          IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA


                                      No. 14-0642
                                  __________________
                                                                    FILED
                                  September 2015 Term          November 10, 2015
                                                                   released at 3:00 p.m.
                                                                   RORY L. PERRY II, CLERK
                                                                 SUPREME COURT OF APPEALS
                                  __________________	                OF WEST VIRGINIA



                                  JOSEPH A. BUFFEY,
                                      Petitioner,

                                           v.

                           DAVID BALLARD, WARDEN,

                                   Respondent.

                             ______________________

                   Appeal from the Circuit Court of Harrison County

                        The Honorable Thomas Bedell, Judge

                                  No. 12-C-183-2


              REVERSED AND REMANDED WITH INSTRUCTIONS


            ____________________________________________________

                                Submitted: October 6, 2015
                                Filed: November 10, 2015



Allan N. Karlin, Esq.	                                David Romano, Esq.
Allan N. Karlin & Associates	                         Assistant Prosecuting Attorney
Morgantown, West Virginia	                            James F. Armstrong, Esq.
                                                      Assistant Prosecuting Attorney
Nina Morrison, Esq.	                                  Clarksburg, West Virginia
Barry C. Scheck, Esq.	                                Counsel for Respondent
New York, New York
Counsel for Petitioner

CHIEF JUSTICE WORKMAN delivered the Opinion of the Court.

JUSTICE LOUGHRY concurs and reserves the right to file a concurring opinion.

                              SYLLABUS BY THE COURT



              1. “In reviewing challenges to the findings and conclusions of the circuit court

in a habeas corpus action, we apply a three-prong standard of review. We review the final

order and the ultimate disposition under an abuse of discretion standard; the underlying

factual findings under a clearly erroneous standard; and questions of law are subject to a de

novo review.” Syl. Pt. 1, Mathena v. Haines, 219 W.Va. 417, 633 S.E.2d 771 (2006).



              2. “On an appeal to this Court the appellant bears the burden of showing that

there was error in the proceedings below resulting in the judgment of which he complains,

all presumptions being in favor of the correctness of the proceedings and judgment in and

of the trial court.” Syl. Pt. 2, Perdue v. Coiner, 156 W.Va. 467, 194 S.E.2d 657 (1973).



              3. “There are three components of a constitutional due process violation under

Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and State v. Hatfield,

169 W.Va. 191, 286 S.E.2d 402 (1982): (1) the evidence at issue must be favorable to the

defendant as exculpatory or impeachment evidence; (2) the evidence must have been

suppressed by the State, either willfully or inadvertently; and (3) the evidence must have been

material, i.e., it must have prejudiced the defense at trial.” Syl. Pt. 2, State v. Youngblood,

221 W.Va. 20, 650 S.E.2d 119 (2007).



                                               i
              4. A defendant’s constitutional due process rights, as enumerated in Brady v.

Maryland, 373 U.S. 83 (1963), extend to the plea negotiation stage of the criminal

proceedings, and a defendant may seek to withdraw a guilty plea based upon the

prosecution’s suppression of material, exculpatory evidence.



              5.   “A police investigator’s knowledge of evidence in a criminal case is


imputed to the prosecutor. Therefore, a prosecutor’s disclosure duty under Brady v.


Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) and State v. Hatfield, 169


W.Va. 191, 286 S.E.2d 402 (1982) includes disclosure of evidence that is known only to a


police investigator and not to the prosecutor.” Syl. Pt. 1, State v. Youngblood, 221 W.Va. 20,


650 S.E.2d 119 (2007).





                                              ii

Workman, Chief Justice:



              Mr. Joseph A. Buffey (hereinafter “Petitioner”) appeals a June 3, 2014, order

of the Circuit Court of Harrison County denying his Amended Petition for a Writ of Habeas

Corpus, subsequent to a 2002 guilty plea to two counts of sexual assault and one count of

robbery. The Petitioner contends the circuit court erred in denying his requested relief.

Upon a thorough review of the record presented to this Court, the arguments of counsel,1 and

applicable precedent, we reverse the circuit court’s order and remand this matter for entry of

an order granting habeas relief and permitting withdrawal of the Petitioner’s guilty plea.



                             I. Factual and Procedural History

                          A. Home Invasion and Sexual Assault

              On November 30, 2001, at approximately 6:30 a.m., Mrs. L.L.2 of Clarksburg,

West Virginia, awoke in the bedroom of her home and saw an intruder standing beside her

bed. The intruder was a white male, and Mrs. L. was an eighty-three-year-old widow who

lived alone. Her bedroom was on the second floor of her two-story home. Brandishing a

large knife and a flashlight, the intruder said, “This is a robbery, I need your money.” Mrs.

       1
        This Court expresses appreciation for the brief of Amici Curiae, former state and
federal prosecutors, in support of the Petitioner.
       2
         Consistent with this Court’s practice in cases involving sensitive matters, only the
initials of the victim will be used in this opinion. See W.Va. R. App. P. 40; State v.
Shrewsbury, 213 W.Va. 327, 331 n.1, 582 S.E.2d 774, 778 n.1 (2003).

                                              1

L. responded by informing the intruder that her money was on the first floor. The intruder

then forced her to get out of bed and accompany him down the stairs, through the hallway,

and into the kitchen. Mrs. L. gave him all the cash from her purse, totaling nine dollars. He

then took Mrs. L. back upstairs to search for more money. He informed her that he had

“been here before.”



               The intruder sexually assaulted Mrs. L. when they returned to the bedroom,

penetrating her vaginally from behind three times and forcing her to perform oral sex on him

twice. He subsequently tied her hands behind her back, told her not to call anyone for twenty

minutes, and departed. Twenty minutes later, Mrs. L. freed herself and telephoned her son,

a Clarksburg police officer. Three police officers responded to the call and transported Mrs.

L. to the hospital.



               Mrs. L. was interviewed by a sexual assault nurse at the hospital. In this

interview, Mrs. L. described the crime in detail, explaining that the assailant had not worn

a condom and may have ejaculated. In response to the nurse’s question “[w]ere there

multiple assailants,” Mrs. L. answered, “no.” Although she was described to be in “mild

distress,” Mrs. L. was considered alert and lucid during that interview.




                                             2

              Later that day, at approximately 1:40 p.m., Mrs. L. provided a detailed,

tape-recorded statement to the police. In that statement, she reiterated details of the robbery

and assault, explaining she had awakened to find a man standing beside her bed demanding

money. The statement she provided to the police was almost identical to that provided to the

nurse. Mrs. L. again related the circumstances of the robbery and assault, stating that the

intruder took her back upstairs after they searched for money and demanded that she undress

and “get down there beside the bed on [her] knees.” Mrs. L described her assailant as a white

male “in the 25 [-year-old] area.” She indicated that he was wearing blue jeans with a light

colored t-shirt and that his face was partially hidden by a white bandana.



                                    B. The Investigation

              On December 7, 2001, approximately one week after the assault, the nineteen­

year-old Petitioner was arrested for three non-violent, breaking and entering offenses at

businesses in downtown Clarksburg.3 The Petitioner was questioned for approximately nine

hours. Although he admitted his involvement in the burglary offenses, he repeatedly stated



       3
        The businesses included the Salvation Army, the Stealey Pool, and a tobacco shop.
The Salvation Army is located three-tenths of a mile from Mrs. L.’s home. The Salvation
Army crime occurred approximately eight hours prior to the assault on Mrs. L. A juvenile
co-defendant in the Salvation Army breaking and entering case, A.L., was arrested with the
Petitioner. The juvenile originally told investigators that the Petitioner bragged about
breaking into a home, but he later recanted that story. A second co-defendant in that case,
twenty-nine-year-old Ronald Perry, was also arrested. Items stolen from the Salvation Army
were found in Mr. Perry’s residence.

