     Case: 15-30768      Document: 00514039092         Page: 1    Date Filed: 06/19/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                          United States Court of Appeals
                                                                                   Fifth Circuit
                                      No. 15-30768                               FILED
                                                                             June 19, 2017

DOUGLAS BARNES,
                                                                            Lyle W. Cayce
                                                                                 Clerk

              Petitioner - Appellant

v.

DARREL VANNOY, WARDEN, LOUISIANA STATE PENITENTIARY,

              Respondent - Appellee



                   Appeal from the United States District Court
                       for the Middle District of Louisiana
                             USDC No. 3:07-CV-274


Before PRADO, HIGGINSON, and COSTA, Circuit Judges.
GREGG COSTA, Circuit Judge:*
       A Louisiana jury found Douglas Barnes guilty of murdering Lance
Aydell. Barnes sought postconviction review in state court, contending that
prosecutors did not disclose a witness’s inconsistent pretrial statement in
violation of Brady v. Maryland, 373 U.S. 83 (1963). After the state court
rejected that claim, he raised it in his federal petition for a writ of habeas
corpus. Before the district court ruled, Barnes added an additional Brady
claim based on the State’s failure to disclose a supposed benefit offered to a


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                  No. 15-30768

different witness for testifying at Barnes’s trial. The district court held the
federal petition in abeyance while Barnes sought to exhaust his new claim in
state court, where it was denied on procedural grounds. We must decide
whether the new claim can be heard and whether the state court’s decision on
Barnes’s original claim was contrary to clearly established law under the
Antiterrorism and Effective Death Penalty Act (AEDPA), 28 U.S.C.
§ 2254(d)(1).
                                        I.
      Aydell’s murder was the result of a brawl between a group of young men.
After the initial melee subsided, the group disbanded. But Barnes, along with
Jake Ortega and David Brewer, returned after discovering that someone had
slashed their car’s tires. Aydell was still at the park with two others, as he had
been dizzied from the fight and needed help walking. The boys helping Aydell
later testified that at least two of the returning boys proceeded to beat Aydell,
who had fallen to the ground. Aydell later died of his injuries, and Barnes,
Brewer, and Ortega were convicted for his death.
      Barnes’s original federal claim, which was rejected on the merits during
state postconviction review, centered on newly discovered evidence that
impeached the testimony given by Alan Hill. Hill testified that Barnes fought
with Aydell during the melee, and that Barnes prevented Hill from assisting
Aydell. After Barnes’s conviction was final, however, he learned that the
State’s production of its pretrial conversation with Hill was incomplete. The
State failed to disclose a synopsis of Hill’s statement to investigating officers,
as well as a recording of that statement.              Barnes identified three
inconsistencies between the newly-revealed statement and Hill’s trial
testimony: 1) Hill referred to Brewer specifically in the pretrial statement, but
at trial he said that he did not know his name; 2) Hill identified Barnes, Ortega,


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and Brewer as Aydell’s attackers in his interview, but at trial he only
mentioned Barnes and Ortega; and 3) Hill stated pretrial that as he left the
park Brewer struck him through his driver side window while Ortega tried to
hit him through the passenger side, but at trial he reversed their locations.
Barnes claims that these contradictory statements could have been used to
impeach Hill at trial and thus the nondisclosure violates Brady as
supplemented by Giglio v. United States, 405 U.S. 150 (1972). He also asserts
that the nondisclosure prevented him from properly questioning Hill under the
Confrontation Clause.
      Barnes’s original federal claim was sent to the magistrate judge, who
recommended that the claim be denied. Before the district court adopted or
rejected that recommendation, Barnes discovered new information about
another witness. Joseph Cosimini, one of the participants at the park, testified
at trial that he saw two people kicking Aydell after the larger group disbanded,
but he could only identify Ortega and could not tell whether Brewer or Barnes
was the other attacker. Cosimini also testified that his testimony was not the
result of a plea agreement he reached on an unrelated robbery charge.
Cosimini now says, in an affidavit, that he was approached by one of Barnes’s
prosecutors after he had agreed to testify but before he took the stand.
Cosimini alleges that the lawyer thanked him for his cooperation and said that
she could see to it that he got a lighter sentence on the robbery charge.
      Cosimini also recants his trial testimony, now saying he is certain that
Barnes did not attack Aydell at any point during the night in question. Barnes
does not allege that the prosecutor told Cosimini to change his testimony to
implicate Barnes, and thus the recantation itself is not part of Barnes’s Brady
claim. Similar to his claims regarding the Hill evidence, Barnes asserts that




