United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 05-4021

___________

Byron Morales, *

*

Appellant, *

* Appeal from the United States

v. * District Court for the

* Southern District of Iowa.

John F. Ault, *

*

Appellee. *

___________

Submitted: May 17, 2006

Filed: February 7, 2007

___________

Before WOLLMAN, BRIGHT, and BOWMAN, Circuit Judges.

___________

BOWMAN, Circuit Judge.

Byron Morales petitions the Court for a writ of habeas corpus pursuant to 28

U.S.C. § 2254 (2000). He challenges his 1997 Iowa state court conviction for firstdegree murder, which was upheld by the Iowa Court of Appeals on direct appeal and

in post-conviction proceedings. Morales asserts two grounds for habeas relief: (1) he

received ineffective assistance of trial counsel in violation of the Sixth Amendment

to the United States Constitution and (2) the state failed to disclose potentially
1

The Honorable James E. Gritzner, United States District Judge for the Southern

District of Iowa.

2

Kevin was born to Morales's wife and adopted by Morales.

-2-

exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963). The

District Court1

 denied the petition and Morales now appeals. We affirm.

I.

Shortly after 1:00 p.m. on November 10, 1995, Byron Morales made an

emergency call to 911 and reported that his two-year-old son2

 Kevin was

unresponsive. When paramedics arrived, Morales told them that Kevin had fallen

down the stairs leading to the basement. Morales said that after the fall he put Kevin

to bed but called for an ambulance when Kevin began having difficulty breathing.

The paramedics took Kevin by ambulance to a local hospital. Upon arrival at the

hospital, Kevin was unresponsive, had a low heart rate, and was having trouble

breathing. The right side of his head was swollen, and a large pool of blood could be

felt under his scalp. A CT scan revealed a skull fracture and a large hematoma on

Kevin's brain. Dr. Thomas Carlstrom, a neurosurgeon, operated on Kevin to remove

the hematoma. Kevin died during the surgery. Dr. Carlstrom, along with Dr. Donald

Moorman, who was the surgeon leading the trauma team, and Dr. Dominic Frecentese,

who was the radiologist that interpreted the CT scan, initially agreed that Kevin's

death was caused by an existing, or chronic, hematoma on his brain that was reinjured by some event that day. 

On November 11, 1995, Dr. Thomas Bennett, then the Iowa State Medical

Examiner, performed an autopsy of Kevin's body. Dr. Bennett concluded that Kevin's

brain injuries were acute, not chronic. He based his opinion in part on an examination

of microscopic slides taken during the autopsy. In Dr. Bennett's view, the slides

conclusively established that there had been no preexisting hematoma and that Kevin's
-3-

injuries were all inflicted on the day of his death. Dr. Bennett reported the probable

cause of death as "Blunt traumatic head injuries from blow to head, due to ShakenSlammed Baby Syndrome." J.A. at 967. A police investigation ensued, and on

November 12, 1995, Morales was arrested and charged with Murder in the First

Degree. 

Subsequent to Morales's arrest, his first attorney, James Benzoni, requested that

a second autopsy be performed. He hired Dr. Michael Berkland, then the Deputy

Medical Examiner in Kansas City, Missouri, to conduct the second autopsy. In

conducting his autopsy, Dr. Berkland had access to Dr. Bennett's autopsy report, the

microscopic slides, and Kevin's body. Because prosecutor Melodee Hanes had given

instructions not to release Kevin's medical records to the defense team, however, Dr.

Berkland did not at that time have the medical reports of the emergency-room

physicians who diagnosed the hematoma as chronic in nature. Dr. Berkland concurred

with Dr. Bennett that the injuries to Kevin's brain were acute. 

In December 1995, the county prosecutor's office arranged a meeting at Dr.

Carlstrom's office that was attended by four prosecutors and Doctors Bennett,

Carlstrom, and Moorman. Morales's attorneys were not notified about the meeting.

During the meeting, Dr. Bennett reported that the microscopic autopsy slides showed

that Kevin's brain hematoma was acute, not chronic. As a result of Dr. Bennett's

conclusions and without examining the slides themselves, Doctors Carlstrom and

Moorman changed their opinions to align with Dr. Bennett's opinion that the injury

was acute. 

