                         RECOMMENDED FOR FULL-TEXT PUBLICATION
                             Pursuant to Sixth Circuit I.O.P. 32.1(b)
                                    File Name: 17a0045p.06

                   UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT



 ANDREW LEE THOMAS, JR.,                               ┐
                              Petitioner-Appellant,    │
                                                       │
                                                       │       No. 15-5399
        v.                                              >
                                                       │
                                                       │
 BRUCE WESTBROOKS, Warden,                             │
                         Respondent-Appellee.          │
                                                       ┘


                         Appeal from the United States District Court for
                         the Western District of Tennessee at Memphis.
                  No. 2:12-cv-02333—Samuel H. Mays, Jr., District Judge.

                                Argued: November 2, 2016

                           Decided and Filed: February 24, 2017

                  Before: MERRITT, SILER, and DONALD, Circuit Judges
                                _________________

                                        COUNSEL

ARGUED: Robert L. Hutton, GLANKLER BROWN, PLLC, Memphis, Tennessee, for
Appellant. Michael M. Stahl, OFFICE OF THE TENNESSEE ATTORNEY GENERAL,
Nashville, Tennessee, for Appellee. ON BRIEF: Robert L. Hutton, GLANKLER BROWN,
PLLC, Memphis, Tennessee, Kevin Wallace, Elizabeth Cate, Mollie Richardson, WINSTON &
STRAWN LLP, New York, New York, for Appellant. Michael M. Stahl, OFFICE OF THE
TENNESSEE ATTORNEY GENERAL, Nashville, Tennessee, for Appellee. Mark A. Fulks,
BAKER DONELSON BEARMAN CALDWELL & BERKOWTIZ, P.C., Johnson City,
Tennessee, for Amicus Curiae.

         MERRITT, J., delivered the opinion of the court in which DONALD, J., joined. SILER,
J. (pp. 13–15), delivered a separate dissenting opinion.
  No. 15-5399                               Thomas v. Westbrooks                                           Page 2


                                             _________________

                                                   OPINION
                                             _________________

        MERRITT, Circuit Judge. In this Tennessee death penalty case, Petitioner Andrew Lee
Thomas, Jr., appeals the district court’s denial of his petition for habeas corpus under 28 U.S.C.
§ 2254.1 Thomas’s primary claim on appeal is that the State violated his rights under Brady v.
Maryland, 373 U.S. 83 (1963), when it suppressed evidence that the key witness against him had
been paid $750 by the Federal Bureau of Investigation prior to trial.                        We agree that the
prosecutor had a duty to disclose this payment rather than allow the witness to commit perjury by
denying its existence, and we REVERSE and REMAND the district court’s denial of the writ.

                                                I. Background

        While our decision today is based upon Thomas’s procedural rights as a criminal
defendant—as opposed to the substantive charges against him—a brief summary of the
underlying facts provides helpful context. On April 21, 1997, James Day, an armored truck
driver in Memphis, was shot as he was moving a bag of cash into his armored truck from a
Walgreens store. The shooter took the bag of cash and left in a getaway car. Day survived the
shooting, but died two years later as a result of complications from his injuries. Authorities later
identified Thomas as the shooter and Anthony Bond, Thomas’s friend and co-defendant, as the
driver of the getaway car. For a more complete factual statement, see Tennessee v. Thomas,
158 S.W.3d 361, 373-75 (Tenn. 2005).

        Thomas was convicted of offenses arising from those facts in both federal and state court.
In a federal trial prior to Day’s death, Thomas was convicted of interfering with interstate
commerce, carrying a firearm in relation to a crime of violence, and being a felon in possession



        1
          In a companion case to this one, Thomas also appeals the district court’s denial of habeas from his federal
conviction arising from similar facts. One factual difference between the two cases is important: Angela Jackson’s
testimony about her receipt of reward money in the federal case does not appear to have been false since the
payment in dispute was made after the conclusion of the federal trial. In a separate opinion also entered today, we
affirm the district court’s denial of the writ in that case. Thomas v. United States, No. 15-6200 (6th Cir. Feb. 24,
2017).
  No. 15-5399                              Thomas v. Westbrooks                                           Page 3


of a firearm. The federal court sentenced him to life in prison.2 After Day died of complications
from his injuries, the State of Tennessee charged Thomas with felony murder. A Tennessee state
jury convicted Thomas and sentenced him to death. The Supreme Court of Tennessee affirmed
Thomas’s conviction and death sentence on direct appeal. Id. at 383. Thomas then exhausted
his post-conviction remedies under Tennessee law.

