                                                                                F I L E D
                                                                         United States Court of Appeals
                                                                                 Tenth Circuit
                        UNITED STATES COURT OF APPEALS
                                                                                 NOV 30 2001
                                  FOR THE TENTH CIRCUIT
                                                                            PATRICK FISHER
                                                                                     Clerk

    CLARENCE R. BRAMLETT,

          Petitioner-Appellant,

    v.                                                        No. 00-6213
                                                        (D.C. No. CIV-97-1579-R)
    RON CHAMPION,                                             (W.D. Okla.)

          Respondent-Appellee.


                                  ORDER AND JUDGMENT*


Before BRISCOE, HOLLOWAY, and McWILLIAMS, Circuit Judges.


         Petitioner Clarence R. Bramlett, an Oklahoma state prisoner convicted of first

degree murder and sentenced to life without parole, appeals the district court’s denial of

his 28 U.S.C. § 2254 habeas petition. We exercise jurisdiction pursuant to 28 U.S.C.

§ 1291. We affirm the district court's judgment on Bramlett's ineffective assistance of

counsel claim and reverse and remand with directions to the district court to conduct an

evidentiary hearing, and such other proceedings as may be necessary, on Bramlett’s claim

under Brady v. Maryland, 373 U.S. 83 (1963).


*
        This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
                                             I.

       This case arises out of the death of Derrick Rhodes, a nineteen-year-old Oklahoma

City resident. Rhodes attended a rap concert in Oklahoma City on the evening of July 15,

1989. Rhodes left the concert with a friend, Broderick Cofer, and they eventually ended

up at a large, outdoor “street party.” Rhodes and Cofer observed an acquaintance, Alex

Downing, get into a fight with several members of the Tulsa Crips gang. Rhodes

approached the gang members and suggested that they fight Downing “one-on-one.” Tr.

at 441. The gang members responded by physically attacking Rhodes. After a few

moments, a man pointed a .357 handgun at Rhodes’ head and threatened to kill him. As

Rhodes turned to walk away, the man fired several (at least three, and possibly four or

five) shots at Rhodes, striking him once in the right leg and once in his upper right back.

The shot to the back, which caused considerable damage to Rhodes’ heart, proved fatal.

       Bramlett, a resident of Tulsa who also attended the concert, was arrested and

charged with Rhodes’ murder. The case proceeded to trial in January 1990. The

prosecution had no physical evidence linking Bramlett to the murder. Instead, the

prosecution’s case rested exclusively on the testimony of seven witnesses who identified

Bramlett as the individual who shot and killed Rhodes. Four of these witnesses were

friends of Rhodes, none of whom had met or seen Bramlett prior to the shooting. Two of

the witnesses (Keith Overstreet and Patrick Ray) were admitted members of the Tulsa

Crips gang who had been involved in the physical altercations with Downing and Rhodes


                                             2
immediately preceding Rhodes’ murder. The final witness (Richard Hill) was a close

friend of Bramlett, who testified he and Bramlett attended the party and that Bramlett shot

Rhodes. The defense’s case included four witnesses (defendant’s sister, one of his

brothers, and two of his friends) who testified that Bramlett attended the concert in

Oklahoma City and returned home to Tulsa around 3 a.m. the following morning

(approximately 75 to 95 minutes prior to the shooting of Rhodes). The defense also

presented the testimony of an Oklahoma City detective, who testified that one of the

prosecution’s identification witnesses had initially identified another individual (a gang

member named Michael Marshall, a/k/a/ “Bio”) as the shooter. At the conclusion of all

the evidence, the jury found Bramlett guilty of first degree murder and recommended a

sentence of life without parole. Bramlett was formally sentenced by the trial court on

February 5, 1990.

       Bramlett filed a direct appeal asserting eleven propositions of error, none of which

are at issue in this appeal. The OCCA rejected all of the claims and affirmed Bramlett’s

conviction and sentence on June 10, 1994. Nearly three years later, on March 3, 1997,

Bramlett filed an application for post-conviction relief in state district court asserting

seven grounds for relief. The state district court denied relief, as did the OCCA.

       Bramlett filed his federal habeas petition on September 29, 1997, asserting the

same seven issues raised in his application for post-conviction relief. On November 22,

1999, the magistrate judge recommended that the petition be denied. The district court,


                                               3
after considering Bramlett’s objections, adopted the magistrate’s recommendation, denied

habeas relief, and entered judgment against Bramlett. The district court subsequently

granted Bramlett a certificate of appealability (COA) with respect to two issues: (1)

whether the prosecution withheld exculpatory evidence in violation of Brady, and (2)

whether trial counsel was ineffective for failing to investigate and present exculpatory

evidence. Although Bramlett has since requested an expanded COA from this court, that

request has been denied.

                                              II.

Standard of review

       Because Bramlett’s federal habeas petition was filed after the effective date of the

Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), it is governed by the

provisions of the AEDPA. Wallace v. Ward, 191 F.3d 1235, 1240 (10th Cir. 1999)

(citing Rogers v. Gibson, 173 F.3d 1278, 1282 n.1 (10th Cir. 1999), cert. denied, 528 U.S.