A jury trial was held in December 1996 in the Iowa District Court for Polk

County. Morales was represented by Rodney Ryan and John Spellman. His theory

of defense was that Kevin fell down a flight of eight stairs on November 10, 1995,

thereby aggravating a preexisting hematoma and leading to his death. The jury found

Morales guilty of first-degree murder, and the trial court sentenced him to life in
-4-

prison. The Iowa Court of Appeals affirmed the conviction. Morales then sought

post-conviction relief, which the Iowa courts denied. Thereafter, he filed his federal

petition for writ of habeas corpus, which the District Court denied. Morales now

appeals the denial of the writ. 

II.

This is a sad and difficult case. A young boy is dead, while his father's

conviction for the death rests on judicial proceedings that have raised multiple

questions of fairness and just prosecution. Every court that has reviewed this case has

been struck by certain aspects of the trial and actions of prosecutors that violate the

fundamental notions of fair play on which our legal system is based. For example, the

Iowa District Court for Polk County, addressing Morales's application for postconviction relief, found prosecutor Hanes's instruction to withhold medical records

from the defense team prior to the second autopsy "suspicious at best" and the

prosecution-arranged meeting at which Kevin's treating physicians changed their

opinions about the nature of Kevin's brain injury "questionable." Morales v. Iowa,

No. PCCE 37829, slip op. at 3, 19 (Iowa District Court for Polk County Apr. 30,

2001). The Iowa Court of Appeals, while affirming the denial of post-conviction

relief, "agree[d] with Morales that certain questionable activities and practices, which

became known after his trial, cast a level of doubt on some evidence used to convict

Morales in the death of his son." Morales v. Iowa, No. 2-520/01-1328, slip op. at 21

(Iowa Ct. App. Nov. 15, 2002). The District Court reviewing Morales's habeas corpus

petition aptly observed that the "pretrial and trial process [in Morales's case] at best

falls short of our expectations for so serious an endeavor." Morales v. Ault, No. 4:03-

cv-40347, slip. op. at 2 (S.D. Iowa Sept. 28, 2005). The District Court summarized

the most egregious errors as follows:

A prosecutor instructed that evidence be withheld. Prosecutors arranged

a meeting between the Medical Examiner and treating physicians,
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arguably to impact their trial testimony to be more consistent with that

of the Medical Examiner. Important microscopic slide evidence, relied

upon by the Medical Examiner, was not pursued by defense counsel or

produced by the prosecution during the trial, and the slides were

destroyed while the case was on appeal. Similar opinions by this

Medical Examiner, often based upon such slides, have arguably been

discredited in other cases. The treating surgeon has now recanted his

trial testimony, at least to the extent of placing any reliance on the

opinions of the Medical Examiner. Defense counsel failed to pursue the

slides, failed to interview treating physicians before their trial testimony,

failed to investigate the Medical Examiner even by simply networking

with other defense lawyers, failed to pursue the meeting between the

Medical Examiner and other physicians in relation to their apparent

change in position at trial from their prior reports, failed to make

objections necessary to preserving a record for appeal, and failed to

make an adequate offer of proof regarding the romantic relationship

between a prosecutor and the Medical Examiner.

Id. at 2–3.

Like the courts preceding us, we are troubled by these incidents and add our

condemnation of such practices. That said, however, we conclude that Morales's

petition for habeas relief must be denied. Quite simply, our decision in this case

hinges on the standard of review that Congress has given us to apply. 

Pursuant to the Anti-Terrorism and Effective Death Penalty Act of 1996

(AEDPA), when a state prisoner files a petition for writ of habeas corpus in federal

court we are directed to undertake only a "limited and deferential review of [the]

underlying state court decisions." Lomholt v. Iowa, 327 F.3d 748, 751 (8th Cir.), cert.

denied, 540 U.S. 1059 (2003). We may not grant a writ of habeas corpus unless the

state court's decision "was contrary to, or involved an unreasonable application of,

clearly established Federal law, as determined by the Supreme Court of the United

States" or the state court's decision "was based on an unreasonable determination of
3

We review the District Court's factual findings for clear error and its legal

conclusions de novo. See Johnston v. Luebbers, 288 F.3d 1048, 1051 (8th Cir. 2002),

cert. denied, 537 U.S. 1166 (2003).

