                          NOT RECOMMENDED FOR PUBLICATION
                                 File Name: 20a0159n.06

                                         Case No. 18-5730

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT
                                                                                    FILED
                                                                              Mar 16, 2020
TRACY LYNN COPE,                                       )                  DEBORAH S. HUNT, Clerk
                                                       )
         Petitioner-Appellant,
                                                       )
                                                       )     ON APPEAL FROM THE UNITED
v.
                                                       )     STATES DISTRICT COURT FOR
                                                       )     THE EASTERN DISTRICT OF
RANDY LEE, Warden,
                                                       )     TENNESSEE
      Respondent-Appellee.
____________________________________/

Before: MERRITT, MOORE, and MURPHY, Circuit Judges

         MERRITT, Circuit Judge. Petitioner Tracy Lynn Cope appeals the district court’s denial

of his petition for habeas corpus under 28 U.S.C. § 2254. Cope’s primary claim on appeal is that

the State of Tennessee violated his Due Process rights under Brady v. Maryland, 373 U.S. 83

(1963), at his trial back in 2007 by not disclosing that one of its witnesses, Debbie Callahan, served

briefly as a confidential informant in an unrelated case about six months before Cope’s trial. We

agree with the Tennessee trial and appellate courts and the district court below that the non-

disclosure of witness Callahan’s status as a confidential informant was not material to Cope’s later

trial.

                                                  I.

         The Supreme Court in Strickler v. Greene, 527 U.S. 263 (1999), stated the following about

Brady claims:
Case No. 18-5730, Cope v. Lee


        “[T]here is never a real ‘Brady’ violation unless the nondisclosure was so serious
        that there is a reasonable probability that the suppressed evidence would have
        produced a different verdict. There are three components of a true Brady violation:
        The evidence at issue must be favorable to the accused, either because it is
        exculpatory, or because it is impeaching; that evidence must have been suppressed
        by the State, either willfully or inadvertently; and prejudice must have ensued.”

Id. at 281‒82. Because there is not a reasonable probability that the evidence concerning

Callahan’s status as a confidential informant would have produced a different verdict in

Cope’s trial, we hold that Cope suffered no prejudice and thus affirm the district court’s

denial of the writ.

        Although this case involves Cope’s procedural rights as a criminal defendant, we

provide a brief factual summary, and mention further facts where relevant. This habeas

case arises out of a bizarre factual context that spanned from shortly after 10:00 p.m. on

August 28, 2005, until around 4:30 a.m. on the morning of August 29, 2005, in the city of

Kingsport, Tennessee. In short, Cope, who was delirious from not sleeping for several

days and smoking cocaine, forced his girlfriend, Amanda Wilson, and another female,

Jakia Ford, from Wilson’s apartment to her van. Cope drove Wilson and Ford around

Kingsport for a few hours, eventually letting Ford get out of the van, and then drove Wilson

to Callahan’s apartment. While there, Cope forced Wilson and Callahan to sit and stand in

various places in the apartment and attempted to force them to undress.           Callahan

eventually ran out of the apartment, and Kingsport Police Department officers arrived

shortly thereafter. For a detailed factual background, see State v. Tracy Lynn Cope, No.

E2009-00435-CCA-R3-CD, 2010 WL 2025469, at *1‒3 (Tenn. Crim. App. May 20, 2010),

perm. app. denied (Tenn. Sep. 22, 2010). But we note that the Tennessee court mistakenly

said that the officer testified that he saw Cope holding Callahan in a chokehold; instead,

the officer testified that Cope held Wilson in a chokehold.

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Case No. 18-5730, Cope v. Lee


       On May 2, 2007, a Sullivan County, Tennessee, jury convicted Cope of one count of

especially aggravated kidnapping, one count of aggravated kidnapping, and one count of false

imprisonment. [R. 9-1 at 10–12] At trial, the State called four witnesses, two of which were

Callahan and Wilson. Callahan and Wilson told largely the same story, with a few differences

about the exact sequence of events inside Callahan’s apartment.