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the State’s failure to disclose the conversation is a Brady/Giglio violation,
which also prevented Barnes from fully exercising his confrontation right.
      Barnes moved to supplement his Hill claim with the Cosimini affidavit
in March 2009.        Though Barnes styles these Cosimini-based claims as
supplements to his original petition, he admits that they are actually new
claims. About a month after filing the motion to supplement, Barnes filed a
motion to hold the petition in abeyance so that he could present the Cosimini
affidavit to the state court. The district court granted the stay and placed the
federal petition in abeyance.     Barnes did not, however, file a protective
amended petition prior to obtaining the stay, which would have preserved the
filing date while he sought exhaustion in state court. Rhines v. Weber, 544 U.S.
269, 275–78 (2005).
      Back in state court, the State objected to Barnes’s second petition on the
grounds that it was untimely, repetitive, and failed to state a claim upon which
relief could be granted. The Commissioner recommended that the state trial
court consider the petition on its merits, concluding that Louisiana law allowed
for successive petitions outside of the time period when the new claims were
based on new evidence that could not have been discovered within the
limitations period. See LA. CODE CRIM. PROC. arts. 930.8(A)(1). The trial court,
without   providing     any   reasons   for   its   disagreement,    rejected   this
recommendation and held that Barnes’s allegations were untimely and
successive. Both the intermediate appellate court and state supreme court
denied review.
      Back in federal court after an almost five-year delay, Barnes moved to
lift the stay and filed his amended petition containing the claim about the
Cosimini evidence.     The State argued that the claim was untimely under
AEDPA’s statute of limitations and that, in any event, it was defaulted because


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the state court had refused to consider it on procedural grounds.                          The
magistrate judge concluded that the supplemental petition was untimely
because the stay order did not toll the limitations period, that Barnes was not
entitled to equitable tolling, and that the new claims did not relate back to the
original petition. The opinion did not address procedural default. Over Barnes
objection, the district court found the magistrate’s recommendation to be
“legally correct” and denied relief on the original and supplemental petitions.
The district court did, however, grant a certificate of appealability.
                                              II.
       We begin with Barnes’s “supplemental” petition based on the Cosimini
affidavit. Although the district court ruled that these new claims were time
barred, we have doubts about whether the district court was correct that tolling
was not warranted as the State had full notice of the Cosimini claims before
the AEDPA limitations period had run. We need not address that issue,
however, because the procedural default rule provides an alternative basis for
affirming. 1
       Federal habeas review generally is barred when a petitioner’s claim is
rejected in state court on a legitimate procedural ground.                       Coleman v.
Thompson, 501 U.S. 722, 750 (1991). A procedural default will be given effect
during federal habeas review when it was based on an independent and
adequate state rule. The independence requirement is met when the state



       1 Although the magistrate’s report did not address whether Barnes’s new claims were
barred by the procedural default rule, the State raised the issue in its opposition to Barnes’s
motion to supplement the record. The State also raised the issue in opposition to Barnes’s
objections to the report, though the district court did not address it in its order adopting the
magistrate’s recommendation. “It is an elementary proposition, and the supporting cases too
numerous to cite, that this court may affirm the district court’s judgment on any grounds
supported by the record.” Sobranes Recovery Pool I, LLC v. Todd & Hughes Constr. Corp.,
509 F.3d 216, 221 (5th Cir. 2007) (quoting Sojourner T v. Edwards, 974 F.3d 27, 30 (5th Cir.
1992)).

