                 United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 16-2887
                         ___________________________

                                  Juane T. Kennell

                       lllllllllllllllllllllPetitioner - Appellant

                                           v.

                                    Dave Dormire

                       lllllllllllllllllllllRespondent - Appellee
                                       ____________

                    Appeal from United States District Court
                  for the Eastern District of Missouri - St. Louis
                                  ____________

                          Submitted: September 20, 2017
                             Filed: October 17, 2017
                                 ____________

Before LOKEN, ARNOLD, and SHEPHERD, Circuit Judges.
                           ____________

ARNOLD, Circuit Judge.

       Some years ago, three men armed with guns stopped near the house of one
Freddie Chew where Chew, Jeffrey Shockley, and Robert Stewart were gathered. A
shootout erupted, resulting in Chew's death. Shockley and Stewart escaped and later
identified Juane Kennell and Christopher White as two of the three attackers. Kennell
and White were tried separately in Missouri state court on charges of first-degree
murder, first-degree assault, and armed criminal action, and both were convicted,
thanks in large part, probably, to testimony from Shockley and Stewart. After the
Missouri state courts upheld their convictions on direct and collateral review, Kennell
and White separately petitioned for habeas corpus relief in federal court under 28
U.S.C. § 2254. They each asserted, as relevant here, that the prosecution did not
disclose material exculpatory evidence, in violation of Brady v. Maryland, 373 U.S.
83 (1963). The district court,1 following a joint evidentiary hearing, denied both
petitions. Kennell now appeals the denial of his § 2254 petition and a motion to
reconsider the same, and we affirm.

       When reviewing a district court's denial of a § 2254 petition, we review the
district court's findings of fact for clear error and its conclusions of law de novo.
White v. Steele, 853 F.3d 486, 489 (8th Cir. 2017). There are three components to a
Brady violation: the evidence at issue must be favorable to the accused, either
because it is exculpatory or has impeachment value; the state must have suppressed
the evidence, either willfully or inadvertently; and prejudice must have resulted.
Strickler v. Greene, 527 U.S. 263, 281–82 (1999). Prejudice results if the suppressed
evidence is material, which for Brady purposes occurs "when there is a reasonable
probability that, had the evidence been disclosed, the result of the proceeding would
have been different," or in other words, when the evidence "undermines confidence
in the outcome of the trial." Turner v. United States, 137 S. Ct. 1885, 1893 (2017).

      Kennell first argues that the state violated Brady when it withheld evidence of
an agreement between the state and Shockley requiring Shockley to testify against
Kennell and White in exchange for leniency on pending drug and weapons charges
that Shockley was facing. As evidence of this agreement, Kennell produced an
internal public-defender form supposedly drafted by Kennell's first counsel, who


      1
       The Honorable Audrey G. Fleissig, United States District Judge for the
Eastern District of Missouri.

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noted that he had learned that Shockley's counsel had "negotiated a deal for Jeff
Shockley to testify against [Kennell] . . . as well as possibly another defendant,
Christopher White." Kennell also relies on notes drafted by Shockley's counsel
regarding a meeting that he had with the prosecutor that stated that the prosecutor had
hinted at a "nolle," or dismissal, of charges. He also called the district court's attention
to unsigned plea agreements or offers.

       Kennell does not contend that Shockley and the state entered into a written
agreement, and the district court found there was no oral agreement, either, tacit or
otherwise. The district court credited the testimony of Kennell's first counsel and
Shockley's counsel that the notation in the conflict form was simply incorrect,
perhaps an erroneous conclusion based on negotiations to reach a deal that was never
concluded. Shockley's counsel also represented to the sentencing court in Shockley's
case that there existed no quid pro quo or secret deal for Shockley's testimony against
Kennell and White; in fact, neither he nor Shockley mentioned any agreement at
Shockley's sentencing. Shockley and the prosecutor in his case, moreover, testified
that there was no agreement, and the district court explicitly found them both credible
on that point. Both Shockley's attorney and the prosecutor also testified that Shockley
would have likely received probation in any case as a matter of course in light of his
youth and unremarkable criminal history. In addition, the state never dismissed the
charges after Shockley testified against Kennell and White; and the state ultimately
recommended that Shockley's sentence be essentially consistent with the sentence that
it had proposed in its first plea offer to Shockley, which did not require his testimony
against anyone. Finally, the court credited Shockley's and his attorney's testimony that
they merely hoped that Shockley's cooperation would positively influence his
sentence. On this abundant record, we cannot say that the district court clearly erred
in finding that there was no agreement that the government could have failed to
disclose. Cf. White, 853 F.3d at 491.




                                            -3-
       Kennell's second Brady argument is that the state should have disclosed that
it had paid Shockley around two thousand dollars to put him up in a hotel for about
a week and then to move him and his mother into a different apartment. The state
made these relocation payments because Shockley represented that he felt in danger
because of his connection to the crimes at issue. We agree with the district court and
the White panel that, assuming this was Brady information that the state should have
disclosed, its nondisclosure does not undermine confidence in the verdict. See id. at
491–92. The state made these payments more than a year before Kennell's trial, and
nothing shows that they were made to encourage Shockley to change his testimony.
Cf. United States v. Librach, 520 F.2d 550, 554 (8th Cir. 1975). And as the district
court pointed out, the jury's consideration of this information could have harmed
Kennell by inviting testimony or speculation that Shockley had been threatened.

