                           RECOMMENDED FOR FULL-TEXT PUBLICATION
                                Pursuant to Sixth Circuit Rule 206
                                      File Name: 06a0320p.06

                    UNITED STATES COURT OF APPEALS
                                  FOR THE SIXTH CIRCUIT
                                    _________________


                                                      X
                              Petitioner-Appellant, -
 STEPHEN M. BELL,
                                                       -
                                                       -
                                                       -
                                                           No. 04-5523
          v.
                                                       ,
                                                        >
 RICKY BELL, Warden,                                   -
                              Respondent-Appellee. -
                                                      N
                       Appeal from the United States District Court
                     for the Middle District of Tennessee at Nashville.
                  No. 95-00600—William J. Haynes, Jr., District Judge.
                                   Argued: February 2, 2006
                             Decided and Filed: August 25, 2006
                    Before: COLE, CLAY, and GIBBONS, Circuit Judges.
                                      _________________
                                          COUNSEL
ARGUED: Gretchen L. Swift, FEDERAL PUBLIC DEFENDER’S OFFICE, Nashville, Tennessee,
for Appellant. Alice B. Lustre, OFFICE OF THE ATTORNEY GENERAL, Nashville, Tennessee,
for Appellee. ON BRIEF: Gretchen L. Swift, Jude T. Lenahan, FEDERAL PUBLIC
DEFENDER’S OFFICE, Nashville, Tennessee, for Appellant. Michelle C. McIntire, OFFICE OF
THE ATTORNEY GENERAL, Nashville, Tennessee, for Appellee.
       CLAY, J., delivered the opinion of the court, in which COLE, J., joined. GIBBONS, J. (pp.
23-26), delivered a separate opinion concurring in part and dissenting in part.
                                      _________________
                                          OPINION
                                      _________________
        CLAY, Circuit Judge. Petitioner Stephen M. Bell appeals the March 26, 2004 order of the
United States District Court for the Middle District of Tennessee granting summary judgment in
favor of Respondent Ricky Bell, Warden, and dismissing Petitioner’s habeas petition filed pursuant
to 28 U.S.C. § 2254. For the reasons set forth below, we REVERSE the district court order and
GRANT the petition for writ of habeas corpus.




                                                1
No. 04-5523                Bell v. Bell                                                                             Page 2


                                                I. BACKGROUND
A.       PROCEDURAL HISTORY
         On March 5, 1987, a Tennessee state jury found Petitioner guilty of one count of murder in
the first degree and one count of murder in the second degree. On March 17, 1987, the state trial
court sentenced Petitioner to a life sentence and a twenty-year sentence for the respective crimes,
with the sentences to run consecutively. On August 3, 1989, the state court of appeals affirmed the
convictions. State v. Bell, C.C.A. No. 88-138-II, 1989 WL 86583 (Tenn. Crim. App. Aug. 4, 1989)
(unpublished opinion). The Tennessee Supreme Court denied permission to appeal.
        On March 29, 1990, Petitioner filed a petition for state post-conviction relief. On November
2, 1992, the state trial court denied relief. On August 4, 1994, the state appellate court affirmed the
denial of relief. Bell v. State, No. 01C01-9304-CR-00130, 1994 WL 406168 (Tenn. Crim. App.
Aug. 4, 1994) (unpublished opinion). The Tennessee Supreme Court denied permission to appeal.
       On June 12, 1995, Petitioner filed a petition in the United States District Court for the
Eastern District of Tennessee for habeas relief pursuant to 28 U.S.C. § 2254. His petition was
subsequently transferred to the United States District Court for the Middle District of Tennessee.
On October 23, 1998, the district court dismissed the petition without prejudice for inactivity. On
March 19, 1999, Petitioner filed a motion to reopen the case or, alternatively, a motion to set aside
the court’s order of dismissal, and a renewed motion for appointment of counsel. The district court
granted the motion to reopen the case but denied the motion for appointment of counsel. On
December 3, 1999, Respondent filed a motion to dismiss or, alternatively, a motion for summary
judgment.
       On January 24, 2000, Petitioner’s case was transferred to Judge Haynes. The district court
appointed a federal public defender as Petitioner’s counsel and permitted Petitioner to file an
amended complaint. On September 6, 2000, Petitioner filed an amended complaint. On September
22, 2000, Respondent filed a supplement to his previous motion to dismiss or, alternatively, a motion
for summary judgment.
        On April 26, 2002, the district court granted summary judgment against Petitioner for all but
five of his claims: (1) insufficiency of the evidence; (2) ineffective assistance of trial and appellate
counsel; (3) Brady violation; (4) failure to allow trial counsel to withdraw because of a conflict of
interest; and (5) improper restriction of questioning of jurors during voir dire. The district court
granted an evidentiary hearing with respect to the claims of ineffective assistance of trial and
appellate counsel and the Brady violation.
        On March 25, 2004, the district court denied the habeas petition. The court found that the
claims of insufficiency of the evidence and improper voir dire were not supported by evidence1
sufficient to overcome the presumption of correctness afforded to the state court’s findings of fact.
As to the Brady claim, the court found that Petitioner had not shown “a reasonable probability of
acquittal to justify the writ.” (J.A. at 581.) As to the ineffective assistance of counsel claim, the
court found that Petitioner had insisted on an identity defense at trial, so that he could not fault his
counsel for not pursuing an intoxication or mental illness defense.
       Petitioner timely filed a notice of appeal. The district court granted a certificate of
appealability as to the Brady claim and the claim of ineffective assistance of counsel based on trial


         1
          For reasons unclear from the record, the district court never addressed the claim of failure to allow trial counsel
to withdraw because of a conflict of interest. Petitioner, however, does not raise this argument here on appeal.
No. 04-5523           Bell v. Bell                                                               Page 3


counsel’s failure to present a complete defense and to investigate all avenues of defense. This Court
declined to expand the certificate of appealability and limited the appeal to the preceding two issues.
B.     FACTS
       The following facts were found by the state appellate court on direct review:
       The victims, Herman Harrison Wallace, a/k/a Mad Dog, and his wife, Jean Lynn
       Wallace, were street people who camped under the bridges along the Cumberland
       River. The defendant, Michael Bell, a/k/a Monk, a street person, camped between
       the Wallaces and Nashville’s Riverfront Park.
       Ronald Harrington, a street person, met the defendant on the railroad tracks near the
       camp sites on September 6, at approximately 3:00 p.m. Defendant was shirtless,
       wearing Levi’s, a pair of shoes or boots and had a gun in his hand. Chained to his
       belt, was a billfold similar to that carried by truck drivers. The gun was either a .32
       or .38 caliber revolver. Defendant appeared to be under the influence and stated that
       he had been “coking”. [sic] During this exchange the defendant asked Mr. and Mrs.
       Harrington to take care of his dog if anything happened to him.
       Edward Stansbury, an admitted alcoholic, testified that he spent the night of
       September 5, 1986, with friends on the river. The next morning he left but returned
       to the camp of Gary Hedges in the afternoon. At approximately 4:30 p.m. they
       noticed a man come up a path with a shiny black dog on a leash. The leash was a
       choker chain with a leather belt. When the man got to within twenty feet he spoke
       identifying himself as “Monk” and inquiring if “Mad Dog” and Jean were home. He
       walked down to the Wallaces’ tent and entered. Up to this point he, Stansbury, had
       no reason to commit to memory the man’s clothing or facial features.
       As Stansbury and Hedges continued to sit they heard the sounds of dogs fighting and
       people arguing in the Wallaces’ camp, then they heard a muffled shot. Jean Wallace
       ran out of the tent screaming “He has killed my dog, he has killed my dog”. [sic] She
       turned and re-entered the tent. Stansbury heard a distinctive gun shot and saw Jean
       Wallace backing out of the tent. As she cleared the entrance she fell and there were
       two more shots. He was sure he had seen the man fire the last shot. The man had
       been right behind Mrs. Wallace at the entrance. The man left the tent and left the
       scene. As the man was leaving he attempted to reload his pistol.
       Stansbury described the culprit as 6'2" or 6'1", lanky, wearing fairly new blue jeans,
       a black baseball cap over his eyes, a sleeveless Levi jacket and T-shirt. His arms
       were tattooed. He had a billfold with a chain which appeared attached to a belt loop.
       At a line-up conducted near the crime scene in the fading evening light, Stansbury
       was hesitant to identify the man in the number two spot. He was certain as to the
       man’s jeans and nearby dog. While testifying he said he was still confused about the
       man’s beard; he thought the culprit had short dark hair, but everything else about the
       number two man, the defendant, “fit to a tee”. [sic]
       Robert Moore, a Metropolitan Police Department homicide officer, arrived at the
       Wallaces’ camp. He viewed the body of Mrs. Wallace and was directed to four shell
       casings that were lying on the ground. The soil in the area was fairly loose and the
       shell casings, covered with a chalky gray substance, were on top of the soil. Upon
       closer examination he was able to detect the smell of gun powder.
No. 04-5523         Bell v. Bell                                                               Page 4



      Officer Moore was advised that Mr. Wallace had been moved to General Hospital
      and although he appeared to have been shot as many as three times, only one slug
      had been found at the hospital. The officers at the crime scene made an extensive
      search and were able to recover a slug from the bloody mattress within the tent where
      Mr. Wallace had lain when shot.
      After talking with Hedges and Stansbury and getting a general description of the
      suspect, the officers broadcasted a pick-up. Other detectives took the defendant in
      custody and returned him to an area near the crime scene. Due to the fading light in
      and around the camp sites and under the bridges, other officers were setting up a
      line-up of street type people in an open area nearby. Officer Moore explained that
      facial identification was not that strong at the crime scene, but clothing details and
      the overall characteristics of the participants were strong in the witnesses’ minds.
      Officer Mark Wynn and two other officers responded to a call that a man fitting the
      description of the suspect was believed to be in the area of Fessler’s Lane and
      Hermitage Avenue. They observed the suspect sitting on the curb and drinking a
      beer. He had a dog with him. He was taken in custody and found to have six
      unspent .38 caliber Special Winchester 158 grain bullets in his pants pockets, but no
      weapon was found. He was concerned about the dog so the officers agreed to
      transport the dog to the place of the line-up. (A picture of the dog wearing the choke
      chain and belt leash was shown the jury.)
      Sergeant Tommy Jacobs testified that shortly after 5:30 p.m., September 6, 1986, he
      visited the camp site of the defendant and recovered eleven spent .38 caliber shell
      casings and a Winchester ammunition box that were lying on the ground. A holster
      was also recovered at the camp site. Later at the police station Sergeant Jacobs read
      the defendant his Miranda rights. When told he would be charged with murder, the
      defendant responded that he had not shot anyone, had not shot a gun and had never
      shot a gun.
      Officer Darryl Ryan performed a nitric acid test on the defendant’s hands. The swabs
      were sent to the crime laboratory.
      Officer Archie Spain was sent to General Hospital. He took possession of a .38
      caliber slug that was laying beside Mr. Wallace’s body in the emergency room.
      The State introduced testimony from three laboratory technicians. The first
      technician had examined the defendant’s clothing for blood stains but found none.
      The second technician, a criminalist, had examined the swabs from the defendant’s
      hands for gunshot residue. This technician testified that “antimonium, barium and
      lead indicative of gunshot residue was found in significant concentrations on exhibit
      5, hand swabs. These results indicate that the subject could have fired or handled a
      gun.”
      The third technician was a firearm examiner. He identified the two lead slugs filed
      earlier as exhibits as being fired from the same firearm. He had disassembled one
      of the live cartridges taken from the defendant’s pockets to compare the lead to the
      other lead slugs. He was of the opinion the three were from the same manufacturer.
      The eleven spent shells taken from defendant’s camp site were compared with the
      four spent shells recovered at the victims’ camp site. Based upon his microscopic
      examination he was of the opinion they all had been fired from the same firearm.
No. 04-5523          Bell v. Bell                                                              Page 5


