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           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                      No. 13-31013                              FILED
                                                                          October 3, 2014
                                                                           Lyle W. Cayce
MILTON ISAAC,                                                                   Clerk

                                                 Petitioner–Appellee
v.

BURL CAIN, WARDEN, LOUISIANA STATE PENITENTIARY,

                                                 Respondent–Appellant




                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                             USDC No. 2:10-CV-4591


Before HIGGINBOTHAM, JONES, and PRADO, Circuit Judges.
PER CURIAM:*
       A Louisiana jury convicted Petitioner Milton Isaac (“Isaac”) of possession
of heroin with intent to distribute. He applied for post-conviction relief in state
court arguing that he was actually innocent of the “intent to distribute” prong
of the crime of conviction. His federal constitutional claims alleged violations
of Napue v. Illinois, 360 U.S. 264 (1959), and Brady v. Maryland, 373 U.S. 83
(1963). After the state habeas trial court granted relief, the state appellate




       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                  No. 13-31013
court reversed and denied relief. On federal habeas review, the district court
granted relief. We reverse.
                             I.   BACKGROUND
 A.    Trial Proceedings 1
       The arresting officer testified at trial that, on December 3, 1985, he
investigated a dark sedan with a woman sitting in it, parked in the middle of
the street. This investigation was interrupted when he heard another woman
shouting from the third story of a nearby apartment building that a man had
a gun in someone’s mouth. Arriving at the apartment, the officer found Isaac
pinned to the ground by Edgar Barabino (“Barabino”). Barabino had a pistol
in Isaac’s mouth and tried to shoot the gun, but the officer prevented the gun
from firing. When the officer patted down Isaac, he recovered $81 in cash
wrapped around 21 packages of heroin. Moreover, Isaac was wearing a flak
jacket, and two guns were found in the car parked in the middle of the street,
the car in which Isaac had arrived.
       Carolyn Harris (“Harris”) was the woman in the car. She testified at
trial that she had been with Isaac and Terrell Sterling (“Sterling”) throughout
the course of that evening. Harris testified that Sterling was going through
heroin withdrawal. Because Isaac had no heroin on him, she left with Isaac in
search of drugs.
       Officer Frank Benn is an expert in the packaging and distribution of
controlled substances.    He testified that heroin is normally packaged in
“bundles” of 25 papers—individual packets—with a street value of $20–$25 per
paper. While a heavy heroin user would use whatever amount of heroin he
could get, the officer noted that it would be unusual to find more than two or



