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.
2

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 
3

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 
4

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 
5

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 

 1 Nicolas 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.
6

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 
7

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.
8

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.
9

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.
10

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 
11

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 
12

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.
13

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).
14

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 nontestifying informant was Brady material). In this case, knowledge 

of the statements could have led to admissible evidence.
15

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 
16

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.