        Angela Jackson, Thomas’s girlfriend at the time of the shooting, was the pivotal witness
in both trials. Indeed, Jackson provided the only reliable testimony placing Thomas at the scene
of the shooting. Her testimony also provided an important link between Thomas and various
pieces of circumstantial evidence in the case. A more detailed account of the evidence presented
at trial can be found in the district court’s opinion and order.

        After the federal trial was concluded but before the state murder prosecution had
commenced, the FBI paid Jackson $750 on behalf of the Safe Streets Task Force—a joint
federal-state working group charged with investigating and prosecuting gang-related crime.
Thomas was never notified of this payment and only discovered it years later during a hearing on
his petition for habeas from his federal conviction.

        When Tennessee moved to prosecute Thomas for murder, the federal authorities provided
the State with relevant evidence and documentation from the federal case. The parties agree that
the file contained a receipt documenting the FBI’s payment to Jackson and that knowledge of the
$750 payment must be “imputed” to the State’s prosecutors. Despite the State’s concession that
its prosecutors had “imputed” knowledge of the payment, they argue they should not be charged
with “actual” knowledge. We discuss this argument in Section IV below.

        Despite her acknowledged possession of evidence of the payment before trial, the State’s
prosecutor did not inform Thomas of the payment. The prosecutor’s failure to disclose the
evidence was particularly egregious in light of the State’s repeated emphasis of Jackson’s high-
minded reasons for testifying—that is, that she was testifying because it was the “right thing to
do.” This is all made even worse by the fact that the prosecutor failed to correct the record even

        2
          This court affirmed that conviction and sentence on direct appeal. United States v. Thomas, 29 F. App’x
241 (6th Cir. 2002). The companion case to this one denies Thomas’s petition for relief from his federal conviction.
Thomas v. United States, 15-6200 (6th Cir. Feb. 24, 2017).
 No. 15-5399                          Thomas v. Westbrooks                                Page 4


after Jackson squarely denied receiving any “reward” money in exchange for her testimony
against Thomas.

       The relevant portion of Jackson’s direct examination went as follows:

       Q:      When did the FBI agents come to your house?
       A:      I don’t remember the date, but it was in November of ‘97
       Q:      Did you ask them for your reward money?
       A:      No.
       Q:      Did you ever get any reward money?
       A:      No.

On cross-examination, Ms. Jackson testified:

       Q:      You said you were here today to testify because it was the right thing to
               do. Is that correct?
       A:      Yes.
       Q:      And that’s your only motivation in testifying today. Is that right?
       A:      Yes, sir.
       Q:      You haven’t receiving [sic] a reward for any of this?
       A:      No.

Finally, on redirect, Jackson testified as follows:

       Q:      Have you collected one red cent for this?
       A:      No, ma’am, I have not.

       After exhausting his post-conviction remedies in state court, Thomas petitioned the
district court for a writ of habeas corpus under 28 U.S.C. § 2254. The district court rejected each
of his claims and denied the petition in its entirety. The district court specifically rejected
Thomas’s Brady claim, reasoning that the fact of the payment was not sufficiently “material.”

       This appeal followed.

                                      II. Standard of Review

       This court reviews the district court’s dismissal of a § 2254 petition de novo, but we must
defer to the district court’s factual findings unless they are clearly erroneous. Jones v. Bagley,
696 F.3d 475, 482 (6th Cir. 2012). When the state court is unable or refuses to review a claim
presented in a petition brought under § 2254, the highly deferential standard prescribed in the
Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) does not apply. See Henley v.
 No. 15-5399                          Thomas v. Westbrooks                                    Page 5


Bell, 487 F.3d 379, 390 (6th Cir. 2007). Since both parties concede that the Tennessee state
courts were unable to review Thomas’s Brady claim, we review the district court’s denial of
those claims de novo.