       The medical examiner testified in detail as to two gunshot wounds found upon Jean
       Wallace’s body. In his opinion either one of these would have caused her death.
       From his examination of Herman Wallace, he concluded that death was the result of
       a saddle pulmonary embolus, a blood clot caused by the gunshot wounds which
       occluded the artery to the lungs.
       The State rested its case in chief. Defendant’s motion for judgments of acquittal
       were overruled.
       Defendant testified that on the morning of September 6, 1986, he went to Riverfront
       Park. There he met two men with whom he pooled his money for the purchase of a
       fifth of wine. He and one of the men moved about in that general area of town
       during which time the man mentioned having a .38 caliber pistol but needed shells.
       They went to Service Merchandise where this person purchased a box of cartridges
       upon signing the log and entering an identification number. They returned to
       Riverfront Park and then to defendant’s camp site where defendant did target
       practice with the man’s pistol. At noon he went to lunch and returned to the camp.
       The men were still at his camp. Later defendant walked to Lebanon Road and
       Fessler’s Lane where he was arrested.
       He acknowledged being brought back to the Riverfront Park. He testified that he did
       not know he was in a line-up. When shown a picture of the line-up he identified one
       participant as the man who purchased the shells that morning.
       Defendant explained that his statement to Sergeant Jacobs of having never fired a
       gun had reference to a gun used to murder someone. He was unable to explain why
       he had first said his dog had been with him all day and changed to say the dog was
       not with him all day. He denied shooting the Wallaces.
       The State called Billy Joe Camden as a rebuttal witness. This was the man who had
       purchased the box of shells at Service Merchandise on lower Broadway. Camden
       made the purchase at the request of the defendant. While they were together the
       defendant did not have his dog with him. After the purchase of the ammunition they
       went their separate ways. He did not go to the defendant’s camp site nor witness him
       fire a gun. He was taken from Riverfront Park for the line-up. Camden testified that
       he owned a .22 caliber rifle but never owned a .38 caliber pistol.
       Following argument of the attorneys and instructions from the court, the jury retired
       and deliberated. The jury returned to the courtroom and delivered the verdicts [of
       guilty of first-degree murder and guilty of second-degree murder].
State v. Bell, 1989 WL 86583, at *1-4.
       The following facts were presented at the evidentiary hearing conducted by the district court:
        Dr. Pamela Auble (“Auble”), an expert witness for Petitioner, testified that she conducted
a neuropsychological evaluation of Petitioner on November 21, 2001. She reviewed numerous
records indicating that Petitioner suffered a history of alcoholism and depression. In her interview
with Petitioner, Petitioner stated that he had been drinking heavily for the month prior to the date
of the murders, and he had also been drinking heavily on the day of the murders. He stated that he
could not remember certain periods of time on the day of the murder. Auble concluded that
Petitioner was significantly intoxicated on the day the shootings occurred. She opined that if
Petitioner committed the shootings, he did so under significant inebriation and severe depression.
No. 04-5523              Bell v. Bell                                                                      Page 6


Auble was of the belief that Petitioner would have been unable to form a premeditated and deliberate
plan to kill the victims.
         Next, Ross Alderman (“Alderman”), Petitioner’s trial counsel, testified. Alderman testified
that he had requested an initial mental health evaluation of Petitioner early on in his representation.
The reason for this request was that Petitioner admitted to a lengthy history of substance abuse and
that Petitioner did not recall any events on the day of the murders because of blackouts. Alderman
stated that he had made an initial investigation into Petitioner’s history of alcohol abuse. Alderman
testified that he believed that an intoxication defense was the most effective defense for Petitioner;
however, Petitioner insisted on an identity defense, i.e., he was not the shooter. On cross-
examination, Alderman testified that a defense of identity and a defense of intoxication would have
been inconsistent.
        Alderman testified that William Davenport (“Davenport”) was a key witness for the
prosecution. Davenport testified at trial that he had a conversation with Petitioner while the two
men were in custody where Petitioner admitted to shooting the victims. Also, Davenport testified
that Petitioner admitted to shooting Mrs. Wallace because she was a witness to the shooting of Mr.
Wallace. Alderman stated that the testimony was damaging in two ways: first, it negated the defense
of identity; second, it provided a basis for premeditation with respect to the shooting of Mrs.
Wallace.
         Alderman testified that he requested any potentially exculpatory or impeachment evidence
from the prosecution, and that the prosecution did not produce any such evidence. Alderman stated
that he was aware that Davenport was in custody at the time directly preceding Petitioner’s trial, but
he did not know that the government had nolle prosequied2 two counts of grand larceny and two
counts of concealing stolen property against Davenport after Davenport contacted the prosecution
concerning his conversation with Petitioner. Alderman testified that he was unaware that Davenport
had received concurrent sentences for two convictions of concealing stolen property after Davenport
contacted the prosecution concerning his conversation with Petitioner. Alderman testified that he
was also unaware that the prosecution was going to write a letter to the parole board on behalf of
Davenport after Petitioner’s trial terminated. Alderman testified that he was also unaware that
Davenport had originally contacted the prosecution to testify against Petitioner for a transfer of
facilities or a work release program. On cross-examination, Alderman admitted that he knew that
Davenport had an upcoming parole hearing, and that Alderman had argued this point to the jury as
impeachment of Davenport.
         Ross Miller (“Miller”), the prosecutor at Petitioner’s trial, also testified at the evidentiary
hearing. Miller testified that he did not promise Davenport anything in exchange for Davenport’s
testimony at Petitioner’s trial. Miller testified that while he wrote a letter to the parole board on
Davenport’s behalf, he did not promise Davenport that he would do so. Miller admitted that
Davenport first approached the prosecution about testifying against Petitioner, and that “[e]verybody
wants something, and I’m sure Davenport wanted something.” (J.A. at 476.) Notes taken by Miller
at the first meeting between Miller and Davenport indicated that Davenport wanted a transfer of
facilities or a work release program.
        During closing arguments, Miller argued to the jury that he did not have any “say-so” with
the parole board in Davenport’s case. At the evidentiary hearing, Miller admitted that he did in fact
write a letter to Davenport’s parole board; in that letter Miller wrote that the prosecution did not
have a strong case without Davenport’s testimony. Davenport’s testimony was important in that it


        2
           In other words, the government withdrew its prosecution of these charges. See Black’s Law Dictionary 1070
(7th ed. 1999).
No. 04-5523            Bell v. Bell                                                                Page 7


provided Petitioner’s motive for the shooting and established what had actually happened at the
shooting. Miller admitted that Davenport was the prosecution’s final witness in its case. Miller
reiterated that he made no promises to Davenport.
                                           II. DISCUSSION
A.      THE DISTRICT COURT ERRED IN DENYING RELIEF ON PETITIONER’S
        CLAIM THAT THE PROSECUTION WITHHELD MATERIAL IMPEACHMENT
        INFORMATION REGARDING WITNESS WILLIAM DAVENPORT, IN
        VIOLATION OF BRADY v. MARYLAND, 373 U.S. 83 (1963).
        1.      Preservation of the Issue
        Respondent contends that Petitioner’s Brady claim is procedurally defaulted, as Petitioner
did not present the Brady claim to any state court. While we agree that this claim is procedurally
defaulted, we conclude that Petitioner has demonstrated adequate cause and prejudice to overcome
that default.
         The general rule in the § 2254 context is that if Petitioner’s claim is procedurally defaulted
in the state courts, the federal courts may not consider that claim on habeas review unless Petitioner
demonstrates cause and prejudice. Wainwright v. Sykes, 433 U.S. 72, 86-90 (1977). This Court
generally employs a four-part test in deciding whether a claim is barred from federal habeas review
because of state procedural default:
        First, the court must ascertain whether there is an applicable state procedural rule.
        Second, the court must determine whether the state courts actually enforce the rule.
        Third, the court must decide whether the state procedural forfeiture is an adequate
        and independent state ground on which the state can rely to foreclose review of a
        federal constitutional claim. Finally . . ., if the criminal defendant did not comply
        with the rule, the defendant must demonstrate there was cause for him not to follow
        the procedural rule, and that he was actually prejudiced by the alleged constitutional
        error.
Jamison v. Collins, 291 F.3d 380, 385-86 (6th Cir. 2002). The Supreme Court, however, has
outlined an alternate inquiry when a party fails to exhaust his state remedies with respect to a claim:
        [I]f the petitioner failed to exhaust state remedies and the court to which the
        petitioner would be required to present his claims in order to meet the exhaustion
        requirements would now find the claims procedurally barred[,]. . . there is a
        procedural default for purposes of federal habeas regardless of the decision of the last
        state court to which the petitioner actually presented his claims.
Coleman v. Thompson, 501 U.S. 722, 735 n.1 (1991). Petitioner failed to exhaust his state court
remedies, as he did not present his Brady claim to the state courts. As the district court correctly
noted, this claim would now be barred by the state courts, as Tennessee statutory law establishes a
one-year statute of limitations as to the filing of state post-conviction petitions and limits a petitioner
to only one petition for post-conviction relief. Tenn. Code Ann. § 40-30-102. Petitioner’s Brady
claim is thus procedurally defaulted; the question remains as to whether Petitioner has demonstrated
cause and prejudice to overcome this default.
       The Supreme Court has specifically held that a petitioner shows cause for his failure to raise
a Brady claim in state court “when the reason for his failure to develop facts in state-court
proceedings was the State’s suppression of the relevant evidence.” Banks v. Dretke, 540 U.S. 668,
691 (2004). Generally speaking, “when the factual basis of the claim was ‘reasonably unknown’
No. 04-5523               Bell v. Bell                                                                           Page 8


