MOTION AN D PROCEDURAL RULINGS.
This cause is pending before the court as a death penalty appeal from the Court of Common Pleas for Stark County. Upon consideration of appellant's motion to supplement the record,
It is ordered by the court that the motion is granted, and the trial court shall provide a copy of the transcript from the July 22, 2009 pretrial.
omnia, hallucinations, and alcohol abuse; (2) was diagnosed with malingering, antisocial personality disorder, self-mutilation, borderline mental retardation, schizophrenia, and "[o]rganic mental disorder with hallucinations"; and (3) was prescribed antipsychotic medications. In fact, in the two months before Nelson testified as a State witness at Brooks's trial in August 1996, Nelson refused to take his recommended medication for an infection in his leg, and he ingested paper clips. During the three months following the trial, Nelson was prescribed "major tranquillizers" and was placed on a 30-minute monitoring schedule.
These documents also reveal that Nelson informed prison authorities about the smuggling of drugs and other impermissible items by other inmates, that he requested to be isolated from these inmates, and that he once testified falsely against an inmate, resulting in that inmate's conviction. Nelson's convictions in Montgomery County for passing forged instruments (August 1977 and April 1979) and perjury (August 1981) were also among the materials provided. The indictment for the perjury charge states that Nelson falsely swore that a man shot him, which resulted in the man being arrested and charged with attempted murder.
In the present case, the materiality question is a close one. As a professional and ethical matter, the prosecution should have discovered this important background information about Nelson before calling him as a witness. This is particularly true regarding Nelson's prior convictions for forgery and perjury, which were obtained by the very same prosecutor's office as was trying Brooks's case. Moreover, Nelson gave inaccurate testimony at trial concerning the extent of his prior criminal history, which the prosecution failed to correct. This was a serious professional failing.
Nevertheless, the Brady standard for materiality is less demanding than the ethical obligations imposed on a prosecutor. See Cone v. Bell, ___ U.S. ___, 129 S.Ct. 1769, 1783 n. 15, 173 L.Ed.2d 701 (2009) ("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."). As previously explained, under Brady, we look to the undisclosed evidence as a whole to determine whether there is a reasonable probability that, had this evidence been disclosed to the defense, the result of the proceeding would have been different. Kyles, 514 U.S. at 433-34, 115 S.Ct. 1555. Evidence that is "merely cumulative" to evidence presented at trial is "not material for purposes of Brady analysis." Carter v. Mitchell, 443 F.3d 517, 533 n. 7 (6th Cir. 2006).
At trial, both the prosecution and the defense introduced evidence that impeached Nelson's credibility. The prosecution elicited testimony from Nelson about his convictions for larceny from a person, grand larceny, and jail escape. Nelson admitted that he first went to prison when he was 18-years old and had spent about 10 years in prison. During cross-examination, Nelson also testified that he had been convicted for "breach of trust." He further admitted that he had "gathered information and helped out the authorities . . . several times in prison." Nelson in fact acknowledged that he had testified as a jailhouse informant in at least one other criminal case. And he stated that he considered himself a "professional snitch" who received special privileges in prison for his assistance.
In his closing argument, Brooks's trial counsel vigorously attacked the credibility of Nelson as a witness, arguing that this "professional snitch" was dishonest and had ulterior motives for testifying. He emphasized the testimony of Lieutenant Tackett, who had known Nelson for fifteen years. As counsel argued:
Can we understand why a high-ranking official with the Montgomery County Sheriffs Department may be a little reluctant to testify for a Defense Attorney? Yes. A Defense Attorney, probably not something they are in the habit of doing[.] But when he gets on the stand and he gets under oath, he tells you what his opinion is[.] He wouldn't believe anything Mr. Nelson tells him.
The jury therefore heard evidence that Nelson was a "professional snitch," that he received benefits from snitching, that he had an extensive criminal history, and that he was unworthy of belief. This impeaching evidence was highlighted for the jury by defense counsel in his closing argument. As the district court recognized, if no impeachment evidence had been disclosed concerning Nelson, this lack of impeachment would certainly have been material. See Joseph v. Coyle, 469 F.3d 441, 472 (6th Cir. 2006) ("We have little trouble assuming that, if all five items [of impeachment evidence] had been completely undisclosed, they certainly would have been material/prejudicial under Brady"). But here substantial evidence impeaching Nelson's credibility was disclosed and presented at trial.