                                              3

that he did not commit the robbery and assault of Mrs. L. At 3:25 a.m., however, he told the

officer that he had broken into “[t]his old lady’s house” but said he could not recall any

sexual assault.   The Petitioner provided very limited details about the incident; the

information he provided was substantially inconsistent with Mrs. L.’s account of the robbery

and assault.4 When the officers informed the Petitioner they knew he could recall more and

they would give him one last opportunity “to sing,” he retracted his account of the incident

and stated: “You really want to know the truth?. . . I didn’t do it.” He continued his

statement by explaining, “I had (inaudible) breathing down my neck,” and “I made up a

story” about what occurred. He said, “I couldn’t tell you what went on in there. . . .”



              On December 18, 2001, attorney Thomas G. Dyer was appointed to represent

the Petitioner. According to testimony later adduced at hearings on the Petitioner’s request

for habeas relief, he admitted to Mr. Dyer that he had participated in three non-violent

break-ins of local businesses but did not admit involvement in the sexual assault and robbery.




       4
        For example, the victim indicated she had awakened to find the assailant in her
bedroom; the Petitioner said he encountered the victim in the dining room. The victim
indicated that the assailant sexually assaulted her upstairs; the Petitioner said he did not go
upstairs. The victim indicated that money was stolen; the Petitioner said no money was
stolen. The police investigation indicated that the point of entry was the back door of the
home; the Petitioner said he entered through a side window. The victim indicated that the
assailant made disparaging comments about a photograph in her home; the Petitioner said no
comments were exchanged.

                                              4

He further informed Mr. Dyer that he had an alibi; he had allegedly returned to a motel to

spend the night after the Salvation Army break-in.5



                                       C. Indictment

              The Petitioner was indicted for the robbery and sexual assault of Mrs. L., as

well as the crimes of breaking and entering and accompanying property damage to the

Clarksburg businesses. The robbery and sexual assault indictment included five separate

counts of first-degree sexual assault, with a potential minimum sentence of fifteen years and

a maximum of thirty-five years on each count, and one count of first-degree robbery, with

a possible ten-year minimum and an indeterminate maximum sentence. On January 29, 2002,

Mr. Dyer filed a Motion to Compel Production of Discoverable Materials, noting the State

had been ordered to produce “all discoverable information . . . related to the alleged sexual

assault” within seven days of arraignment and had not yet done so.



                       D. The DNA Testing by the State Police Lab

              Lieutenant Brent Myers of the West Virginia State Police Forensic Laboratory

received Mrs. L.’s rape kit and began his DNA evaluation on January 22, 2002. He had been

asked to expedite testing, and by February 8, 2002, he had tentatively concluded that the



       5
        The Petitioner alleges that Mr. Dyer did not attempt to corroborate this alibi,
interview witnesses, or obtain information from the hotel desk clerk.

                                             5

DNA did not belong to the Petitioner. On February 9, 2002, Lieutenant Myers began the

process of retesting the samples. During those procedures, he noted the possibility of more

than one male DNA source. However, even that secondary source did not appear to be the

Petitioner.



              On April 5, 2002, six weeks before the circuit court accepted a guilty plea from

the Petitioner, Lieutenant Myers completed his report by concluding: “[A]ssuming there are

only two contributors (including [Mrs. L.]), Joseph Buffey is excluded as the donor of the

seminal fluid identified [from the rape kit] cuttings.” The report was mailed to Detective

Robert Matheny of the Clarksburg Police Department on July 12, 2002.



              It is uncontested that Lieutenant Myers’ report was not provided to the defense

before the circuit court accepted the Petitioner’s guilty plea. Mr. Dyer testified he was

“desperate” to learn the test results. Despite his repeated inquiries prior to the Petitioner’s

acceptance of the plea offer, Mr. Dyer was informed the results were not yet complete. He

later indicated, during habeas proceedings, that he would have “put the brakes on the

Judge[’s] accepting the plea” if he had known the results excluded the Petitioner as the sperm

source. In particular, Mr. Dyer was asked:

              If you had known that by February 11th the West Virginia State
              Police Forensic Laboratory had reached some preliminary
              conclusions to the effect that if there were - if there was only
              two people involved that would be the victim and the

                                              6

              perpetrator, Joe Buffey was excluded . . . would you have let Joe
              Buffey plead?

Mr. Dyer answered: “Of course not.”



                                      E. The Guilty Plea

              On January 30, 2002, the State presented the Petitioner with a time-limited plea

offer. The Petitioner signed the plea agreement on February 6, 2002, agreeing to plead guilty

to two counts of sexual assault and one count of robbery. In exchange, the State agreed to

dismiss the charges regarding the business burglaries. The charges to which the Petitioner

pled guilty carried a potential sentence of forty years to life imprisonment. Mr. Dyer recalled

the urgency to take the plea and stated, “we were put on a short fuse” because the plea offer

was only available for a limited time.6 Mr. Dyer explained he had “strongly recommended”

signing the plea agreement and had told the Petitioner he was likely to get concurrent

sentences on all the counts to which he was pleading guilty. He also informed the Petitioner

that his acceptance of the plea offer would likely result in a sentence no longer than a

potential sentence for the business-related burglaries.7




       6
         The Petitioner later testified, during habeas proceedings, that he did not delay signing
the plea agreement because it was described to be a time-limited offer and he thought signing
the agreement was his only choice. Despite repeated references to the time-limited plea
offer, the date upon which the offer was allegedly set to expire is not clear from the record.
       7
       The State had also indicated that it might prosecute the Petitioner for statutory rape,
based upon the pregnancy of his thirteen-year-old girlfriend.

                                               7

              On February 11, 2002, the Petitioner allocuted to the three charges, saying he

“broke into an elderly lady’s house and robbed her and forced her to have sex with me.” The

circuit court delayed acceptance of the plea in order to obtain “some additional information

. . . to make sure [the] plea is the right thing to do.” The court instructed the Division of

Corrections to conduct a pre-sentence evaluation of the Petitioner. That evaluation,

completed April 29, 2002, reported that the Petitioner admitted to committing the store

burglaries but denied sexually assaulting Mrs. L.



              The plea hearing resumed on May 21, 2002, and the court accepted the

Petitioner’s plea. The court sentenced the Petitioner to forty years on the robbery charge and

fifteen to thirty-five years on each sexual assault charge, to run consecutively, for an

aggregate term of seventy to one hundred ten years. The Petitioner’s profession of innocence

to the Division of Corrections was not discussed, nor was the completion of the DNA testing

revealed.



                              F. First Denial of Habeas Relief

              On November 14, 2002, the Petitioner filed a pro se request for habeas corpus

relief, claiming ineffective assistance of counsel and prosecutorial misconduct. At that time,

the Petitioner was still unaware that the DNA testing had been completed. Counsel Terri

Tichenor was appointed to represent the Petitioner in the habeas proceeding in early 2003.


                                              8

Insisting he was innocent, the Petitioner asked her to obtain the results of the DNA testing.

Ms. Tichenor contacted Traci Cook, assistant prosecuting attorney, to inquire about the DNA

testing. When Ms. Cook subsequently telephoned Ms. Tichenor with information, Ms. Cook

said, “We have a problem.” She informed Ms. Tichenor of her discovery that the State’s

DNA tests had been completed, with a report issued in April 2002. On March 31, 2003, Ms.

Tichenor filed an Amended Habeas Petition, which included the additional issue of

suppressed DNA results.8 Ms. Tichenor also hired a pathologist as an expert for purposes

of DNA evaluation.9



              An omnibus hearing was held on March 12, 2004. The court heard testimony

regarding the DNA evidence from the Petitioner’s expert, as well as Lieutenant Myers of the

police lab and Frances Chiafari of a genetic testing laboratory in Baltimore, Maryland. Based

upon the DNA evidence available at that time, the experts could not conclude with “one




       8
        Eleven grounds were raised by the Petitioner in the first habeas proceeding. He
asserted: involuntary plea, failure of counsel to appeal conviction, coerced confession,
suppression of evidence, ineffective assistance of counsel, refusal of continuance,
insufficiency of evidence, question of actual guilt, more severe sentence than expected,
excessive sentence, and mistaken advice of counsel as to parole or probation eligibility.
       9
        Ms. Tichenor hired Dr. Vimal Mittal, a pathologist. Dr. Mittal was not a DNA
analyst and had never worked in a DNA laboratory or conducted a DNA test. He had no
training in DNA science and no qualification or experience as a DNA expert.

