                                    NOT FOR PUBLICATION
                                     File Name: 08a0146n.06
                                      Filed: March 14, 2008

                                            NO. 05-5661

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT


ROGER DALE LEWIS,

               Petitioner-Appellant,
                                                       ON APPEAL FROM THE
v.                                                     UNITED STATES DISTRICT
                                                       COURT FOR THE MIDDLE
STATE OF TENNESSEE,                                    DISTRICT OF TENNESSEE

            Respondent-Appellee.
________________________________/

BEFORE:        SUHRHEINRICH, SUTTON, and GRIFFIN, Circuit Judges.

       SUHRHEINRICH, Circuit Judge. Roger Dale Lewis appeals from the order of the district

court granting the Respondent, State of Tennessee’s motion to dismiss his habeas petition. This

Court granted a certificate of appealability on two issues: (1) whether the State failed to turn over

material exculpatory evidence concerning its key witness, Ernest Bishop; and (2) whether the State

knowingly allowed Bishop to commit perjury without taking steps to correct the false testimony.

We AFFIRM.

                                           I. Background

       Lewis was convicted of arson in state court in 1993. The key witness at his trial was Ernest

Bishop, a so-called “jailhouse snitch.” Prior to trial, Petitioner’s trial counsel submitted a discovery

request for “any and all evidence in possession of the State or in possession of any governmental

agency that might be termed favorable,” including, but not limited to, evidence “to impeach the
credibility of any witness the government intends to call.” The request specifically cited Brady v.

Maryland, 373 U.S. 83 (1963). The motion also requested discovery regarding any agreement,

promise or understanding between the State and any of its witnesses, citing Giglio v. United States,

405 U.S. 150 (1972). The state prosecutor responded to the discovery motion, but he did not provide

a copy of Bishop’s National Crime Information Center (NCIC) report, which details charges dating

back to 1961, including attempted rape, breaking and entering, and theft, as well as the use of

numerous aliases.

       At trial Bishop was asked during cross examination if he had been convicted of any felony

in the last ten years. Bishop replied: “I don’t think so. I’m not sure.” Bishop acknowledged that

he was awaiting extradition to Texas on a sexual assault charge. Defense counsel also asked whether

he had ever worked for the police “before in the past, given them information that’s helped you out

in some of the sentencing, some of the things you don’t remember you did?” Bishop said that he had

not.

       Petitioner was convicted on five counts of aggravated arson, and sentenced to a term of thirty

years. The conviction and sentence were affirmed on direct appeal to the Tennessee Court of

Criminal Appeals. See State v. Lewis, No. 01C01-9494-CR-00135, 1995 WL 10510 (Tenn. Crim.

App. Jan. 12, 1995). On December 29, 1997, the Tennessee Supreme Court reversed four of

Petitioner’s aggravated arson convictions as barred by double jeopardy and remanded the case for

resentencing on the remaining conviction. State v. Lewis, 958 S.W.2d 736 (Tenn. 1997). On

remand, the trial court sentenced Petitioner to twenty-one years in prison. That sentence was

affirmed. See State v. Lewis, No. M1998-00543-CCA-R3CD, 1999 WL 1296005 (Tenn. Crim. App.

Dec. 30, 1999); State v. Lewis, 44 S.W.3d 501 (Tenn. 2001).


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       In post-conviction proceedings, Petitioner argued that he had been denied Brady material,

namely Bishop’s NCIC report and Bishop’s reputation as a “jailhouse snitch.” Petitioner also argued

that the State failed in its duty to correct Bishop’s perjured testimony concerning deals made with

the State in return for his testimony in Petitioner’s trial. The post-conviction court denied the

petition and the Tennessee Court of Criminal Appeals affirmed the post-conviction court’s

disposition. See State v. Lewis, No. M2002-02439-CCA-R3-PC, 2003 WL 22438526 (Tenn. Crim.

App. Oct. 28, 2003). Petitioner did not seek leave to appeal to the Tennessee Supreme Court.

       On March 2, 2004, Petitioner filed pro se this habeas action. On March 25, 2005, the district

court denied Petitioner’s habeas petition, but granted a partial certificate of appealability regarding

his Brady and prosecutorial misconduct claims. Petitioner filed a timely pro se notice of appeal,

and a pro se brief, whereafter this Court appointed counsel to file a supplemental brief.

                                            II. Analysis

       Petitioner’s appeal is governed by the Antiterrorism and Effective Death Penalty Act of 1996

(AEDPA). Under the AEDPA, a writ will not be granted unless the state adjudication on the merits

resulted in a decision that either (1) “was contrary to, or involved an unreasonable application of,

clearly established Federal law, as determined by the Supreme Court of the United States”; or (2)

“was based on an unreasonable determination of the facts in light of the evidence presented in the

State court proceeding.” 28 U.S.C. § 2254(d); Williams v. Taylor, 529 U.S. 362, 404-5 (2000).

However, if the state court did not rule on an issue, our review is de novo. Morales v. Mitchell, 507

F.3d 916, 929 (6th Cir. 2007).




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       The state courts’ factual findings are presumed correct unless proven to the contrary by clear

and convincing evidence. 28 U.S.C. § 2254(e)(1). We review the district court’s ultimate denial of

habeas relief de novo. Combs v. Coyle, 205 F.3d 269, 277 (6th Cir. 2000).

                                           A. Brady Claim

       Petitioner argues that the State suppressed material evidence regarding its key witness’

criminal record and reputation as a “jailhouse snitch” in violation of Brady, and that the state court’s

decision that the impeachment evidence was not material is an unreasonable application of clearly

established federal law.