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the facts in light of the evidence presented in the State court proceeding." 28 U.S.C.

§ 2254(d)(1), (2). A state court decision is "contrary to" clearly established Supreme

Court precedent if it "applies a rule that contradicts the governing law set forth in [the

Court's] cases" or if it "confronts a set of facts that are materially indistinguishable

from a decision of [the] Court and nevertheless arrives at a result different from [the

Court's] precedent." Williams v. Taylor, 529 U.S. 362, 405–06 (2000). A state court

decision is an "unreasonable application of" clearly established Supreme Court

precedent if it "correctly identifies the governing legal rule but applies it unreasonably

to the facts of a particular prisoner's case." Id. at 407–08. "[A] federal habeas court

may not issue the writ simply because that court concludes in its independent

judgment that the relevant state-court decision applied clearly established federal law

erroneously or incorrectly." Id. at 411 (emphasis added). "Rather, that application

must also be unreasonable." Id. (emphasis added). Finally, a state court decision

involves "an unreasonable determination of the facts in light of the evidence presented

in the state court proceedings" only if it is shown that the state court's presumptively

correct factual findings are rebutted by "clear and convincing evidence" and do not

enjoy support in the record. 28 U.S.C. § 2254 (d)(2), (e)(1); see also Jones v.

Luebbers, 359 F.3d 1005, 1011 (8th Cir.), cert. denied, 543 U.S. 1027 (2004).

Perhaps we would have reached a result different from the result reached by the

Iowa courts, but we cannot deem the state courts' application of the law unreasonable

or its factual findings clearly rebutted. Like the District Court, we find support for the

state courts' determination that the overwhelming evidence of Morales's guilt

overcame the defects in his criminal proceedings. We therefore affirm the District

Court's denial of the habeas petition.3
-7-

III. 

As his first ground for habeas relief, Morales asserts that his Sixth Amendment

rights were violated because his trial attorneys were ineffective. 

"A criminal defendant is constitutionally entitled to the effective assistance of

counsel on direct appeal, as well as at trial." Bear Stops v. United States, 339 F.3d

777, 780 (8th Cir.) (citing Evitts v. Lucey, 469 U.S. 387, 396 (1985)), cert. denied,

540 U.S. 1094 (2003). To establish a claim of ineffective assistance of counsel, a

movant must satisfy the two-part test set forth in Strickland v. Washington, 466 U.S.

668 (1984). First, under the "performance" component, the movant must show that

his counsel "made errors so serious that counsel was not functioning as the 'counsel'

guaranteed [him] by the Sixth Amendment." Strickland, 466 U.S. at 687. Second,

under the "prejudice" component, the movant must demonstrate that "there is a

reasonable probability that, but for counsel's unprofessional errors, the result of the

proceeding would have been different." Id. at 694. "It is not sufficient for a defendant

to show that the error had some 'conceivable effect' on the result of the proceeding

because not every error that influences a proceeding undermines the reliability of the

outcome of the proceeding." Odem v. Hopkins, 382 F.3d 846, 851 (8th Cir. 2004)

(quoting Strickland, 466 U.S. at 693).

Morales sets forth a number of errors allegedly committed by his trial counsel.

First, he argues that his counsel "breached their duty to investigate" by failing to

discover the microscopic autopsy slides of Kevin's hematoma and by failing to

understand the slides' significance, particularly their influence on the opinions of

Doctors Carlstrom and Moorman. Appellant's Br. at 23. Second, Morales criticizes

counsel's treatment of Dr. Bennett, the Iowa Medical Examiner. Morales asserts that

counsel failed to uncover readily available "impeachment material" about Dr. Bennett,

id. at 25, and ineffectively used the impeachment material that they did have by

making only a professional statement, rather than an offer of proof, to show that Dr.
4

The Iowa Court of Appeals also rejected the notion that the performance of

attorneys Spellman and Ryan fell outside the wide range of professional assistance

deemed constitutionally acceptable. Because we conclude that the state courts'

application of Strickland's prejudice prong was not unreasonable, however, we need

not address its application of Strickland's performance prong. See Blankenship v.

