                                                                   [ PUBLISH]



              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                        ________________________

                                No. 97-6162
                         ________________________

                      D. C. Docket No. CV-96-PT-1381-M

JUDITH A. NEELLEY,

                                                           Petitioner-Appellant,

                                   versus

JOHN E. NAGLE, Warden,
STATE OF ALABAMA,

                                                        Respondents-Appellees.

                         ________________________

                 Appeal from the United States District Court
                    for the Northern District of Alabama
                       _________________________


                               (April 9, 1998)

Before HATCHETT, Chief Judge, EDMONDSON and COX, Circuit Judges.

COX, Circuit Judge:
      Judy Neelley appeals the district court’s denial of her habeas corpus petition in

connection with her conviction for the kidnaping and murder of a 13-year-old girl.

In her petition Neelley alleges that her trial counsel was ineffective because he

operated under a conflict of interest. The district court considered the petition under

the standards found in the Anti-Terrorism and Effective Death Penalty Act of 1996.

We affirm.

                                I. BACKGROUND

      Judy Neelley participated in a scheme in which she attempted to lure girls and

young women into her car for the ultimate purpose of making them available to her

husband, Alvin Neelley, for his sexual pleasure. As a part of this scheme, Judy

Neelley abducted 13-year-old Lisa Ann Millican from a mall in Rome, Georgia, taking

her to a motel room and handcuffing her to a bed to prevent her escape. After Alvin

Neelley raped the girl over the course of several days, the Neelleys took Millican to

the rim of Little River Canyon near Fort Payne, Alabama. There, Judy Neelley

injected Millican with drain cleaner six times in an attempt to kill her. When this

failed, Neelley shot her in the back and pushed her into the canyon.

      Eventually, the Neelleys were arrested in Tennessee on bad check charges, and

Judy Neelley was extradited to Alabama to stand trial for Millican’s murder. She was

tried in the Circuit Court for DeKalb County, Alabama. The trial judge found that


                                          2
Neelley was indigent and appointed local attorney Robert B. French, Jr. to represent

her.

         At trial, French presented the defense that Neelley was not criminally

responsible for her actions because her husband had forced her to abduct and kill Lisa

Ann Millican. Neelley testified that her husband habitually abused her and that her

will had been subjugated to his through fear. The jury did not accept Neelley’s

defense and found her guilty of the capital crime of murder during the course of a

kidnaping. At the penalty phase of the trial, the jury recommended by a vote of ten

to two that Neelley be sentenced to life imprisonment without parole. The trial judge,

however, overrode the jury’s sentencing recommendation and sentenced Neelley to

death.

         On direct appeal, the Alabama state courts affirmed Neelley’s conviction and

death sentence, see Neelley v. State, 494 So. 2d 669 (Ala. Crim. App. 1985), aff’d, Ex

parte Neelley, 494 So. 2d 697 (Ala. 1986), and the United States Supreme Court

denied her petition for a writ of certiorari, see Neelley v. Alabama, 480 U.S. 926, 107

S. Ct. 1389 (1987). Neelley then filed a petition for post-conviction relief in state

court. That court denied this petition, a decision that the Alabama appellate courts

upheld. See Neelley v. State, 531 So. 2d 69 (Ala. Crim. App. 1988), cert. denied, Ex




                                           3
parte Neelley, 537 So. 2d 65 (Ala. 1988), cert. denied, Neelley v. Alabama, 488 U.S.

1020, 109 S. Ct. 821 (1989). French represented Neelley throughout this time.

      Next, represented by new counsel, Neelley filed in state court a second petition

for post-conviction relief that included a claim that French’s representation was

unconstitutionally inadequate. The trial court held an evidentiary hearing on the

ineffective-assistance-of-counsel claim, but denied the petition; the Alabama Court

of Criminal Appeals affirmed. See Neelley v. State, 642 So. 2d 494 (Ala. Crim. App.

1993). The Alabama Supreme Court initially granted Neelley’s request for certiorari,

but after hearing oral argument quashed the writ as improvidently granted. See Ex

parte Neelley, 642 So. 2d 510 (Ala. 1994) (Almon and Steagall, JJ., dissenting).

Neelley petitioned the United States Supreme Court for a writ of certiorari, which was

denied. See Neelley v. Alabama, ___ U.S. ___, 115 S. Ct. 1316 (1995).