to the defendant’s counsel,” the defendant shows cause for failure to raise the claim during state
proceedings. Jamison, 291 F.3d at 388 (internal citation omitted). A Brady claim may be
reasonably unknown to a defendant, as the claim is based entirely on the fact that the prosecution
withheld exculpatory evidence from the defendant. As this Court viewed the situation,
“[s]uppression of exculpatory or favorable impeaching evidence by the state that results in an
inability to raise claims relating to that evidence in state court establishes cause for the ensuing
default.” Hutchinson v. Bell, 303 F.3d 720, 741 (6th Cir. 2002).
        In the instant case, Petitioner’s counsel requested any exculpatory or impeachment evidence
that the prosecution had in its possession, and the prosecution provided nothing. The prosecution
did not inform Petitioner that Davenport had approached the prosecution to testify in exchange for
a building transfer or a work release program; the prosecution did not reveal that shortly after a
meeting with Davenport, the government dropped four criminal counts against Davenport and
Davenport received concurrent sentences for two additional criminal counts; and the prosecution
made no mention of any intention to aid Davenport in his upcoming parole hearing. Petitioner thus
could not have made his Brady claim in state court because he had no way of knowing that the
prosecution failed to disclose such evidence. Moreover, once the prosecution responded to
Petitioner’s request for exculpatory evidence with an empty hand, Petitioner was under no duty to
engage in further investigation to determine whether the prosecution in fact withheld evidence. See
Banks, 540 U.S. at 695 (“Our decisions lend no support to the notion that defendants must scavenge
for hints of undisclosed Brady material when the prosecution represents that all such material has
been disclosed.”). Petitioner’s valid explanation for not raising the Brady claim in the state court
proceedings is that he was unaware that the prosecution had withheld Brady material, and that he
was justified in his reliance on the prosecution’s representation that it had not withheld Brady
material.
        To deny cause in this case would be to allow the prosecution to doubly benefit from its
actions: the prosecution could ignore its constitutional duty to provide exculpatory evidence, and
it could evade review for its behavior by asserting state procedural default. The jurisprudence of
both the Supreme Court and this Court rejects this result and leads to the conclusion that Petitioner
has shown cause for his failure to raise his Brady claim before the state courts.
        In order to demonstrate prejudice with respect to a Brady claim, Petitioner must prove that
the evidence suppressed by the prosecution was material so as to establish a Brady violation. Banks,
540 U.S. at 691. As explained, infra, the prosecution failed to disclose material impeachment
evidence of Davenport, and this failure resulted in a Brady violation. Thus, Petitioner has satisfied
the prejudice prong.
         2.       Standard of Review
       When a district court denies a habeas petition, this Court reviews its legal conclusions de
novo and its factual conclusions for clear error. Lucas v. O’Dea, 179 F.3d 412, 416 (6th Cir. 1999).
        Because Petitioner filed his habeas petition prior to the enactment of the Anti-Terrorism and
Effective Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C. § 2254,         the pre-AEDPA standard of
review applies with respect to the conclusions of the state courts.3 Under this standard, the Court


         3
           Respondent argues that AEDPA applies to the instant case; Respondent’s logic is that while Petitioner filed
his original petition before the enactment of AEDPA, this original petition was dismissed by the district court and erased
out of existence. As a result, when Petitioner filed his amended petition, there was nothing to amend, so that his
amended petition was actually a re-filing that occurred after the enactment of AEDPA.
         Respondent would have this Court ignore how Petitioner was able to file his amended petition; the district court
No. 04-5523                 Bell v. Bell                                                                               Page 9


“presume[s] the correctness of the state court factual findings, unless rebutted by clear and
convincing evidence, and [it] review[s] determinations of law, or mixed questions of fact and law,
de novo.” Smith v. Mitchell, 348 F.3d 177, 198 (6th Cir. 2004) (citations omitted).
         3.        Analysis
         Petitioner has established that a Brady violation occurred during his trial. As a result, the
district court erred in denying Petitioner habeas relief.
                   a.        Legal Framework
        In Brady v. Maryland, the Supreme Court held that the prosecution has a constitutional
obligation under the Due Process Clause of the Fourteenth Amendment to disclose exculpatory
evidence that is material to either guilt or punishment. 373 U.S. 83, 87 (1963). The Court
emphasized that the purpose of such a rule was “avoidance of an unfair trial to the accused.” Id.
The Supreme Court has held that the Brady rule extends to witness impeachment evidence. See,
e.g., Giglio v. United States, 405 U.S. 150, 154 (1972) (“When the reliability of a given witness may
well be determinative of guilt or innocence, nondisclosure of evidence affecting credibility falls
within [the Brady] rule.” (internal quotations and citation omitted).).
        In order to make a Brady claim, Petitioner must prove three elements: (1) “[t]he evidence
at issue must be favorable to the accused, either because it is exculpatory, or because it is
impeaching”; (2) “that evidence must have been suppressed by the State, either willfully or
inadvertently”; and (3) “prejudice must have ensued.” Strickler v. Greene, 527 U.S. 263, 281-82
(1999).
        Of the three elements, the Supreme Court has offered the most guidance with respect to
prejudice, also referred to as materiality. Materiality is established “if there is a reasonable
probability that, had the [suppressed] evidence been disclosed to the defense, the result of the
proceeding would have been different.” United States v. Bagley, 473 U.S. 667, 682 (1985). In Kyles
v. Whitley, 514 U.S. 419 (1995), the Supreme Court emphasized four points as to materiality. First,
         a showing of materiality does not require demonstration by a preponderance that
         disclosure of the suppressed evidence would have resulted ultimately in the
         defendant’s acquittal. . . . The question is not whether the defendant would more
         likely than not have received a different verdict with the evidence, but whether in its
         absence he received a fair trial, understood as a trial resulting in a verdict worthy of
         confidence.
Id. at 434.



previously granted his motion to reopen the case that derived from the original petition. While it is certainly true that
the district court dismissed this case, it is equally true that the district court undid this action when it reopened this case.
Thus, the case before the district court as of its grant of the motion to reopen was that created by the original petition.
Moreover, Respondent’s claim that nothing existed for the amended complaint to act upon is inconsistent with his own
actions: after the district court granted the motion to reopen, Respondent filed a motion to dismiss or, alternatively, a
motion for summary judgment. If indeed nothing existed, then Respondent was filing this motion against a non-case,
an absurd proposition. When the district court granted the motion to reopen, it resuscitated Petitioner’s original
complaint that had been previously dismissed. Since this complaint was filed before AEDPA’s enactment, AEDPA does
not apply.
         This is ultimately an academic exercise, as the two claims presented to this Court were not presented to the state
courts, and the state courts made no relevant findings of fact or legal conclusions as to these claims. Thus, the more
stringent standard of review under AEDPA would have no effect, as there is nothing to review.
No. 04-5523           Bell v. Bell                                                            Page 10


         Second, materiality is not a sufficiency of the evidence test, meaning that even if the
evidence, including the suppressed exculpatory evidence, is sufficient to support the conviction, a
party may still maintain a Brady claim. Id. A party makes a Brady claim “by showing that the
favorable evidence could reasonably be taken to put the whole case in such a different light as to
undermine confidence in the verdict.” Id. at 435. It is the lack of confidence in the verdict, not the
ability to support the verdict with the entirety of the evidence, that is critical.
       Third, “once a reviewing court . . . has found constitutional error there is no need for further
harmless-error review.” Id. By definition, if this Court found a Brady violation, it would have had
to have found a reasonable probability that the result would have differed with the inclusion of the
suppressed evidence. In other words, no Brady violation is harmless. Id. at 436.
         Fourth, when the court analyzes materiality, the “suppressed evidence [must be] considered
collectively, not item by item.” Id. This places the attendant burden on the prosecution to look at
all potential Brady evidence and to determine whether the cumulative effect of such evidence would
rise to the threshold level of materiality. Id. at 437.
               b.      Application to This Case
                       i.      Favorable Evidence
        Petitioner points to three pieces of evidence that the prosecution did not disclose:
(1) Davenport approached the prosecution to testify against Petitioner, motivated by his desire for
a transfer of facilities or for a work release program; (2) shortly after Davenport spoke with the
prosecution, the government nolle prosequied two counts of grand larceny and two counts of
concealing stolen property against Davenport, and Davenport received concurrent sentences for two
convictions of concealing stolen property; and (3) the prosecution wrote a letter to the parole board
on behalf of Davenport. Petitioner’s position is that such evidence was favorable because it would
have impeached the testimony of Davenport, the prosecution’s key witness and the only source of
evidence with respect to premeditation under first-degree murder.
         Respondent argues that this evidence was not favorable to Petitioner, because Petitioner has
failed to show that an agreement existed between the prosecution and Davenport. Respondent points
specifically to the testimony of Miller, who stated that he did not promise anything to Davenport in
exchange for his testimony against Petitioner. In other words, there was no connection between
Davenport’s testimony and his lenient treatment, so that his lenient treatment was not impeachment
evidence. In response, Petitioner asserts that Brady requires the disclosure of any evidence that may
impeach a witness, including evidence outside of an agreement between Davenport and the
prosecution.
        The parties raise an interesting question not yet addressed by this Court: whether an
agreement between the prosecution and a witness is required under Brady before the prosecution
must disclose evidence of potential or actual lenient treatment. The Supreme Court has not spoken
on this issue; it has only found that evidence of an express agreement between a witness and the
prosecution is favorable evidence under Brady. Giglio, 405 U.S. at 152, 154-55.
       Two circuits have specifically addressed the circumstance of a tacit agreement between the
prosecution and a witness and have found that such an agreement is favorable evidence to be
disclosed under Brady. In Wisehart v. Davis, the Seventh Circuit explained,
       The first and most common [way to impeach a witness based on benefits given to the
       witness by the prosecution] is by showing that the benefits were given in return for
       the witness’s providing testimony that would help the prosecution. He might have
       told the prosecutor what he would testify to if called and the prosecutor might have
No. 04-5523                Bell v. Bell                                                                          Page 11