       On June 27, 2007, Cope was sentenced to a total of forty years’ imprisonment. [Id.] The

Tennessee Court of Criminal Appeals affirmed the judgment on direct appeal, and the Tennessee

Supreme Court denied Cope permission to appeal. Cope, 2010 WL 2025469.

       While Cope was incarcerated, another inmate named Arthur Harris, told Cope on

November 21, 2012, that Callahan served as a confidential informant for the Kingsport Police

Department in Harris’s case. [R. 9-17 PageID# 958‒62] Police records from Harris’s case revealed

that on January 16, 2007, Callahan agreed to purchase $160.00 worth of crack-cocaine from Harris.

[R. 9-17; Pet.’s Br. at 24]

       On February 7, 2013, Cope filed a motion for consideration of post-judgment facts in the

Tennessee Supreme Court, asserting that the State did not disclose that Callahan served as a

confidential informant in Harris’s case. See Tracy L. Cope v. State, No. E2013-02590-CCA-R3-

ECN, 2014 WL 4161480, at *3 (Tenn. Crim. App. Aug. 21, 2014), perm. app. denied (Tenn. Jan.

15, 2015). Cope then filed a second petition for post-conviction relief on March 15, 2013, which

the Sullivan County Criminal Court also dismissed, and the Tennessee Court of Criminal Appeals

affirmed. See id.

       On April 15, 2013, Cope filed a petition for a writ of error coram nobis in the Sullivan

County Criminal Court. [R. 9-17] The Sullivan County Criminal Court dismissed the petition on

October 1, 2013. [R. 9-18 at 153–57] The Tennessee Court of Criminal Appeals affirmed the



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Case No. 18-5730, Cope v. Lee


dismissal on August 21, 2014, and the Tennessee Supreme Court denied Cope review. [R. 9-22];

see Cope, 2014 WL 4161480, at *8.

         Finally, on April 17, 2015, Cope filed a petition for a writ of habeas corpus in this case in

the federal district court. [R. 1] The district court dismissed Cope’s petition on June 20, 2018.

[R. 19] On April 3, 2019, this Court granted a Certificate of Appealability on two issues:

(1) whether Cope’s Due Process rights were violated under Brady v. Maryland, and (2) whether

that claim is procedurally defaulted. [R. 14 at 8]

                                                         II.

    “We review de novo a district court’s decision to grant or deny habeas relief and review its

factual findings for clear error.” Robinson v. Mills, 592 F.3d 730, 734 (6th Cir. 2010) (citing

Anthony v. DeWitt, 295 F.3d 554, 560 (6th Cir. 2002)).

         The parties agree that Cope’s Brady claim is not procedurally defaulted and that the

provisions of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) apply because

the Tennessee courts adjudicated Cope’s Brady claim on the merits.1 [State’s Br. at 10]; Cope,

2014 WL 4161480, at *3‒8. We thus assume, without deciding, that Cope’s Brady claim is not

procedurally defaulted and proceed to the merits.

         We may not grant Cope habeas relief unless the State court judgment “(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




1
  The Tennessee Court of Criminal Appeals found that Cope untimely filed his petition for writ of error coram nobis
but addressed the merits of his claim, agreeing with the Tennessee trial court that due process considerations required
tolling the statute of limitations. See Cope, 2014 WL 4161480, at *7.

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Case No. 18-5730, Cope v. Lee


the State court proceeding.” 28 U.S.C. § 2254(d)(1)-(2). A state court’s finding of fact is presumed

correct unless petitioner rebuts the presumption by “clear and convincing evidence.” § 2254(e)(1).

