                            RECOMMENDED FOR FULL-TEXT PUBLICATION
                                 Pursuant to Sixth Circuit Rule 206
                                       File Name: 08a0167p.06

                    UNITED STATES COURT OF APPEALS
                                   FOR THE SIXTH CIRCUIT
                                     _________________


                                                      X
                              Petitioner-Appellant, -
 CECIL C. JOHNSON, JR.,
                                                       -
                                                       -
                                                       -
                                                           No. 04-5377
          v.
                                                       ,
                                                        >
 RICKY BELL, Warden,                                   -
                              Respondent-Appellee. -
                                                      N
                       Appeal from the United States District Court
                     for the Middle District of Tennessee at Nashville.
                     No. 99-00047—Robert L. Echols, District Judge.
                                     Argued: March 15, 2007
                               Decided and Filed: April 29, 2008
                Before: BATCHELDER, COLE, and GIBBONS, Circuit Judges.
                                       _________________
                                            COUNSEL
ARGUED: James G. Thomas, NEAL & HARWELL, Nashville, Tennessee, for Appellant. Alice
B. Lustre, OFFICE OF THE ATTORNEY GENERAL, Nashville, Tennessee, for Appellee.
ON BRIEF: James G. Thomas, James Franklin Sanders, NEAL & HARWELL, Nashville,
Tennessee, for Appellant. Alice B. Lustre, OFFICE OF THE ATTORNEY GENERAL, Nashville,
Tennessee, for Appellee.
       GIBBONS, J., delivered the opinion of the court. BATCHELDER, J. (pp. 17-18), delivered
a separate concurring opinion. COLE, J. (pp. 19-24), delivered a separate dissenting opinion.
                                       _________________
                                           OPINION
                                       _________________
        JULIA SMITH GIBBONS, Circuit Judge. In 1981, petitioner-appellant Cecil C. Johnson,
Jr., was convicted by a Davidson County, Tennessee, jury of three counts of first degree murder, two
counts of robbery, and two counts of assault. Johnson was sentenced to death for the murders and
received four consecutive life sentences for the remaining convictions. The convictions and
sentences were upheld by the Tennessee Supreme Court on direct appeal, and the United States
Supreme Court denied Johnson’s petition for a writ of certiorari. Johnson twice sought post-
conviction relief in state court; both attempts failed. Johnson filed the instant petition in federal
court in January 1999. The district court granted respondent’s motion for summary judgment and
dismissed the petition. This court granted a certificate of appealability on six issues. For the
following reasons, we affirm the judgment of the district court.

                                                 1
No. 04-5377                    Johnson v. Bell                                                Page 2


                                                 I.
        On July 5, 1980, Bob Bell’s Market in Nashville, Tennessee, was robbed by an armed
gunman. In the store at the time of the robbery were Bob Bell, Jr. (Bell), his son Bobbie, and Louis
Smith, an acquaintance of Bell’s. Bobbie Bell was helping at the cash register and Smith was
working at the store repairing a motor for Bell. The assailant pointed a gun at Bell and ordered him
and Smith behind the register where Bobbie Bell stood. While the captives were behind the counter,
other customers entered the market. The gunman ordered the Bells and Smith to act naturally and
attend to the customers. After the customers left, the gunman ordered Bobbie Bell to fill a bag with
the money in the cash register.
         Soon thereafter, the gunman began shooting. Bobbie Bell was shot first and later died from
his wounds. After Bobbie Bell was shot, Smith threw himself on Bobbie in an effort to protect him
from further harm. In the process, Smith was himself shot twice. The gunman then shot at Bell’s
head but, because Bell had lifted his hands, his wrist deflected the shot and Bell survived. As the
gunman fled the market, he shot and killed two men—a cab driver and his passenger—who were
sitting in a car parked near the entrance to the market. The cab driver was later identified as James
Moore and the passenger as Charles House, a customer who had entered the market moments before
the gunman began shooting his victims. Bell left the market and attempted to follow the gunman
but was unable to do so successfully.
       Information Bell gave to police officers immediately after the robbery led to Johnson’s arrest
on July 6, 1980. At trial, both Bell and Louis Smith identified Johnson as the perpetrator of the
crimes. In addition, Debra Smith, a customer who entered the market during the commission of the
robbery, identified Johnson as having been behind the counter with Bell, Bobbie Bell, and Louis
Smith.
         Johnson was also connected to the crimes by Victor Davis, a friend who had spent most of
July 5, 1980, in the company of Johnson. During the course of the investigation, Davis made
statements to the prosecution and defense that provided Johnson with an alibi. In essence, Davis
said that he and Johnson were together continuously from roughly 3:30 p.m. on July 5 until
approximately midnight and that at no time did they visit Bell’s Market. However, the week before
the trial, and after he was arrested on unrelated charges, Davis made a statement to the prosecution
incriminating Johnson. At trial, Davis, who was promised immunity from prosecution for any
involvement in the crimes committed at Bell’s Market, confirmed his statements incriminating
Johnson. According to Davis’s testimony, he and Johnson left Franklin, Tennessee, at
approximately 9:25 p.m. on July 5 and arrived in Nashville in the vicinity of Bell’s Market shortly
before 10:00 p.m. Johnson then left Davis’s automobile after stating that he was going to rob Bell
and was going to “try not to leave any witnesses.”
        Davis testified that he next saw Johnson some five minutes later near Johnson’s father’s
house, which was roughly a block from Bell’s Market. Davis stated that Johnson was carrying a
sack and pistol and, when he entered Davis’s automobile, Johnson said, “I didn’t mean to shoot that
boy.” Johnson discarded the gun, which Davis later retrieved and sold the following day. Davis
further testified that after he picked up Johnson, they drove directly to Johnson’s father’s house,
arriving shortly after 10:00 p.m. There, in the presence of Johnson’s father, Johnson took money
from the sack, counted approximately $200, and gave $40 of this money to Davis. According to
Davis, Johnson told his father that he and Davis had been gambling and that gambling was the
source of the money.
        Johnson testified on his own behalf and denied being in Bell’s Market on July 5, 1980. His
testimony as to the events of the day was largely in accord with that of Victor Davis, except for the
time just before 10:00 p.m. Johnson testified that he never left Davis’s automobile on the trip from
No. 04-5377                          Johnson v. Bell                                                            Page 3


Franklin to Johnson’s father’s house in Nashville and that he arrived at his father’s house shortly
before 10:00 p.m. Johnson’s father testified that Johnson arrived a few minutes before 10:00, just
before the 10:00 p.m. news began.
        After hearing all the evidence, a Tennessee jury convicted Johnson of three counts of first
degree murder, two counts of assault with intent to commit murder, and two counts of armed
robbery. The jury recommended that Johnson be sentenced to death on each count of first degree
murder and to consecutive life sentences on each of the remaining counts. The trial court accepted
this recommendation and imposed the death penalty. On direct appeal in 1982, the Tennessee
Supreme Court affirmed Johnson’s convictions and sentence. State v. Johnson, 632 S.W.2d 542
(Tenn. 1982). The United States Supreme Court denied Johnson’s 1982 petition for a writ of
certiorari. Johnson v. Tennessee, 459 U.S. 882 (1982). Johnson filed an application to stay the
execution with the Tennessee Supreme Court in December 1982, pending the filing of a state
petition for post-conviction relief, which was granted. In January 1988, the Tennessee Court of
Criminal Appeals affirmed the trial court’s judgment in part but reversed and remanded the case for
a new sentencing hearing on the first degree murder convictions, based on error under Caldwell v.
Mississippi, 472 U.S. 320 (1985).1
        Both Johnson and the State filed applications to appeal to the Tennessee Supreme Court.
The Tennessee Supreme Court reversed the appellate court’s reversal, reinstated the death sentences,
and affirmed the denial of relief on Johnson’s claims in all other respects.2 Johnson v. State, 797
S.W.2d 578 (Tenn. 1990). In September 1990, Johnson filed a petition for rehearing with the
Tennessee Supreme Court, which was denied, as was Johnson’s motion for leave to file a second
petition for rehearing.
         Johnson filed his first federal petition for a writ of habeas corpus pursuant to 28 U.S.C.
§ 2254 in February 1991. Shortly thereafter, Johnson received information pursuant to a request
under the Tennessee Open Records Act suggesting that the prosecution may have suppressed
exculpatory material evidence at trial, in violation of Brady v. Maryland, 373 U.S. 83 (1963). The
district court granted Johnson’s request to add this Brady claim to his petition. In February 1995,
while his first habeas petition was still pending, Johnson filed a second post-conviction petition in
state court, which was denied by the trial court and affirmed by the state appellate court. Johnson
requested permission to appeal to the Tennessee Supreme Court, and while his application was
pending, the federal district court dismissed his first habeas petition without prejudice, pending the
exhaustion of the claims he had raised in his second petition for post-conviction relief. In October
1998, the Tennessee Supreme Court denied Johnson permission to appeal. Johnson filed his current,
second habeas petition in federal district court on January 25, 1999. The district court granted the
government’s motion for summary judgment on all ten of Johnson’s claims.
                                                           II.
       This court reviews de novo a district court’s decision to grant or deny a petition for a writ
of habeas corpus. Burton v. Renico, 391 F.3d 764, 770 (6th Cir. 2004). Because Johnson filed his
habeas petition on January 18, 1999, this appeal is governed by the provisions of the Anti-Terrorism