1120 (2000)), cert. denied, 530 U.S. 1216 (2000). Under the AEDPA, the appropriate

standard of review for a particular claim hinges on the treatment of that claim by the state

courts. If a claim was not decided on the merits by the state courts (and is not otherwise

procedurally barred), we may exercise our independent judgment in deciding the claim.

See LaFevers v. Gibson, 182 F.3d 705, 711 (10th Cir. 1999). In doing so, we review the

federal district court’s conclusions of law de novo and its findings of fact, if any, for clear

error. Id. If a claim was adjudicated on its merits by the state courts, the petitioner will


                                               4
be entitled to federal habeas relief only if he can establish that the state court 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),

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

presented in the State court proceeding.” Id. § 2254(d)(2). “Thus, we may grant the writ

if we find the state court arrived at a conclusion opposite to that reached by the Supreme

Court on a question of law; decided the case differently than the Supreme Court has on a

set of materially indistinguishable facts; or unreasonably applied the governing legal

principle to the facts of the prisoner’s case.” Van Woudenberg v. Gibson, 211 F.3d 560,

566 (10th Cir. 2000) (citing Williams v. Taylor, 529 U.S. 362, 413 (2000)), cert. denied,

121 S.Ct. 1117 (2001).



Brady violation

       Bramlett contends he is entitled to federal habeas relief because the prosecution

suppressed favorable evidence in violation of the principles announced by the Supreme

Court in Brady. Specifically, Bramlett contends the prosecution suppressed evidence

that: (1) four witnesses (Keith Overstreet, Patrick Ray, Richard Hill and Darwyn Horey),

three of whom testified at trial during the prosecution’s case-in-chief, informed police

prior to trial that Bramlett was not the shooter, and (2) notwithstanding their pretrial

statements, these individuals were coerced by the police and/or prosecution into testifying


                                               5
at trial and identifying Bramlett as the shooter.1 In support of his claim, Bramlett has

presented post-trial affidavits from two of these individuals, and transcripts of post-trial

interviews with the other individuals.

       Bramlett first raised this issue in his application for post-conviction relief. The

OCCA concluded the claim was procedurally barred:

               In his first proposition, Petitioner is apparently attempting to
       establish, by using recent affidavits of recanting witnesses, that he has just
       discovered the prosecution failed to disclose exculpatory eyewitness
       identification and unlawful intimidation of witnesses by police. However,
       in his own brief, Petitioner acknowledges that his trial counsel was privy to
       the exculpatory eyewitness identification evidence, and even used it to
       cross-examine one of the recanting witnesses at trial. Moreover, even if
       trial counsel was not completely privy to police tactics during the
       investigation, trial counsel was aware that at least one eye witness had
       changed his story and that reasons for such change might need to be
       investigated and determined. Petitioner has not established that this
       proposition was not adequately addressed, and/or could not have been
       adequately raised, by both trial counsel and appellate counsel. (Citation
       omitted.) The proposition may not be the basis of this post-conviction
       application. 22 O.S. 1991, § 1086.

App. at 99.

       We conclude that respondent has failed to adequately preserve the procedural bar

issue on appeal. Although respondent briefly mentions the OCCA’s procedural bar ruling

in his appellate brief, Aplee Br. at 3, he offers no explanation for why we should



1
        Bramlett has also submitted affidavits from Troy Driver, III, and Michael
Marshall. Neither of these individuals (a) was present at the time of the shooting, (b)
testified at trial, or (c) has alleged he was coerced into identifying Bramlett as the shooter.
Thus, their affidavits will not be considered in connection with Bramlett’s Brady claim.

                                               6
recognize that ruling. Instead, respondent asserts that the claim is “procedurally barred

for the reasons stated in the court below.” Id. at 4. We conclude this vague assertion is

insufficient to preclude consideration of the merits of Bramlett’s Brady claim, particularly

since the record on appeal does not contain the pleadings respondent filed with the district

court. See Walker v. Gibson, 228 F.3d 1217, 1240 (10th Cir. 2000) (refusing to consider

conclusory, unsupported and undeveloped arguments), cert. denied, 121 S.Ct. 2560

(2001); see also Hooks v. Ward, 184 F.3d 1206, 1216 (10th Cir. 1999) (noting that

procedural default is an affirmative defense that may be waived by the respondent).

       Even assuming respondent has adequately preserved the procedural bar issue for

purposes of appeal, we conclude we are not bound by the OCCA’s ruling. A federal court

entertaining a petition for writ of habeas corpus from a state prisoner may not review a

claim which the state courts declined to pass upon because of an independent and

adequate state procedural ground. See Wainwright v. Sykes, 433 U.S. 72, 86-87 (1977).

For a state procedural rule to be “adequate,” it must not be applied in “an arbitrary or

unprecedented fashion,” and it “cannot be ‘manifestly unfair’ in its treatment of the

petitioner’s federal constitutional claim.” Judd v. Haley, 250 F.3d 1308, 1313 (11th Cir.