The Supreme Court "has long recognized the serious questions of credibility informers pose." Banks v. Dretke, 540 U.S. 668, 701, 124 S.Ct. 1256, 157 L.Ed.2d 1166 (2004) (citation and internal quotation marks omitted). This court has similarly concluded that an informant-witness is sufficiently impeached, rendering the undisclosed impeachment materials nonmaterial, where "[t]he jury was apprised of [the informant's] status and the possible other reasons for his decision to testify, namely, that he wished to secure early parole as a result of his participation in the [defendant's] case." Bell v. Bell, 512 F.3d 223, 237 (6th Cir. 2008) (en banc).
As was the case in Bell v. Bell, the disclosure of the additional Nelson impeachment materials in the present case "would not have permitted the development of alternate theories or different lines of argument." See id. Nelson's credibility was effectively impeached at trial. Evidence of his history of mental illness would have provided additional reasons not to credit his testimony, but would have been cumulative to the evidence already in the record. Moreover, under Tennessee evidentiary law, Nelson's convictions for perjury and forgery were presumptively inadmissible due to the fact that they were over 15-years old at the time of Brooks's August 1996 trial. See Tenn. R. Evid. 609(b). We therefore conclude that, although this issue is uncomfortably close to the constitutional line, the undisclosed evidence was not material under Brady.
E. Presentation of and failure to correct the false testimony of Agent Phillips
The second claim raised by Brooks on appeal is that the prosecution knowingly presented, and failed to correct, the false testimony of Agent Phillips concerning the fingerprint evidence discovered on the two beer cans found at the scene of Wisniewski's homicide. Brooks asserts that "procedural default is not an issue here since Brooks did in fact raise his fingerprints/false-testimony claim in the state trial and appellate courts, and because the prosecution obstructed those claims by presenting misrepresentations to the trial court and the postconviction court about the fingerprints." The State responds that this claim was not in fact "fairly presented to the state courts" because the fingerprint evidence was previously presented in the context of an ineffective-assistance-of-counsel claim rather than a false-testimony claim, "and hence is barred by procedural default." "At any rate," argues the State, "it is entirely meritless."
The Supreme Court has long recognized that due process is denied where "[the] state has contrived a conviction through the pretense of a trial which in truth is but used as a means of depriving a defendant of liberty through a deliberate deception of court and jury by the presentation of testimony known to be perjured." Mooney v. Holohan, 294 U.S. 103, 112, 55 S.Ct. 340, 79 L.Ed. 791 (1935). Such conduct by the prosecution is "inconsistent with the rudimentary demands of justice." Id. The same holds true "when the State, although not soliciting false evidence, allows it to go uncorrected when it appears." Napue v. Illinois, 360 U.S. 264, 269, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959). As the Court explained in United States v. Agurs, 427 U.S. 97, 103-04, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976), a false-testimony claim falls under the Brady disclosure doctrine. The contours of this claim were predominantly shaped by two Supreme Court cases: Napue v. Illinois, 360 U.S. at 269-72, 79 S.Ct. 1173, and Giglio v. United States, 405 U.S. 150, 153-54, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972).
This court has developed a three-part test for determining if the prosecution has committed a Brady-Napue-Giglio violation:
The knowing use of false or perjured testimony constitutes a denial of due process if there is any reasonable likelihood that the false testimony could have affected the judgment of the jury. In order to establish prosecutorial misconduct or denial of due process, the defendants must show (1) the statement was actually false; (2) the statement was material; and (3) the prosecution knew
it was false. The burden is on the defendants to show that the testimony was actually perjured, and mere inconsistencies in testimony by government witnesses do not establish knowing use of false testimony.
Coe v. Bell, 161 F.3d 320, 343 (6th Cir. 1998) (quoting
United States v. Lochmondy, 890 F.2d 817, 822 (6th Cir. 1989)). A false statement is material under this standard, and "[a] new trial is required[,] if the false testimony could in any reasonable likelihood have affected the judgment of the jury."
Giglio, 405 U.S. at 154, 92 S.Ct. 763 (alterations and internal quotation marks omitted) (quoting
Napue, 360 U.S. at 271, 79 S.Ct. 1173).