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court clearly expresses that the judgment rests on a state procedural bar.
Glover v. Cain, 128 F.3d 900, 902 (5th Cir. 1997). The adequacy requirement
is met when the state rule is one that “is applied evenhandedly to the vast
majority of similar claims.” Id.
      Our ability to assess the adequacy of the procedural dismissal is
undermined by the Louisiana court’s failure to provide any analysis for its
disagreement with the Commissioner’s conclusion that the new-evidence
exception allowed Barnes’s otherwise untimely and successive petition to be
considered. See LA. CODE CRIM. PROC. art. 930.8(A)(1). But Barnes does not
challenge the state trial court’s application of procedural law. See Sones, 61
F.3d at 416 (noting that petitioner bears the burden of showing that a state
procedural rule is inadequate). In any event, as we explain below, Barnes does
not succeed in proving the materiality of his Brady claim even if it is not
procedurally defaulted.
      A procedurally defaulted claim may be overcome when the petitioner
shows a good reason for not complying with the state procedural rule (cause)
and that the failure to bring the claim in state court harmed him (prejudice).
Coleman, 501 U.S. at 750. For claims alleging a failure to disclose exculpatory
or impeachment evidence, cause and prejudice parallel the suppression and
materiality components of the alleged Brady violation. Strickler v. Greene, 527
U.S. 263, 280 (1999). This means that, in examining whether Barnes can
escape the procedural default rule, we must examine the underlying merits of
the Brady claim.
      Barnes alleges that the State’s failure to disclose the prosecutor’s
conversation with Cosimini about leniency is the reason he did not timely
assert this Brady claim in state court. Showing interference by officials that
made compliance with procedural rules impracticable is one accepted way of


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showing cause.    Murray v. Carrier, 477 U.S. 478, 488 (1986).       But even
assuming that Barnes can show cause, he cannot show that the suppression of
the Cosimini conversation prejudiced him.
      Potential Brady evidence is prejudicial if it is material. Strickler, 527
U.S. at 282. In turn, evidence is material if it “could reasonably be taken to
put the whole case in such a different light as to undermine confidence in the
verdict.” United States v. Hughes, 230 F.3d 815, 819 (5th Cir. 2000) (quoting
Kyles v. Whitley, 514 U.S. 419, 435 (1995)). Impeachment evidence is usually
not material if testimony of the witness who could have been impeached was
strongly corroborated by other evidence. United States v. Sipe, 388 F.3d 471,
478 (5th Cir. 2004).
      At trial, Cosimini testified that he saw either Brewer or Barnes kicking
Aydell, but he could not be sure which one was the attacker. Barnes argues
that had he been aware that Cosimini had the incentive of obtaining leniency
on his robbery charge when he testified, impeachment on that point could have
undermined the statement that Barnes may have been one of Aydell’s
attackers.
      It could also have undermined Cosimini’s general credibility as he had
testified there was no connection between his testimony and his treatment for
the second robbery charge he faced. We do not believe this impeachment
evidence would have been powerful enough to undermine confidence in the
verdict. Cosimini’s testimony was not that harmful given that he could not
isolate Barnes as the one kicking Aydell. The weakness of that testimony is
revealed by comparing it to that of other witnesses, whose cumulative impact
strongly implicated Barnes as one of Aydell’s attackers. Chad Babineaux’s
testimony is the most damning. He confirmed at trial that he was “absolutely
sure that Doug Barnes [was] one of the three individuals that [he] saw kicking