2001). Here, we are firmly convinced that the OCCA’s procedural bar ruling is

inadequate because, in determining Bramlett’s Brady claim could have been asserted on

direct appeal, the OCCA “made a gross factual error which has ‘no foundation in the

record.’” McBee v. Grant, 763 F.2d 811, 816 n.4 (6th Cir. 1985) (quoting Walker v.


                                              7
Engle, 703 F.2d 959, 967 (6th Cir. 1983)). More specifically, it is beyond dispute that the

key evidence which Bramlett now asserts was suppressed by the prosecution was

unavailable to Bramlett or his counsel at the time of direct appeal.2 Thus, “the notions of

comity that underlie the Wainwright v. Sykes rule do not require that we defer” to the

OCCA’s procedural bar ruling in this rare instance. Walker, 703 F.2d at 967. To

conclude otherwise would allow the OCCA, by way of a clearly erroneous factual

finding, “to insulate [a] federal constitutional question[] from federal review.” Id.

       We turn to the merits of Bramlett’s Brady claim, which we review de novo. In

Brady, the Supreme Court held that “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.” 373 U.S. at 87. The Court has since indicated that the prosecution’s duty

to disclose favorable evidence “encompasses impeachment evidence as well as

exculpatory evidence.” Strickler v. Greene, 527 U.S. 263, 280 (1999) (citing United

States v. Bagley, 473 U.S. 667, 676 (1985)). In addition, “the rule encompasses evidence

known only to police investigators and not to the prosecutor.” Id. at 280-81 (internal

quotation omitted). To obtain federal habeas relief under Brady, Bramlett must satisfy



2
       This case is distinguishable from Hale v. Gibson, 227 F.3d 1298, 1330 (10th Cir.
2000), cert. denied, 121 S.Ct. 2608 (2001), which held that “Oklahoma’s bar on raising
claims on post-conviction that could have been raised on direct appeal is an independent
and adequate state bar with regard to Brady claims.” (Emphasis added.).

                                              8
three requirements: (1) he must demonstrate that the prosecutor suppressed evidence; (2)

he must establish that the suppressed evidence was favorable to him, either because it was

exculpatory or impeaching; and (3) he must establish that the suppressed evidence was

material. See Gonzales v. McKune, 247 F.3d 1066, 1075 (10th Cir. 2001).

       In analyzing Bramlett’s claim, we begin by separately analyzing the post-trial

statements from each of the four witnesses to determine whether the information

contained therein, if true, was suppressed by the prosecution and was favorable to

Bramlett. Because, as discussed below, it appears the prosecution suppressed exculpatory

or impeaching information from three of these witnesses (assuming their post-trial

statements are true), we proceed to address the question of materiality collectively. See

Kyles v. Whitley, 514 U.S. 419, 436-37 (1995) (discussing need to determine materiality

by considering suppressed items of evidence collectively). Finally, because we conclude

the evidence, if true, was material, we explain why a remand is necessary in order to

allow the district court to conduct further proceedings, including an evidentiary hearing,

on the Brady issue.



Witness Keith Overstreet

       Keith Overstreet, an admitted member of the Tulsa Crips, testified during the

prosecution’s case-in-chief that Bramlett was his friend and was responsible for the

shooting. Tr. at 535, 537, 548, 555. He further testified that the police never told him


                                             9
Bramlett was the shooter, and that no one “suggested to [him] in any way or told [him]

that that is what [he] w[as] supposed to say when [he] came to court.” Id. at 539. On

cross-examination, Overstreet admitted that, although he was interviewed by police

shortly after the murder, he did not actually identify Bramlett as the shooter until a few

days prior to trial. Id. at 568. According to Overstreet, he sent a letter to the district

attorney identifying Bramlett as the shooter, id. at 570, because “it was a grief that [he]

had to get off [his] mind” and “[his] parents told [him] to tell anyway.” Id. at 573.

Although defense counsel elicited from Overstreet the fact that he was facing serious drug

charges in state court, id. at 571, defense counsel did not ask whether Overstreet had

entered into any deal with the prosecutor.

       Overstreet signed an affidavit in February 1997 stating that Tulsa resident

Terrance Charles Malone, nicknamed T.C., was the person who actually shot and killed

Rhodes. App. at 234. According to Overstreet, “Clarence Bramlett left before the

shooting” and “did not shoot the gun.” Id. Overstreet stated that he “told the Detectives

and everybody in the beginning that ‘T.C.’ was the shooter.” Id. Overstreet alleged,

however, that “[t]he D.A. lady told [him] [his] charge (cocaine) would be dropped if [he]

identif[ied] Clarence as the shooter.” Id. Overstreet further alleged that the district

attorney threatened him with “life without parole” and he agreed to testify because he

“didn’t want to be charged as an accessory to murder and do life with no chance of

parole.” Id.


