                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 12a1082n.06

                                            No. 11-5986
                                                                                          FILED
                           UNITED STATES COURT OF APPEALS                              Oct 16, 2012
                                FOR THE SIXTH CIRCUIT                            DEBORAH S. HUNT, Clerk



MARQUEZ CRENSHAW,                                 )
                                                  )
       Petitioner-Appellant,                      )
                                                  )    ON APPEAL FROM THE UNITED
v.                                                )    STATES DISTRICT COURT FOR THE
                                                  )    MIDDLE DISTRICT OF TENNESSEE
HARRY STEWARD, Warden,                            )
                                                  )
       Respondent-Appellee.                       )



       Before: SUTTON and GRIFFIN, Circuit Judges; WELLS, District Judge.*


       SUTTON, Circuit Judge. In 1999, a Tennessee jury convicted Marquez Crenshaw of an

assortment of robbery, burglary and kidnapping charges, and the trial court sentenced him to twenty-

seven years in prison. After unsuccessfully seeking collateral relief from the state courts, he filed

a petition for a writ of habeas corpus in federal court. The district court denied the petition on two

grounds: It was procedurally defaulted and time barred. We affirm the procedural-default ruling and

need not reach the time-bar ruling.


                                                  I.




       *
        The Honorable Lesley Wells, Senior United States District Judge for the Northern District
of Ohio, sitting by designation.
No. 11-5986
Marquez Crenshaw v. Harry Steward

       Between the hours of 2 a.m. and 4 a.m. on November 12, 1998, four masked men pretending

to be police officers broke into the two-bedroom home of Betty Jean Mitchell. Mitchell and her

boyfriend were asleep in one bedroom, and Mitchell’s two sons, eighteen-year-old Mario Mitchell

and thirteen-year-old Geno Smith, were asleep in the other bedroom.


       The four men bound Ms. Mitchell, her boyfriend and Smith with duct tape and focused their

attention on Mario, shooting him twice in the leg. They ordered Mario to tell them where they could

find money and guns in the house, and began ransacking the house when he refused. The men found

some money ($800 or so) and a nine-millimeter gun, and they took both of them. That was not

enough.


       The men asked Mario once more where he hid his money and threatened to kill him if he did

not say. Mario lied, telling them they could find some money at his former residence on 12th

Avenue. The men shot Mario once more and dragged him outside. Two men got into Mario’s car

with him and drove to the home on 12th Avenue, while the other two followed in another car.


       When they arrived, the men dragged Mario onto the back porch and instructed him to yell

for his cousin, who purportedly was inside. When a man and woman appeared, the men forced one

or both of them back inside at gunpoint, ransacked the house and ordered the occupants to give them

any money they had. The men eventually left, shooting Mario once more on the way out.




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No. 11-5986
Marquez Crenshaw v. Harry Steward

       After receiving medical care in an emergency room, Mario identified three of the masked

men by name. A week later, after being released from the hospital, Mario identified the same three

men in a series of photographic lineups.


       Mario testified at trial that he knew all three men. He had known two of them, Leonard

Baugh and Damian Owes, for more than a year, and he had known Crenshaw since 1992, when the

two played in the same baseball league. On the night of the crimes, Mario recognized Crenshaw

when he removed his mask during the first home invasion and on the way to the home on 12th

Avenue. Mario recognized Baugh’s distinctive, high-pitched voice, and he had seen Baugh and

Owes at a convenience store two nights before the home invasion.


       A Tennessee jury did not buy Crenshaw’s defense. It convicted him of a range of robbery,

kidnapping and burglary charges. Four and a half years after losing his appeals in state court,

Crenshaw filed a federal habeas petition, arguing that the prosecution withheld exculpatory evidence

that would have shown Mario testified falsely, see Brady v. Maryland, 373 U.S. 83 (1963), and

knowingly allowed Mario to give false testimony, see Giglio v. United States, 405 U.S. 150 (1972).


       To support the Brady and Giglio claims, Crenshaw submitted four allegedly withheld

documents: a six-month lease signed by Mario Mitchell for the residence on 12th Avenue; a police

officer’s report from the November 10 raid of the 12th Avenue residence; the search warrant from

the November 10 raid; and police reports detailing Mario’s alleged assault of an unrelated person,

John Motley. The documents, claims Crenshaw, would have undermined the credibility of Mario’s


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No. 11-5986
Marquez Crenshaw v. Harry Steward

testimony.


        The district court denied the petition, holding that the claims were procedurally defaulted and

time-barred. It granted a certificate of appealability on both claims.


                                                  II.


        The procedural-default doctrine bars the writ if the state courts reject a federal claim based

on an unexcused failure to satisfy state procedural requirements, Coleman v. Thompson, 501 U.S.

722, 729–30 (1991), and if the petitioner never presented the claims to the state courts but state

procedural rules would preclude him from raising them now, Pudelski v. Wilson, 576 F.3d 595, 605

(6th Cir. 2009). Crenshaw procedurally defaulted his Brady and Giglio claims because Tennessee

law establishes a one-year limitations period for post-conviction relief and a restriction on successive

state petitions. Tenn. Code. Ann. § 40-30-102(a), (c). Crenshaw failed to meet the one-year

deadline and cannot sidestep it in view of the successive-petition bar.