      Neelley then filed a § 2254 petition in the United States District Court for the

Northern District of Alabama. The district court adjudicated her petition under 28

U.S.C. § 2254, as amended by the Anti-Terrorism and Effective Death Penalty Act of

1996 (AEDPA), Pub. L. 104-132, § 104, 110 Stat. 1214, 1218-19, which established

new standards for habeas review of state court decisions. The court denied the

petition without an evidentiary hearing, but issued a certificate of appealability, noting




                                            4
that Neelley’s petition raised novel issues regarding attorney conflicts of interest and

the proper application of the AEDPA standards. Neelley now appeals.

                                  II. DISCUSSION

      A.     Did the District Court Err in Applying the Amended Version of 28 U.S.C.
             § 2254 to Neelley’s Petition?

      On April 24, 1996 President Clinton signed AEDPA into law. Title I of

AEDPA amended the habeas corpus provisions of the United States Code,

establishing new procedures and standards for use in habeas cases. Most significantly

for purposes of this case, AEDPA establishes a more deferential standard of review

of state court adjudications. Neelley contends that the district court erred in deciding

to apply the amended version of § 2254(b), arguing (1) that AEDPA is an

unconstitutional ex post facto law as applied to her petition, and (2) that the new

habeas provisions are inapplicable to her case because Alabama has not taken

advantage of AEDPA’s “opt-in” provision.

             1.     As Applied to Neelley’s Petition, Is AEDPA an Unconstitutional
                    Ex Post Facto Law?

      Neelley first argues that application of AEDPA to her petition would be

fundamentally unfair and a violation of the Constitution’s Ex Post Facto Clause, as

AEDPA was not enacted until after she exhausted her state court remedies. This

argument is without merit. In Lindh v. Murphy, ___ U.S. ___, 117 S. Ct. 2059 (1997),


                                           5
the Supreme Court addressed AEDPA’s constitutionality as applied to pending habeas

cases, specifically holding that AEDPA may constitutionally be applied to habeas

cases filed after AEDPA’s effective date. AEDPA’s relevant provisions were enacted

and became effective on April 24, 1996; Neelley filed her habeas petition a month

later, on May 29, 1996. Under Lindh, AEDPA constitutionally may be applied to

Neelley’s petition.

             2.       Are the Amended Sections of Chapter 153 Applicable to Habeas
                      Petitions From Prisoners in States That Do Not “Opt In” to
                      AEDPA’s “Expedited” Habeas Provisions?

      AEDPA also added Chapter 154, “Special Habeas Procedures in Capital

Cases,” to Title 28 of the U.S. Code, providing for the expedited resolution of habeas

cases in states that “opt in” to its provisions. To opt in, a state must establish

procedures “for the appointment, compensation, and payment of reasonable litigation

expenses of competent counsel in State post-conviction proceedings brought by

indigent prisoners whose capital convictions and sentences have . . . become final for

State law purposes.” See 28 U.S.C.A. § 2261(b) (West Supp. 1997).

      Neelley argues that the amended version of § 2254 does not apply to her

petition because Alabama has not instituted the required counsel appointment

procedures. She misreads the “opt-in” statute, which states specifically that “[t]his

chapter [i.e., Chapter 154] is applicable,” if a state establishes the required procedures


                                            6
for appointment of counsel. 28 U.S.C.A. § 2261(b) (West Supp. 1997) (emphasis

added). Section 2254, on the other hand, is part of Chapter 153, the “non-expedited”

habeas procedures that apply to all habeas cases. Therefore, the applicability of

amended § 2254 is unaffected by whether a state has put appropriate counsel

appointment mechanisms in place.1 The district court did not err in applying the

amended § 2254 to Neelley’s petition.

       B.     Did the District Court Err in Its Analysis of Neelley’s Claims Under
              28 U.S.C. § 2254(d) as Amended by AEDPA?

       Amended § 2254(d) states in pertinent part:

              (d) An application for a writ of habeas corpus on behalf of a
       person in custody pursuant to the judgment of a State court shall not be
       granted with respect to any claim that was adjudicated on the merits in
       State court proceedings unless the adjudication of the claim–
                    (1) resulted in a decision that was contrary to, or involved
              an unreasonable application of, clearly established Federal law, as
              determined by the Supreme Court of the United States; or
                    (2) resulted in a decision that was based on an
              unreasonable determination of the facts in light of the evidence
              presented in the State court proceeding.