                                             9

hundred percent” certainty that the Petitioner could be ruled out as a potential, minor

contributor.10



                 Additionally, in response to the Petitioner’s assertion that the State had

suppressed evidence of the favorable DNA test results prior to acceptance of the Petitioner’s

plea, the State argued the plea should stand because officials were personally unaware of the

April 2002, report at the time of the Petitioner’s guilty plea.11



                 On April 2, 2004, the circuit court denied the Petitioner’s request for habeas

relief, finding the DNA results to be inconclusive. A petition for appeal to this Court was

refused.




       10
         At the hearing, Lieutenant Myers explained he could not state definitively how many
contributors were present in the mixture or whether the Petitioner might theoretically be
among them. He stated that this conclusion was based upon the absence of a known profile
of the individual who had deposited the primary male DNA he examined. Lacking a sample
from the man whose sperm was clearly present, to reveal which DNA alleles belonged to that
unknown man, he could not “one hundred percent” exclude the Petitioner from also being
present somewhere in the mixture as a minor donor.
       11
         The State also presented the testimony of Ronald Perry, an individual arrested with
the Petitioner in the Salvation Army break-in. Mr. Perry testified that the Petitioner had told
him that he and a “cousin” had taken turns holding down the victim and sexually assaulting
her. It was later revealed that Mr. Perry twice sought reconsideration of his sentence based
upon his assistance to the State in the Petitioner’s case. Moreover, the Petitioner emphasizes
that Mr. Perry’s statement was inconsistent with the victim’s statement, and the police did
not attempt to investigate the allegation of a “cousin” being involved in the crime.

                                               10

                   G. The DNA Retesting and Second Habeas Petition

              On July 1, 2010, the Petitioner, represented by current counsel, filed a Motion

for Post-Conviction DNA Testing under West Virginia Code § 15-2B-14 (2014). The motion

was granted, and by employing newly-developed testing methods, the examiners obtained

a more detailed DNA profile from the crime scene.12 The Petitioner was again conclusively

excluded as the primary sperm source. Moreover, the examiners also identified trace

amounts of a second male sperm source, as Lieutenant Myers had discovered in 2002. The

testing revealed that the second source was definitively not the Petitioner.13



              Based upon the results of the new DNA testing that excluded the Petitioner as

either a primary or secondary sperm contributor, the Petitioner sought a writ of habeas

corpus. In December 2012, while the habeas petition was pending, the circuit court

authorized a search of the CODIS database14 to determine whether the primary sperm source


       12
        The second round of DNA testing also identified DNA evidence on multiple items
from Mrs. L.’s sexual assault kit and bedding, including items previously found to be
negative for semen.
       13
         The very low level of DNA from the second source indicated the source was not an
ejaculator and the sperm had probably been transferred to the penis of the single assailant
prior to the assault. An independent DNA analyst who performed the new testing, Alan
Keel, explained that while this phenomenon may seem unlikely, it is a recognized reality in
the forensic DNA field and the relevant literature. He further indicated that the extremely
low levels of DNA are inconsistent with what data would be expected to show if there had
been a second male perpetrator.
       14
        CODIS is an acronym for Combined DNA Index System, an FBI database system
containing DNA profiles contributed by federal, state, and local participating forensic

                                             11

could be identified. The search revealed that the primary sperm source was Adam Bowers,

a West Virginia prison inmate.15 Mr. Bowers was sixteen years old at the time of Mrs. L.’s

sexual assault, lived a few blocks from Mrs. L., had a history of sexual violence, and had

been Mrs. L.’s paper boy.16



                Despite the new DNA testing results, excluding the Petitioner as any source of

semen, the second application for habeas relief was denied subsequent to a July 2013

omnibus hearing. The circuit court reasoned:

                [T]his Court rejects the Petitioner’s claims that the recent DNA
                testing analysis and CODIS search results purportedly
                identifying an individual other than the Petitioner herein as the
                primary (and arguably sole) contributor of the male DNA found
                at the crime scene is evidence sufficient to; (a) raise a
                sufficiently substantive question as to the actual guilt; (b) prove
                in and of itself the Petitioner’s “actual innocence”; (c) show
                there presently being a “manifest injustice” imposed upon him
                by his present criminal convictions and related
                sentencing/incarceration; and/or (d) demonstrate a “manifest
                necessity” resulting all therefrom warranting this Court to grant


laboratories.
       15
         The evidence is conflicting on the degree to which the Petitioner and Mr. Bowers
may have been acquaintances. Mr. Bowers went to high school with the Petitioner’s younger
sister. Both the Petitioner’s girlfriend and a friend testified that the Petitioner and Mr.
Bowers had been together at the Petitioner’s mother’s home approximately one month prior
to the sexual assault of Mrs. L. Although the girlfriend testified that the Petitioner and Mr.
Bowers had engaged in car robberies together, she had previously told defense counsel that
the Petitioner did not know Mr. Bowers.
       16
        Mr. Bowers was indicted for the sexual assault and robbery of Mrs. L. in January
2014, and was convicted of those crimes subsequent to a May 2015 jury verdict.

                                                12

              his requested Habeas relief and allow him to withdraw his prior
              guilty pleas and order them vacated.

Notably, Lieutenant Myers agreed that the Petitioner could be conclusively excluded as both

the primary and secondary contributor. However, the circuit court found that the DNA

exclusions did “not . . . unequivocally determine whether or not [the Petitioner] was actually

present [at the crime scene] and a participant in the various activities giving rise to the . . .

criminal charges.”



              The Petitioner also presented new evidence that the prosecution was aware of

the exculpatory nature of the DNA results as early as February 2002 during the course of

Lieutenant Myers’ initial testing. The circuit court declined to grant relief on the basis of the

Petitioner’s argument that new evidence proved the State’s suppression of DNA evidence

prior to the entry of his guilty plea. The Petitioner now appeals the circuit court’s rejection

of his request for habeas relief.



                                    II. Standard of Review

              This Court reviews a circuit court’s dismissal of a habeas petition under the

following standard:

                      In reviewing challenges to the findings and conclusions
              of the circuit court in a habeas corpus action, we apply a
              three-prong standard of review. We review the final order and
              the ultimate disposition under an abuse of discretion standard;


                                               13

               the underlying factual findings under a clearly erroneous
               standard; and questions of law are subject to a de novo review.

Syl. Pt. 1, Mathena v. Haines, 219 W.Va. 417, 633 S.E.2d 771 (2006). Further, “[o]n an

appeal to this Court the appellant bears the burden of showing that there was error in the

proceedings below resulting in the judgment of which he complains, all presumptions being

in favor of the correctness of the proceedings and judgment in and of the trial court.” Syl.

Pt. 2, Perdue v. Coiner, 156 W.Va. 467, 194 S.E.2d 657 (1973).



                                         III. Discussion

               The Petitioner asserts multiple assignments of error, contending the circuit

court erred by denying habeas corpus relief where: (1) the most recent DNA evidence

revealing the perpetrator to be a different individual, Adam Bowers, is consequently evidence

of the Petitioner’s actual innocence; (2) the State violated Brady v. Maryland, 373 U.S. 83

(1963), by failing to disclose an exculpatory DNA report it possessed more than six weeks

prior to the final plea hearing; (3) the Petitioner’s counsel was ineffective; (4) the Petitioner’s

indictment was secured through false grand jury testimony; and (5) the Petitioner’s claims

are not barred by res judicata. Upon review by this Court, we find that the Petitioner is

entitled to relief based upon the State’s failure to disclose exculpatory DNA evidence.17

       17
         Premising our reversal upon the failure to disclose exculpatory evidence, we do not
address the Petitioner’s assertions of ineffective assistance of counsel, presentation of false
grand jury testimony, or his claim of actual innocence based upon most recent DNA testing.
Further, while this Court recognizes numerous conflicts in the evidence, including, inter alia,
                                                                                     (continued...)