         explicitly agreed to give him specified benefits if he testified consistently with his
         proffer. . . . Or there might have been a tacit understanding that if his testimony was
         helpful to the prosecution, the state would give him a break on some pending
         criminal charge. . . . Express or tacit, either way there would be an agreement, it
         would be usable for impeachment, and it would have to be disclosed to the defense.
408 F.3d 321, 323-24 (7th Cir. 2005).
         The Ninth Circuit has also found that a tacit agreement between a witness and the
prosecution is favorable evidence under Brady. In United States v. Shaffer, a co-conspirator testified
against another co-conspirator on narcotics charges. 789 F.2d 682, 685 (9th Cir. 1986). The
government failed to disclose that the witness had assets that were acquired with profits from the
narcotics operation, and that the government knew about these assets and their nature but did not
initiate forfeiture proceedings against the witness’ assets. Id. at 689. The court concluded that a
tacit agreement had been created between the prosecution and the witness whereby the witness could
keep his ill-gotten assets in return for his testimony. Id. The court responded to the claim that no
express agreement had been reached:
         The government contends that, because there was no explicit agreement on this
         matter, it had nothing to disclose. . . . Apparently the government misunderstands the
         district court’s ruling. While it is clear that an explicit agreement would have to be
         disclosed because of its effect on [the witness’] credibility, it is equally clear that
         facts which imply an agreement would also bear on [the witness’] credibility and
         would have to be disclosed.
Id. at 690 (internal citations omitted).
        The Eighth Circuit has gone even further, holding that no agreement between the prosecution
and a witness is required under Brady, so long as the withheld evidence can impeach the witness.
In Reutter v. Solem, the prosecution had failed to disclose that its star witness had applied for
sentence commutation and that, coincidentally, the hearing for sentence commutation was to take
place soon after his appearance at the petitioner’s trial. 888 F.2d 578, 581 (8th Cir. 1989). The
court found a Brady violation, despite the lack of any form of agreement between the prosecution
and the witness:
         Our conclusion does not depend on a finding of either an express or an implied
         agreement between [the witness] and the prosecution regarding the prosecution’s
         favorable recommendation to the parole board. The District Court found there was
         no agreement and this finding is not clearly erroneous. The fact that there is no
         agreement, however, is not determinative of whether the prosecution’s actions
         constituted a Brady violation requiring reversal . . . . We hold that, viewed in the
         context of petitioner’s trial, the fact of [the witness’] impending commutation
         hearing was material . . . and that petitioner therefore is entitled to relief.
Id. at 582. In addition, the court found that the prosecution’s comment to the jury that the witness
had “nothing that he could gain” from his testimony was “misleading and highly improper” when
coupled with the prosecution’s failure to disclose the commutation hearing. Id. While the court did
not decide whether the comment alone would warrant a new     trial, it found that it further undermined
the court’s confidence in the conviction of the petitioner.4 Id.

         4
           To be clear, the holding in Reutter did not rest on the fact that a prosecutor at the petitioner’s trial was also
a member of the sentence commutation panel that would hear the witness’ petition. The Eighth Circuit did not so hold
because it was disputed whether the prosecutor in question even voted on the witness’ petition. Id. at 580. Instead, the
No. 04-5523              Bell v. Bell                                                                         Page 12


         On the other end of the spectrum, the Second Circuit has held that favorable treatment for
a witness is insufficient to show an agreement between the prosecution and the witness. In Shabazz
v. Artuz, two witnesses testified against the petitioner in a shooting death that occurred during a
robbery. 336 F.3d 154, 157 (2d Cir. 2003). At the time of their testimony, they were charged with
various narcotics and additional offenses. Id. at 156. Just as in this case, the prosecutor testified at
an evidentiary hearing that he promised nothing to the witnesses in exchange for their testimony.
Id. at 163. The prosecutor, however, did appear at the sentencing hearing of one of the witnesses
and asked the court to show leniency. Id. at 165. Moreover, the prosecutor approved a
recommendation from the district attorney’s office for a lenient sentence for the other witness. Id.
The petitioner argued that the fact that the two witnesses in fact received favorable treatment after
their testimony evidenced an agreement between the prosecution and the witnesses. Id. The court
disagreed:
        [P]etitioner is correct that [the two witnesses] received a benefit because they
        testified against him. However, this fact, standing alone, does not establish that,
        prior to petitioner’s trial, the District Attorney’s Office promised [the two witnesses]
        leniency. The government is free to reward witnesses for their cooperation with
        favorable treatment in pending criminal cases without disclosing to the defendant its
        intention to do so, provided that it does not promise anything to the witnesses prior
        to their testimony. That is not to say that a prosecutor may circumvent his Brady
        obligations by failing to reduce to writing a plea agreement or a promise of
        leniency. . . . We hold only that the fact that a prosecutor afforded favorable
        treatment to a government witness, standing alone, does not establish the existence
        of an underlying promise of leniency in exchange for testimony.
Id. In our view, this holding leaves little room for a petitioner to establish a tacit agreement. By
definition, a tacit agreement is an unspoken understanding and is identified primarily by actions in
a particular context. If a petitioner cannot use favorable action alone on the part of the prosecution
to establish an agreement between the prosecution and a witness, the petitioner has a diminished
chance to prove a tacit agreement, absent an admission by the parties of the unsaid understanding.
Moreover, the language in Shabazz that indicates the prosecution need not disclose its intention of
aiding a witness absent an actual promise to the witness demonstrates that the Second Circuit is, at
the very least, hesitant to view a tacit agreement as favorable evidence under Brady.
        We find the analysis of the Seventh and Ninth Circuits persuasive and find that a tacit
agreement is favorable evidence under Brady. No principled reason exists for differentiating
between spoken and unspoken agreements between the prosecution and a witness. The relevant fact
under Brady is whether the evidence is exculpatory or impeaching. An express agreement between
the prosecution and a witness is impeaching because it is evidence that the witness has an interest
at stake; in other words, the witness is not impartial. See, e.g., Giglio, 405 U.S. at 154-55. This
same interest and partiality exist under a tacit agreement, and so this evidence would be equally



court found:
        Here, the prosecution failed to inform the defense that the state’s key witness, Trygstad, had applied
        for sentence commutation and that when he gave his testimony at petitioner’s trial he already had been
        scheduled to appear before the parole board a few days later. This information obviously could have
        been used by the defense to attack Trygstad’s credibility. We have little difficulty in concluding that
        the prosecution's failure to disclose this information was a Brady violation.
Id. at 581. The Brady violation derived from the prosecution’s failure to disclose that the witness had a sentence
commutation hearing directly following the petitioner’s trial; the Eighth Circuit never even so much as mentions a
prosecutor’s disputed involvement with the sentence commutation hearing.
No. 04-5523               Bell v. Bell                                                                          Page 13


impeaching and thus subject to disclosure under Brady. The fact that the agreement is unspoken
does not lead to a diminishment of the witness’ interest under the agreement.
       The Second Circuit’s approach in Shabazz has the markings of potential prosecutorial abuse.
Under Shabazz, so long as the prosecution does not make a promise of assistance before the witness’
testimony, the prosecution is not compelled to disclose any understanding between the prosecution
and the witness. This holds true even if the prosecution in fact intends to reward the witness with
favorable treatment. While the Shabazz court stated that this “is not to say that a prosecutor may
circumvent his Brady obligations by failing to reduce to writing a plea agreement or a promise of
leniency,” 336 F.3d at 165, a prosecutor would be able to circumvent her Brady obligations by
simply not verbalizing or otherwise memorializing her intent to help the witness. Such a formalistic
and technical evasion would eviscerate the Brady rule.
        Moreover, a tacit agreement in this context is based on the transparent incentives for both
the witness and the prosecution. The fact is that a jailhouse informant is one of the least likely
candidates for altruistic behavior; his offer to testify is almost always coupled with an expectation
of some benefit in return. The prosecution is not naive as to this expectation, and the prosecution
also knows that when the value of the informant’s testimony reaches a sufficient level, it is in the
prosecution’s interest to fulfill this expectation. At the most fundamental level, the arrangement is
a quid pro quo; the informant knows he is giving something of value and expects something in
return; the prosecution knows it is receiving something of value, and gives something in return. No
written or spoken word is required to understand the nature of this tacit agreement. This is not to
say that “a nebulous expectation of help from the state” is sufficient evidence for such an agreement.
Goodwin v. Johnson, 132 F.3d 162, 187 (5th Cir. 1997). But if a petitioner proves that a witness
approached the prosecution to testify with the expectation of some benefit, and that the prosecution
understood this expectation and fulfilled the expectation by actually bestowing some benefit, the
petitioner has sufficiently demonstrated a tacit agreement that must be disclosed under Brady.
         This is exactly what occurred in Petitioner’s case. Davenport approached the prosecution
to testify against Petitioner. The evidence shows that Davenport was seeking some benefit in return;
the prosecutor’s notes indicate that a building transfer and a work release program were discussed
by the parties. The prosecution openly admitted that it knew of Davenport’s expectation; Miller
testified that “[e]verybody wants something, and I’m sure Davenport wanted something.” (J.A. at
476.) While the prosecution claimed that it did not make any formal promises to Davenport, it
certainly fulfilled its end of the unspoken bargain; shortly after the initial meeting between the
prosecution and Davenport, the district attorney’s5 office that was prosecuting Petitioner’s case
dropped four criminal charges against Davenport. Moreover, shortly after Petitioner’s trial, the
prosecutor wrote a letter to Davenport’s parole board and requested early parole on behalf of
Davenport. In the letter, the prosecutor explicitly noted that he was writing the letter in part because
of Davenport’s testimony: “Based upon [Davenport’s] cooperation, . . . we are requesting that
William Davenport be considered for parole at the earliest eligible date.” (J.A. at 501-02.) The
prosecutor minced no words as to the quid pro quo involved with Davenport’s testimony. This is
abundant evidence of a tacit agreement, and this evidence should have been disclosed to Petitioner.
       With respect to this tacit agreement, the district court found that Davenport did indeed
approach the prosecution to testify in search of some benefit, so that this evidence should have been
disclosed to Petitioner, and we agree. The district court did not mention or analyze the fact that the