In the present case, Brooks argues that Agent Phillips falsely testified that both beer cans recovered at the scene of Wisniewski's homicide bore Brooks's fingerprints, when in fact the TBI lab reports show that Brooks's palm print was found on only one of the cans. The prosecution did not correct this inaccurate testimony, and Brooks's trial counsel declined to cross-examine Agent Phillips. (Brooks has not pursued an ineffective-assistance-of-counsel claim on appeal.)
The inaccuracy of Agent Phillips's testimony was demonstrated by materials presented at the state postconviction hearing. During that hearing, Brooks's counsel entered into evidence the investigative file of Detective Charvis, the lead investigator in the Wisniewski homicide case. The records contained in this file indicate that three beer cans were recovered and submitted to Agent Phillips for latent fingerprint examination. Two of these beer cans were recovered from Barge Point Road, where Wisniewski's body was found, and were labeled exhibits 40037890 and 40037891 in Agent Phillips's January 1995 report. The third beer can was recovered at the home of Brooks's girlfriend, Connie Gonzalez, and was labeled exhibit 50023469 in Agent Phillips's August 1995 report. Brooks's palm print was found on one of the beer cans from Barge Point Road, exhibit 40037891. Lunceford's prints were found on the beer can from Gonzalez's house, exhibit 50023469. An identifiable but unmatched print was discovered on the second beer can from Barge Point Road, exhibit 40037890. There is no report in the record, however, indicating that Brooks's prints were discovered on this second beer can. (The TBI reports were not entered into evidence at trial.)
During oral argument before this court, the State reiterated the argument made in its brief that "[t]here is no evidence . . . that the lab reports that Brooks presented at the evidentiary hearing represent all the reports that were generated by the Tennessee Bureau of Investigation." The State appears to be suggesting that Agent Phillips could have created another report that was not included in the lead investigator's file but that revealed Brooks's fingerprint on the second Barge Point Road beer can, exhibit 40037890. Perhaps recognizing that this argument was at best speculative and disingenuous, the State eventually conceded during oral argument that Agent Phillips's trial testimony was mistaken. The State argued, however, that his testimony was not intentionally false and, in any event, was not material.
We find the State's materiality argument persuasive. Even Brooks does not contest the fact that his palm print was found on one of the two beer cans discovered at the scene of the Wisniewski homicide, which implicates Brooks in the crime. Thus, Agent Phillip's inaccurate testimony — that Brooks's prints were found on both beer cans found at the scene of the homicide instead of only one — could not "in any reasonable likelihood have affected the judgment of the jury." See Giglio, 405 U.S. at 154, 92 S.Ct. 763 (quoting Napue, 360 U.S. at 271, 79 S.Ct. 1173).
Brooks tries to get around this inevitable conclusion by arguing that "the false testimony was material because the fact of the identifiable yet unmatched fingerprints on the second Barge Point can was powerful and objective exculpatory evidence." But no evidence concerning the unmatched print was elicited at trial, and Agent Phillips did not testify that only Brooks's prints were discovered on the two Barge Point Road beer cans. He was asked if, after comparing the latent fingerprints recovered from the beer cans with Brooks's fingerprints, he had an opinion concerning a possible match. His failure to further opine about other fingerprints found on the beer cans does not amount to false testimony. Brooks is thus unable to demonstrate that Agent Phillips testified falsely concerning the identifiable but unmatched fingerprint on the second Barge Point Road beer can.
Moreover, both the prosecution and the defense apparently had access to the TBI reports during trial, and therefore both parties were in equal positions to clarify Agent Phillips's testimony. See Norris v. Schotten, 146 F.3d 314, 334-35 (6th Cir. 1998) (concluding that there is no Brady violation where the defense had in its possession evidence that demonstrated the witness's inconsistent statements, and remarking that "there would be no need for a jury if trials did not contain such inconsistencies"). Brooks has neither argued nor provided any evidence that the prosecution withheld Agent Phillips's TBI reports from the defense. And because Brooks has not demonstrated that Agent Phillips's inaccurate testimony was material under the Brady-Napue-Giglio standard, he is not entitled to relief on this claim.
We do not reach Brooks's further argument that the identifiable but unmatched print on the second Barge Point Road beer can potentially implicates Richard Roberts, also known as Boston Rick, as the real killer. Brooks has not pursued in this court an ineffective-assistance-of-counsel claim concerning this evidence. Nor does Brooks argue that the State's presentation of witnesses who further compounded the inaccuracy of Agent Phillips's trial testimony during the state postconviction hearing and the federal habeas evidentiary hearing constitutes an independent due process claim.