         1
         The Court of Criminal Appeals found that the jury’s death penalty sentence was invalid because the prosecutor
improperly attempted to minimize the role and responsibility of the jury in imposing the death penalty. Johnson v. State,
No. 83-241-III, 1988 WL 3632, at *13 (Tenn. Crim. App. Jan. 20, 1988).
         2
          The Tennessee Supreme Court found that the prosecutor did not attempt to minimize the jury’s degree of
responsibility, as the appellate court had found, and that Johnson could not benefit from retroactive application of the
new constitutional rule established in Caldwell, as Johnson’s conviction had become final before the Caldwell decision.
Johnson v. State, 797 S.W.2d at 580.
No. 04-5377                     Johnson v. Bell                                                    Page 4


and Effective Death Penalty Act of 1996 (AEDPA). Woodford v. Garceau, 538 U.S. 202, 210
(2003). Under AEDPA, a federal court may grant a writ of habeas corpus with respect to a claim
that was adjudicated on the merits in State court proceedings only if 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). A state-court
decision is contrary to clearly established federal law “if the state court applies a rule that contradicts
the governing law set forth in [the Supreme Court’s] cases” or “if the state court confronts a set of
facts that are materially indistinguishable from a decision of [the Supreme] Court and nevertheless
arrives at a result different from [that] precedent.” Williams v. Taylor, 529 U.S. 362, 405-06 (2000).
A state-court decision is an unreasonable application of clearly established federal law if it
“correctly identifies the governing legal rule but applies it unreasonably to the facts of a particular
prisoner’s case,” id. at 407-08, or if it “either unreasonably extends a legal principle from [Supreme
Court] precedent to a new context where it should not apply or unreasonably refuses to extend that
principle to a new context where it should apply,” id. at 407. Under 28 U.S.C. § 2254(e)(1), a state
court’s determination of a factual issue is presumed correct, and the petitioner has the burden of
rebutting this presumption by clear and convincing evidence. This presumption also applies to the
factual findings that the state appellate court makes on its review of the state trial record. Sumner
v. Mata, 449 U.S. 539, 546-47 (1981); Mason v. Mitchell, 320 F.3d 604, 614 (6th Cir. 2003).
                                                   III.
        This court granted a certificate of appealability for the following issues: (1) whether the
prosecution’s failure to disclose material evidence violated Johnson’s constitutional rights;
(2) whether the prosecution violated Johnson’s right to compulsory process by improperly coercing
a defense witness; (3) whether the prosecution committed misconduct by improperly interfering with
defense witness Victor Davis; (4) whether the prosecution committed misconduct by improperly
vouching for a witness’s credibility and inflaming the passions of the jury during closing argument;
(5) whether the cumulative prosecutorial misconduct resulted in a violation of Johnson’s
constitutional rights; and (6) whether Johnson’s trial counsel rendered ineffective assistance during
the guilt phase by not moving for a continuance in light of certain pretrial developments and by not
seeking the recusal of the prosecutors after they participated in the conversion of Victor Davis to a
prosecution witness. We address these issues in turn.
                                                    A.
         We first consider whether the prosecution’s failure to disclose material evidence violated
Johnson’s constitutional right to due process. After filing a request for information under the
Tennessee Open Records Act in 1992, Johnson received several police and medical reports that were
not previously provided to him, which he contends undermine the credibility of certain witnesses.
Johnson asserts that the following documents were exculpatory and withheld by the prosecution:
(1) a July 6, 1980, report prepared by Detective Jerry Moore of the Metropolitan Police Department
concerning his interview of Bob Bell; (2) a July 11, 1980, report of Officer J. Dobson concerning
his interview of Louis Smith; (3) a July 5, 1980, report of Detective William Flowers concerning
his interview of Louis Smith; (4) a July 5, 1980, report of Officer John Patton concerning his
interview of Louis Smith; (5) a pleading filed by the defense in State v. Louis Edgar Smith, No.
C6175-A, which was received by the Davidson County District Attorney’s office on approximately
November 11, 1980; (6) a July 6, 1980, report prepared by Detective William Robeck concerning
his interview of Louis Smith; and (7) a “History of Physical Examination” report prepared by Robert
Stein, M.D., concerning his examination of Bob Bell at Baptist Hospital on July 5, 1980.
       Johnson contends that the decision of the Court of Criminal Appeals with respect to the
documents was contrary to the Supreme Court’s decisions in Brady and Kyles v. Whitley, 514 U.S.
419 (1995). The Court of Criminal Appeals identified Brady as the controlling authority and relied
No. 04-5377                            Johnson v. Bell                                                         Page 5


on United States v. Bagley, 473 U.S. 667 (1985), and, to a lesser extent, Kyles for the standard for
determining materiality in a Brady claim. See State v. Johnson, 1997 WL 738586, at *4. The Court
of Criminal appeals concluded that the evidence was indeed exculpatory but, viewed collectively,
it was not material. Id. at *4-8. Because the Tennessee Court of Criminal Appeals rejected
Johnson’s Brady claim on the merits, id., the deferential AEDPA standard applies. See Hill v.
Mitchell, 400 F.3d 308, 313 (6th Cir. 2005).
        Under Brady, “the suppression by the prosecution of evidence favorable to an accused upon
request 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.”3 373 U.S. at 87. To assert a
successful Brady claim, a habeas petitioner must show that: (1) evidence favorable to the petitioner,
(2) was suppressed by the government, and (3) the petitioner suffered prejudice. Banks v. Dretke,
540 U.S. 668, 691 (2004).
        We proceed directly to the issue of prejudice, or materiality,4 which is determinative of the
Brady claim. Favorable evidence is material under Brady “if there is a reasonable probability that,
had the evidence been disclosed to the defense, the result of the proceeding would have been
different.” Bagley, 473 U.S. at 682. A “reasonable probability” is a probability sufficient to
undermine confidence in the outcome of the trial. Strickler v. Greene, 527 U.S. 263, 289-90 (1999).
The materiality requirement is not a sufficiency of the evidence test; the defendant need not
demonstrate that disclosure of the suppressed evidence would have resulted in acquittal. See Kyles,
514 U.S. at 434. “The 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.” Id. Further, we conduct our
review mindful of the Supreme Court’s instruction that “suppressed evidence [must be] considered
collectively, not item by item,” when addressing the prejudice question. Kyles, 514 U.S. at 436; see
also Castleberry v. Brigano, 349 F.3d 286, 291 (6th Cir. 2003).
         Johnson’s Brady claim centers on the use of the withheld material to impeach three witnesses
who testified at his trial: Bob Bell, Louis Smith, and Debra Smith. As noted previously, seven
documents are at issue, five of which relate to Louis Smith. Smith was working at Bell’s Market
at the time of the robbery and testified about the events that occurred that day. Smith’s testimony
corroborated the testimony of Bob Bell and provided details regarding the facts and time sequence
of the robbery. He remembered a few customers entering and leaving the market but stated that he
did not take close note of the customers because he was focused on the assailant. He was uncertain
about the number of customers and their gender but thought that there were two or perhaps
three—two men and a woman, perhaps with a child. Smith said he really did not remember about
the customers “for sure” and doubted that he could identify any of them except the last one. At trial,
Smith identified Johnson in court as the perpetrator of the robbery and murders. He further testified
that the assailant was a black male approximately 5' 8" and 160 pounds. Smith also testified that,
while he was in the hospital,   he picked two photographs from a photo array that closely fit his
description of the assailant.5 Additionally, he testified that he later viewed a lineup at the police

         3
           We note the Kyles Court’s iteration of Justice Blackmun’s statement in Bagley that “the Constitution is not
violated every time the government fails or chooses not to disclose evidence that might prove helpful to the defense.
We have never held that the Constitution demands an open file policy . . . and the rule in Bagley (and, hence, in Brady)
requires less of the prosecution than the ABA Standards for Criminal Justice, which call generally for prosecutorial
disclosures of any evidence tending to exculpate or mitigate.” 514 U.S. at 436-37 (internal citations omitted).
         4
          “Demonstrating prejudice requires the defendant to show that the suppressed favorable evidence at issue is
material.” United States v. Jefferson, 134 F. App’x 52, 54 (6th Cir. 2005) (citing Strickler, 527 U.S. at 282)).
         5
             Smith did not testify that the individual in either of the photographs was Johnson.
No. 04-5377                           Johnson v. Bell                                                            Page 6


department. Because police had told him to mark the card only if he was certain of his
identification, he did not do so. He verbally identified number two for police, however, noting that
the curled hair differed from that of the robber.6 Johnson’s counsel questioned Smith about a prior
statement that the robber had no facial hair.
        The five documents relating to Louis Smith include: (1) a July 5, 1980, report of Detective
William Flowers concerning his interview with Smith; (2) a July 5, 1980, report of Officer John
Patton concerning his interview with Smith; (3) a July 11, 1980, report of Officer J. Dobson
concerning his interview of Smith, which apparently occurred on July 5, 1980; (4) a July 6, 1980,
report of Detective William Robeck concerning his interview with Smith; and (5) a request for
continuance of a November 11, 1980, trial date and notice of insanity defense filed on Smith’s behalf
in a criminal case in which Smith was charged with an offense occuring prior to July 5, 1980. The
Flowers report indicates that Smith said he could not describe the suspect at that time but was
willing to be interviewed again later, while Patton states that Smith says he did not get a good look
at the suspect. Dobson says in his report that Smith, who was in a great deal of distress and “near
death,” identified the suspect as a young black male but indicated that he could not see his face. The
Robeck report indicates   that Smith picked out photos five and six from the photo display shown to
him in the hospital.7 Robeck also uses masculine pronouns to refer to two customers whom Smith
told him entered the store during the robbery. The pleading in Smith’s criminal case gives defense
counsel’s opinion that there was a “reasonable probability” that the most appropriate defense in the
case would be either insanity or diminished capacity.
          Certainly, the officers’ reports would have assisted Johnson’s cross-examination of Smith
at trial, calling into question Smith’s identification of Johnson and his ability to recall the events of
the evening of July 5. Their contribution would have been limited, however, for several reasons.
All of them were taken at a time when Smith could hardly have been expected to describe the events
of the evening of July 5 with detailed clarity; Smith was in the hospital and “in distress” with
gunshot wounds in his neck and hand. Moreover, defense counsel was able to successfully impeach
Smith about identification of Johnson and his recollection of the events of the evening, based on
the information he did have. Smith admitted that by the time he verbally identified Johnson at the
police department, he had seen Johnson on television in connection with his arrest. He was
uncertain in his responses to the questions about facial hair. His testimony did not suggest that
Johnson was one of the individuals he identified from the earlier photo lineup in the hospital. And
Smith conceded that he was not sure about the number of customers who entered the store and their
gender and likely could identify only one of them. Given Smith’s testimony and other eyewitness
identifications of Johnson, the overall impeachment value of these reports, viewed collectively, is
fairly minimal.
        With regard to the notice of insanity defense filed in Smith’s criminal case, this document
has no value as impeachment material. Assuming that cross-examination about it would have been
permitted, doubtless questioning would also have elicited8 the information that a psychiatric
examination of Smith failed to support the claimed defense.
       The two remaining withheld items relate to Bob Bell. In the undisclosed July 6, 1980,
statement given to Detective Moore the morning after the robbery and while Bell was still


