                                                             United States Court of Appeals
                                                                      Fifth Circuit
                     UNITED STATES COURT OF APPEALS                F I L E D
                         FOR THE FIFTH CIRCUIT                     August 30, 2007

                                                                Charles R. Fulbruge III
                                                                        Clerk

                                 No. 06-30892



     GEORGE CRAWFORD,

                                                 Plaintiff-Appellant,

                                          v.

     BURL CAIN, Warden, Louisiana State Penitentiary,

                                                 Defendant-Appellee.



         Appeal from the United States District Court for the
          Eastern District of Louisiana, New Orleans Division
                              2:04-CV-748



Before SMITH, BENAVIDES, and DENNIS, Circuit Judges.

PER CURIAM:*


     On January 7, 1997, George Crawford (“Crawford”) and Larry

Lindsey    were   convicted     by    a   jury   of   first-degree    murder      in

Louisiana state court.        Both men were sentenced to life in prison

without     the   possibility        of   parole.      During    postconviction

proceedings, Crawford alleged, inter alia, that his conviction

should be overturned because the prosecution withheld exculpatory


     *
       Pursuant to 5th Cir. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5th Cir. R. 47.5.4.
and impeachment evidence in violation of Brady v. Maryland and its

progeny.   On February 12, 2003, the Louisiana Fourth Circuit Court

of Appeal issued a lengthy opinion denying him relief.    The court

agreed with Crawford that the prosecution had withheld relevant

material to which he was entitled, but also concluded that the

undisclosed evidence was not material for Brady purposes. Crawford

began habeas proceedings in the Eastern District of Louisiana on

March 15, 2004.    On July 11, 2006, the district court agreed with

the state court and denied the habeas petition.      On appeal, the

sole question before us is whether the state court was “objectively

unreasonable” in its disposition of Crawford’s Brady claim.      We

find that it was not and AFFIRM.

                              I.   FACTS

       Shortly after 2:00 PM on September 22, 1994, Elijah Mitchell

and Sheri Bailes were sitting in Bailes’s black Corvette near the

2000 block of Thayer Street in the Fischer Housing Project in

Algiers, Louisiana. Two men approached and began shooting into the

car.    Bailes was shot twice and killed.    Mitchell was shot many

times but survived, and later proved to be a key witness at trial.

       Detective Anthony Graffeo was the lead detective in the case.

He received a call from Shirley Davis, a resident of the Fischer

Project, who said she witnessed the shooting.    Davis told Graffeo

she recognized one of the gunmen as Larry Lindsey, who was her

sister’s former boyfriend; the other she knew only as “George.”

Graffeo put together a photo array with a picture of Lindsey in it,

                                   2
and Davis identified him.           Police arrested Lindsey on October 6,

1994, and Lindsey stated that he was not involved in the shooting,

but he had heard that the perpetrator was a black male by the name

of   George    Crawford.      Based   on     this    information,      Graffeo    put

together a photo array with a picture of Crawford in it.                          The

police showed that photo to Shirley Davis and Elijah Mitchell, who

had recovered somewhat since the shooting. Both of them identified

Crawford      as   the   shooter.     Both    also        provided   tape   recorded

statements to Graffeo that were not turned over to the defense.

      At trial, the prosecution’s case was based almost entirely on

the testimony of Davis and Mitchell, along with the photographic

identifications.         Lindsey and Crawford were convicted by a jury of

first-degree murder and sentenced to life in prison without the

possibility of parole.          During his postconviction proceedings,

Crawford argued to the Fourth Circuit Court of Appeal in Louisiana

that the prosecution had failed to turn over exculpatory and

impeachment material as required by Brady v. Maryland, 373 U.S. 83

(1963).       The    Fourth   Circuit      issued     a    lengthy   opinion     that

ultimately affirmed the sentence on the basis that the undisclosed

evidence was not material for Brady purposes.                  State v. Crawford,

848 So.2d 615 (La. Ct. App. 2003).                  Crawford then began habeas

proceedings in the Eastern District of Louisiana.                     The district

court denied Crawford’s habeas petition as to all claims, but

granted a Certificate of Appealability solely as to the Brady

claim.    That appeal is now before us.

