           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT United States Court of Appeals
                                                   Fifth Circuit

                                                                            FILED
                                                                            June 9, 2008

                                       No. 06-20270                   Charles R. Fulbruge III
                                                                              Clerk

BRIAN MEGAS

                                                  Petitioner - Appellant
v.

NATHANIEL QUARTERMAN, DIRECTOR, TEXAS DEPARTMENT OF
CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION

                                                  Respondent - Appellee



                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:04-CV-4749


Before GARWOOD, CLEMENT and ELROD, Circuit Judges.
PER CURIAM:*
       Brian Megas, who is currently incarcerated in the Texas Department of
Criminal Justice, Correctional Institutions Division, appeals the district court’s
denial of his petition for writ of habeas corpus under 28 U.S.C. § 2254. He
argues that his conviction and sentence for the felony murder of Pauline Tanner
violates the Constitution because the State withheld material, exculpatory
evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963).


       *
        Pursuant to 5TH CIR. R. 47.5, this court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
                                  No. 06-20270

                      I. FACTS AND PROCEEDINGS
A. Facts
      The facts, as set forth by the First Court of Appeals of Texas in its opinion
affirming Megas’s conviction, are as follows:
            [Megas] and Pauline Tanner were dating. On July 23, 1999,
      [Megas] drove Tanner to a bar in Houston where they met some of
      [Megas’s] co-workers. [Megas] and Tanner became intoxicated and
      began arguing. [Megas] attempted to leave the bar around
      midnight, but both Tanner and an acquaintance of [Megas] asked
      him not to leave. [Megas] agreed to have Tanner drive them both
      to her house, where her brother, Nicholas, was waiting for a ride to
      [Megas’s] house.
            On arriving at Tanner’s house, she got out of the car and
      [Megas] moved to the driver’s side. [Megas] and Tanner continued
      to argue, while Nicholas got into the passenger seat of the car and
      Tanner got into the back seat. [Megas] yelled profanities at Tanner
      and told Nicholas that, if he did not like it, he could get out of the
      car. Nicholas got out of the car. [Megas] and Tanner left, heading
      northbound on Highway 59.
            At some point, [Megas] and Tanner pulled over to the left-
      hand side of the highway. Leolanna Pruitt was a passenger in a
      vehicle traveling southbound on the highway, and observed
      appellant punch and kick Tanner to keep her from getting out of the
      car. Linda Tyler was traveling northbound on the highway and
      observed Tanner running away from the car toward the barricade
      while [Megas] was holding onto her with one hand and punching her
      with the other. Tyler pulled over to render aid and began honking
      her horn. [Megas] then stopped hitting Tanner, dragged her into
      the car, and drove off.
             A short time later, [Megas] swerved into the right barricade.
      Two more witnesses observed [Megas] strike the barricade twice
      and flip the car several times until it landed on its roof. Tanner was
      partially ejected from the car and killed when the car rolled on top
      of her.
            The medical examiner determined that the cause of death was
      asphyxia, due to compression and dislocation of the neck, and stated
      the injuries from the accident caused the death. The medical
      examiner also found bruises on Tanner’s arm that were consistent

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      with defensive wounds, and bruises on her legs that were consistent
      with being kicked repeatedly. [Megas] had a blood alcohol
      concentration of 0.25 grams of alcohol per 100 milliliters of blood.
Megas v. State, 68 S.W.3d 234, 237–38 (Tex. App. 2002).
B. Proceedings
(1) State trial and direct appeal proceedings
      On October 1, 1999, Megas was indicted in the 183rd Judicial District
Court of Harris County, Texas for intoxication manslaughter and felony murder
in connection with the death of Tanner. The State dismissed the indictment for
intoxication manslaughter and tried Megas for felony murder, which was
predicated on the theory that Tanner was killed in the course of a kidnapping.
Megas pled not guilty.
      Before trial, Megas sought discovery of numerous items, including any
Brady material. On April 7, 2000, the trial court ordered the State to disclose
“all exculpatory evidence pursuant to Brady v. Maryland and related cases.”
The order provided that “the Defense should exercise reasonable diligence to
contact the State’s attorney and arrange a mutually convenient time for the
appointment.” This order also required the parties to comply by April 20, 2000.
      Megas’s trial began on May 9, 2000. At the conclusion of the evidence,
Megas requested and received a jury instruction on the lesser-included-offense
of intoxication manslaughter. On May 11, 2000, a jury found Megas guilty of
felony murder, and on May 16, 2000, the same jury sentenced him to fourteen
years of imprisonment. Megas appealed to the First Court of Appeals of Texas,
and it affirmed his conviction on January 31, 2002. The Texas Court of Criminal
Appeals (“TCCA”) denied Megas’s petition for review on July 31, 2003.
(2) State habeas proceedings
      Megas retained new counsel for post-conviction habeas proceedings, who
submitted an open records request to the prosecutor’s office.        The office
subsequently turned over Megas’s file, which included a March 3, 2000 letter