         6
             Person number two was in fact Johnson, who apparently had placed his hair in curlers for the lineup.
         7
             Photograph four was the photograph of Johnson.
         8
          Moreover, as this document was publically available, it simply does not present a Brady issue. See Bell v. Bell,
512 F.3d 223, 235 (6th Cir. 2008) (en banc).
No. 04-5377                        Johnson v. Bell                                                          Page 7


hospitalized, Bell indicated that the assailant had no facial hair.9 Because Johnson’s mug shot taken
one day after the robbery revealed that he had some facial hair, Johnson’s counsel questioned Bell
on the issue of Johnson’s facial hair, even though he was unaware of Bell’s statement to Moore.
Bell testified that he focused on the assailant’s eyes during the robbery and noticed nothing
distinctive about his facial hair. The second relevant document is a medical report, completed the
night of the murders, which contained a single statement noting that Bob Bell’s medical history
indicated “some mental instability.” This statement provides little information, and any
impeachment value would have been slight. We also note that Bob Bell was an extremely
sympathetic witness and any cross-examination regarding his mental health would by necessity have
been delicate at best. Bell had just seen his son murdered, was already familiar with Johnson, and
had considerable interaction with the assailant during the course of the robbery. These factors would
have minimized any impeachment value stemming from either Bell’s statement to Detective Moore
or the withheld medical report. Moreover, after the robbery, Bell identified Johnson as the
perpetrator on four separate occasions. Bell also identified Johnson at trial and stated that he knew
Johnson as a customer who had frequented his market in the past. As a consequence, even in light
of the withheld evidence, Bob Bell’s testimony remains persuasive.
         Finally, Johnson argues that Detective Robeck’s July 6, 1980, report could have been used
to impeach Debra Smith, the customer who entered the store during the robbery and the state’s third
eyewitness. Ms. Smith, no relation to Louis Smith, testified that she went to Bell’s Market on the
day of the robbery between 9:30 p.m. and 9:50 p.m. According to her testimony, Debra Smith
entered the market alone while Johnson was in the store, recognized him on the basis of their prior
acquaintance, and was aware that a robbery was ongoing but nevertheless purchased a soft drink and
then returned home. Other than informing her boyfriend and sister of the robbery, Smith did not
communicate her knowledge of the incident until contacted by the police on July 15, 1980. At trial,
Smith explained that she chose not to report her experience because she knew Johnson and wished
to remain uninvolved. As mentioned above, Robeck’s report implies that Louis Smith referenced
only males entering the market, thus potentially calling into question whether Debra Smith ever
entered Bell’s Market on the evening of the robbery. Putting aside the evidentiary difficulty of
impeaching Debra Smith with the statement of Louis Smith made to Robeck, we note that Debra
Smith’s testimony was already relatively weak, as it was marked by inconsistencies and statements
that called her veracity, or at least the accuracy of her memory, into question. Among other things,
Smith contradicted herself by describing Louis Smith as both African-American and Caucasian in
her testimony. Johnson’s counsel also significantly impeached Smith’s contention that she was quite
familiar with Johnson and his family. We find that any further impeachment of Ms. Smith would
have had little, if any, impact on her persuasiveness with the jury.
        The thrust of Johnson’s argument is that the decision of the Court of Criminal Appeals is
contrary to Kyles. Johnson argues that the testimony of two witnesses in Kyles remained untainted
by the Brady violations, while the Brady material in this case impeaches all three primary witnesses,
thus making his an “easier” case than Kyles. Such a numerical comparison alone tells us little about
whether the suppressed evidence, when viewed collectively, undermines confidence in the verdict.
The suppressed evidence in Kyles far exceeded that suppressed here as measured both by quantity
and exculpatory persuasiveness. In Kyles, the withheld evidence strongly indicated that “Beanie,”
the primary informant who led investigators to Kyles, had actually planted the incriminating
evidence. Kyles, 514 U.S. at 425-32. Beanie also fit the physical description given by other
eyewitnesses and was the primary suspect in another recent murder involving the same modus
operandi. Id. Finally, the withheld evidence established that the six eyewitnesses gave substantially


        9
          The Tennessee Court of Criminal Appeals described Johnson’s facial hair as “a faint mustache and a goatee.”
State v. Johnson, 1997 WL 738586, at *5. Johnson’s mug shot, included in the appellate record, confirms this
characterization.
No. 04-5377                          Johnson v. Bell                                                            Page 8


different physical descriptions of the assailant at the scene of the crime, only one of which roughly
matched Kyles. See id. at10423-28. Here, three eyewitnesses separately identified Johnson as the
perpetrator of the crimes. In sum, this is not a case where, as in Kyles, substantial withheld
evidence indicated that another person, not the defendant, was in fact the guilty party.
        A defendant proves a Brady violation “by showing that the favorable evidence could
reasonably be taken to put the whole case in such a different light as to undermine confidence in the
verdict.” Kyles, 514 U.S. at 435. In this case, the suppressed evidence, viewed collectively, does
not so undermine our confidence in the verdict as to be “material” for Brady purposes. We therefore
conclude that the decision of the Tennessee Court of Criminal Appeals was not contrary to, or an
unreasonable application of, federal law as determined by the Supreme Court. We affirm the district
court’s grant of summary judgment to the respondent on this claim.
                                                           B.
        We next consider Johnson’s contention that the prosecution committed misconduct and
violated his right to compulsory process by improperly coercing defense witness Victor Davis.11
Victor Davis was originally scheduled to be Johnson’s principal alibi witness at trial. After the
robbery, Davis told defense investigators and the police that he was with Johnson the entire day of
July 5, 1980, and that Johnson did not have an opportunity to commit the murders. In his statements
shortly after the incident, Davis made no mention of Johnson’s discussing his intention to rob Bell’s
Market or any statement by Johnson regarding the murders or their aftermath. District Attorney
General Sterling Gray testified that, in early January 1981, he spoke with Davis’s attorney and
police officer Gordon Larkin about speaking with Davis before commencement of Johnson’s trial.
Larkin testified that on the afternoon of January 9, 1981, he told police officer John Patton that Gray
wished to talk with Davis.12 Near midnight that evening, Patton arrested Davis for public
drunkenness and carrying a weapon. Patton testified that Davis was one of three unknown males
who were stopped because of suspicious behavior near a gas station that had been robbed in the past.
Patton further testified that he recognized Davis only after Davis attempted to leave the stopped car
while Patton was questioning the driver. At trial, Davis acknowledged that he had been drinking
alcohol and smoking marijuana that evening.
        Patton arrested all three men and took them for booking. On the ride downtown, Patton
called Larkin on the police radio and asked Larkin if he still wanted to talk to Davis. At
approximately 1:00 a.m. on January 10, 1981, Larkin met Patton at the booking room and took Davis
with him to the District Attorney’s office, where Gray and a criminal investigator were waiting.
Davis testified that he was interrogated for approximately three and one-half hours that morning.
After initially requesting his attorney, Davis withdrew the request after being told that he was being
questioned only about Johnson, not unrelated burglary and robbery charges that were also pending
against Davis. During this interrogation, Davis gave incriminating details related to Johnson’s
involvement in the Bell’s Market murders. Davis returned to Gray’s office with his attorney on
Monday, January 12, 1981, and provided Gray with a detailed statement. During this January 12
meeting, Gray offered Davis immunity from prosecution for crimes related to the Bell’s Market


         10
            We also note that the testimony of these three witnesses was strengthened by the testimony of Victor Davis,
which provided a detailed description of Johnson’s activities on July 5, 1980, and placed Johnson at Bell’s Market during
the time of the murder. Davis’s testimony was not affected by the documents that form the basis of the Brady claim.
         11
            Both the compulsory process and misconduct issues concern whether the prosecution improperly coerced
or interfered with defense witness Victor Davis. We therefore address these claims together.
         12
              Patton knew Davis because he had previously arrested him on an unrelated matter.
No. 04-5377                         Johnson v. Bell                                                          Page 9


incident if he would testify in court. On January 21, 1981, the State dismissed the weapons
possession and public drunkenness charges against Davis.
        Johnson maintains that the state courts never addressed the merits of this claim. To the
contrary, both the Tennessee Supreme Court (on direct appeal) and the Tennessee Court of Criminal
Appeals (on post-conviction review) addressed the claim and determined that the questioning of
Davis was not coercive. Specifically, the Tennessee Supreme Court found that the fundamental
claim being asserted was that Victor Davis’s constitutional rights—not Johnson’s—had been
violated. State v. Johnson, 632 S.W.2d at 546. As a consequence, Johnson lacked standing to
challenge any such alleged violation. Id. (“Even if the law enforcement officials violated Davis’s
[constitutional] right[s] . . . these are rights personal to Davis and can only be asserted by him and
not by some other person, such as [Johnson], who might be adversely affected by information
elicited during the detention and interrogation.”). The Tennessee Court of Criminal Appeals arrived
at the same conclusion. See Johnson v. State, 1988 WL 3632, at *8-9 (finding both that the
Tennessee Supreme Court had already addressed the question and that Davis did not change his
testimony in response to threats and intimidation but instead “was arrested legitimately for offenses
unconnected with the petitioner’s charges . . . [and Davis’s] recanted testimony was freely given”).
The deferential AEDPA standard therefore applies, the state courts’ determination of factual issues
is presumed correct, and Johnson bears the burden of rebutting this presumption of correctness by
clear and convincing evidence. 28 U.S.C. § 2254(e)(1); Hill, 400 F.3d at 313.
        The Supreme Court has recognized that a party’s right to present his or her own witnesses
in order to establish a defense is a fundamental element of due process.13 Washington v. Texas, 388
U.S. 14, 19 (1967). Government conduct that rises to the level of substantial interference with a
witness’s “free and unhampered determination to testify” violates this right. United States v. Foster,
128 F.3d 949, 953 (6th Cir. 1997). Johnson contends that Davis’s testimony was coerced as a part
of the pretrial arrest and questioning—which deprived him of his primary defense witness—and this
constituted  a denial of compulsory process under Washington and Webb v. Texas, 409 U.S. 95
(1972).14
         Johnson fails to show how the Tennessee state court decisions are contrary to, or an
unreasonable application of, Supreme Court precedent. Johnson relies exclusively on Washington
and Webb, which are easily distinguished. In Washington, the Court found that a Texas statute
violated the defendant’s right to compulsory process by “arbitrarily den[ying] him the right to put
on the stand a witness who was physically and mentally capable of testifying to events that he had
personally observed, and whose testimony would have been relevant and material to the defense.”
Washington, 388 U.S. at 23. Here, there is no indication that Davis was ever prevented from
testifying on Johnson’s behalf. Rather, he chose of his own accord to testify for the government.
Although the Washington Court articulated the basic parameters of a defendant’s compulsory
process rights, nothing in the opinion is directly contrary, or even related, to Johnson’s experience.
See id. at 19 (noting generally that “[t]he right to offer the testimony of witnesses, and to compel
their attendance, if necessary, is in plain terms the right to present a defense, the right to present the