                                          III. Brady Claim

        Thomas’s first argument on appeal is that the State violated his due process rights as
articulated in Brady v. Maryland when the prosecution failed to inform him that Jackson had
received $750 from the FBI prior to trial. We agree and hold that this claim merits issuance of
the writ.

        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. Brady,
373 U.S. at 87. Brady’s rule has been interpreted to require disclosure of all material evidence
even if it is only relevant for the purpose of impeaching a government witness at trial. Bell v.
Bell, 512 F.3d 223, 232 (6th Cir. 2008) (citing United States v. Bagley, 473 U.S. 667, 676-77
(1985)).

        “A successful Brady claim requires a three-part showing: (1) that the evidence in
question [is] favorable; (2) that the state suppressed the relevant evidence, either purposefully or
inadvertently; (3) and that the state's actions resulted in prejudice.” Id. at 231 (citing Strickler v.
Greene, 527 U.S. 263, 281-82 (1999)). This court finds prejudice in the Brady context whenever
the suppressed evidence is “material.” See Robinson v. Mills, 592 F.3d 730, 735 (6th Cir. 2010)
(equating the prejudice prong of Brady with materiality). On appeal, the State concedes that it
suppressed the evidence in question and that the evidence was favorable to Thomas. Thus, the
only issue remaining for decision is whether the evidence of the FBI’s payment was sufficiently
material to warrant relief under Brady.

        Evidence is “material” for Brady purposes when, in view of all relevant evidence, its
absence deprives the defendant of a fair trial, “‘understood as a trial resulting in a verdict worthy
of confidence.’” Montgomery v. Bobby, 654 F.3d 668, 678-79 (6th Cir. 2011) (en banc) (quoting
Kyles v. Whitley, 514 U.S. 419, 434 (1995)). Satisfying that standard requires more than a mere
“possibility” but less than proof “by a preponderance that disclosure of the suppressed evidence
 No. 15-5399                          Thomas v. Westbrooks                                  Page 6


would have resulted ultimately in the defendant’s acquittal.” Id. at 679 (quoting Kyles, 514 U.S.
at 434).

       Below, the district court rejected Thomas’s argument that the suppressed evidence of
Jackson’s receipt of $750 from the FBI was material because “there was substantial evidence
linking Thomas to the crime, other than Jackson’s testimony” and because Jackson’s testimony
in both the state and federal cases was consistent. To the extent that these reasons appear to deny
relief because there was sufficient evidence to support Thomas’s conviction, they
mischaracterize the materiality inquiry under Brady. See id. (quoting Kyles, 514 U.S. at 434)
(“Brady materiality ‘is not a sufficiency of evidence test.’”). The dispositive question, instead, is
whether the guilty verdict entered against Thomas is worthy of confidence in the absence of the
suppressed evidence. Under the circumstances, we hold that it is not.

       In Robinson v. Mills, we addressed materiality in a factually similar case. In that case,
the petitioner, Robinson, had been convicted in state court of first-degree murder after shooting a
drug dealer in the back of the head. Robinson, 592 F.3d at 733. At trial, Robinson sought to
mitigate his offense by claiming that he shot the victim in self-defense. Id. Kim Sims, an
eyewitness, testified against Robinson at trial; hers was the only testimony that tended to negate
Robinson’s claim of self-defense. Id. at 736. Robinson’s attorneys attempted to impeach Sims
as a witness by questioning her about her history of drug addiction and significant disparities
between her trial testimony and her testimony at a pretrial hearing.          Id. at 734.    Despite
Robinson’s efforts to impeach Sims, the jury convicted him of murder. Id. at 731-32.

       Unknown to Robinson, Sims had accepted $70 from the prosecuting jurisdiction’s police
department in exchange for her cooperation as a confidential informant in an unrelated
prosecution against the murder victim’s sister. Id. at 734. Sims had also served as a paid
confidential informant for the police department at least seven other times. Id. Despite the
state’s recognition that Sims’s substantial connection to local law enforcement required
appointment of a special prosecutor, the state never informed Robinson of Sims’s status as a paid
confidential informant. Id.
 No. 15-5399                         Thomas v. Westbrooks                                 Page 7


       Reviewing Robinson’s petition for habeas, this court held that the prosecution’s failure to
inform Robinson of Sims’s receipt of payment for her services as a confidential informant
warranted relief under Brady. Id. at 738. In reaching that conclusion, the panel held that the
evidence was “material” because Sims’s status as a paid informant was relevant to demonstrate
bias in order to “call into question Sims’[s] credibility and truthfulness.” Id. We reached that
conclusion even though Sims’s services to the police were rendered in cases entirely unrelated to
Robinson’s. Id.

