          United States Court of Appeals
                     For the First Circuit


No. 12-2383

                       ANTHONY DECIANTIS,

                     Petitioner, Appellant,

                               v.

                           A.T. WALL,

                      Respondent, Appellee.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                FOR THE DISTRICT OF RHODE ISLAND

       [Hon. John J. McConnell, Jr., U.S. District Judge]


                             Before

                       Lynch, Chief Judge,
              Thompson and Kayatta, Circuit Judges.


     James T. McCormick, with whom McKenna & McCormick was on
brief, for appellant.
     Aaron L. Weisman, Assistant Attorney General, Rhode Island,
with whom Peter F. Kilmartin, Attorney General, Rhode Island, was
on brief, for appellee.



                          July 1, 2013
             LYNCH, Chief Judge. In 1984, appellant Anthony DeCiantis

was tried in Rhode Island state court for the killing of Dennis

Roche, convicted of first-degree murder, and sentenced to life

imprisonment.     In 1998, he filed an application for postconviction

relief in Rhode Island state court, seeking relief based on the

prosecution's alleged failure to turn over exculpatory evidence

during his trial.      The Superior Court for Providence County denied

DeCiantis's application in 2007, DeCiantis v. State (DeCiantis II),

No. PM 98-0899, (R.I. Super. Ct. Mar. 7, 2007), and the R.I.

Supreme Court affirmed this denial in 2011. See DeCiantis v. State

(DeCiantis III), 24 A.3d 557 (R.I. 2011).          The R.I. Supreme Court

held that the withheld information was not material under the Brady

test for materiality.       See Brady v. Maryland, 373 U.S. 83 (1963).

             DeCiantis then filed a petition, in 2012, for writ of

habeas corpus pursuant to 28 U.S.C. § 2254 in the Rhode Island U.S.

District Court.        The court denied the petition in thoughtful

opinions.     See DeCiantis v. Wall (DeCiantis V), C.A. No. 12-018-M,

2012    WL   5287036   (D.R.I.   Oct.    24,   2012);   DeCiantis   v.   Wall

(DeCiantis IV), 868 F. Supp. 2d 1 (D.R.I. 2012).             DeCiantis has

appealed. We affirm because the decision of the R.I. Supreme Court

was    neither   contrary   to   nor    an   unreasonable   application   of

controlling Supreme Court case law, and so relief is precluded by

the terms of the Anti-Terrorism and Effective Death Penalty Act

(AEDPA).     See 28 U.S.C. § 2254(d)(1).


                                       -2-
                                   I.

             We describe the facts found by the R.I. Supreme Court,

adding other facts from the record that are consistent with these

findings.    Healy v. Spencer, 453 F.3d 21, 22 (1st Cir. 2006).

A.           The Testimony at DeCiantis's Trial

             We use the R.I. Supreme Court's summary of the evidence

presented     at   DeCiantis's   June   1984   murder   trial.    See

DeCiantis III, 24 A.3d at 559-60 (citing State           v. DeCiantis

(DeCiantis I), 501 A.2d 365, 365 (R.I. 1985)).           As the court

recounted:

     The state's witness Louis Schiappa testified that on
     December 4, 1981, he observed two other men force the
     victim into a car driven by Anthony DeCiantis.       The
     witness stated that he had seen DeCiantis drive the car
     on prior occasions, and he identified the first two
     letters on the license plate. These two letters were
     identical to those on the registration of a car owned by
     defendant's sister.

     The next day Dennis Roche's body was discovered in a dump
     in Providence.    According to Deputy Medical Examiner
     Arthur Burns, Roche had died from a gunshot wound to the
     “trunk.”   Roche had suffered a second gunshot wound,
     several stab wounds, and injuries to the face and head
     consistent with his having been run over by a car.

     The state offered three additional witnesses, each of
     whom testified about separate occasions on which
     defendant had admitted to killing Roche.           Louis
     Campagnone testified that approximately two months after
     Roche's murder, he and defendant were in a restaurant
     when DeCiantis admitted to having killed Roche, claiming
     that he did it because he believed Roche to have been
     responsible for the disappearance of DeCiantis' brother,
     Rocco.