28 U.S.C.A. § 2254 (West Supp. 1997). Neelley challenges the district court’s review

of the state court’s actions, arguing that the state court’s adjudication of her claims


   1
       Neelley also argues in the alternative that the district court should have conducted an
evidentiary hearing to determine whether Alabama has put in place the necessary counsel
appointment mechanisms. Because the new § 2254 applies regardless of whether Alabama has
opted in, an evidentiary hearing is unnecessary.

                                              7
indeed “resulted in a decision that was contrary to, or involved an unreasonable

application of, clearly established Federal law.” Our task is to construe the meaning

of this phrase consistent with Congress’ intent, this being a question of first

impression in this circuit. We start with the plain language of the statute, see Reiter

v. Sonotone Corp., 442 U.S. 330, 337, 99 S. Ct. 2326, 2330 (1979), and we assume

“that the legislative purpose is expressed by the ordinary meaning of the words used,”

Richards v. United States, 369 U.S. 1, 9, 82 S. Ct. 585, 591 (1962).

              1.     What Is the Proper Standard of Review Under § 2254(d) as
                     Amended by AEDPA?

                     a.     “Clearly Established”

       Section 2254 forbids federal courts from granting habeas relief for claims

previously adjudicated by state courts, unless the state court adjudication was contrary

to or represented an unreasonable application of “clearly established Federal law, as

determined by the Supreme Court of the United States.” Thus, the first step in

resolving a petitioner’s claim is to determine the “clearly established” law at the

relevant time. The “clearly established” language echoes the concerns underlying the

Supreme Court’s decisions in Teague v. Lane2 and its progeny:

             Our holding in Teague rested upon the historic role of habeas
       corpus in our system of law, which is to provide a deterrence, the threat


   2
       489 U.S. 288, 109 S. Ct. 1060 (1989).

                                               8
      of which serves as a necessary additional incentive for trial and appellate
      courts throughout the land to conduct their proceedings in a manner
      consistent with established constitutional standards. Deterrence and
      threat are meaningless concepts as applied to a situation in which the law
      is so uncertain that a judge acting in all good faith and with the greatest
      of care could reasonably read our precedents as permitting the result the
      habeas petitioner contends is wrong.

Penry v. Lynaugh, 492 U.S. 302, 352, 109 S. Ct. 2934, 2964 (1989) (Scalia, J.,

concurring in part, dissenting in part) (quotations and citations omitted); see also, e.g.,

Hogan v. Hanks, 97 F.3d 189, 192 (7th Cir. 1996) (“Both Teague and the amended

§ 2254(d)(1) are designed to ensure that state judgments are not affected by legal rules

established or materially expanded after the conviction has become final.”), cert.

denied, ___ U.S. ___, 117 S. Ct. 1439 (1997). Under Teague, a federal court

evaluating a petitioner’s claim that he should have had the benefit of a rule of

constitutional law must “survey the legal landscape” to determine whether the rule is

“new.” Glock v. Singletary, 65 F.3d 878, 884 (11th Cir. 1995) (en banc), cert. denied,

___ U.S. ___, 117 S. Ct. 616 (1996). A rule is not “new” if a state court considering

a habeas petitioner’s claim would have felt “compelled by existing precedent” to

conclude that the rule the petitioner seeks was required by the Constitution. See

Caspari v. Bohlen, 510 U.S. 383, 390, 114 S. Ct. 948, 953 (1994). We think that a

similar analysis obtains under the “clearly established” language of § 2254, as a rule

that is “new” cannot be “clearly established.” See Hogan, 97 F.3d at 192 (“[A] rule


                                            9
[is] not ‘clearly established’ unless it [is] ‘compelled by existing precedent.’”). Thus,

a district court evaluating a habeas petition under § 2254(d) should “survey the legal

landscape” at the time the state court adjudicated the petitioner’s claim to determine

the applicable Supreme Court authority; the law is “clearly established” if Supreme

Court precedent would have compelled a particular result in the case.3

                       b.      “Contrary To”/“Unreasonable Application Of”