       Like Sims’s testimony in Robinson, Jackson’s testimony was pivotal to the State’s case
against Thomas. Jackson provided the only credible identification placing Thomas at the scene
of the crime. She provided the only testimony linking Thomas to Bond, his co-defendant, on the
day of the shooting. And she provided the only testimony affirmatively attributing Thomas with
responsibility for the transactions cited by the State as circumstantial evidence of his
involvement in the shooting.      Without Jackson’s testimony linking Thomas to the events
surrounding Day’s shooting, the State would have had a very difficult time proving its case. As
such, we conclude—contrary to the State’s arguments—that Jackson’s testimony was vital to the
State’s case-in-chief against Thomas.

       In opposition to this conclusion, the State contends that Richard Fisher’s testimony
independently placed Thomas in the passenger seat of the getaway car. However, Fisher’s
testimony lacked credibility. When asked at trial whether he saw the person he observed in the
passenger seat in the courtroom, Fisher first identified Anthony Bond—Thomas’s co-
defendant—despite the State’s theory that Bond had been the driver of the getaway car. When
he was cross-examined by Bond’s attorney, Fisher was asked to take a very close look at the two
defendants without his glasses. After doing so, Fisher recanted his earlier testimony that Bond
had been in the passenger seat and then identified Thomas—the only other defendant—as the
passenger in the getaway car. Fisher said he was “very sure” about his second identification, but
a reasonable juror would likely have taken that confidence with a grain of salt.

       The State further contends that independent, circumstantial evidence tying Thomas to
several large expenditures and bank deposits following the shooting would have provided a
sufficient basis for confidence in the verdict. This evidence tended to show that Thomas had
 No. 15-5399                         Thomas v. Westbrooks                                  Page 8


accompanied Jackson when she purchased a pink Chevrolet with gold wheels in her own name,
that he drove the vehicle off the lot, that the two stayed in a motel the night of the shooting, and
that Jackson deposited a large sum of cash into a new account shortly after the shooting.
However, none of that evidence overwhelmingly suggests that Thomas was the shooter; at most,
it suggests that either Thomas or Jackson came into substantial wealth around the time of the
shooting. Without Jackson’s testimony linking Thomas to Bond on the day of the shooting, it is
much less persuasive evidence of Thomas’s guilt. As such, we reject the State’s claims that
Jackson’s testimony was not important to the jury’s decision to convict Thomas.

       As a criminal defendant, Thomas has the right to impeach the State’s witnesses against
him on the grounds of pecuniary bias in the case. Robinson, 592 F.3d at 737 (citing Davis v.
Alaska, 415 U.S. 308, 316-17 (1974)). This right is especially important when, as here, the case
“hinge[s] on the jury’s critique” of a key witness. Id. at 736. Without evidence of the FBI’s
payment, Thomas had no basis upon which to impeach Jackson on the basis of her possible
financial interest in the case. In Robinson, this court found that the defendant’s right to impeach
the government’s witnesses had been unduly abridged when he was not informed that the key
witness had received $70 in connection with an entirely unrelated case because it prevented him
from demonstrating the witness’s pecuniary bias against him. Id. at 738. The facts here are even
worse: The relevant payment was more than ten times larger than the payment at issue in
Robinson. And, unlike the payment in Robinson, it was made in connection with a case against
the same defendant involving the exact same facts. If the suppression of evidence of the
payment in Robinson rendered the verdict against the defendant fundamentally unfair, then
suppression of the payment here did as well.