         13
           The right to compulsory process is applicable to the states through the Fourteenth Amendment. Washington,
388 U.S. at 18-19.
         14
           Johnson characterizes the prosecution’s treatment of Victor Davis as both a violation of his compulsory
process rights and a “stand alone” instance of prosecutorial misconduct. Johnson addresses both claims together and
does not provide a separate legal analysis for his misconduct claim with regard to Victor Davis. He does, however,
include this allegation in his cumulative prosecutorial misconduct claim. Because we find that the prosecution’s
treatment of Victor Davis did not constitute misconduct, it has no impact on our consideration of Johnson’s cumulative
misconduct argument, as discussed more fully below.
No. 04-5377                    Johnson v. Bell                                                 Page 10


defendant’s version of the facts as well as the prosecution’s to the jury so it may decide where the
truth lies”).
         Webb is similarly inapposite. In Webb, the defendant called his only witness, Leslie Mills,
but before Mills could testify, the court of its own initiative admonished the witness of the
consequences of perjury, including stating that “the Court will personally see that your case goes
to the grand jury and you will be indicted [and you will likely] get convicted of perjury and [it]
would be stacked onto what you have already got.” Webb, 409 U.S. at 95-96. The Webb Court
concluded that the witness was willing to testify on the defendant’s behalf, but was dissuaded solely
by the comments made by the trial court. Id. at 97. The Court found that “[i]n the circumstances
of this case . . . the judge’s threatening remarks, directed only at the single witness for the defense,
effectively drove that witness off the stand, and thus deprived the petitioner of due process of law
under the Fourteenth Amendment.” Id.
        Johnson contends that the prosecutors’ treatment of Davis differs in no material respect from
the treatment Mills experienced. We disagree. Davis’s detention was for an unrelated crime and
was the product of a lawful arrest. The record confirms that Davis knowingly and voluntarily
waived his right to counsel when he learned that the January 10, 1981, interrogation would be
limited to the Bell’s Market incident. Two days later, Davis and his attorney went to the office of
the district attorney, where Davis repeated his statement in the presence of his counsel, reduced the
statement to writing, and signed it as true. Moreover, Davis testified at trial and both parties were
able to explore the circumstances of Davis’s arrest, detention, and testimony implicating Johnson.
The defense was able to question Davis fully about his earlier statements exculpating Johnson. The
jury was free to consider the circumstances of Davis’s statements, which, presumably, informed its
evaluation of Davis’s credibility. This bears no resemblance to the trial court’s overt threats and
insinuations in Webb.
       We cannot say that the prosecutorial conduct here substantially interfered with Davis’s free
and unhampered discretion to testify as he saw fit. See Davis v. Straub, 430 F.3d 281, 287 (6th Cir.
2005) (interpreting and applying Webb). We therefore find that the decisions of the Tennessee
courts were not contrary to, or an unreasonable application of, federal law as determined by the
Supreme Court, and therefore this claim fails.
                                                  C.
        Johnson also contends that multiple instances of misconduct on the part of the prosecutor
violated his due process right to a fair trial. This court granted a certificate of appealability on the
following issues, all related to prosecutorial misconduct: (1) whether the prosecutor committed
misconduct by improperly interfering with defense witness Victor Davis; (2) whether the prosecutor
committed misconduct by improperly vouching for a witness’s credibility and inflaming the passions
of the jury during closing argument; and (3) whether the cumulative prosecutorial misconduct
resulted in a violation of Johnson’s constitutional rights. With respect to the cumulative
prosecutorial misconduct claim, Johnson asserted two further issues in his request on this issue: the
State improperly concealed the identity of Debra Smith as a government witness, and the State
misrepresented the time of the offense.
       The relevant question in analyzing a claim for prosecutorial misconduct on habeas review
is “whether the prosecutors’ comments ‘so infected the trial with unfairness as to make the resulting
conviction a denial of due process.’” Darden v. Wainwright, 477 U.S. 168, 181 (1986) (internal
quotation marks omitted). To satisfy this standard, the conduct must be both improper and flagrant.
Broom v. Mitchell, 441 F.3d 392, 412 (6th Cir. 2006); see also Pritchett v. Pitcher, 117 F.3d 959,
964 (6th Cir. 1997) (noting that reversal is required if the prosecutor’s misconduct is “so pronounced
and persistent that it permeates the entire atmosphere of the trial or so gross as probably to prejudice
No. 04-5377                       Johnson v. Bell                                                      Page 11


the defendant”) (internal citation omitted). If conduct is found to be improper, four factors are then
considered to determine whether the conduct was flagrant and therefore warrants reversal: “(1) the
likelihood that the remarks of the prosecutor tended to mislead the jury or prejudice the defendant;
(2) whether the remarks were isolated or extensive; (3) whether the remarks were deliberately or
accidentally made; and (4) the total strength of the evidence against the defendant.” Bates v. Bell,
402 F.3d 635, 641 (6th Cir. 2005).
       Because we previously addressed the prosecution’s alleged interference with Davis, we turn
now to the remaining issues.
                                                       1.
        Johnson contends that the prosecutor improperly vouched for Victor Davis’s credibility.
“Improper vouching occurs when a prosecutor supports the credibility of a witness by indicating a
personal belief in the witness’s credibility thereby placing the prestige of the [government] behind
that witness.” United States v. Francis, 170 F.3d 546, 550 (6th Cir. 1999). Improper vouching
typically involves either blunt comments or some implication that the prosecutor has special
knowledge of facts not before the jury related to the credibility of a witness. Id. Johnson asserts that
various statements made by the prosecution in its direct examination of Victor Davis constituted
improper bolstering of the Davis’s credibility. See id. (“Bolstering and vouching are much alike and
go to the heart of a fair trial. Bolstering occurs when the prosecutor implies that the witness’s
testimony is corroborated by evidence known to the government but not known to the jury.”).
       The district court found that significant portions of Johnson’s claim were defaulted, and we
agree. This court has explained the doctrine of procedural default as follows:
        When a habeas petitioner fails to obtain consideration of a claim by a state court,
        either due to the petitioner’s failure to raise that claim before the state courts while
        state-court remedies are still available or due to a state procedural rule that prevents
        the state courts from reaching the merits of the petitioner’s claim, that claim is
        procedurally defaulted and may not be considered by the federal court on habeas
        review.
Seymour v. Walker, 224 F.3d 542, 549-50 (6th Cir. 2000). On direct appeal, Johnson’s brief to the
Tennessee Supreme Court raised objections only to five allegedly leading questions. When Johnson
filed his petition for post-conviction relief with the Tennessee Court of Criminal Appeals, he
nevertheless cited the same twenty-one allegedly leading questions that he would later cite in his
federal habeas petition. The Court of Criminal Appeals held that Johnson’s additional claims were
defaulted. Johnson v. State, 1988 WL 3632, at *8 (finding that the claims had “been previously
determined or waived and [are] therefore foreclosed from review in a post-conviction proceeding
[under] Tenn. Code Ann. § 40-30-112”). Accordingly, we find that the appellate court did indeed
rely on Johnson’s failure to comply with state procedural rules in denying review. See Harris v.
Reed, 489 U.S. 255, 263 (1989) (“[A] procedural default does not bar consideration of a federal
claim on either direct or habeas review unless the last state court rendering a judgment in the case
clearly and expressly states that its judgment rests on a state procedural bar.”) (internal quotation
marks omitted). The Tennessee Supreme Court—also relying on Tenn. Code Ann. § 40-30-
112—found that Johnson had raised twenty-six issues on appeal, all of which were    either previously
determined or waived due to failure to present them at trial or on direct appeal.15 Johnson v. State,
797 S.W.2d at 582. Like the district court, we find that, with the exception of the five objections
made on direct appeal, Johnson’s objections were procedurally defaulted.

        15
           The Tennessee Supreme Court found that the intermediate appellate court “properly reviewed, considered
and dealt with [these issues] appropriately.” The Court reversed on grounds not before this court.
No. 04-5377                          Johnson v. Bell                                                           Page 12


       As mentioned, Bell’s claims as to certain statements were adjudicated by the state courts on
the merits and exhausted and therefore are properly before this court. Those include the following
statements made by District Attorney General Gray during his questioning of Davis on direct:
         Gray: Tell the jury what I told you Mr. Johnson [sic - Davis], Saturday morning.
                  ...
         Gray: What did I say to you about this case in terms of what you knew when I talked
         to you?
                  ...
         Gray: Now, on Monday, of this week you came to our office with you [sic] attorney,
         is that correct? . . . At that time you sat down and gave us a detailed statement of
         what you have just told the jury, right?
                  ...
         Gray: Prior to doing that on Monday I told you that you had immunity in this case
         if you would testify, is that correct . . . if you told the truth about what you knew
         about it, is that right?
Finally, during closing argument, Gray stated:
         [B]ecause I wanted you [the jurors] to have the benefit of every piece, everything we
         knew about this case because of the magnitude of this case . . . . If you haven’t done
         anything you can’t be indicted. If you haven’t done anything there is no reason to
         be frightened. . . . [T]he burden that was on me was to [victims] Mr. Bell and to Mr.
         Smith and Mr. House and Mr. Moore, saying to them I know a person that was
         involved in either the death of your son or the robbery and I can’t do nothing with
         him. That’s the thing, that’s the burden that was on me. But I had no proof, so I told
         him, if you will tell the truth, get up there and tell the truth, then yes, you will [sic]
         have to worry about what happens to you in this case. But the burden that I had was
         a burden to them. Because I know that he is involved. He knows that he is involved,
         but I can’t do nothing with him. I can’t come before you, ladies and gentlemen,
         without proof on a person. That’s not the way our law is written.
Johnson contends that these statements were calculated to bolster Davis’s credibility with the jury.
The Tennessee Supreme Court reviewed these passages and rejected the objections as without merit.
State v. Johnson, 632 S.W.2d at 545.
         Johnson offers nothing on appeal to indicate that the decision of the state court was in error.
We find that the statements here   at issue, in the particular context in which they were made, do not
rise to the level of misconduct.16 Cf. Hodge, 426 F.3d at 377-80 (finding the prosecutor’s statements
that a key witness was “lying to extricate himself from what he’s done” and that another key witness
was “absolutely believable” constituted misconduct).
                                                           2.
        Johnson next contends that District Attorney General Shriver inflamed the passions of the
jury by improperly using inflammatory language and injecting statements of personal interest into
his closing argument. We agree.