         5
           The record also indicates that shortly after the meeting between the prosecution and Davenport, a state trial
court sentenced Davenport to concurrent, as opposed to consecutive, sentences for two counts of concealing stolen
property. The record, however, is unclear as to whether the district attorney’s office had some influence as to the court’s
decision, such as a sentencing recommendation. As a result, we make no assumption as to whether the prosecution
played any part in the court’s favorable treatment to Davenport.
No. 04-5523           Bell v. Bell                                                             Page 14


district attorney’s office dropped four counts against Davenport; and we find a tacit agreement based
on this lenient treatment, so that this information should have been disclosed. Finally, with respect
to the prosecutor’s letter to Davenport’s parole board, the district court found that the letter could
not have been disclosed to Petitioner; because the prosecutor wrote the letter after Petitioner’s trial,
no favorable evidence existed to be disclosed under Brady. While the simplicity of the district
court’s logic is appealing, it does not withstand closer inspection.
        Taken to its logical endpoint, the district court’s analysis would shield the prosecution’s
lenient treatment from the Brady rule with respect to a tacit agreement so long as the prosecution’s
actions took place after the petitioner’s trial. The error in such a position is that when the
prosecution makes good on the tacit agreement should not dictate whether the agreement should
have been disclosed. It would be inconsistent to find a Brady violation when a prosecutor tacitly
agrees to write a letter to the witness’ parole board and does so before the petitioner’s trial, but to
not find such a violation with the same tacit agreement when a prosecutor writes the letter after the
petitioner’s trial. If such a distinction were made, then the prosecution would just wait until the
petitioner’s trial ended before it provided the witness any benefits to avoid Brady disclosure. A tacit
agreement must be disclosed regardless of when the prosecution acts upon that agreement. In short,
the formation of the agreement, not the execution of the agreement, is the critical point of interest.
         An argument can be made that such a rule would chill the prosecution from giving any
nondisclosed benefits to a witness after trial for fear that such conduct will jeopardize the results of
the trial, even if such nondisclosed benefits were not part of any agreement, express or tacit. While
it is theoretically possible for the prosecution to grant a witness benefits after trial that have no
connection to the witness’ testimony, it is more than a fair assumption that the prosecution generally
grants a witness such benefits in exchange for his testimony. The prosecution is also not in the
business of altruism; it grants leniency to an informant because it wants that informant’s testimony,
and it wants to encourage other informants to come forward and testify. A rule requiring disclosure
of a tacit agreement regardless of when the prosecution grants leniency recognizes this fact and is
necessary to prevent the prosecution from shirking its Brady responsibilities by simply waiting until
after the petitioner’s trial to act on the tacit agreement. As a result, the prosecution should have
disclosed its tacit agreement to assist Davenport with early release, even though this assistance took
place after Petitioner’s trial.
         Despite Respondent’s argument that the prosecution’s leniency towards Davenport was
unconnected to his testimony in Petitioner’s trial, it is difficult to believe as mere coincidence that
shortly after Davenport met with the prosecution, the prosecution dropped two counts of grand
larceny and two counts of concealing stolen property against Davenport. It is likewise difficult to
believe as coincidence that shortly after the guilty verdict in Petitioner’s case, the prosecutor wrote
a letter on behalf of Davenport in support of Davenport’s early release. These facts, coupled with
Davenport’s expectation of benefits and the prosecution’s acknowledgment of this expectation, are
ample evidence of a tacit agreement that should have been disclosed to Petitioner.
        Moreover, we agree with the analysis of the Eighth Circuit and find that even absent any
agreement, tacit or otherwise, impeaching or exculpatory evidence must still be disclosed to the
defendant. In Reutter, the court found that even though there was no agreement between the
prosecution and its star witness in the defendant’s case, the prosecution’s failure to disclose that the
witness had a sentence commutation hearing after the defendant’s trial constituted a Brady violation.
888 F.2d at 582. The key question is whether the evidence is exculpatory or impeaching. Id. As
the dissent readily admits, the fact that Davenport was shopping to exchange his testimony for
benefits was impeaching information that should have been disclosed, even absent any agreement.
Petitioner could have used this evidence to demonstrate that Davenport was testifying as an
interested witness. Likewise, the fact that the government dropped four criminal counts against
Davenport right before Petitioner’s trial was also potentially impeaching evidence. Even if there
No. 04-5523           Bell v. Bell                                                           Page 15


were no agreement or quid pro quo between Davenport and the government with respect to this
favorable treatment, Petitioner could have argued that said favorable treatment colored or biased
Davenport’s testimony by encouraging Davenport to testify in a manner advantageous to his
benefactors. This fact therefore should have been disclosed.
                       ii.     Suppression by the Prosecution
       The district court found that the prosecution did not disclose the fact that Davenport
approached the prosecution to testify against Petitioner in expectation of some benefit, and this
finding is not clearly erroneous. The district court made no finding as to the disclosure of the tacit
agreement with respect to the nolle prosequied counts against Davenport, so there is no factual
finding to review under the clearly erroneous standard. From our review of the record, there is
nothing that indicates that this information was disclosed to Petitioner. The district court also made
no factual finding as to the disclosure of the tacit agreement to assist Davenport at his parole
hearing, and we find that this information was not disclosed to Petitioner.
        With respect to the element of suppression, Respondent “submits that petitioner had access
to the material upon which he bases his claim, namely Davenport’s parole records and prior
convictions.” (Resp’t Br. 24.) This argument fails for two reasons. First, if Petitioner had searched
Davenport’s parole records and prior convictions before trial, Petitioner could not have found that
Davenport approached the prosecution shopping for a deal for his testimony, that the district
attorney’s office dropped four counts against Davenport after a meeting with the prosecution, or that
the prosecution had a tacit agreement to provide Davenport assistance with his parole hearing. Thus,
the basis of Petitioner’s Brady claim could not have been discovered through a search of
Davenport’s parole records and prior convictions.
         Second, and more importantly, assuming arguendo that the basis of Petitioner’s Brady claim
could indeed have been found in these records, Petitioner was under no obligation to second guess
the prosecution’s representation that no impeaching evidence existed as to Davenport. As explained
above, once the prosecution responded to Petitioner’s request for impeaching evidence, Petitioner
was under no duty to engage in further investigation to determine whether the prosecution’s
response was truthful. See Banks, 540 U.S. at 695 (“Our decisions lend no support to the notion that
defendants must scavenge for hints of undisclosed Brady material when the prosecution represents
that all such material has been disclosed.”). The Supreme Court rejected a similar argument in
Strickler; there, the prosecution claimed that the basis of the petitioner’s Brady claim was contained
in the prosecution’s file, and that the prosecution had an “open file” policy so that the petitioner
could have discovered the relevant evidence. 527 U.S. at 276. The Supreme Court found that
despite the open file policy, the prosecution suppressed the exculpatory evidence because it
represented that it had produced all the Brady information in the file. Id. at 289. Likewise, even if
the basis of Petitioner’s claim could have been discovered through a search of Davenport’s parole
records and prior convictions, Petitioner could rely on the prosecution’s representation that no
exculpatory or impeaching evidence was available so as to make such a search futile.
No. 04-5523           Bell v. Bell                                                             Page 16


                       iii.    Materiality
        In order to assess the materiality of the suppressed evidence, we analyze the importance of
Davenport’s testimony, the strength of the prosecution’s remaining case, and the strength of
Petitioner’s defense.
                               (1).    Davenport’s Testimony
        Both Petitioner and the prosecution readily admit that Davenport’s testimony was critical.
Davenport was the prosecution’s final witness; the prosecution admitted that it did not have a strong
case without Davenport’s testimony. Davenport’s testimony was critical in two respects: it negated
Petitioner’s identity defense by specifically naming Petitioner as the shooter; and it provided the
only evidence as to premeditation with respect to the killing of Mrs. Wallace, as Davenport testified
that Petitioner had told him that he shot Mrs. Wallace because she was a witness to the shooting of
Mr. Wallace.
                               (2).    The Prosecution’s Remaining Evidence
         The remaining case against Petitioner was somewhat insubstantial and entirely
circumstantial. There were no eyewitnesses who could positively identify Petitioner as the shooter.
The police never found the murder weapon. Laboratory results indicated that Petitioner could have
fired a gun. When Petitioner was arrested, he was found with the same type of bullets used to shoot
the victims. The spent cartridges at the crime scene also matched spent cartridges found at
Petitioner’s camp. On the other hand, laboratory results indicated that there was no blood on
Petitioner’s clothes.
                               (3).    Petitioner’s Defense
        Petitioner’s defense was also anemic. Petitioner claims that he and another man purchased
.38 caliber bullets for this man’s gun. Petitioner then shot the gun for target practice at his camp.
Petitioner then left his camp, returned, left again, and he was then arrested.
         The prosecution presented Billy Joe Camden (“Camden”) as a rebuttal witness. Camden
testified that he purchased .38 caliber bullets at Petitioner’s request. After purchasing these bullets,
Camden left Petitioner.
                               (4).    Reasonable Probability of a Different Result
        We hold that had the prosecution disclosed to Petitioner its tacit agreement with Davenport
and its attendant benefits, there would have been a reasonable probability of a different result as to
both Petitioner’s conviction for first-degree murder and his conviction for second-degree murder.
When considered cumulatively, the suppressed agreement was strong impeachment evidence of
Davenport. Because of his testimony, Davenport dodged four criminal counts and secured a
recommendation from the prosecutor for early release. In addition, not only did the prosecution fail
to disclose this tacit agreement, but the prosecution went further and misrepresented to the jury that
it had no “say-so” with Davenport’s parole board. The evidence of the parole board’s decision
suggests otherwise; in the “Notice of Board Action,” the parole board granted Davenport early
release, indicating under “Final Board Action” to “see DA’s letter supporting parole.” (J.A. at 498.)
Not only did the prosecution’s letter influence the parole board’s decision, it appears to have been
the basis of the board’s decision. Certainly the prosecution cannot require action of the parole
board, as prosecutor Miller so testified, but the actual decision of the parole board is proof positive
that the prosecution does have influence with the parole board. Moreover, the fact that the parole
board took heed to the prosecution’s recommendation that Davenport be paroled is no novel
outcome; a prosecutor may appear on behalf of a potential parolee or give similar assistance, and
No. 04-5523           Bell v. Bell                                                             Page 17