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[Aydell] after [Aydell] was down and unconscious” during the fight. Brad
Fontenot also saw Barnes “stomp and kick” Aydell while he was on the ground.
Heather Verdin testified that Barnes was “pretty much tearing into” Aydell.
All told, seven witnesses confirmed that they saw Barnes either hit or kick
Aydell the night of the fight, with multiple witnesses stating that Barnes beat
Aydell while he was on the ground. 2 (Mary Justilian); (Andrew Lopez); (Chad
Babineaux); (Brad Fontenot); (Adam Reed); (Heather Verdin); (Alan Hill).
Even discounting Alan Hill’s testimony—the subject of another Brady claim—
there was substantial evidence supporting the jury’s conclusion that Barnes
was one of Aydell’s attackers. Compare Hughes, 230 F.3d at 821 (finding
undisclosed evidence immaterial under Brady when other evidence pointed to
petitioner’s guilt), with LaCaze v. Warden La. Corr. Inst. for Women, 645 F.3d
728, 737 (5th Cir. 2011) (finding materiality when the witness to be impeached
was the only direct evidence to show a critical element), and Tassin v. Cain,
517 F.3d 770, 780 (5th Cir. 2008) (same).
      Not only was there cumulative testimony from other witnesses
implicating Barnes, but Cosimini had already been impeached for changing his
testimony. On cross examination, Barnes raised Cosimini’s testimony from an
earlier hearing identifying Brewer as the person kicking Aydell. The following
exchange occurred:
            Q. (Barnes’s Counsel): Now, just to make sure we’ve
            got the scene straight, you came into court, you took
            an oath to tell the truth, right?




      2 These witnesses were Mary Justilian, Andrew Lopez, Chad Babineaux, Brad
Fontenot, Adam Reed, Heather Verdin, and Alan Hill.

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           A. (Cosimini): Yes, sir.
                                      ...
           Q. And what did you testify that Douglas Barnes did
           in this incident? What did you say at that time when
           you were under oath?

           A. I testified that he stood there wh . . . and [Brewer]
           was the one kicked him.
                                      ...
           Q. Now, let me ask you the exact same question that
           [the State] asked you [at the earlier proceeding], when
           you were under oath. Mr. Cosimini, you personally did
           not see Doug Barnes hit or kick Lance Aydell, did you?

           A. No, sir.

           Q. You did not.

           A. No, sir.

           Q. And that’s your story today?

           A. Well, I mean, I’m not sure if it was [Barnes] or
           [Brewer] that had kicked him . . .

           Q. Now, Mr. Cosimini, do you agree that what you just
           said is different than what you said to [the State] when
           you were under oath [at the earlier proceeding]?

           A. Yes, sir.

     Barnes was thus able to show at trial that Cosimini’s identification of
either Barnes or Brewer as the attacker backtracked from his earlier focus on
Brewer. The undisclosed evidence about possible leniency for Cosimini in
response to his testimony would have provided a possible motive for this
inconsistency. So we do not discount that the information had some additional
impeachment value. But the inconsistency identified at trial was already


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powerful, so it is difficult for Barnes to show that the marginal force of the
undisclosed Giglio material “could reasonably be taken to put the whole case
in such a different light as to undermine confidence in the verdict.” Hughes,
230 F.3d at 819 (quoting Kyles v. Whitley, 514 U.S. 419, 435 (1995)).
      Perhaps most significantly, the quoted trial transcript also shows that
Cosimini’s testimony was not key in the case against Barnes. Unlike many
other witnesses, he did not testify unequivocally that he had seen Barnes
attack Aydell.    Cosimini’s equivocation also weakens the force of any
impeachment on the grounds that he might have been shading his testimony
to obtain leniency in his robbery case. If Cosimini was trying to help himself
by implicating Barnes, he didn’t do a very good job of it.
      Combine the weakness of Cosimini’s already-impeached testimony with
the more damaging testimony of numerous other witnesses, and Barnes cannot
show the prejudice needed to overcome his procedural default. See Glover v.
Cain, 128 F.3d 900, 902 (5th Cir. 1997). As we have explained, this also means
the claim would not be a basis for habeas relief even if it did not face this
procedural impediment.
                                      III.
      Barnes also appeals the district court’s dismissal of his Brady claim
concerning the Alan Hill testimony. This claim was exhausted and rejected in
state court. Habeas cannot be granted on an exhausted state claim unless the
state court’s decision was “contrary to, or involved an unreasonable application
of, clearly established Federal law, as determined by the Supreme Court of the
United States,” 28 U.S.C. § 2254(d)(1), or “was based on an unreasonable
determination of the facts in light of the evidence presented in the State court
proceeding,” id. § 2254(d)(2). An “unreasonable application” of law is more