United States, 159 F.3d 336, 338 (8th Cir. 1998) (recognizing that "we need not

address the competency of counsel's performance if the prejudice issue is

dispositive"), cert. denied, 525 U.S. 1090 (1999). It is clear from Judge Bright's

dissenting opinion addressing the performance of Morales's trial counsel that Judge

Bright disagrees with our view that the evidence against Morales was overwhelming.

-8-

Bennett was romantically involved with prosecutor Hanes. Morales further argues

that counsel erred by not objecting to Dr. Bennett's inflammatory testimony

analogizing the force necessary to cause Kevin's injuries to a "40-foot fall onto a flat

surface," "a 35-mile-an-hour car crash into a . . . concrete barrier," and "a blow with

a baseball bat from like a home-run swing." J.A. at 557–58. Third, Morales claims

that his trial counsel was deficient in their decision not to introduce certain evidence

at trial. Morales asserts that counsel should have introduced the orthopedic shoes

worn by Kevin and should have called a biomechanical engineer who was prepared

to testify that Kevin's brain hematoma could have developed when Kevin fell down

stairs two months before his death.

The Iowa Court of Appeals addressed each of these asserted errors and

concluded that they did not prejudice the result of Morales's trial. We cannot say that

this conclusion was unreasonable. Although the list of errors is disturbing, when we

step back and consider all of the evidence pointing to Morales's guilt we have little

difficulty concluding that the errors had no effect on the outcome of the trial. Morales

cannot satisfy Strickland's prejudice prong. See Reed v. Norris, 195 F.3d 1004, 1006

(8th Cir. 1999) (finding it impossible for the movant to establish prejudice where the

evidence of his guilt was overwhelming).4
-9-

First, we note that no less than seven doctors testified that Kevin's injuries were

not consistent with a fall down stairs—Morales's defense theory. For example, Dr.

Christopher Ellerbroek, a pediatric radiologist, testified that Kevin suffered an acute,

massive brain injury that could not be caused by a fall down a flight of stairs, even one

with a concrete wall at the bottom. Dr. Ellerbroek opined that Kevin's head was either

struck by an object or struck a fixed object while moving rapidly. Dr. Ellerbroek's

conclusions were supported by Dr. Charles Jennissen, the pediatric physician who

treated Kevin in the emergency room. Dr. Jennissen testified that Kevin's CT scan

revealed a large scalp hematoma, bleeding in the subarachnoid and subdural spaces

of the brain, and an extensive skull fracture. Dr. Jennissen opined that retinal

hemorrhages discovered during the autopsy were "nearly pathognomonic of a nonaccidental injury." J.A. at 311. Dr. Jennissen further opined that "serious injury from

a fall down a stairs is extremely uncommon," id. at 314, and concluded that Kevin's

injuries were consistent with being shaken and then slammed into an object.

Many of the testifying physicians attempted to quantify the amount of force that

was necessary to cause Kevin's brain injury. Dr. Ellerbroek described the necessary

force as "a massive amount of force that we see in very serious motor vehicle

accidents . . . the kind of force you would expect to see if a child were to fall from a

third or fourth story window." Id. at 423. Dr. Jennissen testified that the injury only

could have been caused by a blow of "extreme force." Id. at 318. Dr. Carlstrom

described the necessary blow as a "very hard blow to the head," id. at 361, having a

"large force," id. at 356. Dr. Moorman testified that "[i]t would take a significant

force to create this type of skull injury." Id. at 371. The jury heard all of these

descriptions prior to Dr. Bennett taking the stand. Thus, although Dr. Bennett's

descriptions of the force to Kevin's head were quite graphic, we cannot say that the

Iowa Court of Appeals was unreasonable in ruling that counsel's failure to object to

Dr. Bennett's descriptions was not prejudicial. 
5

We agree with the District Court that evidence of Dr. Bennett's marriage to

prosecutor Hanes should have been permitted at trial to imply bias. As the District

Court recognized, however, 

such an attack on Dr. Bennett's potential bias pales in comparison to the

other evidence in the case that is consistent with Dr. Bennett's opinion.

It would have been preferable for counsel to have made a detailed offer

of proof to demonstrate to the trial court and reviewing courts the nature

of the relationship and its potential impact on Dr. Bennett's testimony,

but the issue was minimally preserved for appellate review. The Iowa

courts found that the other evidence of guilt was so overwhelming that

any error as to this evidence was not prejudicial, and that finding cannot

be found unreasonable.

