine and cocaine base. Defendant Joseph Stines’ conviction and sentence were

affirmed on direct appeal. United States v. Stines, 313 F.3d 912 (6th Cir. 2002). Stines moved to

vacate the conviction and sentence under § 2255 based largely on the claim that the prosecution

suppressed Brady material and suborned perjury from cooperating co-conspirator witnesses. The

district court conducted an evidentiary hearing, found the testimony of the sole witness presented

“inherently incredible,” and denied the motion.      The district court granted a certificate of

appealability on the prosecutorial-misconduct claim. We later expanded the certificate to include

a second claim, for ineffective assistance of appellate counsel, in the event Stines were held to
Case No. 12-2223
United States v. Stines

have procedurally defaulted the first claim. For the reasons that follow, we affirm the denial of

relief.

                                                 I

          In the late 1980s and 1990s, Stines was the ringleader of a street gang known as Stone

Life in Ypsilanti, Michigan. Stines, 313 F.3d at 914. During an investigation of Stone Life

conducted in the late 1990s, undercover officers participated in and observed a series of cocaine

purchases.     Stines and six co-conspirators   Durand Ford, Keith Phelan, Kenneth Jefferson,

Antonio James, David Bowles, and       aron o les     were indicted for conspiracy to possess and

distribute cocaine and cocaine base. Several co-conspirators cooperated with the government

pursuant to plea agreements assuring them of favorable treatment in exchange for their

cooperation. All seven defendants, including Stines, were found guilty.

          In conjunction with sentencing, the district court conducted two hearings in December of

1999 and February of 2000. The court determined that seven kilograms of crack cocaine and

two kilograms of powder cocaine were attributable to Stines. In reaching this determination, the

court relied on the trial testimony of Athaiah Reed, Walter Phelps, Eva Taylor, Reese Palmer,

and Rasul Warren. Considering the        itnesses’ testimony, Stines’ involvement as the leader of

Stone Life, and Stines’ prior criminal history, the court determined the applicable sentencing

guidelines range to be 360 months to life. Stines was sentenced to a prison term of 400 months

on February 22, 2000.

          Stines timely filed a notice of appeal. Several months later, while the appeal was

pending, he filed a motion for new trial in the district court, alleging prosecutorial misconduct

and suppression of Brady material. The district court denied the motion for new trial for lack of

jurisdiction because of the pendency of the direct appeal. Stines did not appeal the denial of the


                                                -2-
Case No. 12-2223
United States v. Stines

motion for new trial, and the issues raised in that motion, akin to those now before us, were not

addressed in our ruling affirming Stines’ conviction and sentence on direct review. See Stines,

313 F.3d 912 (Appendix).

       Stines filed his motion to vacate sentence pursuant to 28 U.S.C. § 2255 on October 12,

2004, contending, in relevant part, that prosecutorial misconduct deprived him of due process in

trial and in sentencing, and that his appellate counsel was ineffective for having failed to appeal

the denial of his motion for new trial.

       In a series of status conferences, Stines’ newly-appointed counsel requested an

evidentiary hearing. Counsel summarized the substance of testimony that she expected to elicit

in the evidentiary hearing from numerous        itnesses   ho testified in Stines’ trial, from the

prosecuting attorney allegedly responsible for the misconduct, Assistant United States Attorney

Richard Convertino, and from two district judges who imposed surprisingly lenient sentences on

the cooperating witnesses. Stines’ counsel ackno ledged, ho ever, that she as not prepared to

immediately call any of these witnesses; that she needed the assistance of a court-appointed

investigator to locate and interview witnesses; and that additional steps were necessary before

she could call AUSA Convertino or the sentencing judges.

       The district court granted the request for an evidentiary hearing but determined at the

outset that it would be limited to the testimony of Rasul Warren, a member of the Stone Life

gang and co-conspirator who had testified to having obtained a certain amount of cocaine from

Stines. The inquiry would initially be limited to Warren because he appeared to offer the

strongest evidence in support of Stines’ motion. Warren not only received favorable sentencing

treatment, like other cooperating witnesses, but also reported that he had given perjured

testimony. That is, Warren was expected to testify that, in response to Convertino’s prompting,


                                               -3-
Case No. 12-2223
United States v. Stines

he attributed more drugs to Stine than he was responsible for. The district court indicated that it

would potentially expand the hearing, depending on ho Warren’s testimony ent.