       The fact that the payment in Robinson was made as part of a confidential informant
arrangement does not distinguish this case. While there is no allegation that Jackson formally
served as a confidential informant to the FBI and the record does not disclose how the payment
in question arose, counsel for the United States in the companion case to this one indicated at
oral argument that a payment of this nature is “rare.” In justifying its finding of materiality, the
Robinson panel noted: “Ordinary decent people are predisposed to dislike, distrust, and
frequently despise criminals who ‘sell out’ and become prosecution witnesses. Jurors suspect
 No. 15-5399                        Thomas v. Westbrooks                                  Page 9


their motives from the moment they hear about them in a case, and they frequently disregard
their testimony altogether as highly untrustworthy and unreliable.” Id. at 737 (citation and
internal quotation marks omitted). Jackson falls squarely within this reasoning even if she was
not serving specifically as a confidential informant. Jackson clearly committed criminal acts in
the aftermath of the shooting—housing a fugitive, lying on a federal firearms purchase form, and
disposing of stolen assets, to name just a few. Thus, if the jury had been presented with evidence
of an unusual payment to an individual who can be fairly characterized as an accessory after the
fact, it might well have chosen to disregard her testimony against Thomas as untrustworthy and
unreliable for the reasons discussed in Robinson.

       The State also argues that the payment was immaterial because any impeachment value
would have been duplicative since Jackson had already been extensively cross-examined and her
motives for testifying had been undermined as a result. See id. at 736 (“[W]here the undisclosed
evidence merely furnishes an additional basis on which to challenge a witness whose credibility
has already been shown to be questionable or who is subject to extensive attack by reason of
other evidence, the undisclosed evidence may be cumulative, and hence not material.” (internal
quotation marks omitted) (alteration original)). But this assertion ignores the clear lesson of
Robinson that impeachment on the basis of pecuniary bias is fundamentally different than
impeachment on the basis of character for dishonesty or other bad acts. Indeed, the witness in
Robinson—like the witness here—had been thoroughly impeached on the basis of inconsistent
testimony and past bad acts, but this court nonetheless held that evidence of her financial
relationship with the prosecuting jurisdiction was “material” for Brady purposes. Id. at 736-38
(“Although Robinson attempted to demonstrate that Sims’ trial testimony differed from her
testimony at the preliminary hearing, the undisclosed information was different in kind because
the suppressed materials would have offered insight into why Sims’ testimony at trial differed
from her testimony at the preliminary hearing.”). Since there was no evidence presented at trial
that Jackson had a financial interest in the outcome of the case, this evidence cannot be properly
considered “cumulative” as that term is used in Robinson. In short, the fact that Jackson had
been thoroughly impeached on other grounds is no bar to a finding that evidence of her
pecuniary bias against Thomas is material under Brady.
 No. 15-5399                         Thomas v. Westbrooks                               Page 10


       Because of the importance of Jackson’s testimony to the State’s case against Thomas and
because the jury was not presented with any other evidence of Jackson’s pecuniary bias, we find
the FBI’s $750 payment to Jackson was material to the jury’s determination of Thomas’s guilt.
Accordingly, we reverse the district court’s judgment and hold that the State’s suppression of the
payment violated Thomas’s due process rights as articulated in Brady.

       We pause to emphasize that our ruling today takes root in Thomas’s right to a fair trial.
We neither review nor dispute the facts articulated by the Supreme Court of Tennessee on direct
appeal. In the context of a Brady claim, the reviewing court does not ask whether there was
sufficient evidence to convict the defendant without the tainted evidence. See Kyles, 514 U.S. at
434.   Rather, we ask whether the purported Brady violation rendered the defendant’s trial
fundamentally unfair. See Strickler, 527 U.S. at 289-90. By focusing on the fairness of the
defendant’s trial, we protect his constitutional right to present a complete and full-throated
defense. As the Supreme Court noted in Brady: “Society wins not only when the guilty are
convicted but when criminal trials are fair; our system of the administration of justice suffers
when any accused is treated unfairly.” 373 U.S. at 87.

                             IV. Prosecutorial Misconduct Claim

       In addition to his Brady claim, Thomas also claims the State committed prosecutorial
misconduct when it knowingly failed to correct Jackson’s false testimony about her receipt of
reward money.