        Even so, Crenshaw contends that cause and prejudice excuse the default. See Engle v. Isaac,

456 U.S. 107, 110 (1982). Two premises of his argument are correct: A defendant may excuse a

procedural default by establishing cause and prejudice for it, and a violation of Brady (requiring the

prosecution to turn over exculpatory evidence in its possession) may establish the requisite cause.

See Banks v. Dretke, 540 U.S. 668, 691 (2004). But the third premise is not: Crenshaw cannot show

that it is reasonably probable that the allegedly withheld evidence would have changed the verdict.

See id. at 698–99.

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No. 11-5986
Marquez Crenshaw v. Harry Steward

       Even if Crenshaw had a colorable claim that the government withheld exculpatory evidence

(doubtful but we need not decide), he cannot show prejudice from lack of access to the evidence.

With some of the evidence mentioned above, Crenshaw maintains he would have been able to prove

that Mario was lying about ownership of the 12th Avenue residence and that this would have

undermined Mario’s credibility. But the theory of impeachment was tangent-filled and speculative.

The basic idea was that Mario believed Crenshaw had prompted the police raid on November 10

(which led to drug charges against Mario) and that Mario fingered Crenshaw, as opposed to the real

offender, as his assailant in retaliation. Whether Mario did, or did not, own the 12th Avenue

residence, however, was only one part of that theory. The more important consideration was whether

there was any evidence—any evidence at all—suggesting Crenshaw prompted the police raid or

Mario knew about Crenshaw’s role in the raid. On that score, there was nothing, defeating any effort

to establish a tenable theory of prejudice.


       Crenshaw gets no further with a police report indicating that Mario assaulted John Motley

several weeks after the burglary due to an unrelated criminal investigation. Crenshaw seems to be

using the report as a form of similar-acts evidence to the effect that Mario is the kind of guy who

retaliates against people who get him in trouble. But Rule 404 of the Federal Rules of Evidence

precludes similar-act evidence and at all events this episode (in which Motley and Mario were

investigated by police, and Motley fingered Mario) happened weeks after the underlying incidents,

making it still more irrelevant.




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No. 11-5986
Marquez Crenshaw v. Harry Steward

       Mario Mitchell was unquestionably the victim of multiple assaults and shootings. He had

every reason to identify the true assailant as the real assailant. He identified Crenshaw as that

assailant based on two views of his face and recognition of his voice, all after having known him the

last half-dozen years. Why a reasonable jury would use these tangential pieces of evidence, even if

they somehow were admitted, to undermine Mario’s eyewitness identification of someone he had

known for six years is never plausibly explained. Ownership of the 12th Avenue residence had

nothing to do with Mario’s repeated identification of Crenshaw, and neither did the Motley incident.


       Nor was that the only evidence against Crenshaw. Another eyewitness (Michael Pritchard)

testified that one of the cars the defendants drove was a “large, black vehicle,” and Crenshaw’s

mother testified that her car, which police believed matched Pritchard’s description, had been stolen

on November 11. The same car was later discovered at Crenshaw’s grandfather’s house. On top of

that, Mario’s Chevrolet Blazer was recovered at Crenshaw’s grandfather’s house after the robbery.

On this record, the supposed Brady evidence does not “undermine confidence in the verdict” or raise

any “reasonable probability that the result of the trial would have been different if the suppressed

documents had been disclosed.” Strickler v. Greene, 527 U.S. 263, 289–90 (1999).


       The Giglio claim faces a similar problem because it relies on exactly the same theory—that

Mario did not testify truthfully about his ownership of the 12th Avenue residence. Under Giglio,

the government may not suborn perjury, and a court should set aside a criminal conviction “if there

is any reasonable likelihood that the false testimony could have affected the judgment of the jury.”

United States v. Agurs, 427 U.S. 97, 103 (1976). We may not, however, call for a new trial any time

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No. 11-5986
Marquez Crenshaw v. Harry Steward

“a combing of the prosecutors’ files after the trial has disclosed evidence possibly useful to the

defense but not likely to have changed the verdict.” Giglio, 405 U.S. at 154.


       The Giglio claim is a variation on the Brady theme—that the government knew Mario

testified falsely about ownership of the 12th Avenue residence. It is not clear that Mario testified

falsely on the point, and more to the point it is far from clear that the government knew otherwise.

Either way, for the same reasons his Brady claim fails, Crenshaw cannot prove that any of the

allegedly false testimony (about ownership of the 12th Avenue residence) had any chance of

changing the verdict. The record simply contains too much evidence of Crenshaw’s guilt and not

enough Brady or Giglio evidence suggesting his innocence.


       We need not reach the district court’s additional reason for denying the writ—that it exceeded

the one-year limitations bar. 28 U.S.C. § 2244(d)(1). It suffices to resolve this appeal to affirm the

district court’s conclusion that Crenshaw procedurally defaulted his Brady and Giglio claims.


                                                 III.


       For these reasons, we affirm.




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