                                                14

                                       A. Brady v. Maryland

                  In Brady, the United States Supreme Court observed that “our system of the

administration of justice suffers when any accused is treated unfairly.” Id. at 87. Seeking

to alleviate unfair treatment, the Court held that “the suppression by the prosecution of

evidence favorable to an accused . . . violates due process where the evidence is material

either to guilt or to punishment, irrespective of the good faith or bad faith of the

prosecution.” Id.



                  In addressing the guidelines enunciated in Brady, this Court explained as

follows in syllabus point two of State v. Youngblood, 221 W.Va. 20, 650 S.E.2d 119 (2007):

                         There are three components of a constitutional due
                  process violation under Brady v. Maryland, 373 U.S. 83, 83
                  S.Ct. 1194, 10 L.Ed.2d 215 (1963), and State v. Hatfield, 169
                  W.Va. 191, 286 S.E.2d 402 (1982): (1) the evidence at issue
                  must be favorable to the defendant as exculpatory or
                  impeachment evidence; (2) the evidence must have been
                  suppressed by the State, either willfully or inadvertently; and (3)
                  the evidence must have been material, i.e., it must have
                  prejudiced the defense at trial.

Id. at 22, 650 S.E.2d at 121; see also State ex rel. Games-Neely v. Overington, 230 W.Va.

739, 749, 742 S.E.2d 427, 437 (2013). Evidence is deemed material “if there is a

       17
            (...continued)
witness testimony, recantations, and inconsistent recollections concerning the various
perpetrators of the Clarksburg business crimes and the whereabouts of the Petitioner during
the crime against Mrs. L., those factual inconsistencies are of no moment to this Court’s
conclusion that the Petitioner is entitled to relief based upon the prosecution’s failure to
disclose exculpatory DNA evidence.

                                                  15

reasonab[le] probability that, had the evidence been disclosed to the defense the result of the

proceeding would have been different.” State v. Morris, 227 W.Va. 76, 85, 705 S.E.2d 583,

592 (2010) (quoting United States v. Bagley, 473 U.S. 667, 682 (1985)).            However, “a

showing of materiality does not require demonstration by a preponderance [of the evidence]

that disclosure of the suppressed evidence would have resulted ultimately in the defendant’s

acquittal. . . .” Kyles v. Whitley, 514 U.S. 419, 434 (1995).



            B. Applicability of Brady to Plea Negotiation Stage of Proceedings

              The case sub judice raises the issue, not previously addressed by this Court, of

whether the prosecution has a duty to disclose exculpatory evidence at the plea bargaining

stage. The United States Supreme Court’s Brady decision was specifically directed toward

trial behavior. 373 U.S. at 87. The United States Supreme Court has not determined whether

the principles underlying Brady apply to the disclosure of exculpatory evidence during the

plea bargaining stage.18



              The critical nature of plea negotiations was recently addressed by the United

States Supreme Court in the context of effective client assistance during the pre-plea stage.



       18
         As artfully asserted in the amicus brief, if Brady is exclusively a trial right, “it has
become a hollow reed.” A substantial majority of criminal cases are resolved by guilty pleas;
thus, plea bargaining is “not some adjunct to the criminal justice system; it is the criminal
justice system.” Missouri v. Frye, 132 S.Ct 1399, 1407 (2012) (emphasis added).

                                               16

See Lafler v. Cooper, 132 S.Ct. 1376, 1384 (2012). The Court held that defendants possess

a Sixth Amendment right to counsel that extends to the plea bargaining process. Id. This

conclusion is premised, in part, upon the fact that “criminal justice today is for the most part

a system of pleas, not a system of trials. Ninety-seven percent of federal convictions and

ninety-four percent of state convictions are the result of guilty pleas[.]” Id. at 1388. “In

today’s criminal justice system, therefore, the negotiation of a plea bargain, rather than the

unfolding of a trial, is almost always the critical point for a defendant.” Frye, 132 S.Ct. at

1407. In Lafler, the Supreme Court concluded that “the right to adequate assistance of

counsel cannot be defined or enforced without taking account of the central role plea

bargaining plays in securing convictions and determining sentences.” Lafler, 132 S.Ct. 1376,

1388 (2012).



               The Supreme Court’s observations concerning the importance of plea

negotiations in Lafler “suggest that the assertion that Brady is a ‘trial right’ will not preclude

it from being applied during plea bargaining.” M. Petegorsky, The Duty to Disclose

Exculpatory Brady Evidence During Plea Bargaining, 81 Ford. L. Rev. 3599, 3647 (2013).

               The chief concern of the Supreme Court in both Lafler and
               [Frye] was ensuring a fair judicial process that results in just
               outcomes, not solely ensuring fair trials. This concern
               necessitates pre-plea disclosure of exculpatory Brady evidence,
               because just as a defendant “cannot be presumed to make
               critical decisions without counsel’s advice,” neither can he be
               presumed to make an informed decision to plead guilty without
               material exculpatory evidence.

                                               17

Id. at 3647-48 (quoting Lafler, 132 S.Ct. at 1385).



              We observe that the conclusions of jurisdictions evaluating Brady’s application

to plea negotiations have been widely inconsistent. The rationales employed by those courts

are analyzed below.



                            1. Brady Challenge to Guilty Plea:
                            Rationale for Requiring Disclosure
                             of Material Exculpatory Evidence

              Directly addressing the applicability of Brady principles to plea negotiations,

the Ninth Circuit Court of Appeals in Sanchez v. United States, 50 F.3d 1448, 1453 (9th Cir.

1995), explained that “‘a defendant’s decision whether or not to plead guilty is often heavily

influenced by his appraisal of the prosecution’s case.’” Id. at 1453 (quoting Miller v.

Angliker, 848 F.2d 1312, 1320 (2nd Cir. 1988)). Further, the court stated that a waiver of the

right to trial “cannot be deemed ‘intelligent and voluntary’ if ‘entered without knowledge of

material information withheld by the prosecution.’” 50 F.3d at 1453. The court reasoned that

a contrary decision could create a temptation for prosecutors “to deliberately withhold

exculpatory information as part of an attempt to elicit guilty pleas.” Id.; see also United

States v. Persico, 164 F.3d 796, 804-05 (2d Cir. 1999) (“The Government’s obligation to

disclose Brady materials is pertinent to the accused’s decision to plead guilty; the defendant

is entitled to make that decision with full awareness of favorable [exculpatory and


                                             18

impeachment] evidence known to the Government.”); United States v. Avellino, 136 F.3d

249, 255 (2d Cir. 1998) (“The government’s obligation to make such disclosures is pertinent

not only to an accused’s preparation for trial but also to his determination of whether or not

to plead guilty. The defendant is entitled to make that decision with full awareness of

favorable material evidence known to the government.”); accord White v. United States, 858

F.2d 416, 422 (8th Cir. 1988); Campbell v. Marshall, 769 F.2d 314, 321 (6th Cir. 1985);

State v. Sturgeon, 605 N.W.2d 589, 596 (Wis. Ct. App. 1999).



              Addressing the issue of the applicability of Brady to the disclosure of

impeachment evidence during plea negotiations in United States v. Ruiz, 536 U.S. 622

(2002), the United States Supreme Court held that a defendant did not have a due process

right to pre-plea disclosure of impeachment information19 in the possession of the

prosecution. Id. at 623. The specific issue before the Court in Ruiz was whether federal

prosecutors are required to disclose “impeachment information relating to any informants or




       19
         In Ruiz, the United States Supreme Court recognized a minimal risk that “in the
absence of impeachment information, innocent individuals . . . will plead guilty,” and a
significant risk that requiring disclosure of impeachment material could “seriously interfere
with the [prosecution’s] interest in securing . . . guilty pleas . . . disrupt ongoing
investigations, and expose prospective witnesses to serious harm.” 536 U.S. at 631-32. The
amicus brief in the present case indicates agreement with the decision in Ruiz: “As former
prosecutors, most of us believe that Ruiz was rightly decided. Requiring prosecutors to
disclose impeachment material pre-plea could jeopardize on-going investigations and
threaten the safety and privacy of witnesses.”