       The evidentiary hearing was held on January 22, 2010. Warren testified that AUSA

Convertino encouraged him to testify in the 1999 trial that Stines was the supplier of all the

cocaine seized from Warren at the time of his 1996 arrest, even though Warren recalled that it

had come from more than one supplier.      t the time of Stines’ trial, Warren was already serving

a prison sentence of 262 months. Convertino offered to move for reduction of his sentence in

exchange for his cooperation. Warren cooperated and attributed all the cocaine he had to Stines.

Subsequently, he was released from prison after serving just 47 months.      ccording to Warren’s

“corrected” testimony, only part of the seized cocaine actually came from Stines, but Warren

could not remember the name of any other supplier.

       On completion of Warren’s testimony, and consistent       ith the district court’s order as to

the scope of the evidentiary hearing, Stines’ counsel ackno ledged that no other      itnesses   ere

available to testify. The court directed counsel to submit closing arguments in writing after the

hearing transcript was prepared. In his post-hearing brief, Stines argued that Warren’s testimony

made out a sufficient record to warrant relief but he renewed his earlier request to call other

witnesses. The government’s post-hearing brief took a three-pronged approach. First, the

government renewed its motion to dismiss the § 2255 motion as barred by procedural default.1

Second, the government explained      hy Warren’s attempt to partially recant his trial testimony

 as not credible. Third, even if Warren’s new testimony were credited, the government argued

that Warren’s drug-quantity clarification, viewed in light of the extensive evidence of Stines’

       1
        Prior to the evidentiary hearing, the government moved to dismiss the motion based on
procedural default. The government argued that Stines failed to preserve objection to the
prosecutorial-misconduct issues hen he failed to appeal the district court’s denial of his motion
for new trial.
                                               -4-
Case No. 12-2223
United States v. Stines

responsibility for distributing multiple kilograms of cocaine over several years, would have had

no impact on either the jury’s verdict or the court’s sentence.

       The court issued a    ritten opinion on December 1, 2010, denying Stines’ § 2255 motion

for new trial or resentencing. The court ignored the procedural default issue and proceeded to

the merits of Stines’ motion. Having observed Warren’s testimony both in Stines’ trial and in

the evidentiary hearing, the court found that Warren’s trial testimony was credible and his

testimony in the evidentiary hearing was “inherently incredible.” The court held Stines had

failed to show by a preponderance of evidence either (a) that there was an express or tacit

agreement between Convertino and Warren that should have been disclosed, or (b) that

Convertino had suborned perjury. Distinguishing Bell v. Bell, 512 F.3d 223, 232–33 (6th Cir.

2008), the court implicitly determined that there was no need for additional testimony from other

cooperating witnesses because, unlike in Bell, the understandings pursuant to which they testified

had been disclosed and were used to effectively impeach them during Stines’ trial, rendering

putative evidence of even more favorable understandings immaterial for Brady purposes.2

       Stines appealed the denial of his § 2255 motion and asked the court to certify two issues

for appeal. The district court granted a certificate of appealability as to the prosecutorial-

misconduct claim, but denied the certificate as to the ineffective-assistance-of-counsel claim.

We later expanded the certificate to include the ineffective-assistance claim, to be considered in

the event the prosecutorial-misconduct claim were held to be procedurally defaulted.

Accordingly, the parties have briefed both issues. Yet, the district court did not address the

procedural-default defense and instead addressed the merits of Stines’ prosecutorial-misconduct


       2
        Subsequently, on August 2, 2011, Stines filed a motion for reduction of sentence under
18 U.S.C. § 3582, based on retroactive application of the Fair Sentencing Act of 2010. The court
granted the motion, reducing Stines’ prison sentence to 330 months.
                                                -5-
Case No. 12-2223
United States v. Stines

claim. This is the ruling challenged by Stines on appeal. The government has not filed a cross-

appeal challenging the implicit denial of the procedural-default defense. We therefore confine

our attention to the ruling challenged by Stines. Neither the procedural default defense nor

Stines’ attempt to excuse procedural default based on ineffective assistance is considered further.

                                                 II

       A. Standard of Review

       “In revie ing the denial of a 28 U.S.C. § 2255 motion,        e apply a de novo standard of

review to the legal issues and uphold the factual findings of the district court unless they are

clearly erroneous.” Hamblen v. United States, 591 F.3d 471, 473 (6th Cir. 2009). To warrant

relief under § 2255, “a petitioner must demonstrate the existence of an error of constitutional

magnitude which had a substantial and injurious effect or influence on the guilty plea or the

jury’s verdict.” Griffin v. United States, 330 F.3d 733, 736 (6th Cir. 2003). Stines contends that

his sentence should be vacated because the prosecution’s suppression of Brady material and

suborning of perjury deprived him of a fair trial and fair sentencing.