F. Nelson's recantation testimony
Brooks's final claim on appeal appears to be a catch-all argument concerning prosecutorial misconduct that goes well beyond the issues certified for appeal. In addition, Brooks attempts to argue the cumulative effect of the alleged errors by the prosecution, which is also not an issue certified for appeal. Thus, distilled to the claims that have been properly certified, Brooks in his final claim addresses (1) whether the prosecution knowingly presented the perjured testimony of Nelson, and (2) whether the prosecution recruited Nelson as an informant in violation of Brooks's Sixth Amendment right to counsel. He argues that the district court clearly erred in crediting the testimony of the state prosecutors and discrediting the testimony of Nelson at the federal evidentiary hearing.
The State responds by asserting that any claims arising out of Nelson's recanting of his trial testimony are procedurally defaulted. It contends that, "[h]ad [Nelson's] testimony been false, Brooks plainly had notice of that fact at the time it was uttered," and therefore Brooks is unable to demonstrate cause for the default. In addition, the State argues that Brooks cannot demonstrate prejudice because the district court correctly determined that Nelson's testimony at the federal evidentiary hearing was not credible.
The Supreme Court, in Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964), held that a criminal defendant is denied the Sixth Amendment right to counsel where the prosecution "use[s] against him at his trial evidence of his own incriminating words, which federal agents . . . deliberately elicited from him after he had been indicted and in the absence of his counsel." Id. at 206, 84 S.Ct. 1199. This rule applies where the government recruits an under-cover jailhouse informant, or otherwise "intentionally creat[es] a situation likely to induce [a defendant] to make incriminating statements without the assistance of counsel." United States v. Henry, 447 U.S. 264, 269, 274, 100 S.Ct. 2183, 65 L.Ed.2d 115 (1980).
Because Brooks's claims that the prosecution recruited Nelson as a State informant and knowingly presented his false testimony at trial depend wholly on Nelson's testimony, Brooks's argument hinges on the credibility of Nelson as a witness at the federal habeas proceedings. But the district court discredited Nelson's testimony, and this court views with great suspicion the recantation testimony of trial witnesses in postconviction proceedings. E.g., Carter v. Mitchell, 443 F.3d 517, 539 (6th Cir. 2006).
Brooks presents a plausible explanation for the placement of Nelson in Brooks's cell, the failure of the State to disclose Nelson's convictions for perjury and forgery, and the State's failure to disclose Nelson's history of mental illness; i.e., that the State engaged in knowing and deliberate prosecutorial misconduct in violation of Brooks's constitutional rights. This is not, however, the "only reasonable explanation," as Brooks claims. The district court's conclusion is also reasonable, where the court found that, "[g]iven [Nelson's] mental history, his prior convictions and reputation for untruthfulness, his inconsistent testimony about his role in these matters, and the testimony of the state prosecutors, . . . [Nelson's] testimony about the state prosecutors is not credible."
We review the district court's credibility determination under the highly deferential clear-error standard. Anderson v. City of Bessemer City, 470 U.S. 564, 573-74, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985). There "can virtually never be clear error" where the "trial judge's finding is based on his decision to credit the testimony of one of two or more witnesses, each of whom has told a coherent and facially plausible story that is not contradicted by extrinsic evidence," and where that finding is "not internally inconsistent." Id. at 575, 105 S.Ct. 1504. Brooks presents on appeal an alternative, plausible explanation for Nelson's testimony. But he has failed to demonstrate that the district court's rejection of Nelson's story is contradicted by extrinsic evidence or is internally inconsistent. See id. And because the merits of Brooks's claim depend entirely on the credibility of Nelson's testimony, a rejection of that credibility necessitates a finding that Brooks has not shown prosecutorial misconduct.
G. Final admonition
Despite the fact that Brooks has not presented a claim to this court entitling him to habeas relief, we have grave concerns about how the State handled Brooks's trial, postconviction, and habeas proceedings. The State turned what should have been a strong, fairly clear-cut case into one raising serious constitutional questions. It presented inaccurate testimony to the trial court, the state postconviction court, and the district court concerning the fingerprint evidence discovered on the Barge Point Road beer cans. The State also conducted an inadequate investigation into Nelson's criminal and mental-health background, causing it to elicit inaccurate testimony at trial concerning the extent of Nelson's criminal history. We strongly admonish the State that such conduct does not meet the high standards of ethics and professionalism expected in a criminal prosecution.