                                             19

other witnesses” before entering into a binding, “fast track” plea agreement with a criminal

defendant prior to indictment. Id. at 625.20



              In ruling that such disclosure was not constitutionally mandated, however, the

Court in Ruiz specifically distinguished impeachment evidence from exculpatory evidence.21

Id. at 630. The Court noted that impeachment evidence differs from exculpatory evidence

because it is not “critical information of which the defendant must always be aware prior to

pleading guilty given the random way in which such information may, or may not, help a

particular defendant.” Id.



              This Ruiz distinction between impeachment evidence and exculpatory evidence

has been analyzed repeatedly by courts attempting to negotiate issues regarding fairness of

plea negotiations. The Nevada Supreme Court clearly articulated the foundations of the Ruiz

distinction in State v. Huebler, 275 P.3d 91 (Nev. 2012), cert. denied, 133 S.Ct. 988 (2013):

                     In our opinion, the considerations that led to the decision
              in Ruiz do not lead to the same conclusion when it comes to
              material exculpatory information. While the value of
              impeachment information may depend on innumerable variables
              that primarily come into play at trial and therefore arguably

       20
        As an additional rationale, the Supreme Court in Ruiz observed that the plea
agreement already specified that the government would provide material exculpatory
evidence. Id. at 630.
       21
       “Exculpatory evidence” is defined as “[e]vidence tending to establish a criminal
defendant’s innocence.” Black’s Law Dictionary 637 (9th ed. 2009).

                                               20

              make it less than critical information in entering a guilty plea,
              the same cannot be said of exculpatory information, which is
              special not just in relation to the fairness of a trial but also in
              relation to whether a guilty plea is valid and accurate. For this
              reason, the due-process calculus also weighs in favor of the
              added safeguard of requiring the State to disclose material
              exculpatory information before the defendant enters a guilty plea
              . . . [A] right to exculpatory information before entering a guilty
              plea diminishes the possibility that innocent persons accused of
              crimes will plead guilty. . . . In turn, the adverse impact on the
              government of an obligation to provide exculpatory information
              is not as significant as the impact of an obligation to provide
              impeachment information. And importantly, the added
              safeguard comports with the prosecution’s “special role . . . in
              the search for truth.”

Id. at 97-98 (internal quotations omitted). In Huebler, the court ultimately held that the State

is required under Brady to disclose material exculpatory evidence within its possession to the

defense before the entry of a guilty plea. If the State fails to disclose such information, a

defendant may challenge the validity of the guilty plea.22



              Federal circuit courts of appeals have also addressed the issue of providing

exculpatory evidence during plea negotiations, in light of the Ruiz decision.23 In McCann v.




       22
         The Huebler court ultimately found, however, that videotapes withheld by the State
in that case were not material; thus, the State’s failure to disclose such videotapes did not
warrant withdrawal of the guilty plea. 275 P.3d at 100.
       23
        See generally Michael Nasser Petegorsky, Note, Plea Bargaining in the Dark: The
Duty to Disclose Exculpatory Brady Evidence During Plea Bargaining, 81 Fordham L. Rev.
3599, 3614-29 (2013) (examining impact of Ruiz and duty to disclose exculpatory evidence
during plea bargaining process).

                                              21

Mangialardi, 337 F.3d 782 (7th Cir. 2003),24 for instance, the Ruiz distinction between

exculpatory and impeachment evidence was discussed, and the Seventh Circuit observed:

              In contrast [to Ruiz’s impeachment evidence], the exculpatory
              evidence at issue in this case . . . is entirely different. Thus, we
              have a question not directly addressed by Ruiz: whether a
              criminal defendant’s guilty plea can ever be “voluntary” when
              the government possesses evidence that would exonerate the
              defendant of any criminal wrongdoing but fails to disclose such
              evidence during plea negotiations or before the entry of the plea.

Id. at 787. The Seventh Circuit reasoned in McMann that “it is highly likely that the Supreme

Court would find a violation of the Due Process Clause if prosecutors . . . have knowledge

of a criminal defendant’s factual innocence but fail to disclose such information to a

defendant before he enters into a guilty plea.” Id. at 788.25



              The Tenth Circuit Court of Appeals examined this issue in United States v.

Ohiri, 133 F. App’x 555 (10th Cir. 2005), upon the appeal of a defendant who had pled guilty

to three counts of storing hazardous waste without a permit. The defendant in Ohiri asserted

that he would not have pled guilty to “knowingly” storing hazardous waste if he had been



       24
         In McCann, the defendant alleged that his rights to procedural due process were
violated by law enforcement’s failure to “disclose to prosecutors, defense counsel, and the
court, prior to the entry of his guilty plea, that the drugs found in the car he was driving on
the day of his arrest were planted without his knowledge.” 337 F.3d at 787.
       25
         The Seventh Circuit did not resolve the issue “because even if such disclosures of
factual innocence are constitutionally required, McCann has not presented any evidence that
Mangialardi [deputy chief of the police department] knew about the drugs being planted in
McCann’s car prior to the entry of his guilty plea.” Id. at 788.

                                              22

aware of another individual’s Acceptance of Responsibility Statement.                Id. at 561.

Concluding that the district court had abused its discretion in refusing to allow an amendment

of the defendant’s federal habeas petition to allege a Brady or due process violation, the

Tenth Circuit observed that Ruiz “did not imply that the government may avoid the

consequences of a Brady violation if the defendant accept[ed] an eleventh-hour plea

agreement while ignorant of withheld exculpatory evidence in the government’s possession.”

Id. at 562. The court reasoned:

              Ruiz is distinguishable in at least two significant respects. First,
              the evidence withheld by the prosecution in this case is alleged
              to be exculpatory, and not just impeachment, evidence. Second,
              Ohiri’s plea agreement was executed the day jury selection was
              to begin, and not before indictment in conjunction with a
              “fast-track” plea. Thus, the government should have disclosed
              all known exculpatory information at least by that point in the
              proceedings.

Id.26



              Similarly, in United States v. Nelson, 979 F.Supp.2d 123 (D.D.C. 2013), the

defendant had pled guilty to traveling from Virginia to Washington, D.C., to engage in illicit

sexual conduct and subsequently argued that his guilty plea was not knowing or voluntary

because it was entered without knowledge of exculpatory evidence withheld by the



        26
        Subsequent to remand of this matter, the court ultimately concluded that the
undisclosed evidence was not material. United States v. Ohiri, 287 F. App’x 32, 35 (10th
Cir. 2008).

                                              23

government. Id. at 126.27 The United States District Court for the District of Columbia

noted:

                      While neither the D.C. Circuit nor the Supreme Court has
              spoken on whether a defendant can withdraw his guilty plea
              postsentencing if he entered it without the government having
              disclosed exculpatory evidence it possessed, the majority of
              circuits to have considered the issue have held that a Brady
              violation can justify allowing a defendant to withdraw a guilty
              plea. See, e.g., United States v. Ohiri, 133 Fed.Appx. 555, 562
              (10th Cir. 2005); United States v. Avellino, 136 F.3d 249, 255
              (2d Cir. 1998); Sanchez v. United States, 50 F.3d 1448, 1453
              (9th Cir. 1995); White v. United States, 858 F.2d 416, 422 (8th
              Cir. 1988); Campbell v. Marshall, 769 F.2d 314, 322–24 (6th
              Cir. 1985)[.]

