                             PUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 15-6616


RICHARD A. NICOLAS,

                Petitioner - Appellee,

           v.

THE ATTORNEY GENERAL OF THE STATE OF MARYLAND; RICHARD GRAHAM,
Warden,

                Respondents - Appellants.


Appeal from the United States District Court for the District of
Maryland, at Baltimore.    Richard D. Bennett, District Judge.
(1:06-cv-02637-RDB)


Argued:   March 22, 2016                    Decided:   April 27, 2016


Before NIEMEYER and MOTZ, Circuit Judges, and Max O. COGBURN, Jr.,
United States District Judge for the Western District of North
Carolina, sitting by designation.


Reversed by published opinion. Judge Motz wrote the opinion, in
which Judge Niemeyer and Judge Cogburn joined.


ARGUED: Edward John Kelley, OFFICE OF THE ATTORNEY GENERAL OF
MARYLAND, Baltimore, Maryland, for Appellants.    Geoffrey Robert
Garinther, VENABLE LLP, Baltimore, Maryland, for Appellee.      ON
BRIEF: Brian E. Frosh, Attorney General of Maryland, OFFICE OF THE
ATTORNEY GENERAL OF MARYLAND, Baltimore, Maryland, for Appellants.
Matthew P. Reinhart, VENABLE LLP, Baltimore, Maryland, for
Appellee.
DIANA GRIBBON MOTZ, Circuit Judge:

     In 1997, a Baltimore City jury convicted Richard Nicolas of

murdering his infant daughter.    Years later, Nicolas sought habeas

relief, arguing that the State failed to disclose favorable,

material evidence in violation of its obligations under Brady v.

Maryland, 373 U.S. 83 (1963).    The Maryland post-conviction courts

considered and rejected his Brady claim.    Nicolas then petitioned

for a writ of habeas corpus in federal court, which the district

court granted.   Given the deference that federal law requires to

state court judgments in such cases, we must reverse.



                                  I.

                                  A.

     On July 26, 1996, two-year-old Aja Nicolas was shot and killed

while visiting with her father, Richard Nicolas.     Aja lived with

her mother.   Nicolas had picked her up that Friday evening with

plans to see a movie at a local mall.    Nicolas bought a ticket for

the movie Pinocchio, and before the movie he and Aja took a photo

booth picture together.   The movie ended around 9:45 P.M.

     According to Nicolas, things went horribly wrong on the drive

back to Aja’s mother’s home.       Nicolas told police that a car

started following closely behind him and “driving crazy.”      When

Nicolas turned off onto Bowley’s Lane, the erratic car followed

and bumped his vehicle.   Nicolas told police that he then stopped

                                  2
and got out to confront the other driver.               While Nicolas was

walking around his vehicle, he heard a gunshot and saw the other

car drive off.

      Seeing Aja slumped over in her seat, Nicolas assumed she had

been shot and ran to a nearby convenience store to call for help.

In response, Officer Fred Hannah arrived at the convenience store

just minutes later, around 10:00 P.M. He and Nicolas then returned

to the car and found Aja dead.       Officer Hannah and Nicolas removed

Aja from the car and laid her on her back.         She had been shot in

the head on the left side of her face.

      The State did not believe Nicolas’s story.         Its theory of the

case was that, after obtaining the photo booth picture, Nicolas

himself shot Aja.     According to the State, Nicolas then left Aja

laying on her side in the car and went to see the 8:00 P.M.

Pinocchio showing alone.     The State argued that after the movie,

Nicolas drove to Bowley’s Lane, ran to the convenience store, and

fabricated the tale of the rogue aggressive driver.

      The State presented its largely circumstantial case over a

fourteen-day trial.    It argued that Nicolas never wanted to take

responsibility for Aja, the product of a one-night stand, and had

even asked Aja’s mother to obtain an abortion.           Nicolas, because

he was behind in court-ordered child support, was having his wages

garnished and yet had recently obtained life insurance for Aja.

In   response,   Nicolas   offered    evidence   that    the   Gerber   life

                                     3
insurance policy he purchased was marketed as a way to save for a

child’s future, and that he had become more involved in Aja’s life

as she grew older.

      Additionally, the State emphasized that Nicolas was a gun

enthusiast who previously owned the type of weapon and ammunition

used to kill Aja.      The State never found the murder weapon,

however, nor directly connected any of Nicolas’s guns or ammunition

to the murder.