                                               10
       The magistrate judge and district court concluded that “Overstreet’s recantation

[wa]s insufficient to establish a Brady violation.” App. at 104. In particular, the

magistrate judge noted that “suppression of evidence by the State . . . [wa]s lacking,” id.

at 102, since Bramlett’s trial counsel “had information, at the time of the trial, indicating

that at least Keith Overstreet had previously identified T.C. as the shooter in statements

made to police.” App. at 304. Further, in what appears to be a determination of

materiality (but is not labeled as such), the magistrate judge noted “that defense counsel

conducted cross-examination with respect to: (1) the fact that Overstreet originally did not

identify Petitioner as the shooter; (2) that the name T.C. had come up in discussions with

police; and (3) that Overstreet ‘changed’ his story and ultimately told police that

Petitioner was the shooter.” Id. at 104.

       We conclude the analysis of the magistrate judge and the district court is only

partially correct. It is true that defense counsel knew, prior to trial, that Overstreet had

initially identified a person named “T.C.” as the shooter. Thus, there was obviously no

suppression of this information. Defense counsel did not know, however, that Overstreet

had informed the police and the prosecution specifically that Bramlett was not the

shooter, or that the prosecutor allegedly made a deal with Overstreet in return for his

agreement to identify Bramlett as the shooter. In other words, the prosecution, either

knowingly or inadvertently, allegedly suppressed two related pieces of information

favorable to Bramlett, one of which was exculpatory and the other of which was


                                              11
impeaching.



Witness Patrick Ray

       Patrick Ray, a member of the Tulsa Crips, testified during the prosecution’s case-

in-chief that Bramlett shot Rhodes. Tr. at 610-11. During cross-examination, Ray

admitted that he did not recognize Bramlett at the preliminary hearing and was unable at

that time to identify him as the shooter. Id. at 616. Ray further admitted that he did not

know on the evening of the crime that Bramlett was the shooter, and did not tell

authorities that Bramlett was the shooter until after Overstreet had done so. Id. at 635.

On redirect, Ray testified that during the preliminary hearing he initially identified

Bramlett as the shooter, but later changed his story because he felt pressure from

members of Bramlett’s family who were in attendance at the hearing. Id. at 644, 646.

       In an affidavit signed in October 1996, Ray stated that his trial testimony was

untrue. According to Ray, he initially pointed the gun at Rhodes and threatened to kill

him. App. at 236. Ray stated that Rhodes slapped the gun from his hand and it fell to the

ground. Id. According to Ray, Richard Hill retrieved the gun and used it to shoot

Rhodes. Id. Ray stated that after the shooting, he, Overstreet, and Darwyn Horey (all

Tulsa Crip members) agreed that if they were questioned about the shooting they “would

say that [they] had not actually seen the shooting but [they] had heard that the shooter’s

name was ‘T.C.’ ‘T.C.’ [wa]s not the name of an actual person. To [them] the initials


                                             12
‘T.C.’ meant ‘Tulsa Crip.’” Id. According to Ray, he was questioned by a police officer

approximately two weeks after the shooting and told the officer he had “heard that the

shooter’s name was ‘T.C.’” Id. Ray stated he was questioned by other officers a few

days later, and repeated what he had told the first officer. Id. at 236-37. Ray stated that

prior to trial, the prosecutor and two detectives threatened to charge him “as an accessory

to murder.” Id. at 237. In response, Ray allegedly gave the prosecutor “the name of

Clarence Bramlett.” Id. Ray stated that his “fear of being charged as an accessory to

Derrick Rhodes’ murder caused [him] to falsely identify Clarence Bramlett as the

shooter.” Id.

       The magistrate judge concluded that “Ray’s affidavit testimony . . . [wa]s

insufficient to establish a Brady violation.” Id. at 105. More specifically, the magistrate

concluded:

       With respect to Ray’s statement that he told Tulsa police that he heard T.C.
       was the shooter, this evidence is not exculpatory. Ray states that T.C. was a
       fictional person. Thus, the evidence would not help prove that Petitioner
       did not commit the crime. As to any allegations that Ray told police
       Petitioner was not the shooter and that Ray was pressured into identifying
       Petitioner, Ray’s affidavit likewise does not support Petitioner’s Brady
       claim. First, Ray states that Richard Hill shot Derrick Rhodes but does not
       state that he gave this information to the police or prosecution.
       Consequently, there is no evidence that the prosecution knew of this
       evidence and/or withheld it from Petitioner. Second, Ray’s affidavit states
       that he gave the prosecution Petitioner’s name in response to the Overstreet
       statement allegedly identifying him as the shooter, not that the prosecution
       told him he had to identify Petitioner as the shooter.

Id. at 105-06.


                                             13
       Notably, Bramlett did not object to the magistrate judge’s analysis. Thus, the

district court effectively considered Bramlett to have waived any objection. Id. at 160.

The same now holds true for purposes of appeal, since it is well established that “[f]ailure

of a [party] to object to a magistrate judge’s recommendations results in a waiver of

appellate review.” Fottler v. United States, 73 F.3d 1064, 1065 (10th Cir. 1996).