       As noted, the Tennessee Court of Criminal Appeals held that Petitioner failed to establish

a Brady violation because the alleged impeachment evidence was not material, and did not decide

whether the evidence otherwise satisfied the Brady test. See Strickler v. Greene, 527 U.S. 263, 281-

82 (1999) (noting that to establish a Brady claim, a defendant must prove that the evidence was (1)

favorable to the accused, (2) suppressed by the state, and (3) material). Thus, in ascertaining whether

the State’s conduct met the other facets of the Brady test, our review is de novo. See Morales, 507

F.3d at 929.

       This Court’s recent decision in Bell v. Bell, 512 F.3d 223 (6th Cir. 2008) (en banc), answers

that question. There we held that the state’s failure to turn over the sentencing records of a

government witness was not a Brady violation because those records were publicly available and the

petitioner could have obtained them. Id. at 235. As was the case in Bell, Bishop’s testimony derived

from evidence he acquired while in prison with Petitioner, and Bishop further acknowledged on

cross-examination that he was subject to extradition to Texas. Petitioner therefore “easily could

have pursued any pending charges against [Bishop] and their disposition.” Id. Thus, because the


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factual basis for Petitioner’s claim was easily available from another source, the government was

under no duty to supply that information to Petitioner. See id. (and citations therein).

                                      B. Prosecutorial Misconduct

       Petitioner also claims that Bishop testified falsely and that the State failed to correct that

perjured testimony. Petitioner’s assertion is based on Bishop’s negative response to the question of

whether he had ever worked for the police in the past or received some consideration in sentencing.

       First, he contends that Bishop received a reduced sentence on a theft charge in return for his

testimony against him. On direct appeal Petitioner asserted a claim that Bishop received special

treatment in exchange for his testimony. The Tennessee Court of Criminal Appeals held that

Petitioner’s arguments were “not supported by fact or legal authority,” and that there were “no

citations to authority to support his argument in his brief.” Lewis, 1995 WL 10510, at *3. Thus, the

court ruled that Petitioner had waived the issue, citing Rule 10(b) of the Rules of the Tennessee

Court of Criminal Appeals. See Lewis,1995 WL 10510, at *3.

       Petitioner reasserted the latter claim in his post-conviction request for relief as a predicate

for the prosecutorial misconduct claim. The Court of Criminal Appeals held that the issue had been

waived on direct review because “petitioner could have introduced the pleadings related to Bishop’s

plea agreement and sentencing” as well as “subpoena[ing] members of the prosecution team

regarding any promises made to Bishop.” Lewis, 2003 WL 22438526, at * 12. Thus, the trial court’s

ruling was “final,” id., and therefore “previously determined by the original trial court” after a “full

and fair hearing,” id. (citing Tenn. Code Ann. § 40-30-206(h)), and thus “not subject to further

review by this court.” Id. The Court of Criminal Appeals ruled in the alternative that the claim

failed on the merits. Id. at 12-13.


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         The district court reviewed the claim on the merits. However, this was error because the

district court incorrectly determined that the Tennessee Court of Criminal Appeals’ decision did not

rely solely on the state procedural bar. The merits review by the Court of Criminal Appeals was an

alternative holding. See id. at 12 (stating that “[e]ven if this issue were properly before us, . . . we

would reject it . . .”). “An alternative holding in which a state procedural bar is a sufficient basis for

the state court's judgment is adequate to preclude a claim from being raised on habeas review, even

when the state court also relies on federal law.” Simpson v. Jones, 238 F.3d 399, 408-09 (6th Cir.

2000); see also Michigan v. Long, 463 U.S. 1032, 1041 (1983) (stating, in the context of a direct

appeal, that “[i]f the state court decision indicates clearly and expressly that it is alternatively based

on bona fide separate, adequate, and independent grounds, we, of course, will not undertake to

review the decision”); Harris v. Reed, 489 U.S. 255, 264 n.10 (1989) (applying Long rule to habeas

claims, stating that “a state court need not fear reaching the merits of a federal claim in an alternative

holding”; further noting that “[b]y its very definition, the adequate and independent state ground

doctrine requires the federal court to honor a state holding that is a sufficient basis for the state

court’s judgment, even when the state court also relies on federal law”). In short, because the

Tennessee Court of Criminal Appeals relied on the direct appeal determination that the claim was

waived, federal review of this claim is barred. See Alley v. Bell, 307 F.3d 380, 388-89 (6th Cir.

2002).

         Petitioner’s assertion that Bishop worked for the police in the past was also not supported

by the evidence. Petitioner supported this perjury allegation with a 1994 federal appellate decision

in which Bishop was described as a government witness, see United States v. Johnson, 16 F.3d 1222

(6th Cir. 1994) (unpublished per curiam). The Tennessee Court of Criminal Appeals found no


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evidence in the record or in the Johnson opinion to support the claim. Lewis, 2003 WL 22438526,

at *10.1 As the district court noted, the Johnson opinion identifies Bishop as a government witness,

but does not otherwise explain his relationship with the government. In short, as the district court

found, the state court of appeals’ ruling was not contrary to federal law or an unreasonable

determination of the facts.

                                          III. Conclusion

               The judgment of the district court is AFFIRMED.




       1
        The Tennessee Court of Criminal Appeals did not alternatively rule that this claim was
procedurally defaulted. See Baze v. Parker, 371 F.3d 310, 320 (6th Cir. 2004) (holding that if a state
court does not expressly rely on a procedural deficiency, the federal court may conduct habeas
review). Furthermore, the state does not contend on appeal that this issue is procedurally defaulted.
See id.

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