       The other standard within § 2254(d) that requires interpretation is the

requirement that the state court adjudication “result[] in a decision . . . contrary to, or

involve[] an unreasonable application of” the law. At first glance each of these

phrases could be read to swallow the other. On one hand, it is difficult to imagine a

decision “contrary to” existing Supreme Court precedent that does not “involve an

unreasonable application” of law. On the other hand, a federal court reviewing a state

court decision in the context of a habeas petition could read the “contrary to” language

as permitting issuance of the writ whenever a state court errs, thereby vitiating the

“unreasonable application” clause. Our interpretation of the statute, however, should




   3
         The overlap between the statute and Teague is not complete. For example, under Teague a
rule is new if it is not clearly established at the time a habeas petitioner’s conviction becomes final,
whereas the language of § 2254 would seem to indicate that the law must be clearly established at
the time the state court makes the adjudication under review. However, we have no need to
determine the exact overlap between Teague and § 2254 in this case because the Supreme Court case
law governing Neelley’s contentions was manifestly clear at all relevant times.

                                                  10
not nullify either clause, but should give effect to both. See United States v. Nordic

Village, Inc., 503 U.S. 30, 36, 112 S. Ct. 1011, 1015 (1992).

      Giving the phrase “contrary to” its plain meaning, we can readily think of two

situations in which a state court decision would be “contrary to” clearly established

Supreme Court case law. The first is when a state court faces a set of facts that is

essentially the same as those the Supreme Court has faced earlier, but given these facts

the state court reaches a different legal conclusion than that of the Supreme Court. A

second situation is one in which a state court, in contravention of Supreme Court case

law, fails to apply the correct legal principles to decide a case. Such a result would

be “contrary” in the sense that the state court has not adjudicated the claim in the

manner prescribed by the Supreme Court. Both of these types of errors are errors of

pure law; in the first case, a state court has denied a petitioner a constitutional right

defined by the Supreme Court in its role as interpreter of the Constitution, while in the

second the state court has failed to apply the proper law to a case. In either case, the

federal court reviewing a petition under § 2254 independently determines what is

“clearly established Federal law as determined by the Supreme Court” and may grant

habeas relief if the state court has decided a question of law incorrectly.




                                           11
       If the state court has applied the proper law, the federal court must then

determine whether the state court’s application of that law was “unreasonable.”4 By

its very language, “unreasonable application” refers to mixed questions of law and

fact,5 when a state court has “unreasonably” applied clear Supreme Court precedent

to the facts of a given case. See Lindh v. Murphy, 96 F.3d 856, 870 (7th Cir. 1996)

(“[W]hen the dispute lies not in the meaning of the Constitution, but in its application

to a particular set of facts . . . sec. 2254(d)(1) restricts the grant of collateral

relief . . . .”), reversed on other grounds, ___ U.S. ___, 117 S. Ct. 2059 (1997).

       What does it mean to say that a state court has “unreasonably” applied the

proper law? It does not mean that a federal court may grant habeas relief simply

because it disagrees with the state court’s decision. This would amount to de novo


   4
       Like the “clearly established” requirement, this standard is akin to the Teague doctrine:
       At bottom . . . the Teague doctrine validates reasonable, good-faith interpretations
       of existing precedents made by state courts even though they are shown to be
       contrary to later decisions. . . . Accordingly, we will not disturb a final state
       conviction or sentence unless it can be said that a state court, at the time the
       conviction or sentence became final, would have acted objectively unreasonably by
       not extending the relief later sought in federal court.
O’Dell v. Netherland, ___ U.S. ___, 117 S. Ct. 1969, 1973 (1997) (citations and quotations omitted).
   5
        The Fifth and Seventh Circuits have considered the meaning of the statutory language and
likewise have concluded that the two clauses give standards for review of questions of law
(“contrary to”) and mixed questions of law and fact (“unreasonable application of”). See Drinkard
v. Johnson, 97 F.3d 751, 767 (5th Cir. 1996); Lindh v. Murphy, 96 F.3d 856, 870 (7th Cir. 1996),
reversed on other grounds, ___ U.S. ___, 117 S. Ct. 2059 (1997). But see Larry Yackle, A Primer
on the New Habeas Corpus Statute, 44 BUFF. L. REV. 381, 442 n.192 (1996) (disagreeing with this
interpretation).