the parole board, while not required to act according to the wishes of the prosecutor, often takes into
consideration the prosecutor’s recommendation. Miller’s proclamation to the jury that he had no
“say-so” with the parole board was therefore misleading.
         The harm from the prosecution’s misrepresentation to the jury is similar to that in Reutter,
where the Eighth Circuit found that the prosecution’s statement to the jury that the witness had
nothing to gain from testifying exacerbated the Brady violation in light of undisclosed evidence that
the witness was seeking a commutation of his sentence. 888 F.2d at 582. In this case, the
prosecution failed to disclose its tacit agreement to aid Davenport at his parole hearing; additionally,
the prosecution then told the jury that it had no power to aid Davenport at his parole hearing, despite
the fact that it could do so and did do so. In other words, the prosecution’s statement bolstered
Davenport’s testimony by portraying Davenport as a man testifying without benefit, when in fact
his testimony should have been questioned because of the actual benefits he realized therefrom. The
tacit agreement, the nolle prosequied counts, the letter to the parole board, and the prosecution’s
misrepresentation are sufficient to establish materiality.
        Materiality is especially apparent in light of the prosecution’s remaining evidence. With
respect to first-degree murder, Davenport’s testimony was the only evidence of premeditation as to
the shooting of Mrs. Wallace. There is a reasonable probability that, had the jury been made aware
of Davenport’s agreement with the prosecution, a different result would have occurred, as proof of
one of the required elements of first-degree murder would have been in doubt. With respect to
Petitioner’s conviction of second-degree murder of Mr. Wallace, Davenport’s testimony was the
strongest piece of evidence presented by the prosecution, as it positively identified Petitioner as the
shooter. With the veracity of the testimony in doubt, the prosecution would have had to rely on the
circumstantial evidence that Petitioner was carrying the same type of bullets that were used to kill
the victims, and that spent cartridges found at the crime scene matched spent cartridges found at
Petitioner’s camp. The prosecution’s case was also negated by the fact that no blood was found on
Petitioner’s clothes, and Petitioner’s testimony that he fired a .38 caliber handgun that belonged to
Camden at Petitioner’s camp. These facts sufficiently demonstrate a reasonable probability of a
different result with the impeachment of Davenport’s testimony. In the words of the Supreme Court,
Petitioner did not receive “a trial resulting in a verdict worthy of confidence.” Kyles, 514 U.S. at
434.
        We emphasize that the materiality prong is not a sufficiency of the evidence test, nor is the
inquiry whether Petitioner more likely than not would have been acquitted. The question is whether
the withheld evidence would have “put the whole case in such a different light as to undermine
confidence in the verdict.” Id. at 435. Had the jury been made aware of Davenport’s substantial
interest in his testimony against Petitioner, the jury’s view of the case would have been significantly
colored by this impeachment evidence. Of critical importance is how Davenport’s testimony
interacted with the remainder of the evidence and the theory presented by the prosecution.
Davenport’s testimony significantly corroborated what the circumstantial evidence could only imply
as to the events surrounding the shooting. Had the prosecution made available the appropriate
impeaching evidence, not only would Davenport’s testimony have been shrouded in doubt, his
testimony’s corroboration of the prosecution’s theory vis-a-vis the circumstantial evidence would
also have been weakened. There is simply no way to know how the jury would have viewed the
remaining circumstantial evidence with Davenport’s credibility placed into question, such that one
cannot safely say that Petitioner received a fair trial.
        Moreover, we disagree with the district court’s assessment of materiality. We first note that
the district court did not consider in its materiality analysis the nolle prosequied counts or the
prosecution’s letter to the parole board. It also did not consider the prosecution’s misrepresentation
to the jury. These facts alone demonstrate that the district court erred in its materiality analysis.
Furthermore, the district court found that materiality was lacking because “Davenport’s offer to
No. 04-5523           Bell v. Bell                                                              Page 18


testify and statements to the prosecutor were disclosed,” and because “Davenport’s criminal history
and his interest in parole eligibility were presented to the jury.” (J.A. at 580.) We will address these
points in turn. While the jury knew Davenport offered to testify, they did not know why Davenport
offered to testify: he wanted to exchange his testimony for leniency. A witness’ offer to testify is
not inherently impeaching; a witness may testify for any number of reasons that do not cast doubt
as to his testimony. What makes a witness’ testimony suspect is an offer to testify for a self-
interested motive, and complete evidence of Davenport’s self-interest was never fairly presented to
the jury.
         With respect to Davenport’s criminal history, we agree that Petitioner was afforded the
opportunity to impeach Davenport with his criminal history, but this is a non sequitur; the fact that
Petitioner was able to impeach Davenport with his criminal history does not answer his inability to
impeach Davenport with other crucial evidence that Davenport had an interest in the testimony. The
Supreme Court has spoken directly on this type of argument: “[W]e do not believe that the fact that
the jury was apprised of other grounds for believing that the witness . . . may have had an interest
in testifying against petitioner turned what was otherwise a tainted trial into a fair one.” Napue v.
Illinois, 360 U.S. 264, 270 (1959) (emphasis supplied). This language applies with equal force to
Respondent’s argument that the jury knew of Davenport’s interest in parole eligibility. Again, while
the jury was made aware of this interest, Davenport’s interest in currying favor with the parole board
was wholly separate from Davenport’s interest in receiving lenient treatment from the prosecution
in the form of the nolle prosequied counts and the recommendation letter to the parole board. The
impeachment evidence actually presented at trial does not act as a constitutional substitute for the
impeachment evidence suppressed by the prosecution.
       In short, Davenport’s testimony was the crux of the prosecution’s case as to both first- and
second-degree murder. Had Davenport’s testimony been properly impeached, there is a reasonable
probability that the result would have been different for both of these charges.
B.      THE DISTRICT COURT DID NOT ERR IN DENYING RELIEF ON THE
        PETITIONER’S CLAIM THAT HE WAS DENIED EFFECTIVE ASSISTANCE OF
        COUNSEL BECAUSE HIS TRIAL COUNSEL FAILED TO INVESTIGATE AND
        PRESENT EVIDENCE THAT HE LACKED THE MENS REA NECESSARY FOR
        FIRST-DEGREE PREMEDITATED MURDER.
        1.      Preservation of the Issue
       Respondent argues that this Court may not review Petitioner’s ineffective assistance of
counsel claim because he failed to raise the claim before any state court. We agree.
        As explained above, when a petitioner’s claim is procedurally defaulted in state court, the
federal courts may not review the claim on habeas review unless the petitioner shows cause and
prejudice. Here, Petitioner failed to exhaust his state remedies with respect to his ineffective
assistance of counsel claim. Because a state procedural rule would bar Petitioner from raising this
claim in state court, Petitioner’s claim is procedurally defaulted. See supra.
        Petitioner argues that in fact he raised the substance of his claim before a state court, so that
he exhausted his state court remedies and his claim is not procedurally defaulted. We disagree.
Petitioner did raise a claim of ineffective assistance of counsel in his state post-conviction hearings,
but this claim was based only on two underlying claims: (1) counsel’s failure to object to “and raise
on appeal the admissibility of a lay opinion offered by a state’s witness on the mental condition of
the dying victim,” Bell v. State, 1994 WL 406168, at *4; and (2) counsel’s failure to “raise the issue
as to whether a rational trier of fact could find beyond a reasonable doubt [Petitioner] was guilty of
murder in the first degree absent proof of deliberation,” (J.A. at 123). Petitioner never raised the
No. 04-5523           Bell v. Bell                                                            Page 19


underlying claim that counsel failed to investigate and present evidence of alcoholism and mental
illness. In determining whether a claim has been fairly presented to the state courts, this Court looks
to whether “the petitioner asserted both a factual and legal basis for his claim in state court.”
Newton v. Million, 349 F.3d 873, 877 (6th Cir. 2003). In this case, Petitioner did not assert either;
Petitioner never presented to the state courts the factual basis of his trial counsel’s failure to
investigate or present evidence of alcoholism and mental illness; likewise, Petitioner did not present
the legal basis that such action was objectively deficient performance and prejudicial under
Strickland v. Washington, 466 U.S. 668 (1984).
        Petitioner’s citation to Vasquez v. Hillery, 474 U.S. 254 (1986), is to no avail. That case
involved a petitioner who claimed that the state systematically excluded blacks from the grand jury
which eventually indicted him. Id. at 256. The petitioner made this claim on both direct review and
state habeas review. Id. On federal habeas review, the district court ordered statistical evidence as
to the grand jury service of blacks in the relevant county, and it also ordered the parties to present
evidence of statistical significance, i.e., the probability that blacks were excluded from the jury not
by deliberate design but by “chance or accident alone.” Id. at 257. The Supreme Court held that
the district court could view this additional evidence without running afoul of the state exhaustion
requirement despite the fact that such evidence was not presented to the state courts. Id. at 258. The
Court found that
       the circumstances present no occasion for the Court to consider a case in which the
       prisoner has attempted to expedite federal review by deliberately withholding
       essential facts from the state courts. We hold merely that the supplemental evidence
       presented by respondent did not fundamentally alter the legal claim already
       considered by the state courts, and, therefore, did not require that respondent be
       remitted to state court for consideration of that evidence.
Id. at 621-22. The instant case is easily distinguishable; while the petitioner in Hillery was only
looking to present supplemental evidence for the same claim, Petitioner here is attempting to add
an entirely new underlying claim to his claim of ineffective assistance of counsel. This would work
a fundamental alteration to the legal claim already considered by state courts, so that we cannot say
that the state courts had the first opportunity to review the claim. See Coleman, 501 U.S. at 731
(“[I]n a federal system, the States should have the first opportunity to address and correct alleged
violations of state prisoner’s federal rights.”). The state courts were never presented with the issue
of ineffective assistance of counsel due to counsel’s failure to investigate and present evidence of
alcoholism and mental illness, and we agree with those circuits that have held that an ineffective
assistance of counsel claim based on one ground does not exhaust state court remedies with respect
to an ineffective assistance of counsel claim based on another ground. See Sweet v. Bennett, 353
F.3d 135, 139-140 (2d Cir. 2003); Tippitt v. Lockhart, 903 F.2d 552, 554 (8th Cir. 1990); Gibson
v. Scheidemantel, 805 F.2d 135, 139 (3d Cir. 1986).
         The question now is whether Petitioner has demonstrated cause and prejudice for his default,
and we conclude that Petitioner has not done so. Petitioner argues that he has cause for not raising
this claim before a state court, because the state courts did not provide funding for expert witnesses
such as Dr. Auble. This fact does not constitute cause; even without expert witness testimony,
Petitioner could have still made a viable claim as to ineffective assistance of counsel due to
counsel’s failure to investigate and present evidence of Petitioner’s alcoholism and mental illness.
Petitioner could have simply shown that there were records of his conditions sufficient to support
a defense, and that counsel did not investigate and thus did not present this evidence.
        Petitioner also argues that he has cause for not raising the claim before a state court because
of the ineffective assistance of counsel during his state post-conviction proceedings. The problem
with Petitioner’s position is that attorney error can only be considered cause if the error meets the
No. 04-5523           Bell v. Bell                                                             Page 20