     Robert Livingston testified that during the summer of
     1982, he and defendant had a conversation in which

                                  -3-
     “Anthony DeCiantis told me that he and Ricky Silva had
     killed Dennis Roche . . . . He said that Ricky had shot
     him and he had stabbed him.” Livingston also testified
     that Rocco DeCiantis's disappearance had motivated the
     killing.

DeCiantis I, 501 A.2d at 365-66 (alteration in original).

          The third witness who testified that DeCiantis admitted

to Roche's killing was William Ferle.        Ferle testified that in

December 1981, DeCiantis told him that he and Silva "had killed

Dennis Roche, drove over him with a car, shot him."     According to

Ferle, DeCiantis said he killed Roche because "Roche kept annoying

him and throwing it in his face that about [sic] his brother being

killed on Halloween night and that it might be his turn the next

coming Halloween night."       Ferle testified that DeCiantis also

admitted on a few other occasions that he killed Roche.    DeCiantis

III, 24 A.3d at 560.

          Ferle was extensively impeached on cross-examination by

defense counsel, using Ferle's criminal history and questioning

whether his testimony was motivated by the desire for state

protection or for a lesser sentence on pending charges, and hence

was not truthful.   Ferle admitted that he had been found guilty of

conspiracy and bank fraud in 1982, and that charges were pending

against him for robbery, murder, first-degree arson, and obtaining

money under false pretenses.    Id.    Ferle was asked whether it was

the investigation of the arson which had prompted him to testify,

or whether he was testifying "[o]ut of the goodness of [his] heart


                                 -4-
. . . to help the system?"     Id.     Ferle answered that "I gave my

word that I would tell the truth of . . . about any murders that I

was aware of and that is what I did and that is all I am here is to

tell the truth."   Id. at 560-61 (alteration in original) (internal

quotation marks omitted).

          Defense counsel persisted:

     Q:   What would you like to happen with respect to your
          coming   forward  voluntarily   and  giving   this
          testimony in these cases?

     A:   Well, what I suggested was that I wanted protection
          for me and my family.       My wife and daughter,
          because a lot of the testimony I gave is against
          top organized crime figures which I was involved
          with and if they could get to me, they would kill
          me and that if whatever time I had to serve, if I
          could serve it in the custody of the State Police
          and not in a prison because they can get to you in
          a prison.   I know how things work.    I have been
          around them for ten years, you know, when I was in
          Danbury, I heard of things happening outside. Word
          gets around.   I don't feel I would be safe in a
          prison.

See id. at 561.    Defense counsel continued:

     Q:   And is it your claim, sir, that you have been
          promised nothing by way of consideration . . . by
          way of sentence for [your] testimony?

     A:   Like I said, there hasn't been no final commitment
          given to me. I don't really know what's going to
          happen at this point.

     Q:   You expect . . .

     A:   I am sure that I will be given protection somehow.
          They will have to do that unless I'll be dead.

     Q:   You expect more than protection for yourself and
          your family, do you know, Mr. Ferle?


                                 -5-
     A:      I'd like for that to happen.

     Q:      You [would] very much like for that to happen,
             wouldn't you?

     A:      I think anybody would.

     Q:      Isn't it a fact that you are going to get it, sir?

     A:      I can't say that truthfully, I don't know that.

     . . .

     Q:      You're telling us, then, that you don't care if you
             go to prison or on [sic] for all these crimes or
             not?

     A:      I am not saying that.

     Q:      Do you . . . you do care, don't you sir?

     A:      Everybody cares, but whatever has to happen is
             going to happen. I can't change that. I hope it
             doesn't happen, but I don't know what's going to
             happen. All I am here is to tell the truth.

See id.   Defense counsel pursued this same line of questioning on

several other occasions.

             Defense   counsel   also   questioned   whether   Ferle   had

received or expected to receive payment for his testimony:

     Q:      Do you expect to go into the Federal Witness
             Protection Program with a stipend or something
             every month . . . a salary?