       1 We draw the trial proceedings—which is essentially undisputed—from the
magistrate judge’s thorough findings and recommendations below.
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three papers in the possession of a user. He further testified that the heroin
seized in this case was consistent with the normal amount for distribution of
heroin. He also testified that dealers usually carry guns.
       Isaac took the stand in his own defense. He testified that he was an
addict and that he had gone to Barabino, a known dealer, to purchase heroin
for his personal use. He said that when he found himself short of money, he
attempted to take cash and drugs from Barabino by force, and that a scuffle
ensued.
       The State called Barabino in rebuttal, and he testified that he did not
sell drugs. Barabino suggested that if Isaac had been carrying heroin, he must
have had the drugs with him when he entered the apartment.
       On June 17, 1986, a Louisiana state jury convicted Isaac of the crime of
possession of heroin with intent to distribute under Louisiana Revised Statute
Annotated § 40:966(A)(1). Isaac was sentenced to a mandatory term of life in
prison without the possibility of parole. Isaac appealed his conviction and
sentence to the Louisiana Fourth Circuit Court of Appeal (hereinafter the
“Fourth Circuit”). The Fourth Circuit affirmed his conviction, but amended his
life sentence by removing the prohibition against parole.
 B.    Post-Conviction Proceedings
       After multiple unsuccessful requests for post-conviction relief, Isaac filed
on March 1, 2007 a motion for a new trial based upon newly discovered
evidence. The state trial court held two hearings—one on August 29, 2007,
and the other on March 26, 2008—to take evidence on the motion, which it
construed as an application for post-conviction relief.
       The newly discovered pieces of evidence were the recantations of two
witnesses at trial, Harris and Barabino. They claimed that the prosecutor in
the case, Assistant District Attorney Glynn Alexander (“Alexander” or “ADA
Alexander”), elicited their false testimony in order to convict Isaac. In turn,
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Isaac raised issues concerning perjured testimony in violation of Napue,
suppressed evidence in violation of Brady, and actual innocence.            Isaac
contended that he was actually innocent of the “intent to distribute” prong of
the statute, and conceded that he would have been guilty of simple possession
of heroin. At the post-conviction hearings, Harris, Barabino, Isaac’s aunt
Janice Isaac (“Ms. Isaac”), and Alexander testified as follows.
       1.   Testimony of Harris
      On November 28, 2000, Harris submitted an affidavit describing her
conversations with ADA Alexander before trial and her testimony at trial. As
stated in the affidavit, she told ADA Alexander before trial that, on the day of
Isaac’s arrest, Isaac had been experiencing extreme symptoms of heroin
withdrawal. Isaac called Sterling, who then gave Isaac money so that Isaac
could purchase heroin for his personal use. She told ADA Alexander that she
then drove with Isaac to Barabino’s house to purchase heroin.
      In response, ADA Alexander threatened to charge her for her role in the
case if she did not alter her testimony to reflect that Sterling was the one
suffering from withdrawal and that Isaac obtained the drugs from Barabino to
distribute to Sterling. Harris stated that she agreed to testify falsely for three
reasons: she felt that “Isaac needed some time off the street to get his life in
order”; Alexander promised her that Isaac would only receive a 10-year
sentence; and Alexander promised her that she would not be charged. Harris
also stated that she received immunity in exchange for her false testimony.
      Harris explained at the March 26, 2008 post-conviction hearing that
Sterling brought Isaac $81 for Isaac to purchase heroin from Barabino. She
further testified that she and Isaac stopped at Barabino’s apartment and
procured some guns, which they put in the car. As Harris waited for Isaac
outside the apartment, a police officer approached her and asked her for