       The Supreme Court has long held that a prosecutor violates a criminal defendant’s due
process rights when she knowingly allows perjured testimony to be introduced without
correction. See United States v. Agurs, 427 U.S. 97, 103 (1976). Judged against a less exacting
“materiality” standard than standalone Brady claims, see Rosencrantz v. Lafler, 568 F.3d 577,
584 (6th Cir. 2009), claims of prosecutorial misconduct require an additional showing that the
prosecuting attorney or one of his subordinates actually knew that the testimony was perjured at
the time of trial. Giglio v. United States, 405 U.S. 150, 154 (1972) (finding misconduct when the
prosecuting attorney did not know of the perjury, but one of his subordinates did).
 No. 15-5399                        Thomas v. Westbrooks                                Page 11


       The State’s briefing seems confused about the requisite standard of knowledge applicable
to claims of prosecutorial misconduct. At times, the State concedes “imputed” knowledge
sufficient to support a prosecutorial misconduct claim under Giglio. However, at oral argument,
the State seemed to say that the doctrine is a legal fiction and strongly denied that any of its
prosecutors had actual knowledge that Jackson’s testimony was perjured.

       The latter view finds no support in the Supreme Court’s decision in Giglio. While Giglio
never uses the phrase “imputed knowledge,” Black’s Law Dictionary defines it as a “bridge” to
facilitate claims “against a principal in which knowledge is a necessary element” on the basis of
facts known by the principal’s agents. Doctrine of Imputed Knowledge, Black’s Law Dictionary
(10th ed. 2014). Consistent with that definition, the Supreme Court in Giglio held that a
prosecuting attorney may be charged with the actual knowledge possessed by his subordinates at
the time of trial under basic principles of agency law. See Giglio, 405 U.S. at 154. The Court
did not adopt a recklessness-based, “knew or should have known” standard for knowledge in the
context of prosecutorial misconduct claims.      Id.   Absent actual knowledge on the part of
someone in the prosecutor’s office that a witness had perjured himself, there can be no finding of
intentional prosecutorial misconduct under Giglio.

       The State’s unelaborated concession that the prosecuting attorney had “imputed”
knowledge might be read either way on the issue of actual knowledge. Were we to reach the
merits of the prosecutorial misconduct claim, we might well charge the state prosecutor with
actual knowledge that Jackson’s testimony about her receipt of reward money was perjured.
Given the importance of Jackson’s testimony to the State’s case and the State’s repeated
questioning about her purportedly high-minded reasons for testifying, it seems that any
competent prosecutor would have carefully reviewed the case file for evidence that Jackson
might have been testifying for some less-than-altruistic reason in order to guard against the risk
of impeachment. This seems especially true in a case like this one where the witness had already
testified against the same defendant in a related federal proceeding. Had the prosecutor done so,
the parties agree that she would have come across a document indicating that Jackson had
received a significant payment from the FBI after the conclusion of the federal trial. Thus, were
we to presume that the State’s prosecutor engaged in diligent preparation for trial, we would
  No. 15-5399                             Thomas v. Westbrooks                                         Page 12


conclude that she knew of the payment at trial. However, we need not conclusively decide that
issue here because we hold that Thomas is independently entitled to relief based upon his Brady
claim.

                                               V. Conclusion

         For the foregoing reasons, we hold that Thomas’s Brady claim in this case entitles him to
relief from his Tennessee state court conviction under 28 U.S.C. § 2254.3 Accordingly, we
pretermit our discussion of the remaining issues raised in his petition. The judgment of the
district court is REVERSED and we REMAND the case to the district court with directions to
issue the writ of habeas corpus unless the State affords Petitioner a new trial within a period of
time to be established.




         3
          In an opinion also entered today, we deny Thomas’s companion petition for habeas relief from his federal
conviction and sentence in its entirety. Thomas v. United States, No. 15-6200 (6th Cir. Feb. 24, 2017).
 No. 15-5399                           Thomas v. Westbrooks                                Page 13


                                        _________________

                                             DISSENT
                                        _________________

          SILER, Circuit Judge, dissenting. I concur with the facts as related by the majority
opinion in this case, but I respectfully dissent from the final conclusion that the Brady claim
entitles the petitioner, Andrew Lee Thomas, Jr., to a writ of habeas corpus for the reasons stated
herein.