threshold of ineffective assistance of counsel in violation of the Sixth Amendment. Coleman, 501
U.S. at 752 (citing Murray v. Carrier, 477 U.S. 478, 488 (1986)). Petitioner, however, does not
have a constitutional right to effective assistance of counsel during state collateral proceedings. Id.
(citing Pennsylvania v. Finley, 481 U.S. 551 (1987); Murray v. Giarratano, 492 U.S. 1 (1989)).
Petitioner argues that because ineffective assistance of trial counsel is a claim that can first be
brought at a state post-conviction proceeding, Petitioner is entitled to effective assistance of counsel
at the post-conviction proceeding. This Court has specifically rejected that argument, finding that
a petitioner must bear the risk of attorney error at such proceedings. Abdus-Samad v. Bell, 420 F.3d
614, 631-32 (6th Cir. 2005).
       With respect to prejudice, Petitioner’s claim lacks merit, so that he cannot establish
prejudice. See infra.
       2.      Standard of Review
       When a district court denies a habeas petition, this Court reviews its legal conclusions de
novo and its factual conclusions for clear error. Lucas v. O’Dea, 179 F.3d 412, 416 (6th Cir. 1999).
         Because Petitioner filed his habeas petition prior to the enactment of the Anti-Terrorism and
Effective Death Penalty Act of 1996 (“AEDPA”), the pre-AEDPA standard of review applies with
respect to the conclusions of the state courts. Under this standard, the Court “presume[s] the
correctness of the state court factual findings, unless rebutted by clear and convincing evidence, and
[it] review[s] determinations of law, or mixed questions of fact and law, de novo.” Smith v. Mitchell,
348 F.3d 177, 198 (6th Cir. 2004) (citations omitted).
       3.      Analysis
        While we find that Petitioner’s claim is procedurally barred, we also note that Petitioner’s
claim lacks merit. Petitioner’s trial counsel conducted a reasonable investigation as to Petitioner’s
alcoholism and mental health, and Petitioner was the party ultimately responsible for deciding
against presenting evidence of Petitioner’s alcoholism and mental health.
               a.      Legal Framework
         Under Strickland v. Washington, a petitioner may establish a claim of ineffective assistance
of counsel if he shows that: (1) counsel’s performance was deficient in that it fell below an objective
standard of reasonableness; and (2) the deficient performance prejudiced the defense in that there
is a reasonable probability that but for the deficient performance, the result of the proceeding would
have been different. 466 U.S. at 687-88, 694.
       Under Strickland, trial counsel has a duty to investigate his case:
       [S]trategic choices made after thorough investigation of law and facts relevant to
       plausible options are virtually unchallengeable; and strategic choices made after less
       than complete investigation are reasonable precisely to the extent that reasonable
       professional judgments support the limitations on investigation. In other words,
       counsel has a duty to make reasonable investigations or to make a reasonable
       decision that makes particular investigations unnecessary. In any ineffectiveness
       case, a particular decision not to investigate must be directly assessed for
       reasonableness in all the circumstances, applying a heavy measure of deference to
       counsel’s judgments.
       The reasonableness of counsel’s actions may be determined or substantially
       influenced by the defendant’s own statements or actions. Counsel’s actions are
No. 04-5523           Bell v. Bell                                                             Page 21


       usually based, quite properly, on informed strategic choices made by the defendant
       and on information supplied by the defendant. In particular, what investigation
       decisions are reasonable depends critically on such information. For example, when
       the facts that support a certain potential line of defense are generally known to
       counsel because of what the defendant has said, the need for further investigation
       may be considerably diminished or eliminated altogether. And when a defendant has
       given counsel reason to believe that pursuing certain investigations would be
       fruitless or even harmful, counsel’s failure to pursue those investigations may not
       later be challenged as unreasonable. In short, inquiry into counsel’s conversations
       with the defendant may be critical to a proper assessment of counsel’s investigation
       decisions, just as it may be critical to a proper assessment of counsel’s other
       litigation decisions.
Id. at 690-91.
                 b.    Application to This Case
       Petitioner’s counsel conducted reasonable investigations into Petitioner’s alcoholism and
mental health. Counsel requested an initial mental health evaluation of Petitioner due to Petitioner’s
admitted substance abuse problems and his blackouts on the day of the crime. Counsel also
conducted an initial investigation as to Petitioner’s alcoholism, unearthing records from various
mental health and medical facilities. Counsel believed that Petitioner’s best defense was an
intoxication defense, but Petitioner insisted on a defense of identity. This was true even after
counsel explained to Petitioner other available defenses.
         At that point, counsel’s failure to further investigate Petitioner’s alcoholism and mental
health was completely reasonable, as Petitioner effectively told him to stop investigating these
defenses, because Petitioner’s defense of choice was identity. To reiterate the words of the Supreme
Court, “The reasonableness of counsel’s actions may be determined or substantially influenced by
the defendant’s own statements or actions. Counsel’s actions are usually based, quite properly, on
informed strategic choices made by the defendant and on information supplied by the defendant.”
Id. at 690. Petitioner made a strategic decision to pursue an identity defense at trial, even though
trial counsel believed intoxication was the best defense. Petitioner cannot now rest the blame of that
strategic decision on the shoulders of his counsel; his counsel rightfully halted the investigation into
Petitioner’s alcoholism and mental health at Petitioner’s request.
        The point is that counsel must make reasonable investigations into all potential defenses, or
have a reasonable explanation why such investigation would be unnecessary, and counsel must
present these defenses so Petitioner could make an informed decision: “A good lawyer tries to
persuade the accused to make a wise decision about . . . presenting a defense, even though the
ultimate decision rests with the client, and wretched advice that leads the accused to make a bad
decision is a form of ineffective assistance. The accused is entitled to the information essential to
make an educated choice.” Wallace v. Davis, 362 F.3d 914, 920 (7th Cir. 2004) (emphasis
supplied). Here, counsel made a reasonable investigation into Petitioner’s mental health and
alcoholism, and he told Petitioner that he thought an intoxication defense was Petitioner’s best
choice. Petitioner’s decision to forego this defense and to pursue a defense of identity was thus
informed, so that Petitioner cannot claim ineffective assistance on the part of his counsel. As the
Second Circuit recently observed, “[T]o the extent that defendant instructed his counsel to pursue
a course of action that defendant now complains of, there was no abridgement . . . of defendant’s
Sixth Amendment right to effective assistance of counsel.” United States v. Wellington, 417 F.3d
284, 289 (2d Cir. 2005). See also Stano v. Dugger, 921 F.2d 1125, 1151 (11th Cir. 1991) (“When
a defendant preempts his attorney’s defense strategy, he thereafter cannot claim ineffective
assistance of counsel.” (citation omitted)); Alvord v. Wainwright, 725 F.2d 1282, 1288-89 (11th Cir.
No. 04-5523               Bell v. Bell                                                                         Page 22


1984) (holding that counsel’s failure to present an insanity defense was not ineffective assistance
when the defendant refused to allow an insanity defense and insisted on relying upon a weak alibi).
        Petitioner’s related claim that his counsel failed to present a complete defense6 is also
meritless and warrants only a few brief words. A defense of identity and a defense of intoxication
are inconsistent. See, e.g., Jackson v. Shanks, 143 F.3d 1313, 1320 (10th Cir. 1998) (“Pursuing a
diminished capacity defense would have been inconsistent with [the petitioner’s] complete denial
of involvement in the robbery.”). Petitioner could not have successfully argued that he did not shoot
the victims, but if he did, he was drunk and did not remember. Petitioner chose the defense of
identity, and his counsel provided a complete defense under that chosen strategy.
                                               III. CONCLUSION
        For the foregoing reasons, we REVERSE the order of the district court and GRANT the
petition for writ of habeas corpus. The district court shall enter an order requiring Petitioner to be
released from custody unless the State of Tennessee commences a new guilt phase trial within 180
days of the district court’s order.




         6
         This statement is made in Petitioner’s Statement of Issues but is not explained in the substance of Petitioner’s
Brief. We will nevertheless address the point, as it can be disposed of easily.
No. 04-5523              Bell v. Bell                                                                       Page 23


                    ___________________________________________________
                       CONCURRING IN PART, DISSENTING IN PART
                    ___________________________________________________
       JULIA SMITH GIBBONS, Circuit Judge, Concurring in Part and Dissenting in Part. I
concur in the majority opinion as to Bell’s ineffective assistance of counsel claim, but disagree with
the majority’s disposition of Bell’s Brady claim. The majority holds that the prosecutor had a “tacit
understanding” with the witness and was required to disclose this agreement to the defense under
Brady v. Maryland, 373 U.S. 83, 87 (1963), even though no probative evidence of such an
agreement exists.
        Bell relies on three pieces of evidence in support of his Brady claim. All are related to the
testimony of William Davenport, a convicted felon who was held with Bell in the Nashville jail.
Davenport approached Ross Miller, Bell’s prosecutor, seeking either a transfer of facilities or
participation in a work-release program. This request, which was recorded in Miller’s notes, was
not divulged to the defense as required by Brady. Second, prior to Bell’s trial, several of
Davenport’s pending counts were nolle prosequied by another prosecutor as part of a plea bargain
that resulted in a three-year sentence for Davenport on other counts in his indictment. The defense
was not informed of the outcome of Davenport’s case. Third, Miller sent a letter to the parole board
on Davenport’s behalf after the trial ended, recommending parole “at the earliest possible date.”
Davenport was, in fact, granted early parole. The only undisclosed material at the time of trial was
thus Miller’s notes and Davenport’s sentencing documents.
        The majority holds that the prosecution was required to disclose the first two pieces of cited
evidence and that all three pieces of evidence were sufficient to prove the existence of a wrongfully-
suppressed, implied agreement with Davenport to grant him benefits in exchange for his testimony.
Further, the majority holds that the parole letter – or at least the prosecution’s agreement to write
such a letter – was wrongfully withheld because it was a tangible result of this purported tacit
agreement. The evidence in this case, however, does not support a determination that the
prosecution entered into a tacit agreement with Bell. In addition, while Miller should have disclosed
the notes regarding Davenport’s request for a transfer and Davenport’s sentencing documents,1 this
evidence is not material, so the prosecution’s suppression of it did not violate Brady.
                                                          I.
        I first consider the majority’s reasoning regarding the purported tacit agreement between the
prosecution and Davenport. The majority is certainly correct that the prosecution must divulge an
express agreement with a witness in relation to that witness’s testimony, regardless of whether the
agreement is written or oral. Giglio v. United States, 405 U.S. 150, 154-55 (1972). In its opinion,
however, the majority extends Giglio’s holding to encompass a situation where a witness merely
hoped for a future benefit and received one. In so doing, it mischaracterizes the hope and the benefit
as an agreement and mischaracterizes our sister circuits’ precedent.
       Beginning with the majority’s finding of an agreement, a primary component of its faulty
reasoning is its speculation that Davenport’s plea bargain and sentencing prior to Bell’s trial had a
connection to Davenport’s testimony. Yet no evidence supports such a connection. No evidence
permits an inference that either the prosecutor or judge in Davenport’s case knew that Davenport