     . . .

     A:      That really hasn't been discussed. I am in State
             Police custody. I haven't talked about any Federal
             programs.

     Q:      Who's supporting you now?

     . . .


                                     -6-
       A:      I am in the custody of the Rhode Island State
               Police.

       Q:      Who supports your family?

       . . .

       A:      They're also in the State Police custody.

       . . .

       Q:      Right now, you are being supported by the taxpayers
               of the State of Rhode Island?

       . . .

       A:      I don't know that I am.      I am in State Police
               custody.

Id. (alterations in original) (internal quotation marks omitted).

               On June 7, 1984, a jury convicted DeCiantis of murder in

the first degree.       Id. at 559.

B.             The Prosecution's Disclosures to DeCiantis

               We describe how the Brady issue arose, although the

outcome of this petition does not turn on the fact of non-

disclosure.

               In 2005 and 2006, the Providence Superior Court, on

DeCiantis's application for postconviction relief, heard testimony

from the prosecutor in DeCiantis's murder trial, David Leach, id.

at 562, and from a lieutenant with the state police who had been

involved in "handling" Ferle as a witness, Michael Urso, id. at

566.   DeCiantis's trial counsel had died before the hearing.        Id.

at 568.



                                      -7-
               1.     Disclosures Concerning Ferle's Criminal History

               Prosecutor    Leach   testified      that    Ferle's      Bureau   of

Criminal       Identification    (BCI)    record    had     been    disclosed     to

DeCiantis in February 1984, before his trial, but that this record

omitted offenses with which DeCiantis had not been charged at that

time.       Id. at 563.    Leach did not know whether he had disclosed to

DeCiantis any other information about Ferle's criminal history.

Id.

               DeCiantis's counsel had cross-examined Ferle about crimes

that were not listed in the BCI record, id., such as the pending

murder charge and robbery charge, id. at 565.

               Leach conceded that the prosecution, in a case concerning

a different defendant, Nicholas Bianco, had submitted a September

12, 1984 supplemental answer which listed many more crimes in which

Ferle had been involved than those about which Ferle had been

cross-examined       at     DeCiantis's    trial.      Id.     at   564.      That

supplemental answer stated that "[d]uring the course of the de-

briefing of William Ferle, he has indicated his involvement in the

following       criminal     activity,"    id.   (alteration        in    original)

(internal quotation marks omitted); it then listed twenty-four

crimes, including eleven arsons, nine robberies, one larceny, two

murders, and one conspiracy to murder.1                    Indictments had been


        1
       The supplemental answer listed the robbery and arson, but
not the murder or the offense of obtaining money under false
pretenses, about which Ferle was cross-examined at DeCiantis's

                                         -8-
issued by a grand jury for six of these crimes and Ferle was a

defendant in four of these cases.   Id.    Two crimes were the subject

of continuing grand jury investigations, and Ferle was a potential

defendant in four other cases.    Id.

            Leach stated that he "assume[d]" that the state had not

learned of these crimes immediately before the Bianco trial, but

that he did not recall when these incidents came to the attention

of the state police.    Id. at 564-65.    However, Urso testified that

while he could not indicate in which month Ferle admitted all the

crimes in which he had been involved, it was "very possible" that

Ferle had disclosed all these crimes by June of 1984.      Id. at 566

(internal quotation marks omitted).

            Neither the Superior Court nor the R.I. Supreme Court

made a specific finding as to which of Ferle's criminal activities

were known to those acting on the prosecution's behalf but not

disclosed to DeCiantis before his conviction.      The Superior Court

appeared to assume, arguendo, that the state withheld evidence

before trial as to a murder admitted by Ferle.      DeCiantis II, slip

op. at 9.

            As said, the R.I. Supreme Court determined that "evidence

of additional criminal activity on the part of Mr. Ferle" was not

material.    It did not identify what evidence it was considering.

DeCiantis III, 24 A.3d at 573.


trial.