          First, I agree with the parties and with the majority that the Brady claim was not decided
by the Tennessee state courts, so our review is de novo. I also agree with the majority that the
State conceded that knowledge of the payment of $750.00 to Angela Jackson is imputed to the
state prosecutors for purposes of Thomas’s claim under Brady. It is not material that the state
prosecutor did not find the receipt of $750.00 to Jackson in the file, nor that the state prosecutor
was told of that payment. As the majority indicates, it would seem logical that the state
prosecutor would have found something in the case file about the payment, but that is not in our
record before this court. Thomas has benefited from the assumption under law that the successor
prosecutor has the imputed knowledge that Jackson was paid the $750.00 and did not admit it
later when questioned. However, I part from the majority at this point. As the majority states, “a
successful Brady claim requires a showing . . . that the state’s actions resulted in prejudice.” Bell
v. Bell, 512 F.3d 223, 231 (6th Cir. 2008)(citing Strickler v. Greene, 527 U.S. 263, 281-82
(1999)). Prejudice results whenever the suppressed evidence is “material.” Robinson v. Mills,
592 F.3d 730, 735 (6th Cir. 2010).

          As the majority relates, evidence is material for Brady purposes when, in view of all
relevant evidence, its absence deprives the defendant of a fair trial, “understood as a trial
resulting in a verdict worthy of confidence.” Montgomery v. Bobby, 654 F.3d 668, 678-79 (6th
Cir. 2011) (en banc) (quoting Kyles v. Whitley, 514 U.S. 419, 434 (1995)). The majority opinion
depends upon our prior decision in Robinson, 592 F.3d at 738. However, in Robinson, the
prosecution depended upon an informant, Sims, who had been used by the prosecution in many
investigations, whereas, in the present case, Jackson was an important witness, but she was not
present at the robbery or the homicide of James Day, the armored truck driver. She had never
 No. 15-5399                          Thomas v. Westbrooks                               Page 14


been a paid informant in other cases. Certainly, Jackson’s evidence was material, because she
related the fact that Thomas came to Jackson’s apartment with a large amount of money and that
Anthony Bond, the codefendant, was with him and was carrying a gun. She also related the fact
that she and Thomas took Thomas’s money and bought a car and other items. Thomas also
admitted to her that he shot the driver (Day) and that the money was from the robbery.

        There is one significant difference in the proof in this case and the proof in Robinson.
Here, Jackson gave a statement to federal agents long before either trial, describing the events on
the day of the crime and her knowledge of Thomas’s involvement. Her statements in 1997 are
consistent with her testimony at the federal trial in November 1998 and the state trial in 2001.
Her statements were given before she ever received any money from the federal agents, because
she received the $750.00 after the completion of the first trial in 1997. In Robinson, the paid
witness had not given earlier consistent statements. She had testified at a preliminary hearing a
year before trial, but her testimony at the preliminary hearing differed substantially from the
testimony later at the trial.

        Moreover, additional evidence introduced at trial placed Thomas at the crime scene.
Several witnesses observed Bond and another man get into the car and drive away after the
shooting. One of those witnesses, Richard Fisher, testified that he was close to the getaway car
as it drove by and he was able to provide in-court identification that Thomas was the passenger
in the car. As the majority points out, Fisher originally pointed to Bond as the person in the
passenger seat, but as he got closer to Thomas in the courtroom, he identified Thomas as the
passenger.    The majority is very skeptical about that, but, had the jury believed Fisher’s
statement that Thomas was the passenger in the car, it could have found Thomas guilty, because
the jury decides the credibility of the witnesses.

        Other evidence at the trial corroborated Jackson’s testimony. For instance, there was
evidence about how Jackson and Thomas bought a car with cash soon after the robbery. There
was also proof about Jackson’s opening a bank account and depositing a large sum of cash in it.

        In addition, Jackson was thoroughly impeached during her testimony during trial. She
was cross-examined on alleged inconsistent statements to law enforcement and her relationship
 No. 15-5399                        Thomas v. Westbrooks                                Page 15


with Thomas, including allegations by Thomas that she had been cruel to his son, suggesting a
bias by Jackson against Thomas. She was also questioned about purchasing a gun for Thomas
and opening a bank account with proceeds from the robbery.

       I agree that under Brady, the state was required to reveal to defense counsel the payment
of $750.00 to Jackson before the state trial. However, because that payment was not prejudicial
under Brady, the writ of habeas corpus should not be granted. I would affirm the district court in
denying the writ.