         1
           Both items were required to be disclosed as impeachment material. United States v. Bagley, 473 U.S. 667,
676 (1985) (“Impeachment evidence, . . . as well as exculpatory evidence, falls within the Brady rule.”). The notes of
the transfer request were evidence that Davenport hoped for favorable treatment for his testimony. The sentencing
documents reflected Davenport’s prior criminal convictions.
No. 04-5523           Bell v. Bell                                                             Page 24


had approached Miller or that Miller anticipated that Davenport would testify for the state at Bell’s
trial. The reality of this record is that Davenport asked for the benefit of a transfer or participation
in work release and probably hoped that some other favorable treatment might come his way as a
result of his testimony. Davenport’s more general hopes were realized when Miller recommended
an early parole after Bell’s trial, although his specific requests were not granted. There is nothing
more. Miller denied any agreements with Davenport or any promises to him.
       The majority also goes astray in relying on three cases to support its inference of a tacit
agreement between a witness and the prosecutor based on lenient treatment of the witness. See
Wisehart v. Davis, 408 F.3d 321 (7th Cir. 2005); Reutter v. Solem, 888 F.2d 578 (8th Cir. 1989);
United States v. Shaffer, 789 F.2d 682 (9th Cir. 1986). While the majority is correct to find some
support in these cases for the proposition that implied agreements must be disclosed, none of the
cases supports the majority’s ultimate conclusion.
        The Seventh Circuit noted in Wisehart that an implied agreement must be disclosed, 408
F.3d at 324, but that court expressly declined to find such an agreement based solely on a testifying
witness’s lenient treatment in a plea bargain. Id. at 325. Instead, the court denied Wisehart’s Brady
claim for several reasons. First, the court noted the difficulty in determining when a “tacit
agreement” existed; the commonplace nature of plea bargaining – and the leniency inherent in and
necessary to the bargaining process – would require intense scrutiny of all witnesses and would
imply agreement in nearly all similar cases. Id. Second, the court noted the minimal impeachment
value of such leniency once charging practices were explained to the jury. Id. The fact that Johnson
expected to benefit by his testimony was immaterial: “A criminal trial must not be allowed to turn
into an inquiry into disparate treatment of criminals, with the witness being asked whether he’d
received any benefit that he would not have received had the state not wanted his testimony and
whether therefore he feared retaliation if he stopped playing ball.” Id. at 325-26. The holding in
Wisehart was squarely in line with Seventh Circuit precedent. In Todd v. Schomig, a prior Seventh
Circuit panel rejected a similar claim where a witness had an “expectation of benefit” from his
testimony, concluding that “[w]ithout an agreement, no evidence was suppressed, and the state’s
conduct, not disclosing something it did not have, cannot be considered a Brady violation.” 283
F.3d 842, 849 (7th Cir. 2002).
        The majority opinion also considers and rejects the Second Circuit’s ruling in Shabazz v.
Artuz, 336 F.3d 154 (2d Cir. 2003), which reached the same result. In that case, the court denied
a claim for disclosure of an implied agreement where, as is the case here, the prosecutor testified that
no agreement existed even though the witnesses’ own trials were postponed and the witnesses
received lenient treatment in sentencing after testifying. The court rejected this evidence of an
implied agreement even though it found “inescapable” the conclusion that the lenient treatment was
related to the testimony. Id. at 165. The court reasoned that “[t]he government is free to reward
witnesses for their cooperation with favorable treatment in pending criminal cases without disclosing
to the defendant its intention to do so, provided that it does not promise anything to the witnesses
prior to their testimony.” Id. (emphasis in original).
        Unlike Wisehart and Shabazz, the Shaffer court did find an implied agreement between the
prosecutor and witness. It is similarly unhelpful as support for the majority’s position, however,
because the facts are quire different from this case. The court in Shaffer determined that a tacit
agreement existed between the prosecution and the witness in light of extensive evidence showing
that the witness, a co-conspirator in a heroin transaction, received financial benefits from the
government in connection with the transaction, escaped asset forfeiture proceedings related to the
transactions, and was allowed to escape liability for tax violations despite a representation by the
government in court that it would require the witness to pay the taxes. 789 F.2d at 689. The benefits
to the witness were thus unusual, and the prosecutor did not specifically deny an agreement.
No. 04-5523           Bell v. Bell                                                             Page 25


        Finally, in Reutter, the prosecutor was one of three members of the parole board that was
scheduled to hear the witness’s commutation petition. The witness’s hearing was delayed several
times without reason and eventually occurred immediately after trial. The parole board granted the
commutation petition. The court argued that had the defense been apprised of the rescheduling of
the commutation hearing, the defense would have been able to mount a more effective challenge to
the witness’s credibility. The court therefore found the suppression of this evidence to be material,
especially in light of the prosecutor’s explicit representation to the jury that the witness could not
benefit from his testimony. 888 F.2d at 581-82. Thus, the Reutter court did find a Brady violation.
It expressly declined to rely on – or even discuss in any depth – a finding that the prosecutor and
witness had an implied agreement, 888 F.2d at 582 (“Our conclusion does not depend on a finding
of either an express or an implied agreement . . .”), and upheld the district court’s determination that
no such agreement existed. Id. The Reutter court’s holding, rather, relied solely on the independent
materiality of the suppressed information. That is, the non-disclosed facts were so suspicious as to
render an implied agreement finding duplicative and therefore unnecessary. As a result, Reutter has
no bearing on the implied agreement question raised here.
        The holdings in Wisehart and Shabazz are well-reasoned. When applied to this case, they
highlight why the evidence in this case is insufficient to support the finding of an implied agreement
between Miller and Davenport. First, as in Shabazz, Miller expressly testified that he had reached
no such agreement. Miller specifically stated at the evidentiary hearing in this case that, “I didn’t
promise Davenport anything, and I didn’t make any agreements with him, but he testified at trial
against someone I thought was dangerous, and I felt that he would now be labeled as a snitch, and
it might be best that I did whatever I could do to get him out of prison, whenever the parole board
thought would be eligible.”
        Second, the treatment of Davenport was well within the range of normal prosecutorial
behavior. The nolle prosequied counts were part of a plea agreement that was completed prior to
Davenport’s testimony. Given the joint incentives to defer such charging decisions until after the
testimony when the testimony is a condition of leniency, see Shabazz, 336 F.3d at 163, the timing
of the plea here could actually suggests that the parties had no agreement regarding those charges.
        Third, though the prosecutor’s letter to the parole board is evidence of a benefit given by
Miller to Davenport, such benefits are common and are not necessarily the result of an agreement
between the prosecution and the witness prior to testimony. There are other reasons for such a letter;
here, Miller testified that he recommended leniency in part due to concern that Davenport would be
targeted by other inmates as a “snitch” due to his testimony in Bell’s case. The ambiguity of
purpose behind the parole letter minimizes its usefulness in determining whether an implied
agreement existed prior to trial. As the Shabazz court noted, the government is permitted to reward
witnesses for their testimony.
        The result of the majority’s dual error of mischaracterizing the evidence and the precedent
is an expansion of the definition of Brady violation to include nondisclosures of witness treatment
never previously considered by any court to be within Brady’s ambit. When the majority asserts that
denying Bell relief here would leave[] little room for a petititioner to establish a tacit agreement,”
it simply overlooks the fact there are many fact patterns, as in Shaffer, that may provide a proper
basis for finding a tacit agreement. Now, the majority’s result leaves little room for finding no
agreement, even when the evidence fails to support its existence. Like the Shabazz court, I would
hold that “favorable treatment to a government witness, standing alone, does not establish the
existence of an underlying promise of leniency in exchange for testimony.” 336 F.3d at 165.
No. 04-5523              Bell v. Bell                                                                     Page 26


                                                        II.
        Although Miller did not violate Brady in failing to disclose a tacit agreement, he did not
disclose the notes from his meeting with Davenport and Davenport’s sentencing documents,2 both
of which could have been used for impeachment. Thus, the failure to disclose them was contrary
to the requirements of Brady and its progeny. United States v. Bagley, 473 U.S. 667, 676 (1985).
The inquiry then is whether the undisclosed evidence is sufficiently material to constitute
constitutional error. See Strickler v. Greene, 527 U.S. 263, 281-82 (1999). The Supreme Court has
held that evidence is material when disclosure of the suppressed evidence would create a reasonable
probability of a different result. Bagley, 473 U.S. at 678. I conclude that the suppressed evidence
here is insufficient to create a reasonable probability of a different result because its impeachment
value is minimal and because defense counsel Ross Alderman effectively impeached Davenport’s
credibility at trial.
       At Bell’s trial, Davenport testified that Bell admitted committing the murders. Alderman
attacked Davenport’s testimony on cross-examination, arguing that Davenport was an incredible
witness due to his prior criminal history, his prior membership in the Ku Klux Klan, and the fact that
he might receive early parole in exchange for his testimony. In his closing argument, Alderman
again noted Davenport’s criminal and parole status:
        [Y]ou have got to decide whether you want to believe somebody who was on parole,
        violated that parole, was in jail, all this involving a crime involving fraud and false
        dealings, theft . . . . I [Davenport] want you to believe [my testimony] . . . because
        I have got a parole hearing coming up in a matter of months and if I can go to the
        Parole Board and I can say, ‘I have helped convict Stephen Michael Bell,’ that they
        might cut me some slack because they violated my last parole when I committed
        another crime . . . . That is why I called the District Attorney’s office; that is why
        I spoke to the police and the District Attorney and that is why I came to testify, but
        you believe me.
       The documentary evidence of Davenport’s guilty plea and request for facility transfer in
connection with his testimony might have bolstered Bell’s credibility argument, but the benefit thus
accrued would have been minimal. See Wisehart, 408 F.3d at 325. Further, the suppressed evidence
would not have allowed Bell to develop any new or different lines of argument or testimony. Given
Alderman’s cross-examination of the witness based on the parole issue and his argument at closing,
disclosure of the withheld Brady material could not “reasonably be taken to put the whole case in
such a different light as to undermine confidence in the verdict.” Kyles v. Whitney, 514 U.S. 419,
435 (1995).
        For the foregoing reasons, I would affirm the decision of the district court and deny Bell’s
petition for a writ of habeas corpus.




        2
         The parole letter was not created until after trial, and therefore could not be disclosed absent an implied
agreement.