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addressed to the prosecutor from Claire Tanner, Tanner’s mother and the State’s
witness. The letter, in relevant part, provided:
      A week before the fatal accident, [Tanner and Megas] had a violent
      argument, and we were sure [Megas] had hit her, because we could
      see marks on her arms. She denied it, but was obviously shattered.
      ...
      During the several months leading up to her death, Pauline began
      to show signs of destabilization. She was distracted, depressed and
      quick to anger. . . .
      I am not trying to paint a picture of a helpless person here. Pauline
      was physically strong, a devotee of TaeBo, and intelligent.
On October 21, 2003, following the discovery of this letter, Megas filed a state
application for writ of habeas corpus, alleging in part that the State failed to
turn over material, exculpatory evidence—the letter—in violation of Brady. In
support of this allegation, Megas attached an affidavit by his trial counsel,
Clinton Greenwood. Greenwood provided that the State never disclosed the
letter and that he never saw the letter in the prosecutor’s file. He further
asserted that (1) had he been aware of Tanner’s denial of the prior assault, he
would have cross-examined Claire Tanner differently and halted a damaging
line of questioning posed to Megas on cross-examination; (2) had he known of
Tanner’s emotional instability, he would have been better able to defend against
the kidnapping charge by showing that Megas was trying to protect Tanner from
running into the street when he restrained her; and (3) had he been informed of
Tanner’s physical strength, he could have better countered the State’s argument
that she was weak and could not escape Megas.
      The State filed a response, which included an affidavit by the assistant
district attorney handling Megas’s trial, Mike Trent. Trent admitted that he did
not disclose the letter to Greenwood, because he did not believe it contained any
material, exculpatory evidence that was not already available to Megas. He also
stated that even though he did not disclose it, the letter was kept in the


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prosecutor’s file, which was made available to defense counsel through the
prosecutor’s open-file policy.
      On February 20, 2004, the state trial court entered findings of fact and
conclusions of law, recommending that Megas’s application be denied. The trial
court’s conclusion rested on the following findings: the disputed evidence was
(1) inadmissible; (2) not exculpatory to the murder charge; (3) could have been
obtained by the defense if reasonable diligence had been exercised; and (4) not
material because there was no reasonable probability that the outcome of the
trial would have been different had the disputed evidence been disclosed to
Megas. The TCCA adopted the trial court’s findings and denied relief on
December 15, 2004.
(3) Federal habeas proceedings
      Megas filed a 28 U.S.C. § 2254 petition for post-conviction relief on
December 17, 2004, alleging in part that the State withheld the letter in
violation of Brady. The district court denied relief on March 14, 2006, finding
that: (1) the letter’s contents, with respect to Tanner’s emotional instability and
physical strength, were readily discoverable to Megas; and (2) Tanner’s denial
that she had been previously assaulted by Megas was not material because
Claire Tanner believed that denial was untruthful and the denial did not impact
the inculpatory evidence of the kidnapping on the night of her death. On
March 20, 2006, Megas appealed. On June 27, 2007, this court granted Megas’s
request for a certificate of appealability (“COA”) on his Brady claim.
                         II. STANDARD OF REVIEW
      Megas’s petition is subject to review under the amendments to the federal
habeas corpus statutes embodied in the Antiterrorism and Effective Death
Penalty Act of 1996 (“AEDPA”). See 28 U.S.C. § 2254; Lindh v. Murphy, 521
U.S. 320, 336 (1997) (holding that AEDPA only applies to those habeas corpus
petitions filed after its effective date of April 24, 1996). Accordingly, Megas has