III. CONCLUSION
For all of the reasons set forth above, we AFFIRM the judgment of the district court.
MARTHA CRAIG DAUGHTREY, Circuit Judge, concurring in the judgment.
A separate concurring opinion that agrees only with the result reached by a majority of one's colleagues is a judicial construct both unusual and, generally, unwelcome. I would not so burden the resolution of this appeal if I were not concerned about the majority's imprecise application of the standards of review in this case, caused — it would appear — by a tendency to engage in an unnecessarily elaborate re-examination of the evidence from both the original jury trial and the evidentiary hearing in the district court.
As the majority recounts at great length, Donald Eugene Brooks was convicted of murder in the death of Joseph J. Wisniewski, who was found with his throat slit at the side of Barge Point Road in Clarksville, Tennessee, in October 1994. What the majority also notes, but fails to emphasize appropriately, is that following the jury verdict in state court finding Brooks guilty of aggravated murder and three related offenses, the only issue he raised on direct appeal was the legal sufficiency of the convicting evidence. The Tennessee Court of Criminal Appeals reviewed the trial testimony witness by witness, examining at length that of the state's chief witness, Edwin Lunceford, the accomplice who had been with defendant Brooks for much of the day of Wisniewski's murder. The state court's opinion set out Lunceford's testimony in detail, along with the testimony of various other prosecution witnesses who were called by the state for the purpose of corroborating Lunceford's narrative. The jury also heard tape-recordings of Lunceford's conversations with Brooks, made without Brooks's knowledge after Lunceford came forward voluntarily and confessed his part in the offense to police. Although the recordings do not contain an outright confession by Brooks, the statements were clearly incriminating. See State v. Brooks, No. 01C01-9703-CC-00099, 1998 WL 299267, at *l-3 (Tenn.Crim.App. June 9, 1998).
The appellate court's opinion also summarized the testimony of Mike Nelson, who was Brooks's cellmate and who plays a prominent role in the majority opinion in this appeal. In that summary, the court commented on Nelson's impeachment, noting that "Nelson admitted convictions of larceny from a person, grand larceny and escape," id. at *4, n. 7, and actually conceded on cross-examination that he was a "professional snitch." In addition, one of the law enforcement officers involved in the investigation of the murder charge against Brooks testified that "he had known Michael Nelson for about fifteen years and did not believe him to be truthful."
With Nelson's testimony thus fatally damaged, if not destroyed, Brooks's principal line of defense at trial consisted of an effort to demolish Lunceford's credibility, but to no avail. As the Court of Criminal Appeals observed:
[T]he record reflects that defense counsel ably and vigorously cross-examined Lunceford and assailed his credibility through other witnesses. Additionally, the state's evidence at trial supported its theory of the defendant's guilt of each of the four crimes of which he was ultimately convicted, although the defendant brought forward some evidence of an alibi. Thus, the jury had before it evidence which would allow it, on one hand, to convict the defendant, or on the other, to acquit him. The decision was one which
hinged on the jury's assessment of the credibility of the witnesses, particularly Edwin Lunceford, and the weight and value which should be afforded the evidence. The decision was wholly one for the jury to make as trier of fact. Unfortunately for the defendant, the jury's discharge of its function resulted in
accreditation of Lunceford's testimony and weighing and evaluating the state's evidence over that brought forward by the defense. Clearly, a rational trier of fact, such as the jury at the defendant's trial, could find the defendant guilty beyond a reasonable doubt of each of the four crimes on the evidence presented.
Id. at *6 (emphasis added).