                                 -9-
            2.      Disclosures Concerning Ferle's Compensation

            In a signed but undated memorandum of agreement between

Ferle, the R.I. Attorney General's Office, and the R.I. State

Police, Ferle acknowledged that while in the custody of the state

police, he had received almost $24,000 "for his support in a 'safe'

house and for the support of his wife and child."                     Id. at 565

(internal quotation marks omitted).              Leach did not believe that

these amounts were disclosed to DeCiantis.                  Id.   Urso further

testified that the state police had made mortgage payments for

Ferle until his house was sold.               Id. at 567.     Leach nonetheless

confirmed    that   in   a   document    dated    May   21,   1984,   the   state

indicated in an answer to DeCiantis's motion for favorable evidence

that "[n]o promises, rewards or inducements, other than personal

safety and the safety of his family have been made to William R.

Ferle."     Id. at 566 (alteration in original) (internal quotation

marks omitted).

                                        II.

            DeCiantis's 1998 state postconviction relief petition had

two claims: that "the State withheld information regarding the

specific promises, rewards and inducements made to witness William

Ferle," and "the State intentionally withheld an uncharged act[2]

-- the murder of Ronald McElroy -- admitted by [Mr.] Ferle prior to



     2
       In DeCiantis's postconviction memorandum, he asserted that
the state had actually withheld eleven of Ferle's crimes.

                                    -10-
trial."   DeCiantis IV, 868 F. Supp. 2d at 2 (second alteration in

original) (internal quotation marks omitted).      As to the first

argument, the Superior Court concluded that "there is no reasonable

probability of a different result had the Petitioner been provided

with the specific expenditures made on Ferle at the time of trial."

DeCiantis II, slip op. at 9.      As to the second argument, the

Superior Court determined that "there exists no authority to

support the Petitioner's proposition that the State is obligated to

inform opposing counsel of uncharged admissions of a witness," id.,

and that "the addition of an immaterial uncharged admission creates

no reasonable probability of a different result," id. at 10.

           On appeal, DeCiantis argued that the Superior Court erred

in finding that the state had not deliberately withheld evidence

favorable to him, and hence failed to give him the benefit of Rhode

Island law regarding deliberate nondisclosure.3    The R.I. Supreme

Court upheld the Superior Court's determination that there had been

no deliberate failure to disclose evidence favorable to DeCiantis,

DeCiantis III, 24 A.3d at 571-72, but rejected its conclusion that

DeCiantis was not entitled to disclosure of Ferle's uncharged acts,

id. at 572-73. Nonetheless, the court concluded that DeCiantis had


     3
       Under Rhode Island law, the deliberate nondisclosure of
evidence favorable to a defendant furnishes "grounds for a new
trial regardless of the degree of harm to the defendant." State v.
Chalk, 816 A.2d 413, 419 (R.I. 2002). This standard "'provides
even greater protection to criminal defendants than the one
articulated [by the United States Supreme Court].'" Id. (quoting
Cronan ex rel. State v. Cronan, 774 A.2d 866, 880 (R.I. 2001)).

                                -11-
not satisfied his burden of showing that the undisclosed evidence

was material and affirmed the denial of his application.     Id. at

573.

           In DeCiantis's § 2254 federal court petition, he asserted

that (1) "the Rhode Island Supreme Court erred in affirming the

post conviction judge's finding that the state did not deliberately

withhold exculpatory evidence from the defendant, in violation of

his Fifth Amendment rights"; and (2) "the Rhode Island Supreme

Court erred when it found that if the state's failure to disclose

exculpatory evidence was not deliberate there was no constitutional

violation because the evidence was not material."      The district

court rejected4 the first argument on the basis that the "'good

faith or bad faith of the prosecution'" in failing to disclose

favorable evidence is irrelevant under clearly established U.S.