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the burden to show that he is entitled to relief under the highly deferential
standard of AEDPA. See Woodford v. Visciotti, 537 U.S. 19, 24–25 (2002).
      Under AEDPA, a federal petitioner may not obtain habeas corpus relief
      with respect to any claim that was adjudicated on the merits in
      State court proceedings unless the adjudication of the claim—
             (1) resulted in a decision that was contrary to, or
             involved an unreasonable application of, clearly
             established Federal law, as determined by the Supreme
             Court of the United States; or
             (2) resulted in a decision that was based on an
             unreasonable determination of the facts in light of the
             evidence presented in the State court proceeding.
28 U.S.C. § 2254(d). Courts review pure questions of law and mixed questions
of law and fact under subsection (d)(1) and pure questions of fact under
subsection (d)(2). See Martin v. Cain, 246 F.3d 471, 475–76 (5th Cir. 2001).
“Because a Brady claim involves a mixed question of law and fact, § 2254(d)(1)
applies instead of § 2254(d)(2).” DiLosa v. Cain, 279 F.3d 259, 262 n.2 (5th Cir.
2002). Thus, this court does “not decide de novo whether a state prisoner has
sufficiently proven a Brady violation”; “[r]ather, we decide whether the state
court’s Brady determination resulted in a decision that is contrary to, or involved
an unreasonable application of, clearly established federal law.” Dickson v.
Quarterman, 462 F.3d 470, 477–78 (5th Cir. 2006).
      A state-court decision is contrary to clearly established federal law “if the
state court arrives at a conclusion opposite to that reached by [the Supreme
Court] on a question of law or if the state court decides a case differently than
[the] Court has on a set of materially indistinguishable facts.” Williams v.
Taylor, 529 U.S. 362, 413 (2000). A state-court decision is an unreasonable
application of federal law “if the state court identifies the correct governing legal
principle from [the Supreme Court’s] decisions but unreasonably applies that
principle to the facts of the prisoner’s case.” Id.

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       [A] federal habeas court may not issue the writ simply because that
       court concludes in its independent judgment that the state-court
       decision applied [a Supreme Court case] incorrectly. Rather, it is
       the habeas applicant’s burden to show that the state court applied
       [that case] to the facts of his case in an objectively unreasonable
       manner.
Price v. Vincent, 538 U.S. 634, 641 (2003) (internal quotations and citation
omitted); see also Wiggins v. Smith, 539 U.S. 510, 520–21 (2003) (explaining that
“[i]n order for a federal court to find a state court’s application of [Supreme
Court] precedent ‘unreasonable,’ the state court’s decision must have been more
than incorrect or erroneous. The state court’s application must have been
‘objectively unreasonable.’” (citations omitted)).
                                   III. DISCUSSION
       Megas argues that the district court should be reversed because the state-
court determination that there was no Brady violation is objectively
unreasonable. Megas’s argument rests solely on his assertion that the State
violated Brady by withholding Claire Tanner’s March 3, 2000 letter, which
contained the following material, exculpatory information: (1) Tanner denied
that Megas hit her on a previous occasion,1 (2) Tanner was emotionally unstable
at the time of her death, and (3) Tanner was physically strong. Megas further
alleges that if he had this information before trial, then he would have been able
to better defend against the felony murder charge. We disagree.
       “The prosecution has a duty to disclose exculpatory evidence that is
material to either guilt or punishment.” Bower v. Quarterman, 497 F.3d 459,
476 (5th Cir. 2007) (citing Brady, 373 U.S. at 87). To establish a Brady violation,
a defendant must show: (1) the evidence was actually suppressed by the State,


       1
         In this prior altercation, Megas was driving a car, while he and Tanner had a violent
argument. The argument escalated and apparently became physical, which caused Megas to
veer into a curb and blow out his tire. At some point during this argument, Tanner discarded
Megas’s glasses.