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identification. At that moment, a woman inside the apartment called out for
help, exclaiming that Barabino had a gun in Isaac’s mouth.
      Harris testified that Alexander threatened to charge her with possession
of the firearms if she did not testify against Isaac.       In exchange for her
testimony, Alexander allegedly paid for a hotel and all her expenses during the
trial, and helped her obtain Section 8 housing. Moreover, according to Harris,
Alexander told her that she “needed to say that [Sterling] was still in the
house . . . so that [the prosecution] could say that [Isaac] went to get the drugs
for [Sterling].” Harris testified that she chose to come forward and tell the
truth after her grown daughter (Isaac’s child) discovered what happened.
      The State cross-examined Harris. She acknowledged that even though
she claimed that Alexander instructed her to testify falsely that Sterling had
stayed behind while she and Isaac went to procure drugs from Barabino, she
gave no such testimony at trial.
       2.   Testimony of Barabino
      On July 30, 2007, Barabino submitted an affidavit stating that, on the
day of Isaac’s arrest, Barabino purchased 20 to 25 bags of heroin from a third-
party for himself and Isaac because both men were heroin addicts. According
to Barabino, Isaac attempted to buy heroin from Barabino, but when Barabino
refused to sell, Isaac threatened him with a gun, saying that he was sick and
desperate for heroin. Barabino stated that at no point did Isaac attempt to
distribute heroin to him or any other person. Barabino also stated that an
unnamed prosecutor threatened to charge members of Barabino’s family with
drug offenses unless he testified that Isaac was in possession of the heroin
when the police arrived at Barabino’s apartment.
      At the August 29, 2007 post-conviction hearing, Barabino testified that
the prosecutor who had coerced him to testify was ADA Alexander. According
to Barabino, Alexander told him that if Isaac was released from custody, Isaac
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                                 No. 13-31013
would kill Barabino. When that tactic proved unsuccessful, Alexander also
threatened to bring criminal drug charges against Barabino’s family members
if he did not testify against Isaac. Barabino testified that Alexander claimed
he would bring these charges based on Isaac’s statement to the police that the
heroin found on Isaac had come from Barabino’s house.             Barabino told
Alexander that Isaac’s statement was untrue. Isaac’s post-conviction counsel
then introduced into evidence an internal District Attorney memo—from the
time of the prosecution—recommending the use of the specter of an aggravated
assault charge to “encourage” Barabino to testify against Isaac. Barabino
testified that prosecutors offered to “get rid of” an aggravated battery charge
pending against him in state court if he testified against Isaac. But Barabino
said that he “only [could] testify to the truth” that Isaac sought only to use
heroin on the day he was arrested; that while he and Isaac would purchase
heroin to use together, Barabino never knew Isaac to have sold heroin; and
that Isaac did not attempt to sell or give Barabino heroin on the day in
question. Barabino explained that after spending time in jail himself, he
regretted having helped send Isaac to prison by offering false testimony at
trial. During cross-examination, Barabino conceded that he never testified at
trial that Isaac dealt drugs generally or that he had tried to sell heroin to
Barabino on the date of his arrest.
       3.   Testimony of Ms. Isaac
      At the post-conviction hearing, Isaac’s aunt, Janice Isaac, repeated her
trial testimony that Isaac was a heroin addict at the time of his arrest. Ms.
Isaac testified that ADA Alexander helped to house Harris during the
prosecution and helped procure Section 8 housing for Harris. Ms. Isaac noted
that the wait time to receive Section 8 housing at the time of the trial would
have otherwise been lengthy. She also testified that Alexander tried to get her
to convince Isaac to take a plea deal for 10 years.
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       4.   Testimony of Alexander
      Former ADA Alexander testified that during the screening of Isaac’s
case, he spoke with Barabino, who relayed to him the essential facts
surrounding the interaction between him and Isaac on the day in question. In
Alexander’s view, his intent was not to prove that Isaac had sold heroin to
Barabino or anyone else. Rather, he theorized that Isaac was a “jackman” who
had tried to rob Barabino of his stash. This theory was based on Alexander’s
purported familiarity with the drug trade gained during his previous three
years working as a criminal defense attorney. Alexander further testified that
he did not coerce, threaten, or intimidate Harris or Barabino into testifying at
Isaac’s trial because he “didn’t have any reason to.” His only instruction to
either witness was to “[t]ell the truth,” which they did, to his knowledge.
Alexander also testified that he harbored no particular grudge against Isaac
and that Isaac’s prosecution was “just another case.”
      On cross-examination, Alexander explained his theory at trial—that
Isaac had intended to rob Barabino of his heroin stash—was based on the facts
of the case, including Isaac’s possession of multiple firearms and a flak jacket.
Alexander testified that Harris was a very cooperative witness who wanted to
testify despite concerns that she might be in trouble. Alexander assured her
that nothing was going to happen to her and that she needed to speak honestly
about her knowledge about the case.         Alexander testified that he did not
provide Harris with housing during the prosecution and did not help her obtain
Section 8 housing. He also categorically denied threatening Harris with jail if
she did not testify against Isaac, and stated that anyone testifying that he did
so “[would] be lying.” Finally, Alexander reiterated that he did not tell Harris
to testify that Isaac procured drugs to give to Sterling.
      On redirect examination, Alexander testified that he put the State’s offer
of immunity for Harris on the record in open court.
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       5.   Post-Conviction Relief
      The state habeas trial court granted the post-conviction application on
May 30, 2008. The State then sought writs from the Fourth Circuit, and that
court reversed the trial court on October 13, 2008. The Fourth Circuit found
that the petition was procedurally defective because it was time-barred and
repetitive. In the alternative, the Fourth Circuit held that Isaac’s claims failed
on the merits.    The Fourth Circuit denied rehearing, and the Louisiana
Supreme Court denied a request for supervisory writs.
      On November 22, 2010, this Court granted Isaac authorization under 24
U.S.C. § 2244(b)(3)(A) to file a second or successive petition. Isaac then filed
his successive petition with the federal district court.     Based upon newly
discovered evidence, Isaac raised the following claims: (1) the State knowingly
introduced perjured testimony at trial in violation of Napue; (2) the State
withheld exculpatory material evidence from the defense and the jury in
violation of Brady; and (3) Isaac is actually innocent of the crime for which he
was convicted.
      The federal magistrate judge issued a report and recommendation that
Isaac’s habeas application be dismissed as successive under § 2244(b)(2)(B).
Alternatively, on the merits, the magistrate judge recommended Isaac could
not demonstrate that the facts would be sufficient to establish by clear and
convincing evidence that, but for constitutional error, no reasonable factfinder
would have found him guilty of the underlying offense.            Therefore, the
magistrate judge recommended dismissing the habeas petition.
      The district court sustained Isaac’s objections to the recommendation
and, upon independent review, granted habeas relief. Notably, the district
court stated that “[t]he Louisiana Fourth Circuit Court of Appeals, which
overturned the hearing court’s findings, was not the finder of fact, and in this
highly factual instance, this Court defers to [the state habeas trial court’s]
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findings.” The district court then concluded that Isaac had overcome the
procedural bar against successive petitions, and that he satisfied his burden
under 28 U.S.C. § 2254(d) as to his Napue and Brady claims.
         II.   JURISDICTION AND STANDARD OF REVIEW
      The district court had jurisdiction to consider Isaac’s § 2254 petition
pursuant to 28 U.S.C. § 2241. Because this is an appeal of a final judgment of
a district court, this Court has jurisdiction under 28 U.S.C. § 1291. When
reviewing a district court’s grant of habeas relief, this Court reviews issues of
law de novo and findings of fact for clear error. Woodfox v. Cain, 609 F.3d 774,
788–89 (5th Cir. 2010).
      If the state habeas court adjudicated a claim on the merits, then the
Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), §§ 101–108,
Pub. L. No. 104-132, 110 Stat. 1214 (codified as amended at 28 U.S.C. §§ 2244,
2253–2266), provides the appropriate standard of review. Section 2254(d)
states that a state prisoner’s application for a writ of habeas corpus “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.
28 U.S.C. § 2254(d).
      Section 2254(d)(1) encompasses two distinct inquiries. A “state court’s
decision is ‘contrary to’ clearly established federal law if ‘the state court arrives
at a conclusion opposite to that reached by [the Supreme Court] on a question
of law or if the state court decides a case differently than [the Supreme Court]
has on a set of materially indistinguishable facts.’” Hoffman v. Cain, 752 F.3d