                                        3
                        II. STANDARD OF REVIEW

     Under 28 U.S.C. § 2254(d)(1), a federal court may grant a writ

of habeas corpus if the state court’s decision was either (1)

“contrary to . . .” or (2) involved an “unreasonable application

of” clearly established federal law, as determined by the Supreme

Court of the United States.      Crawford brings his claim only under

the second standard, alleging that the Fourth Circuit unreasonably

applied   Brady   and   its    progeny   when   it    concluded   that   the

undisclosed evidence was not material.

     There are two ways in which a state court decision can involve

an unreasonable application of the law.              First, the court can

identify the right legal rule but apply it unreasonably to the

facts of a case, and second, the Court can unreasonably extend a

legal principle to a new and inappropriate context, or unreasonably

refuse to extend it to a context where it should apply.            Williams

v. Taylor, 529 U.S. 362, 405–07 (2000).         Under this standard, we

should only grant the writ when the state court’s decision was

erroneous and “objectively unreasonable.”             Id. at 409–11.      In

conducting this inquiry, we review the federal district court’s

findings of fact for clear error and its conclusions of law de

novo.     Thompson v. Cain, 161 F.3d 802, 805            (5th Cir. 1998)

(citations omitted).

                              III. DISCUSSION

     “[T]he suppression by the prosecution of evidence favorable to


                                     4
an accused . . . violates due process where the evidence is

material either to guilt or to punishment, irrespective of the good

faith or bad faith of the prosecution.”          Brady, 373 U.S. at 87.      To

establish a Brady claim, a petitioner must demonstrate that (1) the

prosecution suppressed evidence, (2) the evidence was favorable to

the petitioner, and (3) the evidence was material. Kyles, 514 U.S.

at 432–34 (1995); Spence v. Johnson, 80 F.3d 989, 994 (5th Cir.

1996) (citation omitted). “Favorable” evidence includes that which

is   exculpatory   and   that   which    could    be   used   to   impeach   a

prosecution witness. United States v. Bagley, 473 U.S. 667, 676–77

(1985).

      The test for materiality is “whether the disclosure of the

evidence would have created a reasonable probability that the

result of the proceeding would have been different.” United States

v. Sipe, 388 F.3d 471, 485 (5th Cir. 2004) (internal quotation

omitted); see also Kyles v. Whitley, 514 U.S. 419, 433–34 (1995)

(citations omitted).     Evidence may be material under Brady even

when it is not admissible, provided that it satisfies the same

test.     Sipe, 388 F.3d at 485.    The Supreme Court has identified

four aspects of the materiality inquiry. First, “[t]he question is

not whether the defendant would more likely than not have received

a different verdict with the evidence, but whether in its absence

he received a fair trial, understood as a trial resulting in a

verdict worthy of confidence.”          Kyles, 514 U.S. at 434.      Second,

the materiality inquiry is “not a sufficiency of the evidence

                                    5
test.”     Id.    Rather, the reviewing court should ask whether “the

favorable evidence could reasonably be taken to put the whole case

in such a different light as to undermine confidence in the

verdict.”     Id. at 435.       Third, if the evidence is material, there

is no need for a harmless error analysis.              Id.     Finally, though the

court may have to go over each piece of evidence item by item, it

must ultimately evaluate the cumulative effect of the evidence for

purposes of materiality.          Id. at 436.

      A. Whether or not the suppressed evidence was favorable to
      Crawford

      There      is   no   dispute   that      the   prosecution    did   suppress

evidence.        It remains, however, for Crawford to show that the

evidence was (a) favorable to his defense, and (b) material.                  Both

the state court and the district court readily concluded that much

of the suppressed evidence would have been favorable to Crawford’s

defense, and we agree.           There are four separate documents that

contained exculpatory or impeachment evidence.                 These include: (1)

a   supplemental       police    report;       (2)   Shirley    Davis’s   pretrial

statement; (3) Elijah Mitchell’s pretrial statement; and (4) the

911 log.      We summarize the relevant contents of those documents

here before turning to the question of materiality.