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either willingly or inadvertently; (2) the evidence was favorable to the defendant,
either because it was exculpatory or impeaching; (3) the evidence was material
either to guilt or punishment; and (4) the failure to discover the allegedly
favorable evidence was not the result of a lack of due diligence. See Strickler v.
Greene, 527 U.S. 263, 281–82 (1999); Parr v. Quarterman, 472 F.3d 245, 254 (5th
Cir. 2006).
                                        A.
      Megas fails to make the threshold showing that the State suppressed the
March 3, 2000 letter and that his failure to discover it was not the result of a
lack of due diligence. See Parr, 472 F.3d at 254. “Brady and its progeny permit
the government to make information within its control available for inspection
by the defense, and impose no additional duty on the prosecution team members
to ferret out any potentially defense-favorable information from materials that
are so disclosed.” United States v. Pelullo, 399 F.3d 197, 212 (3d Cir. 2005)
(citing United States v. Mmahat, 106 F.3d 89, 94 (5th Cir. 1997)); see also Mathis
v. Dretke, 124 F. App’x 865, 877 (5th Cir. 2005) (“It is well established that the
prosecution has no duty under Brady to give defense counsel guidance as to
where in the prosecution’s open file to find exculpatory evidence.”). This court
has held that “[w]hen information is fully available to a defendant at the time
of his trial and his only reason for not obtaining and presenting the evidence to
the court is his lack of reasonable diligence, the defendant has no Brady claim.”
United States v. Mulderig, 120 F.3d 534, 541 (5th Cir. 1997) (internal quotations
and citations omitted). The TCCA held that the letter could have been obtained
by Megas’s trial counsel if he had exercised reasonable diligence.
      In his attempt to challenge this finding, Megas submitted an affidavit by
Greenwood, his trial counsel, which stated that he never saw the letter when he
reviewed the file.   Greenwood, however, did not expressly state when he
reviewed the file. The State submitted an affidavit by Trent, the prosecutor

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handling Megas’s case, which stated that the letter was kept in the file after its
receipt (a short time after March 3, 2000) and that the file was made available
to defense counsel under the open-file policy on at least three occasions prior to
trial in May 2000. In addition, when the State turned over the file to Megas’s
habeas counsel, that counsel easily discovered the letter in the file. Given this
conflicting evidence and the lack of specificity in Greenwood’s affidavit, the
TCCA’s holding is not objectively unreasonable.          Megas has not clearly
established that the letter was not in the file after it was received and thus not
readily discoverable with reasonable diligence.
                                        B.
      Even if this court were to hold that the State suppressed the letter, Megas
failed to demonstrate that it was material.         See Parr, 472 F.3d at 254.
“‘[E]vidence is material only if there is a reasonable probability that, had the
evidence been disclosed to the defense, the result of the proceeding would have
been different. A reasonable probability is a probability sufficient to undermine
confidence in the outcome.’” Bower v. Quarterman, 497 F.3d at 476 (quoting
United States v. Bagley, 473 U.S. 667, 682 (1985)). The TCCA held that the
letter was not material, and the district court agreed, at least as to Tanner’s
denial of the prior assault.
(1) Tanner’s denial of the prior assault by Megas
      The information contained in the letter regarding Tanner’s denial of the
prior assault by Megas is immaterial.        First, the prior assault is merely
collateral as it had no bearing on the kidnapping on the night of Tanner’s death,
which is the predicate for felony murder here. Under Texas law, kidnapping
occurs when a person “intentionally or knowingly abducts another person.” TEX.
PENAL CODE ANN. § 20.03. “‘Abduct’ means to restrain a person with intent to
prevent [her] liberation by . . . secreting or holding [her] in a place where [she]
is not likely to be found.” Id. § 20.01(2)(A). “‘Restrain’ means to restrict a

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person’s movements without consent, so as to interfere substantially with [her]
liberty, by moving [her] from one place to another or by confining [her].” Id.
§ 20.01(1). “Restraint is ‘without consent’ if it is accomplished by . . . force,
intimidation, or deception.” Id. § 20.01(1)(A). The State established these
elements with the testimony of two independent witnesses, Pruitt and Tyler.
Contrary to Megas’s argument, the State did not prove kidnapping by showing
that Megas was an “evil person” who had previously physically abused Tanner.
      Second, the State’s reference to the prior assault during its redirect
examination of Claire Tanner was brief and elicited only in response to questions
posed to her by defense counsel. During its direct examination of Claire Tanner,
the State never asked her about the prior assault. On cross examination,
however, defense counsel asked her specifically about the prior incident in the
following exchange:
      Q: In fact, if I’m not mistaken, on [Tanner]’s birthday or the night
      after, there was a prior incident of [Tanner] and [Megas] having an
      altercation, correct?
      A: Yes.
      Q: And, basically, the altercation was that [Megas] was driving
      [Tanner], and he had been in an argument and somehow she
      slapped, hit, or something and he veered off the road and blew out
      a tire. Correct?
      ....
      A: I don’t have personal knowledge. I wasn’t there. I know what I
      was told the next day.
Defense counsel continued to question Claire Tanner about this prior altercation,
inquiring about Megas’s glasses, which Tanner told her mother that she thought
she had thrown into an open field. On redirect examination, the prosecutor
posed the following questions to Claire Tanner about the incident:
      Q: Ms. Tanner, a couple weeks prior to the accident, did you see
      some bruises on [Tanner]?