Morales v. Ault, No. 4:03-cv-40347, slip op. at 17 n.15 (S.D. Iowa Sept. 28, 2005).

6

We do not mean to exculpate the inappropriate meeting arranged by

prosecutors presumably for the purpose of influencing the opinions of Kevin's treating

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The whole of Dr. Bennett's testimony was cumulative of the testimony of the

state's other experts. Even if Dr. Bennett had been impeached at trial and his

testimony completely discredited, therefore, the jury would likely have found Kevin's

injury to be the result of Shaken-Slammed Baby Syndrome, rather than a fall down

the stairs.5

 While it is true that Dr. Bennett was the only person to testify about the

microscopic autopsy slides of the hematoma, perhaps due in some part to Morales's

trial counsel's failure to discover them, Morales could not have been prejudiced by

that fact. As noted by the Iowa Court of Appeals, nothing in the record indicates that

the slides contained exculpatory information. Although the slides were not produced

to Spellman and Ryan, the slides were made available to Dr. Berkland and reviewed

by Dr. Berkland in conjunction with his autopsy of Kevin. Despite Dr. Berkland's

incentive as a defense expert to make findings in Morales's favor, Dr. Berkland did not

find the slides to be exculpatory. Moreover, there is no evidence that Dr. Bennett

somehow pressured or unduly influenced the treating physicians to change their

opinions in light of the slides.6

 Thus, as stated by the Iowa Court of Appeals, "[a]ny
physicians based on Dr. Bennett's interpretation of the microscopic slides. Rather, we

are simply concluding that the state courts were not unreasonable in finding that this

meeting, unrevealed to Morales's trial counsel, did not prejudice Morales.

We also note that the jury was made aware that Dr. Frecentese changed his

medical opinion about the nature of Kevin's injuries (though it does not appear that

Dr. Frecentese was at the secret meeting). Dr. Frecentese testified that while his initial

interpretation of the x-rays was that Kevin suffered a chronic hematoma with an acute

rebleed, after reviewing the medical literature he opined that the injury was acute,

inflicted very close in time to the CT scan.

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claims an investigation would have uncovered a conspiracy or improper influence are

pure conjecture." Morales v. Iowa, No. 2-520/01-1328, slip op. at 15 (Iowa Ct. App.

Nov. 15, 2002). 

Morales's own expert doctor confirmed much of what the state's doctors found.

Dr. Jan Leestma, a neuropathologist, concluded that Kevin's injuries were acute.

Although Dr. Leestma testified that Kevin's injuries could have been caused by a fall

down a flight of stairs landing against a concrete wall, he also conceded that Kevin's

injuries were classic signs of Shaken-Slammed Baby Syndrome. Additionally, Dr.

Leestma admitted that he opined in a published book: "When vehicular and other

forms of major accidental trauma can be ruled out, the child who's been said to have

fallen in the home from a low height or down stairs, who sustains anything other than

simple, narrow, linear, parietal skull fracture without significant neurological

sequalae, should be considered a child-abuse victim until proven otherwise." J.A. at

618. While Morales claims that his retained biomechanical engineer was prepared to

offer testimony indicating that Kevin's injuries could have been accidental, we cannot

say that the addition of such testimony would have created a reasonable probability

of acquittal in light of other evidence highly indicative of Morales's guilt. In any

event, such testimony would have duplicated testimony from Dr. Leestma that Kevin's

injuries could have been sustained in a fall down the stairs. Nor would the

introduction of the orthopedic shoes worn by Kevin have had a significant effect.
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Because there was testimony at trial about Kevin's turned-in foot and the shoes and

braces worn to correct the condition, the introduction of the shoes themselves would

have been no more than cumulative evidence.

The non-medical evidence in the case also supports the Iowa Court of Appeals's

finding of "overwhelming" evidence of Morales's guilt. Morales v. Iowa, No. 2-

520/01-1328, slip op. at 2 (Iowa Ct. App. Nov. 15, 2002). Morales's accounts of the

events were inconsistent and frequently implausible. Morales told the paramedics that

Kevin fell two hours before Morales called 911, but this was belied by evidence that

Kevin was fine at 1:00 p.m. and that the ambulance was dispatched at 1:23 p.m.