      Several witnesses testified for the State that Nicolas’s

demeanor was very calm on the night of the murder, unlike that one

would expect from a father whose toddler had just been murdered.

Nicolas’s explanation was that he has a debilitating stutter that

requires him to calm himself, or else he is completely unable to

speak.     The State also highlighted inconsistencies in Nicolas’s

story, the gunshot residue (a small amount) found on Nicolas’s

left hand, and the improbability of the shooting occurring the way

Nicolas claimed.

      The State’s strongest evidence was testimony from the medical

examiner on lividity, i.e., how the blood settled in Aja’s body.

Because lividity was fixed on her back and her left side, the

medical examiner, Dr. Dennis Chute, opined that Aja must have died

about two hours before Nicolas and Officer Hannah moved her onto

her back.    Otherwise, the blood would not have had time to settle

on   her   side.   Nicolas   argued       that,   as   the   State’s   forensic

                                      4
investigator noted in her report, Aja was still warm and rigor

mortis had not yet set in when the police arrived.                         Still,

Nicolas’s main response to Dr. Chute’s expert opinion was simply

his own testimony:      that Dr. Chute must be wrong because Nicolas

was there and knew the shooting occurred at around 9:45 P.M.                  In

closing, the State emphasized that Nicolas could not “get past the

issue of lividity.”     The jury convicted Nicolas in less than three

hours.

                                     B.

      Nicolas appealed, and in 1998 the Court of Special Appeals of

Maryland affirmed his conviction.               Nicolas then filed a state

petition for post-conviction relief.              In 2005, the Circuit Court

for Baltimore City denied relief, and the Court of Special Appeals

summarily denied leave to appeal that ruling. 1

      Nicolas then filed a petition for a writ of habeas corpus

pursuant to 28 U.S.C. § 2254 in the United States District Court

for   the    District   of    Maryland.         Through    a    Maryland   Public

Information Act request, his appointed counsel obtained police

notes     detailing   two    potential       witnesses    who   authorities   had

interviewed during their investigation of Aja’s death.                One of the




      1Nicolas alleged prosecutorial misconduct related to the
gunshot residue evidence and three ineffective assistance of
counsel claims for failure to strike a juror, for failure to rebut
the state expert’s lividity testimony, and for requesting an
erroneous jury instruction.
                                         5
witnesses had contacted police claiming to have “information about

[the] killing of [the] two year old.”       The potential witnesses had

been staying at a Holiday Inn about one-eighth of a mile from

Bowley’s Lane, where Aja was found dead.         They both told police

that they had heard a loud noise -- that sounded like a gunshot or

a car backfiring -- on the night of Aja’s death.

     After   speaking   to   the   first   potential   witness,   Jennifer

McKinsey, investigators wrote:

     She advised that she was going to her vehicle and
     observed a small vehicle at the bottom of the hill. As
     she was entering her vehicle she hers [sic] a loud
     popping sound like a gun shot. Mrs. McKinsey advises as
     she was exiting the parking lot the car sped off.

     Police also recorded an interview with the second potential

witness, Richard Benson, and summarized it as follows:

     Mr. Benson advises at approximately 10:00 P.M. he left
     out of the hotel to go to his vehicle which was parked
     on the hotel parking lot. [T]he witness states when he
     arrived at his vehicle he observed a light colored
     vehicle parked in the 6500 block of Frankford Ave., the
     vehicle appeared to have it’s [sic] engine running and
     the dome light on inside.     Mr. Benson states as he
     entered his vehicle he heard a loud noise like the car
     back fired [sic], at this time the vehicle sped off.

     Benson described the noise as “a pretty loud bang.”          Prior to

the Public Information Act request, the State had not disclosed to

Nicolas the existence of these potential witnesses.               Because

Nicolas had not presented these documents to the state court, he

filed a motion to reopen state post-conviction proceedings.            The



                                     6
district court stayed Nicolas’s federal habeas proceedings while

he exhausted state remedies. 2

     Back in state court, Mr. Nicolas argued that the State’s

failure to disclose the witness statements violated Nicolas’s

rights under Brady v. Maryland, 373 U.S. 83 (1963).   In 2010 the

Circuit Court for Baltimore City denied the motion to reopen,

finding that the statements were not favorable to Nicolas.      It

summarized the arguments on both sides and found:

     [T]hese witnesses would have given testimony that, at
     best, conflicted with the theory of the case advanced by
     the Petitioner. Indeed, arguably the statements by the
     witnesses were more consistent with the State’s theory
     of the case than the defense.