         16
            We note that it is not necessary for the prosecutor actually to use the words “I believe,” or some similar
phrase, for a statement to constitute an improper comment on the credibility of witnesses. See Hodge v. Hurley, 426 F.3d
368, 379 n.20 (6th Cir. 2005). However, we find that Gray neither directly nor indirectly vouched for Davis’s credibility
through the statements at issue. See Francis, 170 F.3d at 550.
No. 04-5377                         Johnson v. Bell                                                           Page 13


         In his closing rebuttal argument, Shriver told the jury:
         I have a very personal interest in this case and I suppose that is why I am here today.
         Little Bob Bell, twelve years old, started out in the first grade at Burton School with
         my twelve year old daughter. They started, they have gone through school together.
         Burton School, Stokes School, would have gone to John Trotwood Moore together
         this year. It could have been my little girl that was in that store, a witness eliminated.
         It could have been you. It could have been your children. It could have been any one
         of us, if we decided that we wanted to buy something from Bob Bell, at nine fifty-
         eight on July 5, 1980, we would have been dead.
Closing arguments that encourage juror identification with crime victims are improper. See Hodge,
426 F.3d at 384. Similarly, a prosecutor illicitly incites the passions and prejudices of the jury when
he calls on the jury’s emotions and fears—rather than the evidence—to decide the case. See Gall
v. Parker, 231 F.3d 265, 315 (6th Cir. 2000) (overruled on other grounds by Bowling v. Parker, 344
F.3d 487, 501 n.3 (6th Cir. 2003)). Here, the prosecutor’s remarks were clearly calculated to trigger
the jurors’ emotions and fears. We therefore find the statement improper.
         Because we find the statement improper, we must address whether the statement was flagrant
and therefore warrants reversal.17 See United States v. Monus, 128 F.3d 376, 394 (6th Cir. 1997).
“Even if the prosecutor’s conduct was improper or even ‘universally condemned,’ we can provide
relief only if the statements were so flagrant as to render the entire trial fundamentally unfair.”
Bowling, 344 F.3d at 512 (internal citation omitted). Only one of the “flagrancy” factors is apposite
in this case. It is apparent that the prosecutor referenced his own child—and the possibility that the
jurors themselves could have been involved—quite deliberately. See Bates, 402 F.3d at 641. No
other factor is applicable. Nothing in the record indicates that the remarks were intended to mislead
the jury; the statements were undoubtedly intended to trigger the jurors’ emotions, but they were
made in the context of the prosecutor’s recitation of the facts of the case. Indeed, throughout his
rebuttal argument, Shriver encouraged the jury to focus on the evidence before it in reaching a
decision. Further, the prosecutor’s remarks—at least those before this court—were isolated.
Finally, the evidence against Johnson was substantial and included the testimony of three
eyewitnesses, in addition to Victor Davis. We therefore conclude that the prosecutor’s remarks,
though improper, were not flagrant.
        If a comment is determined not to be flagrant, we will reverse only when: (1) the proof
against the defendant was not overwhelming; (2) opposing counsel objected to the conduct; and
(3) the district court failed to give a curative instruction. United States v. Cobleigh, 75 F.3d 242,
247 (6th Cir. 1996). As discussed above, the evidence against Johnson was substantial. See State
v. Johnson, 632 S.W.2d at 548 (reviewing the record and finding that the evidence established
Johnson’s guilt beyond a reasonable doubt). The record also shows that Johnson’s counsel did not
object to Shriver’s remarks at trial. Finally, at the close of trial, the court provided the following
curative instruction: “Statements, arguments, and remarks of counsel are intended to help you in
understanding the evidence and applying the law, but they are not evidence. If any statements were
made that you believe are not supported by the evidence, you should disregard them.” As a
consequence, the prosecutor’s non-flagrant, though improper, remarks were not “‘so egregious as


         17
            We agree with the district court’s conclusion that, although the prosecutor’s statement was set forth in
Johnson’s direct appeal brief, the Tennessee Supreme Court did not specifically address whether the comments were
improper. Once a federal claim has been presented to a state’s highest court, the exhaustion requirement is satisfied,
even if the state court failed to address a particular claim that was presented. Meeks v. Bergen, 749 F.2d 322, 325 n.1
(6th Cir. 1984). Because the claim was exhausted but not adjudicated, the district court properly turned to this court’s
four-factor test for determining whether a prosecutor’s improper statements are sufficiently “flagrant” to warrant a new
trial.
No. 04-5377                    Johnson v. Bell                                                Page 14


to render the trial fundamentally unfair’” and therefore do not warrant reversal. See Gillard v.
Mitchell, 445 F.3d 883, 898 (6th Cir. 2006) (quoting Angel v. Overberg, 682 F.2d 605, 608 (6th Cir.
1992)).
                                                  3.
         Johnson next contends that the State knew of Debra Smith, an eyewitness to Johnson’s
presence at the scene of the robbery, as early as July 15, 1980, but concealed her existence until
January 2, 1981, and this concealment compromised his defense. The facts surrounding this
allegation are not in dispute. On September 3, 1980, Johnson filed a request for discovery that
specifically sought, among other things, the names of any witnesses the State intended to call to
testify at trial and the names of all persons known to have been present at the time of the robbery.
On September 23, 1980, the State responded that all of the witnesses it intended to call at trial were
listed in the indictment, which did not include Debra Smith. On November 17, 1980, Johnson made
a motion seeking to order the State to identify its witnesses. Neither the State nor the trial court
responded to this motion. On January 2, 1981, eleven days prior to commencement of the trial, the
State revealed that Debra Smith would testify as an eyewitness.
        Under Rule 12.1(b) of the Tennessee Rules of Criminal Procedure, the district attorney
general must disclose no later than ten days before trial the name and address of any witness on
whom the state intends to rely to establish a defendant’s presence at the scene of the alleged offense.
The district attorney general complied with this rule. Further, the State’s production of a witness
that could place Johnson at the scene of the crime was not revelatory and did not necessitate
development of a new defense theory. Indeed, Johnson’s defense was already aware that two of the
victims (Bob Bell and Louis Smith) had identified Johnson as their assailant. Also, in the days
following disclosure of Debra Smith’s identity, Johnson’s counsel was able to and did gather
significant information to impeach and discredit Smith’s testimony. We therefore find that the
prosecution’s withholding of Smith’s identity as a witness does not rise to the level of misconduct.
                                                  4.
        Johnson next contends that the State initially misrepresented the time it would argue that the
robbery took place, and that this comprised his defense. In its Motion for Notice of Alibi Defense
filed on September 23, 1980, the State indicated that robbery took place between 10:00 p.m. and
10:10 p.m. The State’s written discovery response, served at the same time, made the same
representation. In his response to the motion, Johnson stated that he was at his father’s house
between 10:00 and 10:10. The State ultimately presented evidence at trial indicating that the
robbery likely took place between 9:50 and 10:00 p.m.
        Johnson fails to demonstrate how he was harmed by this discrepancy. In his answer to the
State’s request for an alibi notice, Johnson disagreed with the proffered hour of the incident and
sought to reserve the right to call other witnesses who would testify to his presence before and after
the robbery. At trial, Johnson did not limit his alibi evidence to the period of 10:00 p.m. to 10:10
p.m., but instead covered the period from 9:00 a.m. on July 5, 1980, until the following morning.
Johnson also fails to provide any case law declaring that a lack of precision in the time alleged for
an offense will violate due process. Accordingly, we find that the alleged misrepresentation does
not constitute misconduct.
                                                  5.
        Johnson contends that the cumulative effect of the alleged prosecutorial misconduct
fundamentally compromised the fairness of his trial and was prejudicial to the extent that it
constituted a deprivation of due process. However, as discussed above, we find that the
No. 04-5377                         Johnson v. Bell                                                           Page 15


prosecution’s personalized statement during closing argument was the sole occurrence of error. We
therefore do not have multiple errors to cumulate.
                                                          D.
        We next consider whether Johnson’s trial counsel rendered ineffective assistance. Review
of an ineffective assistance of counsel claim is governed by Strickland v. Washington, 466 U.S. 668
(1984). To establish ineffective assistance and obtain relief under Strickland, Johnson must
demonstrate that his counsel’s performance was deficient and that this deficiency so prejudiced his
defense as to render the trial unfair and the result unreliable. Id. at 687. “Unless a defendant makes
both showings, it cannot be said that the conviction or death sentence resulted from a breakdown
in the adversary process that renders the result unreliable.” Id. To satisfy the prejudice prong of the
Strickland test, Johnson must show that a reasonable probability exists that, but for his counsel’s
unprofessional errors, the results of the proceeding would have been different. Poindexter v.
Mitchell, 454 F.3d 565, 570 (6th Cir. 2006). Our review of counsel’s performance is “highly
deferential and counsel is strongly presumed to have rendered adequate assistance and made all
significant decisions in the exercise of reasonable professional judgment.” Id. (internal quotation
marks omitted).
        The certificate of appealability specified two claims of ineffective assistance for: (1) failure
to seek a continuance in light of developments that arose shortly before trial, and (2) failure to seek
the recusal of the prosecutors in light of their involvement in the conversion of Victor Davis to a
prosecution witness. We address each claim in turn.
                                                          1.
       The Tennessee Court of Criminal Appeals found that Johnson’s attorneys’ failure to seek a
continuance did not constitute ineffective assistance. Johnson v. State, 1988 WL 3632, at *4
(emphasizing the minimal impact resulting from the state’s revelation of a new witness). AEDPA
therefore limits our inquiry to assessing whether the state court’s conclusion that Johnson failed to
demonstrate ineffective assistance under Strickland was contrary to, or involved an18unreasonable
application of, clearly established federal law as determined by the Supreme Court.
        Johnson contends that, in light of the prosecution’s revelation of Debra Smith as a witness
eleven days before trial and the conversion of Victor Davis from the primary defense witness to a
prosecution witness less than a week before trial, his counsel rendered ineffective assistance by not
moving for a continuance to permit additional preparation for these developments. We disagree.
Although it would have been perfectly rational for Johnson’s counsel to seek a continuance, it is not
apparent that any such delay would have been productive. As the Tennessee Court of Criminal
Appeals found, Johnson’s counsel had created “sound defense strategy,” and the late revelations
prior to trial did not offer a clear alternative strategy. Id. The prosecution’s production of a witness
(Debra Smith) that could place Johnson at the scene of the crime was not revelatory, as Johnson’s
counsel were already aware that two of the victims had identified Johnson as their assailant. Further,