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430, 436–37 (5th Cir. 2014) (alterations in original) (quoting Williams v.
Taylor, 529 U.S. 362, 413 (2000)). By contrast, “[a] state court’s decision
involves an ‘unreasonable application’ of clearly established federal law if ‘the
state court identifies the correct governing legal principle from [the Supreme
Court’s] decisions but unreasonably applies that principle to the facts of the
prisoner’s case.’” Id. at 437 (alteration in original) (quoting Williams, 529 U.S.
at 413). As to this latter inquiry, we “focus on ‘the ultimate legal conclusion
that the state court reached and not on whether the state court considered and
discussed every angle of the evidence.’” Id. (quoting Neal v. Puckett, 286 F.3d
230, 246 (5th Cir. 2002) (en banc) (per curiam)). To determine whether the
state court unreasonably applied a Supreme Court decision, a federal habeas
court “must determine what arguments or theories supported or, . . . could have
supported, the state court’s decision; and then it must ask whether it is possible
fairminded jurists could disagree that those arguments or theories are
inconsistent with the holding in a prior decision of [the Supreme Court].”
Harrington v. Richter, 131 S. Ct. 770, 786 (2011).
      A challenge to a state court decision under § 2254(d)(2) challenges the
state court’s determination of the facts. “[A] determination of a factual issue
made by a State court shall be presumed to be correct” and the petitioner “shall
have the burden of rebutting the presumption of correctness by clear and
convincing evidence.”    28 U.S.C. § 2254(e)(1).     “Section 2254(e)(1) is the
‘arguably more deferential standard.’” Hoffman, 752 F.3d at 437 (quoting
Wood v. Allen, 558 U.S. 290, 301 (2010)). A factual determination is “not
unreasonable merely because the federal habeas court would have reached a
different conclusion in the first instance.” Wood, 558 U.S. at 301.
      Overall, § 2254 establishes a “highly deferential standard for evaluating
state court rulings, which demands that state-court decisions be given the
benefit of the doubt.” Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (citation and
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                                   No. 13-31013
internal quotation marks omitted). Indeed, state courts are presumed to “know
and follow the law.” Id. The petitioner has the burden of showing that “there
was no reasonable basis for the state court to deny relief.” Richter, 131 S. Ct.
at 784. “For claims that are not adjudicated on the merits in the state court,
this Court applies a de novo standard of review.” Hoffman, 752 F.3d at 437
(citation omitted).
                            III.   DISCUSSION
      We first determine whether the deferential AEDPA scheme applies and,
if so, which court’s version of the facts to defer to. Then, we turn to Isaac’s
Napue and Brady claims.
 A.   AEDPA Deference
      Isaac argues that the Fourth Circuit did not adjudicate his Napue and
Brady claims on the merits, and that the Fourth Circuit did not overrule the
state habeas trial court’s factual findings as to those claims. We disagree with
Isaac on both points and afford AEDPA deference to the Fourth Circuit’s
decision, including its factual findings.
       1.   The Fourth Circuit’s Adjudication of Isaac’s Claims
      As noted above, AEDPA deference to a state court decision applies only
to claims the state court previously “adjudicated on the merits.” “When a
federal claim has been presented to a state court and the state court has denied
relief, it may be presumed that the state court adjudicated the claim on the
merits in the absence of any indication or state-law procedural principles to
the contrary.”    Richter, 131 S. Ct. at 784–85 (citation omitted).           That
“presumption may be overcome when there is reason to think some other
explanation for the state court’s decision is more likely.” Id. at 785. More
recently, the Supreme Court applied the Richter presumption even though the
“state court rule[d] against the defendant and issue[d] an opinion that