       Pursuant to the rule of Brady v. Maryland, 373 U.S. 83, 87 (6th Cir. 1963), the

prosecution is obliged to disclose all material, exculpatory evidence to a defendant. The rule

encompasses impeachment evidence as well. United States v. Bagley,             3 U.S.      ,

(1985). Where such evidence is “material” to guilt or innocence, a failure to disclose it results in

a due process violation, irrespective of the good faith or bad faith of the prosecution. Bell, 512 at

231. A successful Brady claim requires a three-part showing: (1) that the withheld evidence was

favorable to the defendant; (2) that the prosecution suppressed the evidence, either purposefully

or inadvertently; and (3) that the suppression resulted in prejudice to the defendant. Id. To

satisfy the prejudice prong, Stines must show that disclosure of the favorable evidence would


                                                -6-
Case No. 12-2223
United States v. Stines

have created a “reasonable probability” of a different result, such that the government’s

suppression of the evidence “undermines confidence in the outcome.”          Id. at 236 (quoting

Bagley, 473 U.S. at 678, 682). Evidence that is “merely cumulative” of evidence presented at

trial is not “material” for purposes of the Brady analysis. Brooks v. Tennessee, 626 F.3d 878,

893 (6th Cir. 2010).

       Similarly, the prosecution’s alleged misconduct in knowingly soliciting or allowing false

testimony also comes under the Brady disclosure doctrine:

       The knowing use of false or perjured testimony constitutes a denial of due process
       if there is any reasonable likelihood that the false testimony could have affected
       the judgment of the jury. In order to establish prosecutorial misconduct or denial
       of due process, the defendants must show the statement was actually false; (2) the
       statement was material; and (3) the prosecution knew it was false.

Id. at 894–95 (quoting Coe v. Bell, 161 F.3d 320, 343 (6th Cir. 1998)).

       B. Analysis

       The district court based its denial of relief largely on the record established at the

evidentiary hearing, consisting of the testimony of Stines’ co-conspirator, Rasul Warren,

follo ed by the parties’ post-hearing briefs. The court recognized that a itness’s recantation of

trial testimony in post-conviction proceedings is viewed with great suspicion, citing Brooks,

626 F.3d at 897. The court recalled its observations of Warren’s trial testimony ten years earlier

and compared it    ith his testimony at the evidentiary hearing. The court found Warren’s trial

testimony regarding his gang-member and drug-trafficking relationship with Stines consistent

with other trial testimony. Conversely, the court explained        hy it found Warren’s “ne ”

testimony “inherently incredible.” Among other things, the court noted Warren’s reluctance to

provide complete answers and characterized his testimony as “replete ith evasiveness.”




                                              -7-
Case No. 12-2223
United States v. Stines

         In challenging this reasoning, Stines points to other evidence of wrongdoing by AUSA

Convertino in this and other cases and argues that Warren’s ne      testimony “does not seem so

far-fetched at all.” He notes that, apart from its inconsistency with his original trial testimony,

Warren’s ne       testimony about Convertino’s misconduct has not been rebutted by the

government.

         The district court’s credibility determination is revie ed under the “highly deferential

clear-error standard.” Id. Stines has fallen short of showing clear error in the court’s assessment

of Warren’s credibility. Stines gives no persuasive reason to disturb the assessment of the trial

judge,    ho had extensive opportunity to observe Warren’s demeanor and comportment both at

trial and in the evidentiary hearing.     ecause the district court found Stines’ most promising

 itness “not close to credible,” the court sa    no need to continue the evidentiary hearing to

entertain additional testimony tending to rebut or corroborate Warren’s testimony.     nd because

the court found Warren’s testimony not credible, it concluded that Stines had failed to

substantiate his allegations (1) that there was either an express or tacit agreement between

Warren and Convertino that remained undisclosed by the prosecution; or (2) that Convertino

solicited false testimony from Warren.