         18
            Johnson contends that the Tennessee Court of Criminal Appeals found that Johnson’s attorneys’ performance
was not deficient and therefore did not reach the prejudice prong of Strickland. As a consequence, he argues, the
deferential AEDPA standard should not apply to our consideration of the prejudice prong. Our review of the Court of
Criminal Appeals’s decision reveals that that court did not expressly distinguish between the two Strickland prongs. See
State v. Johnson, 1988 WL 3632, at *4. Instead, the court found that “although the new aspects of the prosecution’s case
were clearly damaging, they were not of a type that could be rectified by delaying the trial.” Id. This statement could
be construed as a resolution of either Strickland prong, or both. However, because we find that the Court of Criminal
Appeals at least found that Johnson’s counsel’s performance was not deficient, and this conclusion was not contrary to
or an unreasonable application of federal law as determined by the Supreme Court, we need not determine whether the
AEDPA standard applies to the prejudice prong.
No. 04-5377                          Johnson v. Bell                                                           Page 16


as found by the Court of Criminal Appeals, Johnson’s counsel “made every effort possible” in the
days before trial to gain information to impeach and discredit Smith’s potentially harmful testimony.
See id. (“[T]he defense counsel prepared so thoroughly for trial that, despite the devastating nature
of the sudden turn of fortune, we can think of little more that an attorney could have done during a
continuance that counsel did not do at trial to counter this evidence.”).
        Because additional time would not necessarily have aided Johnson’s defense, we cannot say
that his counsel’s failure to seek a continuance fell below an objective standard of reasonableness
such to constitute deficient performance.19 See Strickland, 466 U.S. at 688-89 (noting that “the
defendant must overcome the presumption that, under the circumstances, the challenged action
might be considered sound trial strategy”). His claim therefore fails.
                                                           2.
        Lastly, we consider whether Johnson’s counsel rendered ineffective assistance by not seeking
the recusal of the prosecutors after they participated in the conversion of Victor Davis to a
prosecution witness. The Tennessee Court of Criminal Appeals found that the prosecutors’ actions
at issue were proper and that Johnson’s counsel’s performance could not be deemed ineffective for
not challenging evidence or actions that have already been found to be proper or acceptable.
Johnson v. State, 1988 WL 3632, at *4. We agree. Further, Johnson concedes that no precedent
supports his argument on this point. Instead, he argues only that “no conceivable sound trial
strategy” would include permitting the prosecutors to recount their version of the examination of a
witness. Without more, this bare allegation cannot establish objectively deficient performance.
Because Johnson fails to demonstrate how his counsel’s decision not to seek the prosecutors’ recusal
constituted deficient performance, we need not consider whether such failure resulted in prejudice
to Johnson’s defense.
                                                          IV.
         For the foregoing reasons, we affirm the judgment of the district court.




         19
           Johnson asserts that his was an “eminently defensible and even winnable case,” but he fails to show how a
continuance would have been, or could have been, productive for his defense. Instead, he offers only that a continuance
would have afforded his defense “time to regroup” and the ability to “appreciate the full significance” of the relatively
late developments.
No. 04-5377                     Johnson v. Bell                                                 Page 17


                                      _____________________
                                         CONCURRENCE
                                      _____________________
       ALICE M. BATCHELDER, Circuit Judge, concurring. I concur fully in the lead opinion
and rely upon the lead opinion’s sound reasoning as the basis for my decision. I write separately
merely to emphasize my disagreement with the dissent’s depiction of the value of the withheld
evidence.
        The dissent proceeds from the acknowledged premise that the appellant needs only to
convince us “that the favorable evidence could reasonably be taken to put the whole case in such
a different light as to undermine confidence in the verdict.” The dissent then attempts to persuade
us why we ought not have confidence in the jury’s verdict. But, the dissent grossly overstates the
value of the withheld evidence and, as a result, its claims cannot survive scrutiny.
        The dissent urges us to find, in light of the withheld evidence, that Debra Smith’s story
“rais[es] a substantial implication that the prosecutor had coached her to give it.” Further, the
dissent actually expresses “doubts as to whether she was even present in Bell’s store on the night
of the crime.” Thus, according to the dissent, Debra Smith is not simply mistaken or even
misleading — Debra Smith, under the direction of the prosecution, has concocted a story for the
purpose of incriminating and convicting Cecil Johnson, an acquaintance toward whom she had no
prior animosity. There is no support in the record for this accusation. Nor does the record contain
any basis upon which to assume that the prosecution did what it would have had to do to obtain such
perjured testimony, i.e.: (1) select her as a participant in this scheme; (2) instruct her to lie under
oath — to tell this false story when, in fact, she had not even been in the store; and (3) coach her into
giving this suspiciously inconsistent and unbelievable testimony, during which she repeatedly
contradicted herself and other prosecution witnesses. Although the dissent does not specify,
presumably, the prosecutors’ motive would have been to produce a fourth witness placing Johnson
at the scene of the crime. Of course, this requires us to assume that the prosecutors were so intent
on obtaining Johnson’s capital conviction that they would risk sanctions and prosecution for
suborning perjury — an assumption wholly lacking factual support in this record. And, even more
tenuous is the necessary assumption that Debra Smith acted without any motive whatsoever. The
dissent offers nothing — not even idle speculation, much less evidence from the record — to
indicate any motive for Debra Smith to commit this particular (extensive) perjury. To be sure, the
dissent is perfectly correct that motive has no role in the legal analysis. I raise the question of
motive only to demonstrate the incredibility of the dissent’s theory, i.e., that Debra Smith was never
even in the store and that she (with help from the prosecutors) concocted the entire story. Equally
implausible — in light of that theory — is the dissent’s later contention that “[She] might just simply
have been mistaken.” There is no question that Debra Smith was a poor witness, but contrary to the
dissent’s exaggerations, her weak and confused testimony does not demonstrate, or even suggest,
that the prosecutors suborned perjury in obtaining it. Indeed, the record suggests the contrary,
inasmuch as the prosecutors — had they been inclined to coach her into giving false testimony —
surely would not have coached her to give testimony that was so confused and inconsistent. The
withheld evidence does not render her testimony any less credible than it was on its own.
        The dissent next urges us, again based on the withheld evidence, to completely disbelieve
the identification testimony of the two eye-witnesses, Bob Bell and Lewis Smith, testimony which
— from each of them — was otherwise coherent and consistent, both with the testimony of the other
and with the prosecutors’ theory of the case. I do not find their testimony questionable and thus, I
do not lack confidence in the jury’s verdict. Even if the withheld evidence did render the testimony
questionable — which it does not — in order to agree with the dissent, one would have to conclude
that the emphatic and unequivocal in-court identifications of Johnson were either terribly mistaken
No. 04-5377                    Johnson v. Bell                                                Page 18


or were part of a conspiracy to frame Johnson (a conspiracy orchestrated by the prosecution). And,
while the dubious possibility exists that the potential for conviction would motivate the prosecution,
the dissent’s only answer to why these two victims would testify falsely against Johnson — thereby
convicting an innocent man of murder while setting the actual murderer free — is that “[t]hey might
just simply have been mistaken,” and that without the withheld evidence, defense counsel was so
“severely crippled” that it could not “bring[] to light such mistakes.” Given the magnitude of these
alleged mistakes, this claim is as incredible as it is demeaning to defense counsel and jury alike.
        Having thus discarded the testimony of Debra Smith, Bob Bell, and Lewis Smith, the dissent
would have us conclude that the prosecution was left with only the testimony of Victor Davis. And
that testimony, the dissent posits, was coerced by the prosecutors with “dangled threats of
prosecution and promises of immunity.” But, as the dissent concedes, none of the withheld evidence
had anything to do with Davis. Moreover, it is clear from the record that Johnson’s counsel had
ample opportunity to, and in fact did, cross-examine Davis about the circumstances of his arrest,
detention, and initial story to the police, as well as his testimony incriminating Johnson. The jury
had all of this information, and the dissent points to no new evidence to support its speculation that
Davis’s testimony was coerced. And while one could ascribe to this witness a motive to testify
falsely — avoiding implication in this triple murder and obtaining immunity on other crimes — one
would still have to assume, without basis, that in procuring this false testimony, the prosecutors were
willing to risk sanctions or prosecution for suborning perjury. In short, the jury was aware of this
witness’s motive to lie and the withheld evidence does not cast any further doubt on this testimony.
         In sum, the dissent surmises that if Johnson’s counsel had been given the withheld evidence
before trial, he might have convinced the jury that Debra Smith lied, Bob Bell and Lewis Smith
either lied or erred drastically, and that this — when added to the argument that Davis’s testimony
was coerced and therefore unreliable — so undermines confidence in the jury’s verdict that the trial
was unfair. But the withheld evidence, considered in context with the totality of the evidence, is
neither as damaging to the witnesses nor as beneficial to the defense as the dissent suggests. And
though the dissent argues that the evidence is exculpatory, that too is a gross exaggeration — it
points to one witness’s misidentification, it does not point to anyone else as the murderer (there is
no “Beanie” in this case) and it does not even point away from Cecil Johnson. At most, the withheld
evidence makes a little bit of already questionable evidence a little bit more questionable. This does
not reduce confidence in the jury’s verdict and this is not a valid basis for habeas relief.
No. 04-5377                     Johnson v. Bell                                                   Page 19


                                           _______________
                                              DISSENT
                                           _______________