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than an incorrect application; the incorrect application must also be objectively
unreasonable. See Williams v. Taylor, 529 U.S. 263, 409–11 (2000).
      Hill testified that Barnes fought with Aydell during the melee, and that
Barnes prevented Hill from assisting Aydell. As outlined above, Hill’s trial
testimony about the incident differed in some respects from what he said in his
recorded pretrial statement that was not disclosed to Barnes. Barnes claims
that these inconsistent statements could have been used to impeach Hill at
trial. See Giglio, 405 U.S. at 154 (explaining that evidence favorable to the
accused under Brady includes evidence that impeaches the credibility of a
witness whose testimony is determinative of guilt or innocence).
      Assuming that Barnes is correct in characterizing the undisclosed
evidence as inconsistent with Hill’s testimony, his Brady claim falls victim to
one of the deficiencies of the Cosimini claim: several other witnesses testified
that Barnes was one of Aydell’s attackers. See Sipe, 388 F.3d at 478. This
presents an even greater hurdle for the Hill-based Brady claim as the
materiality inquiry for this exhausted claim is evaluated under the deferential
AEDPA standard. And although there may be inconsistencies between what
Hill told investigators and what he said at trial, Hill was consistent in
implicating Barnes in Aydell’s attack.       Most of the discrepancies make
Brewer—who had already been convicted by the time of Barnes’s and Ortega’s
trial—less culpable in the trial testimony compared to what was said in the
pretrial interview. We recognize that even if the inconsistencies do not focus
on Barnes’s role, they may still cast doubt on the witness’s general credibility
or the strength of his recollection. But in light of the other evidence and Hill’s
consistent identification of Barnes as an attacker, we cannot say that the state
court’s ruling that the undisclosed evidence was not material was an
unreasonable application of Brady.


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       Barnes also raises a Confrontation Clause claim regarding the Hill
evidence, but the failure of his Brady claim spells defeat for this claim as well.
The Confrontation Clause is a trial right designed to ensure the opportunity
for effective cross examination, not a “constitutionally compelled rule of
pretrial discovery.” Pennsylvania v. Ritchie, 480 U.S. 39, 53 (1987). Barnes
does not allege that the trial judge limited, in any way, his ability to question
Hill. It seems misplaced then for Barnes to bring a Confrontation Clause claim
founded in an allegation of undisclosed evidence. See United States v. Stewart,
93 F.3d 189, 192 n.1 (5th Cir. 1996) (“We recognize that the right to cross-
examine is a trial right designed to prevent improper restrictions on the types
of questions that defense counsel may ask during cross-examination.”). 3
       In any event, to warrant habeas relief on a Confrontation Clause claim,
Barnes must show that the limitation on the scope of his examination “had a
substantial . . . effect . . . in determining the jury’s verdict.” Burbank v. Cain,
535 F.3d 350, 358 (5th Cir. 2008). Because of the same corroborating evidence
from several witnesses we cited in concluding that Hill could not establish
materiality for his Brady claim, Barnes cannot meet this prejudice standard
for a confrontation claim even if one does fit these allegations.                  Contrast
Wilkerson v. Cain, 233 F.3d 886, 892 (5th Cir. 2000) (finding Confrontation
Clause violation when the testimony of the witness to be impeached was the
only evidence that petitioner committed the murder); Burbank, 535 F.3d at
358–59 (finding the same).



       3  It is not clear that Barnes sufficiently exhausted this claim in his state habeas
proceeding. Although Barnes did assert that the undisclosed Hill statement “denied him the
right to cross-examination,” he did not flesh out how the nondisclosure violated his rights
under the Confrontation Clause, nor did he invoke the Confrontation Clause by name.
Accordingly, the State Commissioner did not address any potential claims under the
Confrontation Clause in his recommendation to deny Barnes’s state habeas claims. But even
if he did exhaust the Confrontation Clause claim, the claim fails for the reasons given above.

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                                ***
    The judgment of the district court denying Barnes’s petition is
AFFIRMED.




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