       Kennell next maintains that the state should have disclosed that Shockley had
agreed to testify against his own brother in an unrelated case because it showed
Shockley's willingness to testify against others to advance his personal interests. But
as the district court found, on a sufficient record, there is no indication that Shockley
was willing to testify against his brother to receive a benefit from the state. We
therefore cannot say that the district court clearly erred in finding that no agreement
with the state existed, so we discern no Brady violation here.

       The next set of circumstances on which Kennell stakes his Brady claim
involves the gun that Shockley used during the shootout. Shockley testified at
Kennell's trial that he disposed of the gun on the day of the shootout and never
retrieved it. In fact, though, about ten days after the shootout, police found the gun
in a car that Shockley, then seventeen, was driving. Shockley and Stewart, who was
also in the car, were charged with minor drug offenses as a result, while another
passenger was charged with possessing the gun. Kennell argues that the state
suppressed information relating to the recovery of Shockley's gun by the police, and,
had he known about this information at trial, he could have impeached Shockley with

                                          -4-
it. He also maintains that the state should have corrected Shockley's false testimony,
and, since it did not, his conviction rested on fabricated evidence. The district court,
after intimating that Kennell might have procedurally defaulted any claims involving
Shockley's disposition of the gun by not raising them in his state proceedings, found
against Kennell on the merits. We do not consider the merits because, even assuming
that the certificate of appealability reaches claims of fabricated evidence, which is far
from clear in this case, we are convinced that Kennell defaulted any claims that he
may have had involving Shockley's testimony about the gun.

       Though petitioners seeking habeas relief must fairly present the substance of
their claims to the state court to avoid defaulting them, Wemark v. Iowa, 322 F.3d
1018, 1020–21 (8th Cir. 2003), a showing of cause and prejudice can excuse a
procedural default and open the door to our review. Wooten v. Norris, 578 F.3d 767,
777 (8th Cir. 2009). Cause typically turns on whether some objective circumstance
external to the defense impeded counsel from raising the claim. See Cagle v. Norris,
474 F.3d 1090, 1099 (8th Cir. 2007).

      Kennell argues that cause exists here because he did not learn of the
circumstances surrounding the recovery of the gun until his state proceedings had
concluded. Although the district court stopped short of holding that Kennell
procedurally defaulted his claims regarding the gun, it explicitly found, after a careful
review of the record, that the state did not fail to disclose Shockley's arrest stemming
from the car incident or the fact that the gun seized from the car incident had been
used at the scene of the shootout. The district court based its finding on Kennell's
admission in his state post-conviction proceedings that he had received in discovery
a report documenting the arrest in which this type of gun was recovered, and on the
prosecutor's credible testimony that he would have given the same discovery
materials to Kennell as he did to White, and White's counsel had been advised of the
incident. And after having the opportunity to observe Kennell's demeanor, the court
found that Kennell was not credible when he said that he did not know about

                                          -5-
Shockley's arrest or the seizure of the gun until after his state proceedings had ended.
The court also found it telling that Kennell did not offer any affidavits or testimony
by either of his trial counsel suggesting that the state had not provided this
information. Kennell fails to convince us that the district court clearly erred in making
these findings, especially when considering that findings based on witness credibility
are virtually unassailable on appeal. United States v. Wolff, 830 F.3d 755, 759 (8th
Cir. 2016). These findings make it clear that Kennell had the opportunity to raise his
claims regarding Shockley's disposition of the gun in state court but failed, without
cause, to do so. We therefore decline to address these claims further.

       Kennell's final Brady argument is that the state suppressed evidence of
agreements it had with Shockley and Stewart that they would testify against Kennell
in exchange for leniency on the drug charges stemming from the stop of the car ten
days after the shootout. The district court found, after reviewing the record and
observing the demeanor of the witnesses, that no such agreements existed. The
district court reviewed certain files in camera and determined that, within just a few
days of the arrests, the state declined to prosecute Shockley because of a lack of
"sufficient value" and Stewart because of an "insufficient connection." The district
court concluded that Kennell had provided no evidence suggesting that the state's
decision not to prosecute teenagers with insignificant criminal histories for possessing
a small amount of drugs was unusual. We see no clear error with that conclusion,
especially when we consider that the charges were dropped more than a year before
Shockley or Stewart testified against Kennell at trial. Because Kennell has failed to
show that the district court clearly erred in finding that no agreement existed, the state
did not suppress any information in violation of Brady.

      We also reject Kennell's argument that the district court failed to consider the
cumulative effect of the suppression of Brady materials. Not only does this argument
contradict the district court's express statements to the contrary, but there was only
one arguable instance of the suppression of Brady material (the relocation payments),

                                           -6-
and since the alleged suppression of that information does not undermine confidence
in the verdict, Kennell's Brady claims necessarily fail.

      Affirmed.
                      ______________________________




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