        R. GUY, COLE, JR., Circuit Judge, dissenting. The facts giving rise to Johnson’s Brady
claim are undisputed and straightforward. The entire case against Johnson consisted of only four
witnesses and no physical evidence. One of the four witnesses was originally scheduled as an alibi
witness to corroborate Johnson’s innocence. On the day before trial, after a coerced midnight
encounter with the State prosecutor, that witness flipped. As for the other three witnesses, the State
admits that the prosecution withheld evidence that would have impeached each witness’
identification of Johnson as the perpetrator. To say the least, the jury saw a markedly different trial
than it would have had the prosecution honored its Brady obligations. See Brady v. Maryland, 373
U.S. 83, 87 (1963). Accordingly, the Tennessee Court of Criminal Appeals unreasonably determined
that the withheld evidence was immaterial and that, without it, Johnson still received a fair trial
“resulting in a verdict worthy of confidence.” Kyles v. Whitley, 514 U.S. 419, 434 (1995). Because
“‘fairness’ cannot be stretched to the point of calling this a fair trial,” id. at 454, I dissent.
                                                    I.
        It is fundamental and firmly established that a defendant’s due process rights are violated
where the government (1) withholds evidence (2) favorable to the defendant (3) that is “material
either to guilt or to punishment.” Brady, 373 U.S. at 87. The State concedes that it withheld
favorable evidence that would have assisted in Johnson’s defense. At issue is only whether the
suppressed evidence was material.
         Brady materiality is established where, viewing the withheld evidence collectively, the
“government’s evidentiary suppression ‘undermines confidence in the outcome of the trial.’” Kyles,
514 U.S. at 434 (quoting United States v. Bagley, 473 U.S. 667, 678 (1985)). The Supreme Court
has repeatedly stated that “a showing of materiality does not require demonstration by a
preponderance that disclosure of the suppressed evidence would have resulted ultimately in the
defendant’s acquittal.” Id.; accord, e.g., Youngblood v. West Virginia, 547 U.S. 867, 870 (2006).
Indeed, “[t]he reversal of a conviction is required upon a ‘showing that 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. (quoting Kyles, 514 U.S. at 435). The Supreme Court has referred to this as only a
“reasonable probability” or a “significant possibility” of a different result. See, e.g., id.; Strickler v.
Greene, 527 U.S. 263, 298 (1999) (Souter, J., concurring in part and dissenting in part) (explaining
that “[reasonable] ‘probability’ raises an unjustifiable risk of misleading courts into treating it as
akin to the more demanding standard, ‘more likely than not’” and preferring the phrase “significant
possibility”). Accordingly, Brady materiality is not a sufficiency-of-the-evidence test. Kyles, 514
U.S. at 434. “A defendant need not demonstrate that after discounting the inculpatory evidence in
light of the undisclosed evidence, there would not have been enough left to convict.” Id. at 434–35;
accord Castleberry v. Brigano, 349 F.3d 286, 294 (6th Cir. 2003).
No. 04-5377                          Johnson v. Bell                                                            Page 20


        The prosecution withheld six items1 of evidence that, when considered collectively, as we
must, compel the conclusion that Johnson’s trial did not produce an outcome worthy of confidence.
As the Supreme Court of Tennessee explained, “[Johnson]’s insurmountable problem in this case
was not Davis’s testimony, but the testimony of the three eyewitnesses, two of whom looked into
the barrel of the pistol held by [Johnson] and were shot by him.” State v. Johnson, 632 S.W.2d 542,
547 (Tenn. 1982). Had the prosecution honored its Brady obligations by disclosing the six relevant
items of suppressed evidence, then the value of two of those “insurmountable” witnesses, Bob Bell
and Debra Smith, would have been substantially reduced, and the value of the third, Louis Smith,
would have been obliterated. A review of the withheld evidence reveals that its disclosure “would
have resulted in a markedly weaker case for the prosecution and a markedly stronger one for the
defense.” Kyles, 514 U.S. at 441. As Supreme Court precedent directs, I proceed with an evaluation
of “the tendency and force of the undisclosed evidence.” Id. at 437 n.10.
        The first item of withheld evidence was a police report prepared by Detective Moore,
regarding his interview of Bell the day after the crimes. This report would have undermined Bell’s
identification of Johnson as the perpetrator. Bell testified that he was familiar with Johnson because
Johnson had frequented Bell’s store in the past, that the assailant had some facial hair, and that
Johnson was the assailant. It is undisputed that at the time of the crimes Johnson had a goatee and
a light moustache. Thus, the jury heard testimony from Bell that was internally consistent. In
Detective Moore’s suppressed report, however, Bell described the assailant as having “no facial
hair.” (JA 274.) Without employing any fantastic leaps of imagination, this withheld report would
have called into question the reliability of Bell’s identification. Simply put, by suppressing the
report, the prosecution was able to prevent the jury from learning a crucial inconsistency between
Bell’s initial description of the assailant and Bell’s identification of Johnson. Because reliability of
identification testimony depends in large part on the accuracy of a prior description, Manson v.
Brathwaite, 432 U.S. 98, 114 (1977), Bell’s identification would have been substantially undermined
by the use of this withheld police report.
         The second item of evidence suppressed by the prosecution would have cast further doubt
on the reliability of Bell’s testimony—a medical report revealing that Bell had a history of “some
mental instability.” (JA 1288.) As the majority highlights, any cross-examination regarding Bell’s
mental health would by necessity have proceeded delicately. This, however, does not mean that
defense counsel would not have been able to use it to further undermine Bell’s credibility. Although
its suppression may not rank with the failure to disclose Detective Moore’s police report, it certainly
would have had some value to competent counsel, “and it counts accordingly in determining whether
. . . materiality is satisfied.” Kyles, 514 U.S. at 450. In short, the medical report “would have had
some weight and its tendency would have been favorable to [Johnson].” Id. at 451.
        The third item of evidence suppressed by the prosecution would have impeached another
“insurmountable witness,” Debra Smith, by raising doubts as to whether she was present in Bell’s
store on the night of the crimes. The prosecution withheld a police report prepared by Detective
Robeck, revealing that Louis Smith indicated that no female customers entered the store during the
robbery. This evidence would have further undermined Debra Smith’s testimony, which, both the
majority and concurrence acknowledge, was already suspect. Debra Smith testified that, upon
entering Bell’s store on the night of the crimes, she immediately realized that a robbery was in
progress, yet still purchased a soft drink and inexplicably failed to call the police once she returned

         1
            Johnson claims that the prosecution withheld seven items. One of the items is a defense filing in an unrelated
case that arguably would have been readily available to Johnson by trial time. As that item does not change my analysis,
I proceed assuming that it is not part of the Brady calculus and address only six of the suppressed items. See, e.g.,
Matthews v. Ishee, 486 F.3d 883, 891 (6th Cir. 2007) (“[W]hen the information is readily available to the defense from
another source, there simply is nothing for the government to ‘disclose.’” (citing Coe v. Bell, 161 F.3d 320, 344 (6th Cir.
1998))).
No. 04-5377                    Johnson v. Bell                                               Page 21


home. Even more curiously, her testimony repeatedly described Louis Smith, one of only four
people apparently in the store when she entered, as a Black man. Louis Smith, however, is white.
Consistent with this theory, the prosecution never alleged a female was present in the store during
the robbery until only a few days before trial when it named Debra Smith as a potential witness. This
withheld police report puts at issue whether Debra Smith was in Bell’s store that night and, in the
hands of competent defense counsel, would have “fueled a withering cross-examination, destroying
confidence in [Debra Smith’s] story and raising a substantial implication that the prosecutor had
coached [her] to give it.” Id. at 443.
        As the majority and concurrence point out, even without the disclosure of this withheld
police report, Debra Smith’s testimony was weak, inconsistent, and significantly impeached. There
is no question, however, that this report could have been used to further impeach Debra Smith, and
may even have been used to expose potential prosecution improprieties, like coaching. The
implication of coaching would have been strengthened by the suspicious circumstances surrounding
Davis’s conversion, which raises further questions of prosecutorial misconduct. Quite simply, it is
unreasonable to conclude that the withheld report would have had no value as exculpation or
impeachment, and therefore it too must be counted towards determining whether materiality has
been satisfied. See Kyles, 514 U.S. at 450.
         I save the worst for last. The fourth, fifth, and sixth items of evidence withheld by the
prosecution relate to Louis Smith. Smith testified that he got a “good look” and even a “real good”
look at the assailant’s face. (JA 334, 364.) He further testified that he correctly identified Johnson
from a photo array. By all accounts, Smith was a strong witness for the prosecution. The following
three items of suppressed evidence in the hands of competent defense counsel, however, would have
obliterated his value as a prosecution witness.
        Officer Dobson prepared a police report from an interview with Louis Smith immediately
after the shootings. This report indicates that Smith disavowed any ability to identify the assailant:
“I then talked to [Louis Smith] who related he was inside the market working on a motor when
assailant entered the market and shot and robbed him for no reason and he saw him to be a [young,
Black male] but did not see assailant[’s] face.” (JA 1276 (emphasis added).) Smith’s inability to
describe the assailant was similarly noted in another police report prepared by Detective Flowers
shortly after the crimes: “Louis Smith advised he could not describe susp[ect] at this time but is
willing to be reinterviewed at a later date.” (JA 1278.) Finally, and most alarmingly, a withheld
police report prepared by Detective Robeck reveals that Smith did not pick Johnson’s picture out
of a pre-trial photo array, but instead chose the pictures of two other young, Black males. (JA
298–99, 1281.) It is not hard to imagine what competent defense counsel would have done had the
prosecution disclosed these three crucial items. Doubtless, their disclosure would have effectively
reduced Louis Smith’s value as a prosecution witness to nil. Importantly, the prosecution’s
suppression of these items also prevented the jury from learning that, to the extent Louis Smith could
identify the assailant, he identified someone other than Johnson, rendering these items exculpatory
as well, despite the concurrence’s best attempts to characterize Louis Smith’s selection of someone
other than Johnson from a photo array containing Johnson’s photo as a mere “misidentification.”
       Moreover, the demise of Louis Smith as a credible prosecution witness would have done
more than just nullify his testimony. For instance, it would have served to discredit generally the
police and prosecution methods employed in assembling the case against Johnson, calling into
question the veracity of the other “insurmountable witnesses” and Davis. As the Fifth Circuit aptly
explained, the consequences of destroying one eyewitness extend beyond just that witness:
              We are tempted, but not persuaded, by this arithmetical approach; our
       experience at the bar has been that positive identification by two unshaken witnesses
       possesses many times the power of such an identification by one only, and that the
No. 04-5377                     Johnson v. Bell                                                 Page 22