     The Court of Special Appeals summarily denied Nicolas leave

to appeal, and he returned to federal court for habeas review.

The district court conducted an in camera review of the State’s

file, which led to additional discovery.   In particular, the file

contained two letters written by the trial prosecutors to Officer

Hannah and Dr. Chute.   The prosecutors thanked Officer Hannah for

moving Aja, although it had been a violation of police protocol,

writing:




     2 Appointed counsel also obtained information that related to
Nicolas’s original post-conviction claims.    Counsel interviewed
Dr. Chute and obtained a letter from him explaining that lividity
by itself is unreliable for determining time of death.
Additionally, counsel argued that, based on new developments in
gunshot residue analysis, the evidence used to convict Nicolas was
no longer accepted by the scientific community.
                                 7
     Had you left her in the car, we would never have won
     this case. It is only because you did move her that the
     Medical Examiner saw the fixed lividity on her left side
     and her back when the autopsy was done. This fact was
     the whole case. Lividity made everything Nicolas said
     a boldfaced lie.

     In their letter to Dr. Chute, the prosecutors similarly

emphasized the importance of the lividity testimony, explaining:

     The jury was only out for two hours, which is a very
     short time considering that the trial lasted for
     fourteen days. We are 100% certain that your testimony
     was the reason that this jury had no difficulty reaching
     this verdict.

     Although these letters, written post-trial, could not be

Brady evidence, the district court stayed the proceedings before

it so that the state court could consider the witness statements

in light of these newly revealed letters.         In 2013, the Circuit

Court for Baltimore City again denied Nicolas’s motion to reopen

post-conviction   proceedings.   It   explicitly     adopted    the   2010

court’s   favorability   analysis     rejecting     Nicolas’s     claim.

Additionally, it rejected the argument that the witness statements

were material to the outcome of the trial, even in light of the

prosecutors’ letters, holding:

     The Court finds the evidence cited by the State to be
     compelling.    In contrast, the additional material
     disclosed in the U.S. District Court proceeding merely
     demonstrates a diligent investigation by the Baltimore
     City Police Department. Furthermore, much of the other
     non-disclosed interviews and statements contradict
     Petitioner’s theory of defense or are otherwise damaging
     to him, and would certainly not rise to the level where
     they resulted in a verdict that is not worthy of
     confidence.

                                 8
      The Court of Special Appeals once more denied leave to appeal,

this time including a three-page opinion addressing only the impact

the    prosecutors’   letters   had       on   its   materiality    analysis,

explaining:

      All that these letters show is that the prosecuting
      attorneys believed that the evidence of the time of death
      was crucial to the State’s case. The letters do not, in
      light of all the evidence introduced at trial, render
      the undisclosed statements material. Therefore, we hold
      that the non-disclosure did not amount to a discovery
      violation or warrant post-conviction relief.

      The Court of Appeals of Maryland denied Nicolas’s petition

for certiorari, and Nicolas returned once again to federal court

for an adjudication on the merits of his updated § 2254 petition.

Nicolas’s petition included four claims:             ineffective assistance

of    counsel   relating   to   the   lividity       evidence;     ineffective

assistance of counsel relating to a jury instruction; a challenge

to the use of gunshot residue evidence; and the Brady claim.

      The district court rejected most of Nicolas’s claims, but

granted relief on the Brady claim.             Regarding favorability, the

district court found that the state court had based its holding on

an unreasonable determination of the facts, explaining:

      Evidence suggesting that the fatal shot was fired around
      9:45 p.m. would have contradicted the State’s theory and
      supported Petitioner’s version of events.      As such,
      there was absolutely no basis for the state courts to
      conclude that the suppressed statements conflicted with
      Petitioner’s theory of the case.