979 F.Supp.2d at 129. The court ultimately held that the defendant would be permitted to

withdraw his guilty plea, finding that “because the prosecution suppressed exculpatory

evidence before Nelson pled guilty, Nelson’s due process rights were violated to his

prejudice and his guilty plea was not voluntary and knowing.” Id. at 135.

              Permitting a defendant to move to withdraw a guilty plea he
              entered without having been given exculpatory evidence in the
              government’s possession comports with the purpose of the
              prosecution’s Brady obligation. Accordingly, in light of the
              balance of circuit court precedent and the purpose of Brady,
              Nelson can assert his Brady claim to argue that his guilty plea
              was not knowing and voluntary.




         27
        The evidence withheld in Nelson constituted a recorded electronic communication
between an undercover police officer and the defendant that the defendant contended could
have been used to bolster an entrapment defense. 979 F.Supp.2d at 134.

                                            24

Id. at 130; see also Warren v. City of Birmingham, 2012 WL 8719055, *3 (N.D. Ala. 2012)

(holding that “[a]lthough there is an open question as to whether Brady applies pre-plea to

exculpatory evidence, the court assumes without deciding that the Due Process Clause

obligates a police officer to disclose material exculpatory evidence before the criminal

defendant enters his guilty plea.”); United States v. Danzi, 726 F.Supp.2d 120, 128 (D. Conn.

2010) (holding exculpatory evidence must be disclosed in plea negotiations, reasoning that

“[t]he Court declines the Government’s invitation to hold that Ruiz applies to exculpatory as

well as impeachment material”); Ollins v. O’Brien, 2005 WL 730987, *11 (N.D. Ill. 2005)

(“[T]he Court finds the Ruiz distinction . . . persuasive and holds that due process requires

the disclosure of information of factual innocence during the plea bargaining process.”);

Medel v. State, 184 P.3d 1226, 1235 (Utah 2008) (“We therefore conclude that, in order for

a guilty plea to be rendered involuntary based on the prosecutor’s failure to disclose

evidence, a petitioner must establish that the evidence withheld by the prosecution was

material exculpatory evidence.”).



                           2.	 Brady Challenge to Guilty Plea:
                               Rationale for Not Requiring
                       Disclosure of Material Exculpatory Evidence

              In contrast to the cases analyzed above, the Fifth Circuit has taken the opposite

approach, suggesting that a defendant is not entitled to exculpatory evidence at the plea stage

because the purpose of Brady is to guarantee a fair trial. In Matthew v. Johnson, 201 F.3d


                                              25

353 (5th Cir. 2000), the Fifth Circuit stated that “[t]he Brady rule’s focus on protecting the

integrity of trials suggests that where no trial is to occur, there may be no constitutional

violation.” Id. at 361. The court found that “[b]ecause a Brady violation is defined in terms

of the potential effects of undisclosed information on a judge’s or jury’s assessment of guilt,

it follows that the failure of a prosecutor to disclose exculpatory information to an individual

waiving his right to trial is not a constitutional violation.” Id. at 361-62. The Fifth Circuit

reaffirmed its approach to the issue nine years later in United States v. Conroy, 567 F.3d 174

(5th Cir. 2009), rejecting the argument that “the limitation of the [United States Supreme]

Court’s discussion [in Ruiz] to impeachment evidence implies that exculpatory evidence is

different and must be turned over before entry of a plea.” Id. at 179.28



              Likewise, in United States v. Moussaoui, 591 F.3d 263 (4th Cir. 2010), the

Fourth Circuit explained that

              [t]he Brady right, however, is a trial right. It requires a
              prosecutor to disclose evidence favorable to the defense if the
              evidence is material to either guilt or punishment, and exists to
              preserve the fairness of a trial verdict and to minimize the
              chance that an innocent person would be found guilty.




       28
        See also Friedman v. Rehal, 618 F.3d 142, 154 (2d Cir. 2010) (declining to address
hypothetical issue of suppression of exculpatory evidence, but speculating that “even if”
suppressed impeachment evidence had been exculpatory, Ruiz likely applied to prevent
challenge for concealment of such evidence).

                                              26

Id. at 285. However, because the court found that the defendant in Moussaoui did not

demonstrate a Brady violation, it declined to resolve the issue of whether relief for a Brady

violation at the guilty plea stage would be available. Id. at 286-88.



               Just three years later, however, the Fourth Circuit’s approach was markedly

different. In United States v. Fisher, 711 F.3d 460 (4th Cir. 2013), the appellate court held

that a law enforcement officer’s false statement in a search warrant affidavit constituted

impermissible government conduct. Id. at 462.29 Further, the court held that the defendant

had established that his guilty plea was induced by the officer’s misconduct and reasoned that

“[i]f a defendant cannot challenge the validity of a plea based on subsequently discovered

police misconduct, officers may be more likely to engage in such conduct, as well as more

likely to conceal it to help elicit guilty pleas.” Id. at 469. The court in Fisher also quoted the

recognition in Sanchez that “if a defendant may not raise a Brady [v. Maryland ] claim after

a guilty plea, prosecutors may be tempted to deliberately withhold exculpatory information

as part of an attempt to elicit guilty pleas”). Id. (quoting Sanchez, 50 F.3d at 1453).




       29
        The court in Fisher noted that the “Defendant’s misapprehension [in pleading guilty]
stems from an affirmative government misrepresentation that strikes at the integrity of the
prosecution as a whole.” Id. at 466 (internal quotations omitted). “Because the lawyer [for
the defendant] thought that there were no grounds on which to challenge the warrant, she
believed the government’s case to be ‘a strong one’ and advised Defendant to enter a plea.”
Id.

                                               27

         3. Application of Brady Principles to Plea Negotiations in West Virginia

               Having scrutinized the reasoning of other jurisdictions, this Court finds that the

better-reasoned authority supports the conclusion that a defendant is constitutionally entitled

to exculpatory evidence during the plea negotiation stage. See Kevin C. McMunigal, Guilty

Pleas, Brady Disclosure, and Wrongful Convictions, 57 Case W. Res. L. Rev. 651 (2007)

(discussing reasons innocent people plead guilty and how Brady disclosure in guilty plea

context reduces risk of such pleas). “Often the decision to plead guilty is heavily influenced

by the defendant’s appraisal of the prosecution’s case against him and by the apparent

likelihood of securing leniency should a guilty plea be offered and accepted.” United States

v. Oakes, 411 F.Supp.2d 1, 4 (D. Me. 2006) (internal citations omitted). Permitting a

prosecutor to withhold exculpatory evidence during a defendant’s evaluation of a plea offer

would essentially “cast[] the prosecutor in the role of an architect of a proceeding that does

not comport with standards of justice.” Brady, 373 U.S. at 88.



               Both the United States Supreme Court and inferior courts throughout the

country have consistently recognized that our criminal justice system has imbued prosecutors

with a “special role . . . in the search for truth.” Strickler v. Green, 527 U.S. 263, 281 (1999).

The Court has encouraged resolution of doubtful issues in favor of disclosure. In United

States v. Agurs, 427 U.S. 97 (1976), the Court reasoned: “Because we are dealing with an

inevitably imprecise standard, and because the significance of an item of evidence can


                                               28

seldom be predicted accurately until the entire record is complete, the prudent prosecutor will

resolve doubtful questions in favor of disclosure.” Id. at 108.



               In Cone v. Bell, 556 U.S. 449 (2009), the United States Supreme Court

explained:

               Although the Due Process Clause of the Fourteenth
               Amendment, as interpreted by Brady, only mandates the
               disclosure of material evidence, the obligation to disclose
               evidence favorable to the defense may arise more broadly under
               a prosecutor’s ethical or statutory obligations. See Kyles, 514
               U.S. at 437, 115 S.Ct. 1555 (“[T]he rule in Bagley (and, hence,
               in Brady) requires less of the prosecution than the ABA
               Standards for Criminal Justice Prosecution Function and
               Defense Function 3–3.11(a) (3d ed. 1993)”). See also ABA
               Model Rule of Professional Conduct 3.8(d) (2008) (“The
               prosecutor in a criminal case shall” “make timely disclosure to
               the defense of all evidence or information known to the
               prosecutor that tends to negate the guilt of the accused or
               mitigates the offense, and, in connection with sentencing,
               disclose to the defense and to the tribunal all unprivileged
               mitigating information known to the prosecutor, except when
               the prosecutor is relieved of this responsibility by a protective
               order of the tribunal”) As we have often observed, the prudent
               prosecutor will err on the side of transparency, resolving
               doubtful questions in favor of disclosure.