      1.   The Supplemental Police Report

      The supplemental report contained three favorable statements:

(1) When Shirley Davis initially called police, she stated that the

perpetrators were Larry Lindsey and George Ascort; (2) Davis also

                                           6
told police “she would come forward and give a statement only if

she could be relocated from the Fisher Housing Project,” because

the perpetrators had threatened to kill her; and (3) On the morning

after the shooting, an anonymous caller told Graffeo that the

second shooter’s name was possibly George Jefferson, and that he

lived on the 200 block of LeBoeuf Court in the Fisher Project.        The

first of these statements would have conflicted with Davis’s trial

testimony that she did not know George’s last name at the time of

the shooting or when she first spoke to police.              The second

suggests bias, and thus fabrication.             The third presents the

possibility of a different shooter altogether.

     2. Shirley Davis’s Pretrial Statement

     At least two portions of Davis’s pretrial statement were

favorable to Crawford.     First, Davis said she knew George’s name to

be George Caldwell, which is inconsistent with both her trial

testimony   and   her   first   statement   to   Graffeo.   Second,   her

description of the shooters’ clothing was different from what it

was at trial.     In her statement she told police that Lindsey was

wearing a dark colored shirt, while George was wearing a purple and

white long-sleeve shirt with a hood, but at trial the descriptions

were effectively switched.      There were other minor inconsistences,

or possible inconsistencies, as well.1


     1
      For instance, in the pretrial statement Davis states that
“you couldn’t really tell [the perpetrators] had guns on them when
they first got out of the car,” but at trial she said that the

                                    7
     3.   Elijah Mitchell’s Pretrial Statement

     Two excerpts of Mitchell’s pretrial statement are at least

somewhat favorable to Crawford.         First, the statement reveals that

Mitchell did not know George’s last name at the time of the

shooting, which is plainly inconsistent with his trial testimony.

Second, his statement that Lindsey used a 9 mm gun, while George

used a “small caliber gun” might have been used to impeach Mitchell

because evidence revealed the guns were actually the same type.

     4.   The 911 Log

     Two portions of the 911 log were favorable to Crawford.

First, one caller described a perpetrator as wearing a “multi-

striped hooded shirt.”         Another stated that the two wore “a

multicolor shirt and green pants” and “a colorful shirt and black

jeans,”   respectively.        This     evidence   is     inconsistent     with

Mitchell’s testimony that the second shooter wore a light colored

shirt and tan pants.       Second, the one caller said the shooters ran

after the shooting, which is inconsistent with Davis’s testimony

that the shooters walked away from the scene.

     B.   Whether the favorable evidence was material

     Having reviewed the favorable evidence, we must now consider

whether   the   evidence    satisfies     the   Supreme   Court’s   test   for


shooters did have guns in their hands when they got out of the car.
Also, there is also a possible inconsistency in Davis’s pretrial
statement that she went up to the car and observed the victims
after the shooting was over, and her testimony at trial that she
went immediately inside.

                                      8
materiality.       It is clear to us that none of this evidence,

standing alone, would have been sufficient to undermine confidence

in the jury’s verdict.       However, as has already been stated, we

must consider the materiality of the evidence cumulatively, in

light of the record as a whole.           Kyles, 514 U.S. at 436–37.

     1.    The Impeachment of Elijah Mitchell

     The   state    court   readily   found   the   impeachment   evidence

immaterial as to Mitchell.        Mitchell’s statement that he knew

Crawford’s last name at the time of the crime was inconsequential

in light of his testimony that he had known Crawford for over a

month, and his ability to identify him in an untainted photo array.

Similarly, Mitchell’s statement about the size of the guns was

immaterial because the jury knew there was an inconsistency between

his account of the guns and Davis’s account of the guns.           Mitchell

testified at trial that Crawford had a small gun and Lindsey did

not, while Davis testified that both guns were “big.”             Any other

inconsistencies between the testimony of Mitchell and Davis, or

between Mitchell’s testimony and the physical evidence, were aired

at trial and thus fully presented to the jury.         We cannot say that

the state court’s conclusions were objectively unreasonable.