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addresse[d] some issues but [did] not expressly address the federal claim in
question.” Johnson v. Williams, 133 S. Ct. 1088, 1091 (2013).
      Isaac argues that the “merits” portion of the Fourth Circuit’s opinion did
not decide his federal claims on the merits. Instead, according to Isaac, the
Fourth Circuit simply applied the Louisiana standard for a motion for a new
trial to determine whether the trial court abused its discretion in granting a
new trial. The State counters that the Louisiana standard was only used as a
vehicle through which the Fourth Circuit adjudicated the federal claims on the
merits.
      Here, Isaac has not overcome the Richter presumption. The Fourth
Circuit began its discussion by reciting Louisiana Code of Criminal Procedure
article 851 and its four requirements for the grant of a new trial based on newly
discovered evidence. The Fourth Circuit then held that the recantations were
immaterial because there was more than enough other evidence to prove that
Isaac possessed the requisite intent to distribute. In so holding, the Fourth
Circuit cited to the materiality standard from United Stated v. Bagley, 473 U.S.
667 (1985), a United States Supreme Court case that clarifies the materiality
standard under Brady and its progeny. The Fourth Circuit then proceeded to
question the veracity of the recantations by pointing to inconsistencies between
the trial testimonies, affidavits, and the post-conviction testimonies of the two
recanting witnesses. Finally, the Fourth Circuit turned to the allegation of
prosecutorial misconduct.    In rejecting that claim, it cited to Napue and
expressly noted that it had already addressed two of three Napue factors, and
then proceeded to discuss the remaining factor.
      In light of this reasoning and the invocation of the appropriate federal
standards, the Fourth Circuit “understood itself to be deciding . . . question[s]
with federal constitutional dimensions.” See Williams, 133 S. Ct. at 1098.
Isaac has not overcome the presumption that the Fourth Circuit adjudicated
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                                   No. 13-31013
his federal claims on the merits. Accordingly, we apply the usual AEDPA
deference to the Fourth Circuit’s merits decision. We discuss next whether the
state habeas trial court’s factual findings survived that decision.
       2.    The Fourth Circuit’s Review of the State Habeas Trial Court’s
             Findings of Fact
      Under AEDPA, this Court reviews “the last reasoned state court
decision.” Batchelor v. Cain, 682 F.3d 400, 405 (5th Cir. 2012) (emphasis
added) (citation and internal quotation marks omitted). Nevertheless, a state
trial court’s factual findings may survive a state appellate court’s denial of
habeas relief if the state appellate court did not explicitly or implicitly reject
the factual findings of the state trial court. Compare Westley v. Johnson, 83
F.3d 714, 720 n.2 (5th Cir. 1996) (deferring to the state habeas trial court’s
factual findings where the state appellate court “did not reject the factual
findings of the lower court” and the appellate court’s denial of habeas relief
“was not inconsistent with the factual findings” of the state habeas trial court),
and Craker v. Procunier, 756 F.2d 1212, 1214 (5th Cir. 1985) (deferring to state
habeas trial court’s factual findings because the state appellate court “did not
reject the factual findings of the state [trial] court; it merely held that the facts
as found did not entitle Craker to relief”), with Micheaux v. Collins, 944 F.2d
231, 232 (5th Cir. 1991) (en banc) (per curiam) (affording no deference to state
habeas trial court’s factual findings because they were “not adopted []or
incorporated in the action of the [state appellate court], [and were] directly
inconsistent with that court’s peremptory denial of relief”).
      Here, the Fourth Circuit divided its analysis of the merits of Isaac’s
claims into three subsections. First, in a subsection entitled “Materiality of
Recantation,” the court found the new evidence immaterial in that it would not
have warranted an acquittal had it been produced at trial.            Second, in a
subsection entitled “Veracity of Recantations,” the court found that Harris’s