Witness Richard Hill

       Richard Hill, originally listed as a defense witness, testified during the

prosecution’s case-in-chief. Hill, who identified himself as a longtime friend of Bramlett,

testified that he and Bramlett left the rap concert and ended up at the street party. Tr. at

739-40, 746-47. Hill further testified that Bramlett was the person who shot Rhodes. Id.

at 750. Hill testified that, after the shooting, he and Bramlett drove back to Tulsa. Id. at

751. On cross-examination, Hill admitted that he had talked to defense counsel three

times prior to trial, and on each occasion specifically stated that Bramlett was not the

shooter. Id. at 753-54. Hill testified that he had lied to defense counsel out of friendship

to Bramlett. Id. at 755, 758.

       Hill was subsequently interviewed in January 1997 by an investigator working for

Bramlett’s post-conviction team. During the interview, Hill stated that he was present at

the crime scene at the time of the shooting, but did not see Bramlett at all that evening.

App. at 247. Hill further stated that he was approached by Oklahoma City detectives in


                                              14
late 1989 and denied knowing anything about the shooting. Id. at 248. He stated he was

subsequently interviewed by detectives just prior to trial, and told them that Bramlett was

not at the crime scene at the time of the murder. Id. at 252. He also told the detectives

that he had not seen who shot Rhodes. Id. Hill stated that “the questions [from the

detectives] started getting a little fiercer” and they were “trying to make [him] say that . . .

Clarence was there, and that he was the shooter.” Id. He further stated that the detectives

told him that if he “didn’t identify [Bramlett] as being the shooter or whatever that [he]

could get some – some time, or something could happen to [him].” Id. at 253. In short,

Hill stated he felt coerced into identifying Bramlett as the shooter. Id. He stated he was

scared and “didn’t want to be the one that ha[d] to maybe go down for this situation or do

any kind of time.” Id. at 253-54. Hill stated his testimony in court was not truthful. Id. at

255. Consistent with his first statement to police, Hill stated that he did not see Bramlett

on the evening of the shooting. Id. at 256.

       The magistrate judge concluded that “Hill’s recantation . . . fail[ed] to establish

that the State suppressed exculpatory evidence.” Id. at 107. In support of this conclusion,

the magistrate stated: “There is no evidence that Hill ever identified anyone other than

Petitioner as having committed the crime,” and “defense counsel was clearly aware that

Hill had originally refused to identify Petitioner as the person responsible for the

shooting” and “elicited these facts from Hill on cross-examination.” Id. As for Hill’s

“allegation of coercion,” the magistrate concluded it was “not only extremely conclusory


                                              15
but also clearly refuted by the trial record.” Id. In support of this conclusion, the

magistrate noted that defense counsel had represented to the trial court that he was present

when the police, in particular Oklahoma City Detective Randy Scott, asked to speak with

Hill, and that he had informed Hill “‘that he had a right to talk with them if he wanted

to,’” and “‘a right not to talk with them if he didn’t want’” to. Id. at 108. Defense

counsel further represented to the trial court that Detective Scott “did not use any type of

coercion or force or anything improper.” Id.

       Although Bramlett objected to the magistrate judge’s conclusions, the district court

accepted them. In addition, the district court noted that defense counsel interviewed Hill

within hours after he was interviewed by police detectives, and that it was “simply not

believable that if Mr. Hill had been coerced by detectives . . . that Hill would not have

told [defense] counsel or that [defense] counsel would not have learned that when he

interviewed him.” Id. at 161. The district court also concluded that Hill’s “recantation

[wa]s simply not credible” because it “occurred seven years after trial in an interview by

Petitioner’s investigator,” Hill was a close friend of Bramlett’s, Hill “never identified

anyone else as the shooter,” and Hill testified at trial that he “felt that the truth would be

much better than a lie, even though [he] was testifying against [his] friend.” Id. at 162.

       After examining the record, we reject the conclusions reached by the magistrate

judge and district court. The magistrate was incorrect in concluding that the prosecution

did not suppress any evidence favorable to Bramlett. According to Hill’s January 1997


                                              16
statement, he specifically informed the police in late 1989 that he did not know anything

about the shooting, and again told them just prior to trial that Bramlett was not involved

in the shooting and in fact was not present at the crime scene at the time of the murder.

Obviously, this information is favorable to Bramlett. The magistrate was also incorrect in

concluding that Hill’s claim of coercion was refuted by defense counsel’s statements to

the trial court. Although it is true that defense counsel informed the trial court that

Detective Scott “did not use any type of coercion or force or anything improper,” id. at

108, defense counsel was talking only about the point in time when Detective Scott was

trying to persuade Hill to speak with him. It is uncontroverted that defense counsel was

not present during the ensuing interview of Hill by Detective Scott and other police.