     2.    The Impeachment of Davis

     Crawford argues that Davis’s real motivation for testifying

was to obtain new housing, and notes that she changed George’s last

name several times over the course of the investigation. The state


                                      9
court considered these arguments at length but ultimately found

them unavailing.         First, the court found that any evidence of bias

would have done Crawford more harm than good because it would have

opened the door to evidence that Davis had been threatened by the

assailants.2         Furthermore, the court noted that Davis subsequently

declined       the    offer    of   new   housing   long     before   trial,   but

nonetheless proceeded to testify against Crawford as planned, which

seriously undercuts its value as impeachment evidence.                 For those

two reasons, then, the state court found that the suppressed

evidence of bias was immaterial, and we cannot say that this

conclusion was objectively unreasonable.

     As to the many inconsistencies in Davis’s various statements

over time, including and especially the changes in George’s last

name,    the    state     court     concluded   that   any    inconsistency    was

illusory.       The jury did not know that Davis gave two incorrect

names, but it did hear that Davis did not know George’s last name

at the time of the shooting.              According to the state court, the

difference between the two, if any, is minor, and means very little

in light of the fact that she successfully identified Crawford in

the photo array.              Again, whether or not we agree with that

conclusion, we surely cannot say it is objectively unreasonable.

The same holds true for the other minor inconsistencies in Davis’s

     2
      In fact, the trial court granted Lindsey’s motion to preclude
any mention of threats on that very basis, and specified that if
the defense mentioned the housing switch to show bias, that would
open the door to evidence of threats.

                                          10
testimony, such as her transposed descriptions of the perpetrators’

clothing,   or   the   differing   versions   in   the   911   log.   These

inconsistencies do not affect Davis’s credibility so much as to

undermine confidence in the verdict.

     3. George Jefferson

     Crawford claims that the anonymous tipster’s identification of

a “George Jefferson” would have allowed the defense to point the

finger at another suspect, and to illustrate that the police

investigation was sloppy and unreliable.       Graffeo did follow up on

the lead, but found no “concrete information.”           848 So.2d at 630.

A “George Jefferson” did in fact live in or near the housing

projects where the shooting occurred, but that name did not surface

again after the very early stages of the investigation.           The state

appellate court found this omission immaterial because the jury

“was aware that the police had the names of several Georges,” id.

at 631, particularly early on in the investigation, and while Davis

and Mitchell were unsure of the last name, they both positively

identified Crawford, whom they had known for some time.                This

conclusion was not objectively unreasonable.3

     4.   Cumulative Impact



     3
      Crawford makes an additional argument in his brief that he
might have been able to impeach Graffeo if he had had access to the
Supplemental Report and Davis’s pretrial interview. In so doing,
however, Crawford     misreads  Graffeo’s   testimony   to   create
inconsistencies where there are none.      We find this argument
unpersuasive and unsupported by the record.

                                    11
     Finally, Crawford suggests that the state court did not

evaluate the evidence cumulatively.                He relies largely on the fact

that the court did not specifically quote the relevant language

from Kyles on the question of cumulative impact.                       514 U.S. at

436–37. We are not persuaded.            The state appellate court cited the

relevant excerpts from Brady and quoted at length from Kyles and

other cumulative review cases.            Though the court did not cite the

precise language we have to signal its cumulative review, it is

plain to us that the inquiry was conducted properly.                      In the end,

the accounts of Davis and Mitchell were largely in line with one

another    and,     of   course,       both    knew    Crawford     personally    and

identified him in untainted photo arrays.                    Taken as a whole, the

evidence does not support Crawford’s contention that the state

court     was    objectively      unreasonable        in     concluding    that   the

suppressed evidence was immaterial.

                                  V.    CONCLUSION

     There is no doubt that the state failed to turn over to

Crawford        favorable    evidence         to     which     he   was    entitled.

Nevertheless, the state court thoroughly considered whether the

suppressed      evidence    was    material        according   to   the   guidelines

provided by the Supreme Court.                For the reasons stated above, we

cannot say that the state court’s conclusions were objectively

unreasonable, and we therefore AFFIRM the district court’s denial

of the petition.



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