        “A prosecutor’s suppression of evidence violates a criminal defendant’s due process rights

when the evidence is favorable to the accused and material either to guilt or punishment.” Thomas

v. Westbrooks, 849 F.3d 659, 663 (6th Cir. 2017) (citing Brady, 373 U.S. at 87)). The Supreme

Court has “rejected any . . . distinction between impeachment evidence and exculpatory evidence”

in assessing whether such evidence is favorable for Brady purposes. United States v. Bagley, 473

U.S. 667, 676 (1985).

       Cope satisfies the first two requirements of three-part test from Strickler, mentioned above.

The evidence would have been favorable to Cope as impeachment material concerning Callahan,

and the State did not disclose that information to Cope before trial. We thus deal here with the

third requirement, whether the nondisclosure of that evidence prejudiced Cope’s trial. See

Strickler, 527 U.S. at 281‒82.

       Prejudice occurs in the Brady context “where the evidence is material either to guilt or to

punishment[.]” Brady, 373 U.S. at 87. For Brady purposes, “[t]he 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, on understood as a trial resulting in a verdict worthy

of confidence.” Kyles v. Whitley, 514 U.S. 419, 434 (1995). The standard requires a showing of

more than a “reasonable possibility” of a different result, Strickler, 527 U.S. at 291, but “does not

require demonstration by a preponderance that disclosure of the suppressed evidence would have

resulted ultimately in the defendant’s acquittal.” Kyles, 514 U.S. at 434.

               In dismissing Cope’s Brady claim, the Tennessee Court of Criminal Appeals

applied the coram nobis standard from State v. Vasques, 221 S.W.3d 514, 527 (Tenn. 2007).



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Case No. 18-5730, Cope v. Lee


See Cope, 2014 WL 4161480 at *8. The Vasques standard and the materiality standard from Brady

and its progeny are largely the same. Compare Youngblood v. West Virginia, 547 U.S. 867, 870

(2006), Stickler v. Greene, 527 U.S. 263, 281‒82 (1999), and Brady, 373 U.S. at 87, with Cope,

2014 WL 4161480 at *8. The Tennessee Court of Criminal Appeals thus did not apply law

contrary to that from the Supreme Court of the United States. See 28 U.S.C. § 2254(d)(1).

       Nor did the Tennessee Court of Criminal Appeals unreasonably apply the Vasques/Brady

standard. Although we question the state court’s suggestion that evidence that Callahan served as

a confidential informant before Cope’s trial is not “relevant” and would be “simply cumulative”

impeachment evidence, it is not so unreasonable as to violate AEDPA’s “highly deferential”

standard. See Harrington v. Richter, 562 U.S. 86, 105 (2011); see also Robinson, 592 F.3d at 735

(explaining that jurors “frequently disregard [a confidential informant’s] testimony altogether as

highly untrustworthy and unreliable”). Evidence that a victim-witness served as a confidential

informant for the same law enforcement entity that investigated the present crime is certainly

relevant. See On Lee v. United States, 343 U.S. 747, 757 (1952). Further, although Callahan may

have been discredited because of her own testimony about her crack-cocaine addiction and prior

arrests, evidence that Callahan served as a confidential informant would not have been simply

cumulative.

       But, in the end, we cannot say that the Tennessee Court of Criminal Appeals reached a

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

presented in the State court proceeding.” See 28 U.S.C. § 2254(d)(2). The State had Wilson in

addition to Callahan to testify about what happened inside Callahan’s apartment. Cope’s counsel

had full opportunity to cross examine Callahan and Wilson at trial. While Callahan’s and Wilson’s

testimony contradicted one another’s in some minor respects, Cope’s counsel brought this to light



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Case No. 18-5730, Cope v. Lee


on cross examination. Additionally, Cope’s counsel never alleged that Callahan changed her

testimony for trial. There is also no evidence that the State paid Callahan to serve as a confidential

informant. We thus cannot say, based on the record before us, that the Tennessee Court of Criminal

Appeals unreasonably determined that the undisclosed evidence was immaterial.

       We therefore AFFIRM the district court’s denial of the writ.




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