Thus, defense counsel’s statements to the trial court do not refute Hill’s assertion that the

police ultimately coerced him into identifying Bramlett as the shooter. In a similar vein,

we reject the district court’s inferential finding that, had Hill actually been coerced by the

detectives or prosecutor, defense counsel would have uncovered this fact during his

subsequent interview with Hill. Not only are we concerned about the limited evidence

available to the district court to make this finding, we question whether it is a reasonable

inference. We think it just as likely that, had Hill been coerced by detectives or the

prosecutor, he would not have willingly provided this information to defense counsel

prior to testifying. Finally, although we view post-trial recantations with skepticism, we

believe that Hill’s credibility is best judged after an evidentiary hearing.


                                              17
Darwyn Horey (a/k/a “L.A.”)

       Darwyn Horey’s name was frequently mentioned during the trial (he was the

alleged instigator of the initial fight with Alex Downing), but Horey did not testify as a

witness. Horey, who is serving time in federal prison in Leavenworth, was interviewed in

January 1997 by an investigator working for Bramlett’s post-conviction team. Horey

stated he initially saw the murder weapon, prior to the trip to Oklahoma City, in the

possession of T.C., “a former Crip out of Los Angeles.” App. at 264. Horey stated that at

the street party, T.C. wrestled with Patrick Ray and Keith Overstreet over the gun, and

ultimately gained control of it and used it to shoot Rhodes. Id. at 264, 266. Horey stated

he was interviewed by Oklahoma City detectives regarding the murder, and was informed

he would be charged with either murder or accessory to murder. Id. at 268. He allegedly

told the detectives that T.C. shot Rhodes, but he did not identify T.C. Id. at 269. Horey

stated he was shown photos of Bramlett, but did not identify him as T.C. Id. at 270.

Horey stated the detectives promised to help him with some drug charges pending in

Tulsa if he agreed to identify Bramlett as T.C., and Horey agreed under pressure to do so.

Id. at 271-72. According to Horey, the detectives told him he was supposed to testify that

he saw Richard Hill and Bramlett arrive at the street party together, that Bramlett was

wrestling with Overstreet and Ray for the gun, and that Bramlett ended up with the gun

and used it to shoot Rhodes. Id. at 273. Horey stated that when he showed up to testify at

Bramlett’s trial, Detective Scott had him look in the courtroom, pointed out Bramlett, and


                                             18
told him all he needed to do was identify Bramlett as having the gun. Id. at 275.

However, the prosecution did not use him as a witness because he allegedly expressed

misgivings about testifying. Id. at 276.

       The magistrate judge briefly mentioned Horey’s post-trial statements, but did not

specifically determine whether the prosecution violated Brady by suppressing Horey’s

alleged pre-trial statements. Instead, the magistrate concluded that Horey’s post-trial

statements “elicit[ed] more inconsistencies.” Id. at 110. The district court did not address

Horey’s statements at length either, instead characterizing them as containing

“inconsistencies.” Id. at 163.

       Assuming Horey’s post-trial statements are true, it is apparent he provided

information to the police that was favorable to Bramlett, but that the prosecution did not

forward that information to defense counsel. As noted, Horey allegedly informed the

police that an individual named T.C. was responsible for shooting Rhodes, and, when

shown a photo of Bramlett, told the police that Bramlett was not T.C. (in other words

saying that Bramlett was not the shooter). Horey also allegedly reached a tentative

agreement with the police under which he would falsely testify that Bramlett was the

shooter in exchange for the police assisting him with some pending drug charges in Tulsa.



Materiality

       Because the evidence presented by Bramlett, if true, indicates the prosecution


                                             19
suppressed favorable information supplied by Overstreet, Hill and Horey, the question

becomes whether suppression of that information was material. Materiality is established

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,’” and “[a] ‘reasonable

probability’ of a different result is . . . shown when the government’s evidentiary

suppression ‘undermines confidence in the outcome of the trial.’” Kyles, 514 U.S. at

433-34 (quoting Bagley, 473 U.S. at 682, 678). In other words, the question is whether,

in the absence of the suppressed information, Bramlett “‘received a fair trial, understood

as a trial resulting in a verdict worthy of confidence.’” Strickler, 527 U.S. at 289-90

(quoting Kyles, 514 U.S. at 434).

       The magistrate judge and the district court concluded “that even if the recantations

and statements submitted by Petitioner were treated as exculpatory or impeaching

evidence that was suppressed by the State, ‘Petitioner’s Brady claim would fail for the

lack of resulting prejudice.’” App. at 163 (quoting magistrate’s report and

recommendation). More specifically, the district court stated:

               The Court agrees with Petitioner that he had no duty at trial nor
       presently to produce evidence showing that someone else shot Derrick
       Rhodes. However, all of the inconsistencies in the recanted testimony of
       Overstreet, Ray and Hill and the affidavits of Horey, Driver and Marshall
       identified by the Magistrate Judge as well as consideration of their
       relationship to the Defendant, their incentive or motive to fabricate,
       including self-interest, the credibility that an individual who had barely
       turned 12 when the crime occurred, who states was not present at the scene
       of the crime and did not even know about the shooting, killed Derrick
       Rhodes, together with the fact that four other witnesses who observed the