         In connection    ith Stines’ allegation that several other cooperating witnesses were

promised even more favorable assistance from Convertino than they disclosed in their trial

testimony, the district court observed that it “had been apparent throughout the testimony in this

case     that every   itness   ho   as involved in drug trafficking had been promised something

 ith regard to sentencing in exchange for their testimony” and “ as cross-examined extensively

about that consideration.” R. 695, Opinion and Order at 6, Pg ID 3485. The court distinguished

this case from the situation presented in Bell, 512 F.3d at 232–33, where the alleged


                                                -8-
Case No. 12-2223
United States v. Stines

consideration was undisputedly not disclosed by the prosecution. The court thus implicitly

determined that there was no need to expand the evidentiary hearing and entertain additional

testimony regarding specific representations that may have been made to witnesses concerning

the extent of assistance the prosecution intended to provide in exchange for their testimony.

       Indeed, any evidence clarifying the nature of promises or assurances made would appear

to be “merely cumulative” and therefore not “material” for Brady purposes. Brooks, 626 F.3d at

893. This is precisely the conclusion reached in Jefferson v. United States, 730 F.3d 537 (6th

Cir. 2013), where we addressed substantially identical Brady claims (involving many of the same

witnesses) by one of Stines’ co-defendants, Kenneth Jefferson. As we observed in Jefferson,

“ here the undisclosed evidence merely furnishes an additional basis on        hich to challenge a

witness whose credibility has already been shown to be questionable or who is subject to

extensive attack by reason of other evidence, the undisclosed evidence may be cumulative, and

hence not material.” Id. at 550 (quoting Byrd v. Collins, 209 F.3d 486, 518 (6th Cir. 2000)). See

also Akrawi v. Booker, 572 F.3d 252, 264 (6th Cir. 2009) (holding that, where the jury heard

substantial evidence of the potential for a charge-reduction deal, but a mutual understanding

remained undisclosed, the possibility that disclosure of that understanding might have made

cross-examination incrementally more effective was insufficient to establish prejudice for Brady

purposes).

       In Jefferson, we considered very similar allegations that the prosecution failed to disclose

evidence of tacit agreements that AUSA Convertino had reached with many of the same

cooperating witnesses discussed in Stines’ § 2255 motion. We acknowledged that evidence that

witnesses were offered even more favorable deals than was disclosed could have been used to

more effectively discredit their testimony and was therefore favorable to the defendant,


                                               -9-
Case No. 12-2223
United States v. Stines

satisfying the first prong of the Brady rule. Jefferson, 730 F.3d at 550. Insofar as evidence of

more favorable deals existed and was not disclosed, we held that the prosecution had

“suppressed” hat it       as obliged to disclose, thus satisfying the second prong of the Brady rule.

Id. As to the third prong, however, we held, in relation to five of the same witnesses whose

testimony is implicated in this case (i.e., Rasul Warren, Tali Alexander, Reese Palmer, Labron

Nunn and Eva Taylor), that the requisite sho ing of “materiality” or prejudice       as lacking. Id.

at 551–53.

       We noted that the mere fact that the witnesses later received favorable sentencing or

prosecution treatment “is not evidence that a deal existed prior to their testimony at trial.” Id. at

552 (quoting Williams v. Coyle, 260 F.3d 684, 707 (6th Cir. 2001)). Further, a “ itness’s

expectation of a future benefit is not determinative of the question of whether a tacit agreement

subject to disclosure existed.” Bell, 512 F.3d at 233.        “The government is free to re ard

witnesses for their cooperation with favorable treatment in pending criminal cases without

disclosing to the defendant its intention to do so, provided that it does not promise anything to

the   itnesses prior to their testimony.” Id. at 234 (quoting Shabazz v. Artuz, 336 F.3d 154, 165

(2d Cir. 2003)). It follows that although the prosecution is obliged to disclose promises that have

been made to witnesses to induce their cooperation, prosecutors retain discretion to further

reward witnesses after their cooperation, so long as the further reward was not promised before

their testimony.

       But even assuming impeachment evidence was improperly suppressed, we noted in

Jefferson that all of the above five witnesses were cross-examined regarding their deals with the

government resulting in favorable treatment.        The jury had thus been made aware of the

incentives each witness had to testify in a manner favorable to the prosecution. Hence, we


                                                - 10 -
Case No. 12-2223
United States v. Stines

concluded that the additional impeachment evidence ould not have “put the hole case in such

a different light as to undermine confidence in the verdict.” Jefferson, 730 F.3d at 553 (quoting

Kyles v. Whitley, 514 U.S. 419, 435 (1995)).