Supreme Court law.   DeCiantis V, 2012 WL 5287036, at *2 (quoting

Brady, 373 U.S. at 87).   The court concluded that the R.I. Supreme

Court's decision concerning the materiality of any undisclosed

evidence was neither "contrary to" nor an "unreasonable application

of" clearly established U.S. Supreme Court law, DeCiantis IV, 868

F. Supp. 2d at 5-6, and denied DeCiantis's petition, DeCiantis V,

2012 WL 5287036, at *2.   We agree.




       4
      The district court preliminarily determined that DeCiantis's
habeas petition had been timely filed, DeCiantis IV, 868 F. Supp.
2d at 3-4, a conclusion that is not at issue on appeal.

                                -12-
                                III.

            We review a district court's grant or denial of habeas

relief de novo, meaning that "the district court opinion, while

helpful for its reasoning, is entitled to no deference."     Healy,

453 F.3d at 25. DeCiantis repeats his argument that the state high

court decision was both contrary to and involved an unreasonable

application of clearly established U.S. Supreme Court law.5       He

focuses on the state court's determination regarding the third

component of a Brady violation.    "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."

Strickler v. Greene, 527 U.S. 263, 281-82 (1999).



     5
         28 U.S.C. § 2254(d) provides that

     An application for a writ of habeas corpus on behalf of
     a person in custody pursuant to the judgment of a State
     court shall not be granted 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.


                                -13-
A.            Did the R.I. Supreme Court Use a Materiality Standard
              That Was Contrary to Clearly Established U.S. Supreme
              Court Law?

              The   U.S.      Supreme    Court      has   held    that     "[u]nder    the

'contrary to' clause [of § 2254(d)(1)], a federal habeas court may

grant the writ if the state court arrives at a conclusion opposite

to that reached by this Court on a question of law or if the state

court decides a case differently than this Court has on a set of

materially indistinguishable facts."                 Williams v. Taylor, 529 U.S.

362, 412-13 (2000).            DeCiantis argues that the R.I. Supreme Court

applied the wrong materiality standard to his claims that the state

withheld favorable evidence.                 It did not.

              "[F]avorable evidence is material, and constitutional

error results from its suppression by the government, 'if there is

a reasonable probability that, had the evidence been disclosed to

the   defense,      the    result       of    the   proceeding      would    have     been

different.'"          Kyles    v. Whitley, 514 U.S. 419, 433-34 (1995)

(quoting United States v. Bagley, 473 U.S. 667, 682 (1985) (opinion

of Blackmun, J.)).

              The R.I. Supreme Court twice stated the correct standard

that evidence is material when "'there is a reasonable probability

that, had the evidence been disclosed to the defense, the result of

the proceeding would have been different.'" DeCiantis III, 24 A.3d

at 571, 573 (quoting Chalk, 816 A.2d at 419) (emphasis omitted).

It    noted    that     the    Superior        Court,     in     denying    DeCiantis's


                                             -14-
application, had held that "there is no reasonable probability of

a different result had the [applicant] been provided with the

specific expenditures made on Ferle at the time of trial," and that

"the addition of an immaterial uncharged admission creates no

reasonable probability of a different result."                   Id. at 568-69

(alteration in original) (quoting DeCiantis II, slip op. at 9-10)

(internal quotation marks omitted).

            DeCiantis's argument is based on the fact that the court

also stated, in a variation, that "[w]e are unpersuaded that

evidence of additional criminal activity on the part of Mr. Ferle

would have materially changed the jury's evaluation of him as a

witness    or   would   have   changed        the   ultimate   result    of    the

proceeding."     Id. at 573 (emphasis added).

            The R.I. Supreme Court did not "arrive[] at a conclusion

opposite to that reached by [the U.S. Supreme Court] on a question

of law."     Williams, 529 U.S. at 413.              It twice enunciated the

correct standard and twice noted the Superior Court's application

of   the   correct   standard.    The     court     also   twice   stated     that

DeCiantis had not met his burden as to materiality.6

            Notwithstanding      the     court's      one-time     use   of     an

abbreviated expression of the materiality standard under Brady, its

decision was not "contrary to . . . clearly established Federal


      6
        It first stated this conclusion in a sentence that
immediately followed an unquestionably correct recitation of the
materiality standard under Brady. DeCiantis III, 24 A.3d at 573.