                                                12
review, which Congress clearly did not intend. See H.R. CONF. REP. No. 104-518 at

111 (1996), reprinted in 1996 U.S.C.C.A.N. 944, 944 (stating that the amended

section “requires deference to the determinations of state courts that are [not] an

‘unreasonable application’” of federal law). Moreover, the mere fact that a district

court disagrees with a state court does not render that state court’s decision

“unreasonable”; certainly two courts can differ over the proper resolution of a close

question without either viewpoint being unreasonable.           The Fifth Circuit has

incorporated this principle into its interpretation of the statute, holding that under

§ 2254 a federal court can grant the writ “only if a state court decision is so clearly

incorrect that it would not be debatable among reasonable jurists.” Drinkard v.

Johnson, 97 F.3d 751, 769 (5th Cir. 1996), cert. denied, ___ U.S. ___, 117 S. Ct. 1114

(1997). We find this reasoning persuasive and adopt the Fifth Circuit’s standard.

      Thus, as we read the statute, a court evaluating a habeas petition under

§ 2254(d)(1) must engage in a three-step process: First, the court must “survey the

legal landscape,” using an inquiry similar to that under Teague, to ascertain the federal

law applicable to the petitioner’s claim that is “clearly established” by the Supreme

Court at the time of the state court’s adjudication. Second, the court must determine

whether the state court adjudication was contrary to the clearly established Supreme

Court case law, either because the state court failed to apply the proper Supreme Court


                                           13
precedent, or because the state court reached a different conclusion on substantially

similar facts. If the state court’s decision is not contrary to law, the reviewing court

must then determine whether the state court unreasonably applied the relevant

Supreme Court authority. The state court decision must stand unless it is not

debatable among reasonable jurists that the result of which the petitioner complains

is incorrect.

       2.       Did the District Court Err in Applying § 2254(d)?

                      a.    Ineffective Assistance of Counsel

       We now evaluate the district court’s resolution of Neelley’s claims. Neelley

claims that her trial counsel, Robert French, provided ineffective assistance in

violation of her Sixth Amendment right to counsel. She first argues that French was

ineffective because he operated under a conflict of interest while representing her.

Neelley asserted this claim in her second petition for state collateral relief, and the

Alabama Court of Criminal Appeals ruled against her on the merits. See Neelley v.

State, 642 So. 2d 494, 504-05 (Ala. Crim. App. 1993). Thus, this claim was

“adjudicated on the merits in State court proceedings” and must be evaluated under

§ 2254(d).

       Neelley points to a publicity contract between her and French entitling him to

one-half of the profits from the commercialization of her story, in clear violation of


                                           14
the Alabama Rules of Professional Conduct. See ALA. RULES            OF   PROFESSIONAL

CONDUCT Rule 1.8(d) (1991). Although this contract was not signed until three

months after Neelley’s trial, Neelley alleges that the execution of the contract was a

mere formality, and that throughout her trial French exhibited signs that he was

motivated by the possibility of profit. She asserts that French’s conflict of interest

manifested itself in actions taken during his representation. She alleges that during

the trial French told Neelley of his plans to write a book about her case; that French

has subsequently copyrighted the brief he wrote for Neelley’s direct appeal; and that

he has incorporated the majority of that brief into a 400-page manuscript for

publication. She also alleges that French began referring to her as his “million dollar

baby” almost two months before she signed the contract. Neelley notes that French

by his own admission did not have previous experience with contracts of this kind,

and that the presentation and execution of the contract so soon after the trial indicates

that French must have researched and drafted the contract at least in part during the

trial. Finally, she points to various actions taken by French that she contends were

designed to sensationalize her trial and give her story more media appeal.

Specifically, she argues that French failed to object to shocking and graphic evidence

of the horrific nature of her crime, had her testify in gory detail regarding the crime




                                           15
and her motivation, failed to consult with her about the possibility of a plea bargain,

and made inflammatory and sensational statements to the press.

        Under the first step of the § 2254(d) inquiry we must ascertain the clearly

established federal law as determined by the Supreme Court. The cases that govern

Neelley’s claim are Strickland v. Washington6 and Cuyler v. Sullivan.7 The Alabama

Court of Criminal Appeals evaluated Neelley’s claim under Strickland and Cuyler.