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      A: Yes.
      Q: And did those bruises cause you any concern?
      A: Yes.
      Q: Were you ever satisfactorily—were those bruises ever
      satisfactorily explained to you as to how they had been inflicted?
      A: No.
The prosecutor then introduced a picture of Tanner with these bruises as State’s
Exhibit 40. As the record reveals, the State did not spend a significant amount
of time on the prior assault and referenced it only because of defense counsel’s
questions. Moreover, other than a general allegation, Megas fails to show how
his examination of Claire Tanner or other family members would have been
“completely different” if he had known about Tanner’s denial of the prior assault.
      Third, the State’s reference to the prior assault during its cross-
examination of Megas was brief. The State showed Megas Exhibit 40 and asked
him the following questions:
      Q: And do you see the bruises on [Tanner’s] arm?
      A: She has some bruises on her arm.
      Q: How did she get those?
      A: I have no idea.
      Q: So, you don’t know whether you inflicted these in that supposed
      altercation over the glasses?
      A: I didn’t.
      Q: You know that you didn’t inflict those?
      A: No, sir.
As the record demonstrates, this line of questioning was brief, and once again,
only occurred because of defense counsel’s prior questioning of Claire Tanner.
Megas also fails to show specifically how he could have halted this line of
questioning if he had known about the letter.



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         Fourth, neither the State nor defense counsel referenced the prior assault
in their closing arguments at trial, further showing the collateral nature of this
issue.
         Finally, Megas simply fails to demonstrate how this collateral issue, which
was briefly referenced in questioning, undermines the confidence in the outcome
of the trial. Megas cannot demonstrate that if he had knowledge of Tanner’s
denial of the prior assault, then he would have been able to show that he was not
abusive. Nor can Megas show that the State’s characterization of him as being
abusive or of Tanner as being a victim of classic abuse is even misleading. Claire
Tanner testified that she did not believe Tanner’s denial. In addition, Nicholas
Tanner and Julia Tanner testified that Tanner and Megas had a troubled
relationship and that Megas verbally abused Tanner. Further, Tanner’s denial
of the prior assault is in stark contrast to the physical evidence—there was a
violent argument between Tanner and Megas two weeks before Tanner’s death
and immediately thereafter bruises appeared on Tanner’s arm. Accordingly,
Megas fails to show how Tanner’s denial of the prior assault is material, and the
TCCA’s holding is not objectively unreasonable.
(2) Tanner’s emotional and physical condition
         The information contained in the letter regarding Tanner’s emotional and
physical condition is also immaterial. Megas argues that knowledge of Tanner’s
emotional instability would have strengthened his defense to kidnapping, where
he contended that he merely restrained Tanner to prevent her from running into
the street and injuring herself. Megas, however, generally admits that he does
not remember many details from the altercation on the side of the road due to
his high level of intoxication. Megas also contends that knowledge of Tanner’s
physical strength would have bolstered his argument that he could not have
physically restrained her. Megas, however, does not mention that Tanner was
highly intoxicated that night, which may have affected her ability to fight Megas


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off. Megas also consistently ignores that two independent witnesses, Pruitt and
Tyler, each testified that they saw Megas hit, kick, and force Tanner into the car
shortly before it flipped and caused Tanner’s death. Based on this evidence,
neither Tanner’s emotional nor her physical condition in the weeks prior to her
death is material, and thus the TCCA’s holding is not objectively unreasonable.
                              IV. CONCLUSION
      For the foregoing reasons, the denial of habeas relief is AFFIRMED.




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