556 U.S. at 470 n.15; see also Kyles, 514 U.S. at 437 (recognizing that prosecution has

affirmative duty to disclose evidence because “the prosecution, which alone can know what

is undisclosed, must be assigned the consequent responsibility to gauge the likely net effect

of all such evidence. . . .”).



                                              29

              Courts have also been diligent in emphasizing that “a prosecutor’s office

cannot get around Brady by keeping itself in ignorance, or by compartmentalizing

information about different aspects of a case.” Carey v. Duckworth, 738 F.2d 875, 878 (7th

Cir. 1984). Brady requires a prosecutor to “disclose information of which it has knowledge

and access.” United States v. Padilla, 2011 WL 1103876, *7 (D. N.M. 2011) (internal

citations omitted). Such duty to disclose extends to all evidence in the possession of the

prosecution team, including police and scientists, regardless of whether the prosecutor is

personally aware of the evidence. Kyles, 514 U.S. at 433.30 Further, whether the failure to

disclose is intentional is irrelevant because the duty exists “irrespective of the good faith or

bad faith of the prosecution.” Brady, 373 U.S. at 87.



              In Berger v. United States, 295 U.S. 78 (1935), overruled on other grounds by

Stirone v. United States, 361 U.S. 212 (1960), the United States Supreme Court discussed

the duty of a prosecutor:

              The United States Attorney is the representative not of an
              ordinary party to a controversy, but of a sovereignty whose
              obligation to govern impartially is as compelling as its
              obligation to govern at all; and whose interest, therefore, in a
              criminal prosecution is not that it shall win a case, but that
              justice shall be done. As such, he is in a peculiar and very
              definite sense the servant of the law, the twofold aim of which


       30
        See Kyles, 514 U.S. at 438-39 (“[T]he individual prosecutor has a duty to learn of
any favorable evidence known to the others acting on the government’s behalf in the case,
including the police.”).

                                              30

              is that guilt shall not escape or innocence suffer. He may
              prosecute with earnestness and vigor indeed, he should do so.
              But, while he may strike hard blows, he is not at liberty to strike
              foul ones. It is as much his duty to refrain from improper
              methods calculated to produce a wrongful conviction as it is to
              use every legitimate means to bring about a just one.

295 U.S. at 88.



              The principles justifying a holding that a criminal defendant must be permitted

to challenge a guilty plea based upon the prosecution’s failure to disclose exculpatory

material were expressed sagaciously in Nelson. In that case, the United States District Court

for the District of Columbia referenced Brady’s recognition of an inscription on the walls of

the United States Department of Justice, stating: “The United States wins its point whenever

justice is done its citizens in the courts.” Nelson, 979 F.Supp.2d at 130 (quoting Brady, 373

U.S. at 87). Expounding upon this proposition, the court in Nelson continued:

              A defendant who is forced to make a choice about going to trial
              or pleading guilty unaware that the government has not
              disclosed evidence ‘which, if made available, would tend to
              exculpate him,’ id. [Brady] at 87-88, 83 S.Ct. 1194, suffers
              unfair treatment unworthy of the bedrock ideal inscribed on the
              Justice Department walls. Moreover, precluding a defendant
              from raising such a Brady claim after a guilty plea could create
              a risk too costly to the integrity of the system of justice to
              countenance - tempting a prosecutor to stray from that bedrock
              ideal and ‘deliberately withhold exculpatory information as part
              of an attempt to elicit guilty pleas.’ Sanchez, 50 F.3d at 1453.
              If a prosecutor did so, that would “cast[ ] the prosecutor in the
              role of an architect of a proceeding that does not comport with
              standards of justice[.]” Brady, 373 U.S. at 88, 83 S.Ct. 1194.
              Permitting a defendant to move to withdraw a guilty plea he

                                              31

              entered without having been given exculpatory evidence in the
              government’s possession comports with the purpose of the
              prosecution’s Brady obligation. Accordingly, in light of the
              balance of circuit court precedent and the purpose of Brady,
              Nelson can assert his Brady claim to argue that his guilty plea
              was not knowing and voluntary.

Nelson, 979 F.Supp.2d at 130.



              In full recognition of the desired objective to promote justice for this state’s

citizens, this Court holds that these fundamental principles compel the conclusion that a

defendant’s constitutional due process rights, as enumerated in Brady v. Maryland, 373 U.S.

83 (1963), extend to the plea negotiation stage of the criminal proceedings, and a defendant

may seek to withdraw a guilty plea based upon the prosecution’s suppression of material,

exculpatory evidence.



                          C. Resolution of the Petitioner’s Appeal

              This Court is presented with the Petitioner’s contention that the State violated

the due process obligations enunciated in Brady by failing to disclose material, favorable

results of DNA testing prior to the Petitioner’s guilty plea.31 As discussed above, the United

       31
         The State argues that this Court’s examination of the Petitioner’s assertions
regarding failure to disclose exculpatory evidence is foreclosed by the doctrine of res judicata
because that issue was raised in the first request for habeas relief. The “extent to which
principles of res judicata apply in post-conviction habeas corpus proceedings” was addressed
in Losh v. McKenzie, 166 W. Va. 762, 763, 277 S.E.2d 606, 608 (1981). In syllabus point
four of Losh, we held:
                                                                                  (continued...)

                                              32

States Supreme Court in Brady held that “the suppression by the prosecution of evidence

favorable to an accused upon request violates due process where the evidence is material

either to guilt or to punishment, irrespective of the good faith or bad faith of the

prosecution.” 373 U.S. at 87. The three components of a Brady claim, as recognized by this

Court in Youngblood, include the existence of evidence that is favorable to the accused as

exculpatory or impeachment evidence, suppressed by the State either willfully or

inadvertently, and material. 221 W.Va. at 29, 650 S.E.2d at 128. Furthermore, the Brady


       31
            (...continued)
                          A prior omnibus habeas corpus hearing is res judicata as
                  to all matters raised and as to all matters known or which with
                  reasonable diligence could have been known; however, an
                  applicant may still petition the court on the following grounds:
                  ineffective assistance of counsel at the omnibus habeas corpus
                  hearing; newly discovered evidence; or, a change in the law,
                  favorable to the applicant, which may be applied retroactively.

Id. at 762, 277 S.E.2d at 608; see also Markley v. Coleman, 215 W. Va. 729, 732-33, 601
S.E.2d 49, 52-53 (2004).

               Based upon this Court’s review of the record in this case, we find that the
Petitioner was not precluded, in his second habeas request, from raising the issue of the
State’s failure to disclose exculpatory evidence because his claims are premised upon new
evidence. Subsequent to the first habeas proceeding, the Petitioner obtained the significantly
more detailed and technologically advanced testing of DNA through the statutory mechanism
enunciated in West Virginia Code § 15-2B-14. This evidence provided additional support
for the Petitioner’s claim that the original DNA testing was exculpatory, material, and
improperly suppressed by the State. Further, the Petitioner presented new evidence
indicating that the prosecuting attorney’s office had actual knowledge of the laboratory’s
DNA results well before the Petitioner’s plea was finalized. As explained above, personal
knowledge by the prosecutor is not required to support a finding of suppression of evidence;
this new evidence, however, further supports the Petitioner’s claim of police
misrepresentation and concealment of the status of the DNA testing.