                                       -15-
law, as determined by the Supreme Court of the United States."          28

U.S.C. § 2254(d)(1).

B.         Was The R.I. Supreme Court's Application of the
           Materiality Standard an Unreasonable Application of
           Clearly Established U.S. Supreme Court Law?

           "Under the 'unreasonable application' clause, a federal

habeas court may grant the writ if the state court identifies the

correct governing legal principle from this Court's decisions but

unreasonably applies that principle to the facts of the prisoner's

case."   Williams, 529 U.S. at 413.       This is a tough standard.    "[A]

federal habeas court may not issue the writ simply because that

court concludes in its independent judgment that the relevant

state-court   decision   applied   clearly     established   federal   law

erroneously or incorrectly.   Rather, that application must also be

unreasonable."7   Id. at 411.       DeCiantis argues that "the newly

discovered evidence was so overwhelmingly impeaching that the Rhode




     7
       This court has noted the "unreasonable application of prong
of § 2254(d)(1) reduces to a question of whether the state court's
derivation of a case-specific rule from the [Supreme] Court's
generally relevant jurisprudence appears objectively reasonable."
O'Laughlin v. O'Brien, 568 F.3d 287, 299 (1st Cir. 2009)
(alteration in original) (quoting Hurtado v. Tucker, 245 F.3d 7, 16
(1st Cir. 2001)) (internal quotation marks omitted). "For example,
the state court decision may be unreasonable if it is devoid of
record support for its conclusions or is arbitrary." McCambridge
v. Hall, 303 F.3d 24, 36-37 (1st Cir. 2002). "The increment [of
the state court's incorrectness] need not necessarily be great, but
it must be great enough to make the decision unreasonable in the
independent and objective judgment of the federal court." Morgan
v. Dickhaut, 677 F.3d 39, 46-47 (1st Cir. 2012) (quoting
O'Laughlin, 568 F.3d at 299) (internal quotation marks omitted).

                                   -16-
Island Supreme Court's decision to the contrary was unreasonable,

not just merely incorrect."8

              The R.I. Supreme Court reasoned that at DeCiantis's

trial,      "Ferle   was   confronted   with   his    prior   conviction   of

conspiracy and bank fraud, as well as pending charges of obtaining

money under false pretenses, robbery, arson, and even murder," and

that "Ferle was questioned repeatedly with respect to what he hoped

to obtain in return for his testimony."         DeCiantis III, 24 A.3d at

573.       It also noted that Ferle was "questioned explicitly as to

whether or not he was receiving monetary support from the state or

from the police."      Id.

              While the court did not make a finding as to which items

of favorable evidence pointed to by DeCiantis were withheld by the

prosecution, the court's conclusion was not unreasonable. The jury

did learn Ferle was facing charges of robbery, arson, murder, and

obtaining money under false pretenses, and that he and his family

were in the custody of the state police.             Ferle frankly admitted

that he hoped for more lenient sentences on the charges pending

against him, as well as state police protection, in exchange for

his testimony, and DeCiantis's counsel focused at length on these



       8
        DeCiantis further asserts that "there is clearly a
distinction   between   'actual   probability'    and   'reasonable
probability,'" and that under a "reasonable probability" standard
his "murder conviction was not a verdict worthy of confidence." As
said, the R.I. Supreme Court actually applied a "reasonable
probability" standard, and it did not do so unreasonably.

                                    -17-
incentives in cross-examination.   Ferle was extensively impeached

at DeCiantis's trial, and disclosure of evidence that Ferle had

participated in more crimes, and had received specific payments

from the state police, would not have produced a reasonable

probability that "the result of the proceeding would have been

different."   Bagley, 473 U.S. at 682 (opinion of Blackmun, J.).

Even if we assume this evidence would have induced the jury to view

Ferle differently, there was still the testimony of the other

witnesses at trial, who overwhelmingly pegged DeCiantis, through

his own statements and other evidence, for Roche's murder.

                               IV.

           The judgment of the district court is affirmed.      So

ordered.




                               -18-