Because Brooks was found guilty by a jury, we are constrained to apply what has been described as a "double layer of deference" in our review of the district court's denial of habeas relief. See White v. Steele, 602 F.3d 707, 710 (6th Cir. 2009), cert. denied, ___ U.S. ___, 131 S.Ct. 130, ___ L.Ed.2d ___ (2010). In reviewing the legal sufficiency of the convicting evidence on direct appeal, the Tennessee Court of Criminal Appeals was required by Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), to "view the evidence in the light most favorable to the prosecution" and affirm if " any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Id. at 319, 99 S.Ct. 2781 (emphasis in original). At this first level — deference to the jury's verdict — the Jackson standard is so demanding that "[a] defendant who challenges the sufficiency of the evidence to sustain his conviction faces a `nearly insurmountable hurdle.'" United States v. Oros, 578 F.3d 703, 710 (7th Cir. 2009) (citation omitted). Moreover, "under Jackson, the assessment of the credibility of witnesses is generally beyond the scope of [habeas] review." Schlup v. Delo, 513 U.S. 298, 330, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995). Added to this already heavy burden are the limitations of the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214 (1996), which serve to create a second level of deference. Those standards permit us to overturn a state court's decision only if that court failed to apply the correct constitutional precedent or when the court's application of precedent was "objectively unreasonable" and not merely "incorrect or erroneous." Wiggins v. Smith, 539 U.S. 510, 520-21, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003).
The import of this double level of deference is significant in this case. The Tennessee Court of Criminal Appeals found that Brooks's conviction withstood his challenge to the legal sufficiency of the evidence, based on the extensive testimony of Edwin Lunceford, which the court credited. That testimony clearly established the essential elements of each of the statutory offenses for which Brooks was convicted, based on factual determinations that are presumptively correct. See Brown v. Konteh, 567 F.3d 191, 205 (6th Cir. 2009) ("[E]ven were we to conclude that a rational trier of fact could not have found a petitioner guilty beyond a reasonable doubt, on habeas review, we must still defer to the state appellate court's sufficiency determination as long as it is not unreasonable."), cert. denied, ___ U.S. ___, 130 S.Ct. 1081, ___ L.Ed.2d ___ (2010). Although it is true, as the petitioner now argues, that the legal questions controlled by Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), must be reviewed de novo because there is no prior state-court ruling on those issues, see Dyer v. Bowlen, 465 F.3d 280, 284 (6th Cir. 2006), they must also be seen in context, i.e., whether the Brady violations did anything to undermine Lunceford's testimony and the evidence introduced to corroborate that testimony. As the district court noted, the evidence of Brooks's guilt, as established by the record and accredited by the jury, was overwhelming. Put simply, it is immaterial that Nelson may have been schizophrenic and that his testimony about Brooks's jail cell confession was therefore suspect. The majority's labored exposition of the historical facts is likewise immaterial.
Moreover, in this case we actually have a third level of deference, because the district court heard new testimony offered by Brooks in connection with his constitutional claims, found that it was not credible and, therefore, not material, and held that it could not serve as the basis for the issuance of a writ of habeas corpus. That credibility determination is, of course, not subject to review on appeal. See United States v. Hilliard, 11 F.3d 618, 620 (6th Cir. 1993) ("In addressing sufficiency of the evidence questions, this Court has long recognized that we do not weigh the evidence, consider the credibility of witnesses or substitute our judgment for that of the [fact-finder].") (citing United States v. Evans, 883 F.2d 496, 501 (6th Cir. 1989)). Moreover, it is well-established that:
If the district court's account of the evidence is plausible in light of the record viewed in its entirety, the court of appeals may not reverse it even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Where there are two permissible views of the evidence, the factfinder's choice between them cannot be clearly erroneous.
Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 573-74, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985). As a result, the record wholly fails to establish that Nelson perjured himself at the state trial, or that members of the prosecutors' office solicited false testimony from Nelson.
The district court also found that the additional, undisclosed evidence about Nelson's background was insufficient to establish prejudice because the jury was fully aware of Nelson's reputation as a "professional snitch," his status as a convicted felon, and his lack of credibility in the eyes of law enforcement, all leading to his impeachment by defense counsel at Brooks's trial. Nor does the speculation about the ephemeral "Boston Rick" or the presence or absence of his fingerprints rise to the level of proof.
That, in my judgment, should be the end of our review of Brooks's habeas petition. Put bluntly, I do not think it serves any purpose to engage in elaborate parsing of the facts, as the majority has done in this case, because it suggests to lawyers and potential habeas litigants that we are re-weighing the evidence in the record de facto if not de jure. Thus, I would hold simply that the evidence credited by the jury established Brooks's guilt and that the district court did not err in refusing to grant habeas relief after determining that the evidence offered in support of Brooks's Brady claims was not creditable and was, therefore, insufficient to support the issuance of a writ.