                                             20
       shooting at a range from 6 to 20 feet and who had no apparent motive or
       reason to fabricate or to inculpate the Petitioner all positively identified
       Petitioner as the person who shot Derrick Rhodes at trial, lead the Court to
       conclude that there is no reasonable probability that the result of trial would
       have been different or that jurors would have found a reasonable doubt, had
       the allegedly suppressed evidence been presented at trial. It is true, as
       Petitioner points out, that the non-recanting eyewitnesses who identified
       Petitioner at trial as the shooter were complete strangers to him and that
       those witnesses’ descriptions of what Petitioner was wearing varied
       somewhat and several said he was wearing either a dark blue or black shirt,
       they weren’t sure. However, strangers lack an incentive or motive to lie.
       Several of these witnesses identified Petitioner at the preliminary hearing as
       well as at trial. All were in close proximity to the shooter at the time of the
       shooting. The witnesses to a shooting at approximately at 4:30 in the
       morning were not sure, either as a result of darkness or lack of memory, as
       to exactly what the shooter was wearing does little to detract from the
       positive identification of Petitioner as the person who fired the shots.
       Regarding Petitioner’s alibi defense, it is clear that the jurors did not believe
       that defense – that the jurors did not find Petitioner’s alibi witnesses
       credible. Undoubtedly had the allegedly suppressed evidence and/or the
       recanted testimony been presented instead of the testimony of Hill,
       Overstreet and Ray, jurors would have found their testimony equally
       incredible because of the inconsistencies therein and the likely motive or
       incentive for those individuals to lie.

App. at 163-65.

       In our view, the issue of materiality is much closer than suggested by the district

court. Ignoring for a moment the testimony of the three witnesses (Overstreet, Ray and

Hill) who have now recanted their trial testimony, it is undisputed that the prosecution

presented four other witnesses (Broderick Cofer, William Boyd, Tonja Lee, and Rhonda

Graham), all of whom were friends of the victim and strangers to Bramlett, and all of

whom identified Bramlett as the shooter. As pointed out by Bramlett, there were certain

weaknesses in the testimony of each of these witnesses. For example, the four gave

                                              21
differing descriptions of the clothing worn by the shooter (one of the witnesses said the

shooter was wearing dark colored clothes; two said the shooter was wearing white shorts;

the fourth could not remember whether the shooter was wearing shorts or pants). Three

of the witnesses (Boyd, Lee and Graham) testified they were standing sideways from the

shooter; two (Boyd and Graham) admitted they saw only the side of the shooter’s face.

Two witnesses (Cofer and Boyd) admitted they were drinking alcohol prior to the

shooting. One witness (Boyd) admitted that, during a pretrial interview with police, he

was shown a photographic line-up and tentatively identified Michael Marshall (a Tulsa

Crip member and friend of Overstreet, Ray and Horey) as the shooter. Finally, all of

these witnesses essentially agreed that the shooting occurred during a chaotic fight

situation that took place in a poorly lit area in the middle of the night.

       Undoubtedly, the testimony of these four prosecution witnesses was bolstered by

the testimony of Overstreet and Hill. Overstreet testified he was a resident of Tulsa and a

friend of Bramlett. Overstreet admitted to being a member of the Tulsa Crips and,

although he testified that Bramlett was not a member, stated that Bramlett associated with

Crip members and was involved with Crip members in the physical altercations that

preceded the shooting. Hill’s testimony was perhaps the most damaging to Bramlett. At

the time of trial, Hill was working for the Tulsa County Sheriff’s Department and was




                                              22
studying to be an undersheriff. He testified that he was a close friend of Bramlett,3 and

had driven with him from the concert to the street party. Hill further testified that

Bramlett was the shooter, and that he (Hill) had lied to defense counsel about Bramlett’s

involvement “out of friendship” to Bramlett. Tr. at 758.

       Because the prosecution’s case was entirely dependent on eyewitness identification

testimony, the credibility of its witnesses was crucial. Assuming the evidence now

presented by Bramlett is true, the prosecution would have undoubtedly bolstered the

credibility of its witnesses, and in turn substantially strengthened its case, by suppressing

that evidence. Had defense counsel, and in turn the jury, been aware of the exculpatory

evidence, it seems doubtful they would have credited Overstreet’s and Hill’s

identification of Bramlett as the shooter. Further, had defense counsel been aware of

Horey’s pretrial interactions with the police, he could have presented Horey as a defense

witness, and could have arguably reinforced the notion that the police and/or prosecution

engaged in coercive tactics with potential witnesses. That would have left the

prosecution with only four eyewitnesses, all strangers to Bramlett, and all with various

weaknesses in their testimony. Though it is a close issue, we are ultimately persuaded

that the evidence now pointed to by Bramlett, assuming it is true, “‘could reasonably be

taken to put the whole case in such a different light as to undermine confidence in the



3
       During closing arguments, the prosecutor characterized Hill as Bramlett’s “best
friend.” Tr. at 888.

                                              23
verdict.’” Strickler, 527 U.S. at 290 (quoting Kyles, 514 U.S. at 435).