        Stines is not oblivious to our ruling in Jefferson or its significance to his case. He

contends that Jefferson is distinguishable. Here, he argues, beyond the pervasive evidence of

Convertino’s disregard of his Brady obligations,          e have Rasul Warren’s s orn testimony that

Convertino also encouraged and allowed him to give false testimony regarding the quantity of

drugs Stines was responsible for. This, in combination with circumstantial evidence that Warren

and other witnesses ultimately received more favorable treatment than they said they had been

offered, is said to justify re-sentencing or at least a full evidentiary inquiry.

        Stines’ argument, attempting to distinguish this case from Jefferson, might gain traction

but for the district court’s finding that Warren’s changed testimony was “inherently incredible.”

As explained above, this finding is not clearly erroneous.3 Hence, we are left with a similar array

of cooperating witnesses who received even more favorable treatment than they stated they had

expected in exchange for their cooperation.          In addition to the five cooperating witnesses

        3
         Stines insists that even if he has failed to sho clear error in the district court’s
assessment of Warren’s credibility, e should find a “legal error of process” in that the court
failed to explain the impact of the “Schools Memorandum” on the credibility assessment. The
Schools Memorandum is a document submitted to the district court and disclosed to defense
counsel under a protective order. As explained in Jefferson, 730 F.3d at 542, the Schools
Memorandum summarizes the results of an internal investigation, conducted by the United States
  ttorney’s Office, of suspected misconduct by US Convertino in this and other cases.
        Ostensibly, the district court refrained from mentioning it because it was subject to a
protective order prohibiting disclosure of its contents. As indicated in Jefferson, the report
“suggests there is evidence” of improper conduct by Convertino in relation to cooperating
witnesses. The focus of the report is not on the validity of Stines’ conviction or sentence.
Rather, the report addresses hether Convertino’s actions in seeking sentence reductions and
downward departures were without supervisory approval. Upon review of its contents, we find
no basis to disturb the district court’s ruling on Stines’ § 2255 motion. In regard specifically to
Warren’s credibility, e note that the report gives as many reasons to disbelieve or doubt
Warren’s ne testimony as to credit it.
                                                 - 11 -
Case No. 12-2223
United States v. Stines

mentioned above, whose testimony was used by the prosecution against both Jefferson and

Stines, Stines relies on the testimony of six other witnesses, Hans Thomas, Athaiah Reed, Walter

Phelps, Carl Burton, Elwood Shemwell, and Oscar Little. Stines contends that the favorable

treatment they ultimately received represents circumstantial evidence that AUSA Convertino

promised or intended to help the witnesses more than they acknowledged when cross-examined

at trial on the nature of their cooperation agreements. Such promises or intentions, he argues,

ought to have been disclosed as Brady material.

       Yet again, as we held in Jefferson, evidence that a cooperating witness subsequently

received favorable treatment, in and of itself, is not conclusive evidence of a pre-existing

promise or assurance of such treatment that would be subject to Brady’s disclosure requirements.

And even if such evidence might be considered worthy of further inquiry, it is apparent, for the

reasons explained in Jefferson, that any evidence of a pre-existing agreement that should have

been disclosed would not satisfy the prejudice requirement under the Brady rule because, as our

review of the record confirms, each of these additional witnesses, like those addressed in

Jefferson, was subject to impeachment based on his or her agreement to cooperate with the

prosecution. Evidence of additional bases on which to question their credibility would have been

cumulative and is therefore not “material” for Brady purposes. This is true, notwithstanding

evidence that Convertino’s misconduct as not inadvertent but deliberate, because “the bad faith

of the prosecutor does not impact our Brady analysis.” Jefferson, 730 F.3d at 554 (“If the

suppression of evidence results in constitutional error, it is because of the character of the

evidence, not the character of the prosecutor.” (quoting United States v. Agurs, 427 U.S. 97, 110

(1976))).




                                             - 12 -
Case No. 12-2223
United States v. Stines

       Stines has failed to demonstrate that any of the cooperating witnesses who might have

been called to testify in an expanded evidentiary hearing are situated any differently from those

who were considered in Jefferson. Stines has presented no grounds for holding that disclosure of

the additional impeachment evidence      even assuming cooperating     itnesses   ere to testify as

Stines expected      ould have put the   hole case in such a different light as to undermine our

confidence in the outcome. Hence, e find no abuse of discretion in the district court’s failure to

expand the evidentiary hearing before denying Stines’ motion for relief under § 2255.

                                               III

       Accordingly, consistent with the analysis set forth in Jefferson, we find no error in the

district court’s denial of Stines’ motion to vacate sentence under 28 U.S.C. § 2255. The ruling of

the district court is therefore AFFIRMED.




                                              - 13 -