The facts of those two cases are different from the facts of Neelley’s case; thus, the

state court’s result cannot be said to be “contrary” to Strickland or Cuyler. Its

decision therefore is not “contrary to” clearly established federal law, and passes the

second part of the § 2254(d) inquiry. All that remains is for us to determine whether

the Alabama court unreasonably applied Strickland and Cuyler to the facts of this

case.

        Under Strickland, a petitioner claiming ineffective assistance of counsel must

prove both that her attorney was ineffective and that this ineffectiveness prejudiced

her. Prejudice for Strickland purposes may be presumed if a defendant demonstrates

that counsel “actively represented conflicting interests” and that this actual conflict

of interest “adversely affected [her] lawyer’s performance.” Cuyler, 446 U.S. at 350,


   6
        466 U.S. 668, 104 S. Ct. 2052 (1984).
   7
        446 U.S. 335, 100 S. Ct. 1708 (1980).

                                                16
348, 100 S. Ct. at 1719, 1718. The record indicates that the publicity contract in

question was not signed until June 24, 1983, three months after Neelley’s trial and the

filing of her motion for a new trial. The state trial court found that the publicity

contract created an actual conflict of interest, but ruled that the conflict did not

adversely affect French’s performance. The Alabama Court of Criminal Appeals

disagreed, concluding that Neelley had failed to prove that French labored under an

actual conflict of interest. On the contrary, the court stated that “it is clear from the

record that [Neelley’s] attorney zealously and wholeheartedly represented [Neelley’s]

interests . . . , and earnestly participated in all aspects of the proceeding.” Neelley, 642

So. 2d at 504. As the court concluded that French had not operated under an actual

conflict of interest as required for relief under Cuyler, it declined to address Neelley’s

particularized allegations of ineffectiveness. See Neelley, 642 So. 2d at 504 (citing

Cuyler, 446 U.S. at 349-50, 110 S. Ct. at 1719).

       We cannot say that the Alabama appellate court unreasonably applied Cuyler

to the facts of this case. Although it certainly appears that French’s actions represent

a serious violation of Alabama’s ethics rules, it also appears that he competently

represented her interests, and no others, throughout the course of the trial. Based on

the record, it was not unreasonable for the Alabama Court of Criminal Appeals to find

only the existence of a potential conflict of interest, rather than an actual conflict. The


                                            17
district court did not err in rejecting Neelley’s ineffective-assistance-of-counsel

claim.8

                       b.      Failure to Turn Over Materially Exculpatory Evidence

       Neelley also argues that the prosecution failed to turn over material exculpatory

evidence. Soon after Neelley was arrested, authorities, including Investigator Tony

Gilliland of the Chattooga County Sheriff’s Office, searched the mobile home where

she and her husband had lived and seized several documents, mostly correspondence

between Neelley and her husband. Neelley’s attorneys attempted to acquire these

letters prior to trial, but Investigator Gilliland claimed that he did not know where the

letters were. Neelley did not acquire the letters until February 1985, when Gilliland’s

estranged wife contacted Neelley’s attorney and told him about the letters and their

whereabouts. Neelley claims that this evidence would have aided her in her defense

at trial because it would have shed light on her role in the offenses and her relationship




  8
        Neelley’s ineffective-assistance-of-counsel claim also rested on other factual predicates. She
alleged that French solicited and encouraged an improper sexual relationship with her, and that he
failed to put on a defense based on battered-woman syndrome. The Alabama Court of Criminal
Appeals rejected both of these claims. See Neelley, 642 So. 2d at 497-509. Except to say that the
Alabama court did not unreasonably apply clearly established law in rejecting these claims, they do
not merit further discussion, see 11TH CIR. R. 36-1, and we affirm the district court’s denial of relief
as to them.

                                                  18
with her husband. Neelley raised this claim in her first petition for state collateral

relief and was denied relief by the Circuit Court of DeKalb County, Alabama.9

       For purposes of this claim, the clearly established federal law is set out in Brady

v. Maryland, 373 U.S. 83, 83 S. Ct. 1194 (1963), and United States v. Bagley, 473

U.S. 667, 105 S. Ct. 3375 (1985). Under Brady, the government may not lawfully

convict a defendant if the government has suppressed material exculpatory evidence

when the defense requested it. See Brady, 373 U.S. at 87, 83 S. Ct. at 1196-97.