        destruction by cross-examination of the credibility of one of two crucial
        witnesses—even if the other remains untouched—may have consequences for the
        case extending far beyond the discrediting of his own testimony.
Lindsey v. King, 769 F.2d 1034, 1042 (5th Cir. 1985).
        Confronted with this, the Tennessee Court of Criminal Appeals nonetheless determined that
Supreme Court precedent did not compel the conclusion that the withheld evidence was material.
See Johnson, 1997 WL 738586, at *8. Curiously, the Tennessee court cited Kyles only once,
notwithstanding that Kyles came down two years before the Tennessee court’s decision and that it
was, and still is, the Supreme Court’s most thorough application of Brady to any set of facts. See id.
at *4 (citing Kyles for the proposition that “[t]he court must view the suppressed evidence
collectively in the context of the entire record to determine whether the evidence is material under
Bagley”). Regardless, because Johnson’s Brady claim presents at least as strong a case for
materiality as Kyles, the Tennessee court’s determination that the withheld evidence did not satisfy
Brady materiality was an unreasonable application of Supreme Court precedent. Williams v. Taylor,
529 U.S. 362, 405–07 (2000) (“[A] state-court decision involves an unreasonable application of
[Supreme Court] precedent if the state court identifies the correct governing legal rule from
[Supreme Court] cases but unreasonably applies it to the facts of the particular state prisoner’s
case.”).
        In Kyles, the Supreme Court reversed a Fifth Circuit decision holding that evidence withheld
by the prosecution was immaterial under Brady. 514 U.S. at 454. Kyles was convicted of the
daytime murder of a woman outside a grocery store. Id. at 423. There was a mountain of evidence
against Kyles, which included four eyewitnesses, the murder weapon found in Kyles’s apartment,
and some of the victim’s personal effects found in Kyles’s trash. Id. at 430–32. That is, unlike the
case against Johnson, physical evidence implicated Kyles. The prosecution withheld the following
exculpatory evidence: six contemporaneous eyewitness statements taken by police that would have
impeached two of the four eyewitnesses, and various statements, memoranda, letters, and recordings
relating to “Beanie,” a police informant, who did not testify at trial, but was responsible for directing
the investigation towards Kyles. See id. at 423–26. At best, the Supreme Court acknowledged that
disclosure of the evidence would have served to raise some questions about whether the gun and
victim’s personal effects were planted by Beanie in an attempt to frame Kyles, and would have
“substantially reduced or destroyed” the value of two of the four eyewitnesses. Id. at 441. Not every
item of the State’s case, however, would have been directly undercut had the suppressed evidence
been disclosed. Importantly, the Court recognized that two eyewitnesses would have remained
untouched. These eyewitnesses consistently identified Kyles as the perpetrator immediately after
the murder, in a photo array, and in court. Moreover, even without the eyewitness testimony, the
overwhelming physical evidence still would have pointed towards Kyles, unless the jury had
believed that Beanie was the mastermind behind a massive conspiracy to frame Kyles—an account
that Justice Scalia described as “strain[ing] credulity to the breaking point.” Id. at 470 (Scalia, J.,
dissenting).
       Comparing the probable impact of the withheld evidence in Kyles to the probable impact of
the evidence withheld by the State that would have been favorable to Johnson compels the
conclusion that the withheld evidence in Johnson’s case is material. Here, the withheld evidence
would have served to attack all three eyewitnesses, leaving the State with only Davis’s testimony.
Davis, of course, was a nineteen-year-old, who changed his story the day before trial after a coerced
midnight encounter with a prosecutor who dangled threats of prosecution and promises of immunity
before Davis. Indeed, his testimony was sufficiently suspect that the Supreme Court of Tennessee
discounted it in affirming Johnson’s convictions. See Johnson, 632 S.W.2d at 547. Because the case
against Johnson relied almost exclusively on eyewitness identification, the materiality of the
No. 04-5377                    Johnson v. Bell                                                Page 23


withheld evidence, which called into question the testimony of all three eyewitnesses, compels a
materiality finding.
        True enough, the withheld evidence would not have directly undercut Davis’s testimony,
and, therefore, even had the withheld evidence been disclosed, there may have been sufficient
evidence for a jury to convict, notwithstanding the suspicious nature of Davis’s conversion. That is,
any reasonable jury may very well have believed Davis’s testimony. But this is not the proper
inquiry. Brady materiality is not a sufficiency-of-the-evidence test. Kyles, 514 U.S. at 434. The
withheld evidence need not touch every prosecution witness and every item of incriminating
evidence before materiality is satisfied. To be sure, “the effective impeachment of one eyewitness
can call for a new trial even though the attack does not extend directly to others.” Id. at 445 (citing
United States v. Agurs, 427 U.S. 97, 112–13 n.21 (1976)) (emphasis added).
         Consistent with this, we have concluded that withheld evidence satisfies materiality where
its disclosure would have left several prosecution witnesses completely unscathed. For instance, in
Castleberry v. Brigano, we held that three items of suppressed evidence, when evaluated
collectively, “strongly support[ed] the conclusion that Castleberry’s trial did not produce an outcome
worthy of confidence,” thus satisfying Brady materiality. 349 F.3d at 292. In reaching this
conclusion, we acknowledged that some testimony of witnesses present at the scene of the crime
“would not have been contradicted by the withheld evidence.” Id. at 294. Nevertheless, we
acknowledged, “[t]he key question . . . ‘is not whether the state would have had a case to go to the
jury if it had disclosed the favorable evidence, but whether we can be confident that the jury’s
verdict would have been the same.’” Id. (quoting Kyles, 514 U.S. at 453).
       The Supreme Court explained this principle in Kyles:
       [N]ot every item of the State’s case would have been directly undercut if the Brady
       evidence had been disclosed. It is significant, however, that the physical evidence
       remaining unscathed would . . . hardly have amounted to overwhelming proof that
       Kyles was the murderer. . . .
       ....
               The inconclusiveness of the physical evidence does not, to be sure, prove
       Kyles’s innocence, and the jury might have found the eyewitness testimony . . .
       sufficient to convict . . . . But the question is not whether the State would have had
       a case to go to the jury if it had disclosed the favorable evidence, but whether we can
       be confident that the jury’s verdict would have been the same.
514 U.S. at 451, 453.
        Before concluding, I am compelled to address the concurrence’s disagreement with what it
calls my “depiction” of this case. By my best reading, I find three wholly unconvincing points buried
in the concurrence and nary a citation.
        The first point seems to be that the six items of withheld evidence were all impeaching as
opposed to exculpatory, and that this would have rendered it somehow less valuable to competent
defense counsel. This is a distinction not supported by case law. The Supreme Court has repeatedly
“disavowed any difference between exculpatory and impeachment evidence for Brady purposes.”
E.g., Kyles, 514 U.S. at 433; Bagley, 473 U.S. at 676. Regardless, it is also a contention unsupported
by the record. As mentioned, the suppressed Detective Robeck report would have revealed that
Louis Smith did not pick Johnson’s picture out of a pre-trial photo array, but instead chose the
pictures of two other young, Black males. That the concurrence characterizes this as a mere
“misidentification” strains credulity and ignores the Supreme Court of Tennessee’s finding that
No. 04-5377                     Johnson v. Bell                                                  Page 24


Louis Smith’s testimony was “insurmountable” because he supposedly “looked into the barrel of the
pistol held by [Johnson] and [was] shot by him.” Johnson, 632 S.W.2d at 547.
        The concurrence’s second concern appears to be that no motive existed for the three
witnesses to implicate Johnson. This concern again finds no basis in law or fact. The touchstone of
materiality is a “reasonable probability” of a different result. Kyles, 514 U.S. at 434. All suppressed
evidence that has any value as exculpation or impeachment counts in determining whether
materiality is satisfied. Id. at 450. Indeed, even the concurrence must begrudgingly admit that the
suppressed evidence would have assisted Johnson’s defense, notwithstanding that the witnesses
apparently had no motive to lie. Surely, to conclude otherwise would be to proceed with blinders.
Regardless, even assuming that the three eyewitnesses here had no motive to lie, the concurrence’s
assertion that they needed a motive to implicate the wrong person defies common sense. They might
just simply have been mistaken. The hallmark of an effective defense is bringing to light such
mistakes. Without the suppressed evidence, there is no question that Johnson’s defense was severely
crippled in accomplishing this basic defense task.
        Finally, the concurrence appears to conclude, after summarily discounting almost the entire
value of the suppressed evidence, that it would still have found Johnson guilty of the murders had
it been a juror in a hypothetical trial where the suppressed evidence was disclosed. Musing about
such hypotheticals, however, is unnecessary because that is not what Brady directs. Supreme Court
precedent is crystal clear: the Brady materiality inquiry “is not a sufficiency of the evidence test.”
Id. at 434. “[T]he question is not whether the State would have had a case to go to the jury if it had
disclosed the favorable evidence, but whether we can be confident that the jury’s verdict would have
been the same.” Id. at 453. Here, there can be no confidence.
        Johnson’s case is not even a close one. As in Kyles, Brigano, and others, the same is true
here: confidence that Johnson’s verdict would have been the same simply cannot survive a recap of
the suppressed evidence and its significance for the prosecution. The withheld evidence, taken
together, reveals at a minimum that one witness’s first and most lucid description of the assailant
did not comport with his in-court identification, that one witness may not have been present in Bell’s
store on the night of the crimes, and that one witness implicated someone other than Johnson when
confronted with a photo array containing Johnson’s picture. These were the same three witnesses
that the Supreme Court of Tennessee called Johnson’s “insurmountable problem.” Johnson, 632
S.W.2d at 547. Had the prosecution disclosed the six items of withheld evidence, competent defense
counsel may very well have destroyed the value of their identifications, or at least raised serious
questions in the jurors’ minds as to their reliability. This is to say nothing of the potential inferences
of police and prosecutorial misconduct that the jurors may also rationally have made had they been
apprised of the suppressed evidence. Simply put, Johnson’s defense was substantially crippled in
cross-examining the three critical witnesses on the only serious issue in this case—identification.
See Lindsey, 769 F.2d at 1040. “No reasonable court can have confidence in the decision of a jury
that did not hear this withheld evidence.” Castleberry, 349 F.3d at 294 (citation omitted).
                                                   II.
         The Tennessee Court of Criminal Appeals applied Kyles unreasonably when it determined
that the evidence withheld by the prosecution was immaterial and that, without it, Johnson received
a fair trial resulting in a verdict worthy of confidence. Such unreasonable application of Supreme
Court precedent mandates that we grant Johnson’s petition for a writ of habeas corpus. So, I dissent.