                                                33

decision ineluctably obligates prosecutors to ensure that all exculpatory material in the

possession of its investigators is disclosed; thus, suppression by either a prosecutor or an

investigator can constitute a violation of Brady. Syllabus point one of Youngblood makes

this abundantly clear:

                     A police investigator’s knowledge of evidence in a
              criminal case is imputed to the prosecutor. Therefore, a
              prosecutor’s disclosure duty under Brady v. Maryland, 373 U.S.
              83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) and State v. Hatfield,
              169 W.Va. 191, 286 S.E.2d 402 (1982) includes disclosure of
              evidence that is known only to a police investigator and not to
              the prosecutor.

221 W.Va. at 22, 650 S.E.2d at 121.



                                  1. Favorable Evidence

              With regard to the first prong of the Brady analysis, the Petitioner contends the

DNA results, finalized by Lieutenant Myers on April 5, 2002, were favorable to the

Petitioner. Favorable evidence has been described as evidence that tends to exculpate.

Bagley, 473 U.S. at 676. Exculpatory evidence has been defined to be “that which would

tend to show freedom from fault, guilt or blame.” United States v. Blackley, 986 F.Supp.

600, 603 (D.D.C. 1997).



              In response, the State contends the DNA testing results were inconclusive and

therefore not actually favorable to the Petitioner. However, the State’s “argument . . .


                                             34

confuses the weight of the evidence with its favorable tendency.” Kyles, 514 U.S. at 451.

Indeed, the State could have adopted a trial strategy focusing upon the inconclusiveness of

the DNA results and/or the possibility that the Petitioner was present even if someone else

committed the sexual assault. Such potential trial strategy, however, does not negate the

critical nature of the fact that the Petitioner could have utilized the DNA evidence to support

a theory of innocence. Because we find the DNA evidence was favorable, the first element

of a Brady violation is established.



                                2. Suppression of Evidence

              Addressing the second prong of a Brady violation, the State contends it did not

actually suppress the DNA testing results. Rather, the State claims that July 12, 2002, the

date upon which the evidence was mailed to Detective Matheny, was the first and only time

Lieutenant Myers orally communicated his conclusions.            Evidence presented by the

Petitioner, however, indicates the initial testing demonstrated the exculpatory nature of the

results and was available as early as February 2002. Moreover, subsequent to the July 2013

omnibus hearing, counsel for the State revealed a file notation referencing Lieutenant Myers’

conversation with the Prosecuting Attorney’s Office concerning the exculpatory nature of the

initial DNA results that occurred as early as March 2002.32

       32
         The notation indicated that Lieutenant Myers notified former assistant prosecuting
attorney Terri O’Brien that he was “leaning toward excluding” the Petitioner based upon the
initial DNA testing results. The Petitioner emphasizes that because Ms. O’Brien resigned
                                                                                 (continued...)

                                              35

                  Further, any knowledge of associated agencies, such as the police laboratory,

is imputed to the State, as referenced above. Mr. Dyer repeatedly inquired of the State

regarding the status of the test results. See Banks v. Dretke, 540 U.S. 668, 695 (2004)

(“[W]hen the prosecution represents that all such material has been disclosed[,]” it is

reasonable for defense counsel to rely on prosecution’s representation.). Although the State

asserts it did not know of the finalized test results prior to the mailing of July 2002, this claim

is unavailing in light of the State’s duty to disclose information in the possession of its

affiliates, in this case the police laboratory. Thus, the State’s obligation to produce the DNA

results was not extinguished by its assertion that it was unaware of the status of testing.

Accordingly, this Court finds that the second prong of the Brady violation was established

by the Petitioner.



                                    3. Materiality of Evidence

                  The third prong of a Brady inquiry involves the materiality of the evidence and

prejudice to the Petitioner. In Youngblood, this Court stated:

                         This Court has recognized, along with the United States
                  Supreme Court, that “ ‘[t]he evidence is material only if there is
                  a reasonable probability that, had the evidence been disclosed to
                  the defense, the result of the proceeding would have been
                  different. A ‘reasonable probability’ is a probability sufficient
                  to undermine confidence in the outcome.’” State v. Fortner, 182

       32
            (...continued)
on March 28, 2002, that conversation must have occurred before the May 21, 2002, plea
hearing.

                                                 36

                W.Va. 345, 353, 387 S.E.2d 812, 820 (1989) (quoting United
                States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 3383, 87
                L.Ed.2d 481 (1985)).

221 W.Va. at 32, 650 S.E.2d at 131; see also United States v. Pettiford, 627 F.3d 1223, 1227

(D.C. Cir. 2010). A reasonable probability is more than a mere possibility, but less than a

preponderance of the evidence. Kyles, 514 U.S. at 434.



                The State relies heavily upon its assertion that the Petitioner would have pled

guilty regardless of any favorable DNA test results.33 Critically, his own testimony and the

testimony of his counsel belie this assertion. Mr. Dyer specifically indicated that he would

have advised the Petitioner not to plead guilty if he had obtained the favorable test results.

The Petitioner explained that he was operating upon the understanding that pleading guilty

was his only viable choice, based upon the time-limited plea offer and his counsel’s approval

of that deal.



                Premising its assertions upon the possibility of condom usage, the State also

argues that the DNA evidence, no matter how exculpatory, did not exclude the possibility



       33
         The Petitioner informed his counsel that he was confident the DNA evidence would
exonerate him. The State attempts to posture this statement in a manner which inculpates the
Petitioner by speculating that the Petitioner made this assertion based upon his knowledge
that he wore a condom and would therefore not have provided any DNA evidence. Other
than evidence indicating that the Petitioner had a condom with him on the day of the
Salvation Army break-in, there is no evidence of condom usage in the record.

                                               37

that the Petitioner was an accomplice to the crime. While this may arguably be true, it does

not detract from the exculpatory nature of the evidence of DNA testing or its materiality. If

the prosecution possessed evidence linking the Petitioner to the crime, it was certainly

capable of presenting that evidence at trial. The evidence of exculpatory DNA test results,

however, still required disclosure.



              The circuit court, in denying relief to the Petitioner on the suppression of

evidence claim, noted that it was not “sufficiently convince[d]” that the evidence “fully

exculpates the Petitioner as to the crimes to which he voluntarily entered guilty pleas.” That

is not the standard by which this matter is to be judged. “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.” Kyles, 514 U.S. at 434.



              Under the circumstances of the present case, this Court finds that the

suppressed evidence was material and that the Petitioner suffered prejudice as a result of its

concealment. There was, as Youngblood requires, a “reasonable probability that, had the

evidence been disclosed to the defense, the result of the proceeding would have been

different.” 221 W.Va. at 32, 650 S.E.2d at 131. If this case had proceeded to trial, the DNA

evidence could have been used by the Petitioner to cast a reasonable doubt upon the his guilt

on the sexual assault charges. See Sanchez, 50 F.3d at 1454 (internal citations omitted)


                                             38

(“[T]he issue in a case involving a guilty plea is whether there is a reasonable probability that

but for the failure to disclose the Brady material, the defendant would have refused to plead

and would have gone to trial.”) (internal citations omitted).



              This Court is presented with a situation in which a defendant repeatedly

requested the results of DNA testing; was incorrectly informed that such testing was not yet

complete; and was presented with a time-limited plea offer that he accepted upon advice of

counsel. We find that the DNA results were favorable, suppressed, and material to the

defense. Thus, the Petitioner’s due process rights, as enunciated in Brady, were violated by

the State’s suppression of that exculpatory evidence.



                                       IV. Conclusion

              Based upon the foregoing analysis, this Court finds that the State’s failure to

disclose favorable DNA test results obtained six weeks prior to the Petitioner’s plea hearing

violated the Petitioner’s due process rights, to his prejudice. This Court reverses the June 3,

2014, order of the Circuit Court of Harrison County and remands this matter for an order

granting habeas relief and permitting the Petitioner to withdraw his guilty plea.



                                                     Reversed and Remanded with Directions




                                               39