Bagley holds that evidence is material if there is a reasonable probability–that is, a

probability sufficient to undermine confidence in the outcome–that the result of the

proceeding would have been different had the defense had the evidence. Bagley, 473

U.S. at 682, 105 S. Ct. at 3383. The DeKalb County circuit court determined that the

state had indeed wrongfully withheld the letters from Neelley’s attorneys, but

concluded there was no reasonable probability that introduction of the letters would

have changed the outcome of the trial. In so doing, however, the court contravened

the Supreme Court’s command that evidence must be analyzed collectively, not item

by item, for Bagley materiality. See Kyles v. Whitley, 514 U.S. 419, 436, 115 S. Ct.



   9
       The Alabama Court of Criminal Appeals affirmed the denial of relief without opinion, see
Neelley v. State, 531 So. 2d 69 (Ala. Crim. App. 1988), and both the Alabama Supreme Court and
United States Supreme Court denied certiorari, see Ex parte Neelley, 537 So. 2d 65 (Ala. 1988);
Neelley v. Alabama, 488 U.S. 1020, 109 S. Ct. 821 (1989).

                                              19
1555, 1567 (1995).10 The DeKalb County circuit court, the only Alabama court to

have written on this point, analyzed each letter for its likely individual effect on the

outcome of the trial, but did not analyze the letters’ collective effect. This piecemeal

approach is “contrary to” clearly established federal law; therefore, we must

independently consider the merits of Neelley’s claim.

        The majority of the withheld evidence consists of correspondence between

Neelley and her husband. Neelley argues that these letters would have supported her

defense at trial that she was completely dominated by her husband. Some of these

letters contain references that might have been helpful to Neelley’s defense; in some

letters Neelley refers to her husband as having telepathy or “ESP,” and others show

that she feared what he would do to her if he became angry. However, most of the

letters are written in a loving and spirited, rather than meek or submissive, tone.

Indeed, in some of the letters Neelley plainly defies some of her husband’s demands



   10
        Although Kyles was decided in 1995, eight years after the Alabama court’s denial of
Neelley’s petition for collateral relief, the Kyles Court characterized its opinion as a mere
explanation of the rule already set forth in Bagley. See Kyles, 514 U.S. at 434, 115 S. Ct. at 1565-
66. In fact, this court has stated that Kyles did not announce a new rule. See Hays v. Alabama, 85
F.3d 1492, 1498 (11th Cir. 1996) (“The Supreme Court recently decided Kyles v. Whitley . . . , which
discussed the ‘reasonable probability’ standard of Brady. Without announcing new rules, the Court
cited four guideposts for determining materiality.”), cert. denied, ___ U.S. ___, 117 S. Ct. 1262
(1997) (citations omitted). Thus, for purposes of this case we consider this aspect of materiality
analysis to have been clearly established in 1985 in Bagley, and thus clearly established at the time
the DeKalb County circuit court ruled on Neelley’s claim.


                                                 20
and threats that she feels are excessive. The remaining three documents in question

are barely probative, much less exculpatory.11 Considering the possible effect of all

of the documents at issue, there is no reasonable probability that their introduction

would have enhanced Neelley’s chances of a favorable outcome at trial. To the extent

that the documents could be read to support Neelley’s claim of total domination by her

husband, they were merely cumulative of many other similar pieces of correspondence

that were introduced by the defense at trial. Cf. Arizona v. Youngblood, 488 U.S. 51,

71, 109 S. Ct. 333, 344 (1988) (to be material, exculpatory evidence must be more

than merely cumulative). Thus, we affirm the district court’s denial of relief on

Neelley’s Brady claim as well.

                                        CONCLUSION

        For the aforementioned reasons, we conclude that the district court did not err

in denying Neelley’s petition for a writ of habeas corpus.

        AFFIRMED.




   11
          One of the pieces is a letter written on Neelley’s behalf from Marion Mixon, an attorney in
Albany, Georgia, to the Georgia Department of Human Resources, which Neelley claims would
have aided her in contacting this former attorney. However, Neelley made no showing that she
could not have contacted Mixon without the letter; indeed, a letter from Alvin Neelley introduced
at trial refers to Mixon. The second piece is a letter to Alvin Neelley’s mother from his former wife,
which has no bearing on Judy Neelley’s defense. The final piece is a document with the heading
“Classification Committee Actions” that shows Alvin Neelley’s job assignment in prison as that of
Chaplain’s Aide.

                                                 21