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and Barabino’s recantations were not credible or reliable. In light of this
finding, the Fourth Circuit held the new evidence would not create reasonable
doubt in the minds of a new jury. Finally, in a subsection entitled “Allegations
of Prosecutorial Transgressions,” the Fourth Circuit found that there was
insufficient evidence that Alexander coerced perjury.
      The parties disagree over which factual findings govern: the state habeas
trial court’s finding that Harris’s and Barabino’s post-conviction testimonies
were “valid and credible,” or the Fourth Circuit’s finding in its second
subsection that “there [were] factors present that cast a shadow over the
truthfulness of the recanted statements.” The State argues that the Fourth
Circuit overturned the state habeas trial court’s factual findings.           Isaac
disagrees, arguing that the Fourth Circuit focused only on whether the trial
court abused its discretion in concluding that the recantation was material
under Louisiana’s standard for a new trial.
      Isaac’s argument would have us consider only the first subsection of the
Fourth Circuit’s decision and ignore the rest. We decline Isaac’s invitation to
do so. A review of the Fourth Circuit’s opinion reveals that, in the second
subsection, it did not accept the trial court’s version of the facts. Instead, the
Fourth Circuit faulted the trial court for its “glaring omissions of critical facts”
as to both Isaac’s Napue and Brady claims. And, as described in Part III(B)(1),
infra, the Fourth Circuit introduced and relied upon these critical facts that
the trial court omitted. Accordingly, we review and afford deference to the
Fourth Circuit’s decision as the last reasoned state court decision.
 B.   Isaac’s Napue and Brady Claims
      The Fourth Circuit’s denial of habeas relief was neither based on an
unreasonable determination of the facts, nor based on an unreasonable
application of federal law.