                                      9
Similarly,   the   district    court      found    that   the   state   court

unreasonably applied Brady in holding that the statements were not

material, reasoning:

     The improper consideration of only the prosecution’s
     evidence led the state courts to the irrational
     conclusion that the statements were not material. While
     a review of the record makes abundantly clear that the
     crux of the case against Petitioner was the lividity
     testimony concerning the time of death, the import of
     that evidence was all the more obvious in this case:
     there   is  written   acknowledgement   by   the  trial
     prosecutors in this case that Dr. Chute’s lividity
     testimony was ‘the whole case.’ For the state courts to
     have suggested otherwise is simply unreasonable and
     inaccurate.

     For   these   reasons,   the   district      court   vacated   Nicolas’s

conviction and remanded for a new trial.             The court stayed its

order to provide the State an opportunity to appeal.                The State

timely noted this appeal; Nicolas did not cross-appeal the court’s

rejection of his other claims.



                                    II.

     The Antiterrorism and Effective Death Penalty Act of 1996

(AEDPA) requires a federal court reviewing a habeas petition that

has already been adjudicated on the merits in state court to give

considerable deference to the state court decision.                 A federal

court may not grant habeas relief unless the state court arrived

at “a decision that was contrary to, or involved an unreasonable

application of, clearly established Federal law, as determined by


                                    10
the Supreme Court of the United States,” or “a decision that was

based on an unreasonable determination of the facts in light of

the evidence presented in the State court proceeding.”    28 U.S.C.

§ 2254(d) (2012).

     We must presume that the state court’s factual findings are

correct unless the petitioner rebuts those facts by clear and

convincing evidence. § 2254(e)(1). Importantly, we cannot disturb

the state court’s ruling simply because it is incorrect; it must

also be unreasonable.   Harrington v. Richter, 562 U.S. 86, 100-01

(2011).    We “look through” the Court of Appeals of Maryland’s

summary denial of Nicolas’s petition for certiorari and evaluate

the last reasoned state court decisions rejecting the Brady claim.

See Brumfield v. Cain, 135 S. Ct. 2269, 2276 (2015).

     In Brady, the Supreme Court 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.   Therefore, a Brady violation

contains three elements: the evidence was (1) favorable to the

accused, (2) suppressed by the government, and (3) material to the

verdict at trial.   Monroe v. Angelone, 323 F.3d 286, 299 (4th Cir.

2003).    In determining what prosecutors must disclose, we make no

distinction between exculpatory and impeachment evidence.    United

States v. Bagley, 473 U.S. 667, 676 (1985).   Both information that

                                 11
undermines the prosecution’s case and information that supports

the   defendant’s   case   constitute    Brady   material   that   must   be

disclosed.

      We review the district court’s decision de novo, deciding

through AEDPA’s deferential lens whether Nicolas’s Brady claim

meets the requirements to warrant a new trial.         Lewis v. Wheeler,

609 F.3d 291, 300 (4th Cir. 2010).         The parties agree that the

State did not disclose Benson and McKinsey’s statements to Nicolas

until years after trial.      As a result, only the favorability and

materiality of those statements are at issue.



                                  III.

      Assuming without deciding that the suppressed statements were

favorable to Nicolas, the State violated Brady only if the witness

statements were also material to the outcome of the trial.                See

Wolfe v. Clarke, 691 F.3d 410, 424 (4th Cir. 2012).           Materiality

“is not a sufficiency of the evidence test,” and a defendant “need

not demonstrate that after discounting the inculpatory evidence in

light of the undisclosed evidence, there would not have been enough

left to convict.”    Kyles v. Whitley, 514 U.S. 419, 434-35 (1995).

Nevertheless, a defendant claiming a Brady violation must show

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.

                                   12
        In this case, the Circuit Court for Baltimore City did not

catalogue all of the evidence offered by Nicolas at trial.                    But

the court did expressly explain that it had considered “the record

as a whole” and found that the “undisclosed” witness statements

were “not material.”       The Court of Special Appeals of Maryland, in

briefly responding to the prosecutors’ post-trial letters -- which

emphasized the importance of the lividity evidence -- similarly

noted that the letters did not “render the undisclosed statements

material.” 3   A federal court can grant relief under § 2254 only if

“the state court’s ruling” was “so lacking in justification that

there was an error well understood and comprehended in existing

law beyond any possibility for fairminded disagreement.”             Richter,

562 U.S. at 103.

     Nicolas argues that in rejecting his Brady claim the state

court    ignored   the    exculpatory    value   of   the   statements   --   in

corroborating his own testimony as to the time of death -- and

their impeachment value -- in contradicting Dr. Chute’s time of

death estimate.          The State maintains that the statements are


     3 Ordinarily we would focus on one state court decision. In
this case, however, the Court of Special Appeals discussed only
the prosecutors’ letters, without commenting on the Circuit
Court’s analysis of the undisclosed statements. Thus we assume
the Court of Special Appeals adopted the Circuit Court’s reasoning.
“[S]ilence implies consent, not the opposite -- and courts
generally behave accordingly, affirming without further discussion
when they agree, not when they disagree, with the reasons given
below.” Ylst v. Nunnemaker, 501 U.S. 797, 804 (1991).