       Although we conclude the district court erred in dismissing Bramlett’s Brady

claim, it is apparent that our conclusions regarding the claim are tentative in that they

hinge on the assumption that the post-trial affidavits and statements presented by Bramlett

are true. To resolve the Brady issue, we must remand the case to the district court with

directions to conduct an evidentiary hearing.4 This will afford the district court the

opportunity to hear directly from Overstreet, Hill and Horey, as well as possibly from

defense counsel, the prosecutor, and any relevant police witnesses. The district court then

will be in a position to determine whether the post-trial statements from Overstreet, Hill

and Horey are credible. If they are not credible, Bramlett’s Brady claim will obviously

fail. If, however, the post-trial statements are deemed to be credible, the district court

will need to revisit the Brady materiality issue and determine whether Bramlett is entitled

to federal habeas relief.



Ineffective assistance of counsel

       In a separate issue, Bramlett contends his trial counsel was ineffective for failing

to investigate and present exculpatory evidence that the individual identified by



4
       The AEDPA, in particular 28 U.S.C. § 2254(e)(2), does not preclude Bramlett
from receiving an evidentiary hearing because he “diligently sought to develop the factual
basis underlying his [Brady claim], but a state court has prevented him from doing so.”
Miller v. Champion, 161 F.3d 1249, 1253 (10th Cir. 1998).

                                              24
Overstreet as “T.C.” was in fact Tulsa resident and Crips member Terrance Charles

Malone. Bramlett contends that the presentation of evidence regarding T.C.’s identity

would have undermined the testimony of Overstreet and Ray (both of whom were

admitted Crip members) and would have bolstered the conclusion that Rhodes was shot

by a member of the Crips.

       Bramlett first raised this issue in his application for post-conviction relief. The

OCCA concluded the issue was procedurally barred due to Bramlett’s failure to assert it

on direct appeal. App. at 131. The district court refused to recognize the OCCA’s

procedural bar ruling, however, because the issue required “a review of facts outside the

[trial] record.” Id. at 133 (citing English v. Cody, 146 F.3d 1257 (10th Cir. 1998)). On

the merits, the district court concluded that Bramlett’s counsel was not ineffective

because the evidence now presented by Bramlett regarding T.C. was “insufficient to

undermine confidence in the jury’s verdict.” App. at 133.

       Bramlett’s claim is governed by the familiar two-part test announced in Strickland

v. Washington, 466 U.S. 668, 687 (1984). Under that test, Bramlett must demonstrate

that (1) defense counsel’s performance was constitutionally deficient (i.e., it fell below an

objective standard of reasonableness), and (2) there is a reasonable probability that, but

for counsel’s errors, the outcome of the proceedings would have been different. Id. at

688.

       Even assuming, arguendo, that Bramlett can satisfy the first prong of Strickland,


                                             25
we conclude he cannot satisfy the second prong.5 Although several of the witnesses in

this case have identified an individual named “T.C.” as the shooter, only one (Overstreet)

has stated that T.C. was actually Terrance Charles Malone.6 Further, the evidence

contained in the record that describes Malone strongly suggests he was not the shooter.

App. at 307. In a February 1997 interview conducted by a member of Bramlett’s post-

conviction team, Malone stated he was a lifelong Tulsa resident who, in 1989, was a

member of the Tulsa Crips. Id. at 308. Malone further stated that he knew Overstreet,

Ray, Horey, and several other members of the Crips who were involved in the physical

altercation that preceded the shooting of Rhodes. Id. at 309. Malone admitted he was

commonly known as “T.C.” Id. at 310. However, Malone stated that he was age eleven

at the time of the shooting, id. at 311, and denied driving from Tulsa to Oklahoma City to

attend the rap concert. Id. at 309. We agree with the district court that Bramlett is not

entitled to habeas relief on his ineffective assistance of counsel claim.




5
       The district court seemingly concluded that the Brady and Strickland claims were
two sides of the same coin, and that the prejudice analysis in each was substantially
similar, if not identical. We disagree. As outlined above, the Brady claim concerns
evidence that could have exculpated Bramlett as the shooter and discredited several of the
prosecution’s eyewitnesses. In contrast, the Strickland claim narrowly focuses on trial
counsel’s failure to investigate evidence that may have placed responsibility for the crime
on another individual.
6
       Horey stated that T.C. was an individual from Los Angeles. Overstreet did not
identify T.C. Ray stated that T.C. was not a real person.

                                             26
                                             III.

       We AFFIRM the judgment of the district court on Bramlett's ineffective assistance

of counsel claim. We REVERSE the judgment of the district court and REMAND with

directions to the district court to conduct an evidentiary hearing, and such other

proceedings as may be necessary, on Bramlett’s claim under Brady.

                                                    Entered for the Court

                                                    Mary Beck Briscoe
                                                    Circuit Judge




                                             27