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                                      No. 13-31013
            1.     The Fourth Circuit’s Determination of Facts
       The evidence as to Isaac’s Napue and Brady claims is virtually the same,
and so we review the Fourth Circuit’s factual determinations on both claims
together under § 2254(d)(2).            Isaac has “the burden of rebutting the
presumption of correctness [of the Fourth Circuit’s factual findings] by clear
and convincing evidence.” See 28 U.S.C. § 2254(e)(1). We hold that Isaac has
not satisfied this burden.
       At the outset, there is a long-established view under both federal and
state law that recantations are highly suspicious. Spence v. Johnson, 80 F.3d
989, 1003 (5th Cir. 1996) (“[R]ecanting affidavits and witnesses are viewed
with extreme suspicion by the courts.” (citation and internal quotation marks
omitted)); State v. Prudholm, 446 So. 2d 729, 736 (La. 1984) (“[R]ecantations
are highly suspicious and, except in rare circumstances, a motion for new trial
should not be grated on the basis of a recantation since that disclaimer is
tantamount to admission of perjury so as to discredit the witness at a later
trial.”).        With this in mind, the Fourth Circuit pointed to a number of
inconsistencies between the trial testimonies, the affidavits, and the post-
conviction testimonies of the recanting witnesses.
       For example, both Harris and Barabino tried to recant testimony not
actually given at trial. In both her affidavit and post-conviction testimony,
Harris claimed that Alexander coerced her into testifying at trial that Isaac
went to Barabino to purchase drugs for Sterling. And, at the post-conviction
hearing, Harris testified that Alexander wanted her to testify that Sterling was
still at Harris’s house in order to further prove that Isaac was procuring the
heroin to distribute to Sterling. At trial, however, Harris did not testify that
Isaac purchased heroin from Barabino in order to distribute it, nor did she
testify about Sterling’s whereabouts after she and Isaac left her apartment.
Barabino similarly tried to recant testimony that he had not actually given: at
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                                  No. 13-31013
the post-conviction hearing, Barabino claimed that he was forced by Alexander
to testify at trial that Isaac intended to distribute the drugs, but the record
reveals that he never actually gave such testimony at trial.
      The Fourth Circuit also described the expansion of Harris’s and
Barabino’s post-conviction testimonies from the time of their affidavits. In her
affidavit, Harris asserted that she testified falsely because Alexander
convinced her that Isaac needed some time off the streets, that he would serve
only 10 years, and that it would prevent her from being charged and prosecuted
herself. By contrast, at the post-conviction hearing, Harris asserted that she
testified falsely for additional reasons, such as Alexander paying for her living
expenses during the prosecution and helping her obtain Section 8 housing.
And in his affidavit, Barabino asserted that he agreed to testify based on
Alexander’s threat to charge his family members with drug offenses. At the
post-conviction   hearing,   however,     Barabino   testified   that   Alexander
additionally coerced him by raising the idea that Isaac was going to kill
Barabino if he ever got out of prison.
      From these inconsistencies, the Fourth Circuit concluded that Isaac’s
“claims could be denied alone as to the issue of the veracity of the recanted
statements of Ms. Harris and Mr. Barabino.” Apparently relying upon his
argument that the Fourth Circuit did not overturn the trial court’s factual
findings, Isaac makes no attempt to rebut the Fourth Circuit’s findings on the
veracity of the recantations.    Accordingly, Isaac has not shown clear and
convincing evidence to overcome the presumed correctness of these findings
under § 2254(d)(2).
       2.   The Fourth Circuit’s Application of Federal Law
      We also must determine whether the Fourth Circuit’s adjudication of the
Napue and Brady claims was contrary to, or an unreasonable application of,
clearly established federal law in violation of § 2254(d)(1).
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    Case: 13-31013      Document: 00512792766     Page: 17   Date Filed: 10/03/2014



                                  No. 13-31013
      Under Napue, “a conviction obtained through use of false evidence,
known to be such by representatives of the State, must fall under the
Fourteenth Amendment.” 360 U.S. at 269 (citations omitted). “To establish a
due process violation based on the government’s use of false or misleading
testimony, a petitioner must show (1) that the witness’s testimony was actually
false, (2) that the testimony was material, and (3) that the prosecution knew
the witness’s testimony was false.” Fuller v. Johnson, 114 F.3d 491, 496 (5th
Cir. 1997).
      Under Brady, the State may not suppress evidence favorable to the
accused when that evidence is material either to guilt or punishment. 373 U.S.
at 87. “To make a Brady claim, [the petitioner] must prove: (1) that the
‘evidence at issue [is] favorable to the accused, either because it is exculpatory,
or because it is impeaching;’ (2) that the ‘evidence [has] been suppressed by the
State, either willfully or inadvertently;’ and (3) that ‘prejudice [has] ensued.’”
Summers v. Dretke, 431 F.3d 861, 874 (5th Cir. 2005) (alterations in original)
(quoting Strickler v. Greene, 527 U.S. 263, 281–82 (1999)).
      Here, the Fourth Circuit rejected both claims based on its revised factual
determinations.      As to Isaac’s Napue claim, the revised facts support the
conclusion that the trial testimonies were not actually false. And as to Isaac’s
Brady claim, the revised factual determinations discrediting Harris’s and
Barabino’s post-conviction testimonies, and implicitly accepting Alexander’s,
indicate that no evidence was suppressed. As discussed above, these factual
findings have not been shown to be error by clear and convincing evidence. In
light of these factual findings, we hold that the Fourth Circuit’s rejection of
Isaac’s Napue and Brady claims on these grounds was not an unreasonable
application of clearly established federal law.
                            IV.   CONCLUSION
      We REVERSE the district court’s grant of habeas relief.
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