                                        13
immaterial because they “describe a set of events completely

unrelated to Nicolas’s account of Aja’s murder.”           State Br. 28. 4

     We recognize that had Benson and McKinsey testified, they

might have done so in a way that helped Nicolas.           They could have

said that they heard a gunshot around 9:45 P.M. on the night of

the murder.    They could have testified that the sound of the

gunshot came from Bowley’s Lane, where the police found Aja’s body.

Of course, the State could have cross-examined them with their

original statements, in which both witnesses associated the noise

with a car in a cul-de-sac that was not on Bowley’s Lane. Moreover,

the defense would have to deal with Benson’s original statement

that the   noise   was   not   a   gunshot   at   all,   but   rather   a   car

backfiring.   And critically, the defense would still be confronted

with Dr. Chute’s testimony that in his expert opinion Aja had been

dead for about two hours at the time Benson and McKinsey heard a

noise.

     Thus, in this hypothetical trial, the jury would have to

decide whether Benson and McKinsey actually heard a gunshot or




     4 In its Reply Brief, the State also suggests that the
statements cannot be considered impeachment evidence because they
would not be admissible as such under state evidence rules. We
reject this argument.      Brady material does not have to be
admissible under state evidence rules as long as it could lead to
admissible evidence. See, e.g., Kyles, 514 U.S. at 428-32, 445-
51, 454 (holding that undisclosed information relating to a non-
testifying informant was Brady material). In this case, knowledge
of the statements could have led to admissible evidence.
                                     14
whether they were mistaken and heard a car backfiring or some other

noise.   Further, even if the jury believed Benson and McKinsey had

heard a gunshot, the jury would also have to decide whether the

sound came from Bowley’s Lane rather than from the cul-de-sac the

witnesses had originally believed to be the site of the noise.

And to reject the State’s theory as to the time of death, the jury

would have to believe that this new testimony, combined with the

limited other evidence Nicolas offered concerning time of death,

was    enough   to   undermine    the     largely   uncontradicted   expert

testimony on lividity.

       Considering these inconclusive suppressed statements with the

record as a whole, reasonable jurists could well conclude that the

statements did not “put the whole case in such a different light

as to undermine confidence in the verdict.”            Kyles, 514 U.S. at

435.     Although Nicolas vigorously contested the State’s other

evidence and offered evidence in his defense          -- including his own

testimony -- the jury had no apparent difficulty rendering its

verdict.    The undisclosed witness statements undermine only the

State’s time of death theory -- and that only if we assume the

jury would have resolved each of the conflicting inferences noted

above in Nicolas’s favor.        As the State maintains, the jury could

have found the witness statements altogether irrelevant.             In any

event, it was not unreasonable for the state courts to conclude



                                     15
that, when considered with all the other evidence offered at trial,

the statements would have made no difference to the verdict.

     This is not to say that the district court’s disapproval of

the prosecution’s failure to produce the witness statements prior

to trial is not entirely understandable.      It is always better

practice for the prosecution to disclose potentially favorable

information before trial.     Only this practice ensures the fair

trial that our justice system aspires to provide all persons. Only

this practice avoids the need for courts to determine the value of

evidence in a hypothetical world.     If prosecutors follow this

practice, no one has to worry after the fact whether the jury

convicted the wrong person.

     But as explained above, it was not unreasonable for the state

courts to reject Nicolas’s Brady claim.      Congress, in passing

AEDPA, does not permit a federal court to replace a state court’s

judgment with its own. Rather, as the Supreme Court has explained,

“[i]f this standard is difficult to meet, that is because it was

meant to be.”   Richter, 562 U.S. at 102.




                                IV.

     For the reasons set forth above, the judgment of the district

court is

                                                         REVERSED.


                                 16