When interviewed by a doctor at the emergency room, Morales stated that only five

minutes had passed between the fall and the 911 call. Later, Morales told police

officer Charles Lewis that Kevin spoke to him after the fall, saying that he was okay,

and that Kevin later got out of bed and was standing. But almost all of the medical

evidence introduced indicated that Kevin's injuries were too severe for these actions

to have taken place. Morales told his wife and police investigators that Kevin fell in

the course of taking his jacket to the basement, but the jacket was found in the living

room upstairs. Moreover, at no time did Morales suggest that he heard anything more

than what sounded like a fall from a few steps. This is inconsistent with his defense

at trial that Kevin fell from the top of the stairs and landed against a cement wall.

Paramedic Michael Herra testified that Morales was very nervous and vague when

questioned about how the incident occurred. Morales later made untrue and

minimizing statements to his wife about the incident. Finally, the record contains

evidence of other possible abuse of Kevin while he was in Morales's care. For

example, Kevin was treated at the hospital for allegedly accidental injuries on three

occasions in the six months preceding his death.

 After examining the record, we conclude that the ruling of the Iowa Court of

Appeals did not involve an unreasonable application of federal law. The state court

was reasonable in its determination that overwhelming evidence of Morales's guilt
7

Having assumed that there was no procedural obstacle to Morales's claim of

ineffective assistance of trial counsel, we have concluded that this claim was

appropriately rejected. It is therefore not necessary for us to address the merits of

whether Morales was procedurally barred from raising the claim. See Odem v.

Hopkins, 382 F.3d 846, 852 (8th Cir. 2004).

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overcame any trial defects affected by Morales's counsel. The District Court did not

err when it denied this claim.7

IV.

Morales's second claim is that the state failed to disclose potentially exculpatory

evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963). In Brady, the

Supreme Court held that due process requires the government to disclose material,

exculpatory evidence to the defendant. Id. at 87. "There are three components of a

true Brady violation: The evidence at issue must be favorable to the accused, either

because it is exculpatory, or because it is impeaching; that evidence must have been

suppressed by the State, either willfully or inadvertently; and prejudice must have

ensued." Strickler v. Greene, 527 U.S. 263, 281–82 (1999). Prejudice cannot be

shown "unless the nondisclosure was so serious that there is a reasonable probability

that the suppressed evidence would have produced a different verdict." Id. at 281. In

determining whether confidence in the verdict has been undermined, we consider the

items of suppressed evidence collectively, rather than individually. Liggins v. Burger,

422 F.3d 642, 651–52 (8th Cir. 2005), cert. denied, 126 S. Ct. 1359 (2006). 

Morales contends that the state committed three Brady violations: (1) the state

did not release the medical records of Doctors Frecentese, Moorman, and Carlstrom

prior to Dr. Berkland's autopsy of Kevin, (2) the state did not tender the microscopic

autopsy slides to Morales's trial counsel, and (3) the state destroyed the microscopic

autopsy slides while Morales's case was on direct appeal. After considering each of

these assertions, the Iowa courts determined that no Brady violation exists to warrant
8

We question whether the medical records were truly suppressed under Brady's

second prong given that the state produced them a year before trial. See United States

v. Almendares, 397 F.3d 653, 664 (8th Cir. 2005) ("Under the rule in our circuit Brady

does not require pretrial disclosure, and due process is satisfied if the information is

furnished before it is too late for the defendant to use it at trial."). The state court did

not address this issue, however, and we need not reach it to determine that the state

court's decision was in accordance with federal law.

9

We reject Appellee's argument that this Brady claim was not preserved.

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a new trial. We cannot find that determination unreasonable or contrary to federal

law.

Morales's first argument is that the state violated Brady by failing to turn over

the medical records of Kevin's treating physicians on or before the date of the second

autopsy. While Morales concedes that the state produced these medical records prior

to trial (the record shows that they were produced about a year in advance of trial and

were used by the defense at trial), he argues that the records would have been

exculpatory if received by Dr. Berkland prior to his autopsy of Kevin because they

would have influenced Dr. Berkland "to conclude that Kevin's hematoma was an old

injury with a 'rebleed,'" rather than an acute injury. Appellant's Br. at 35. The Iowa

post-conviction district court rejected this argument based on Dr. Berkland's postconviction testimony that his review of the medical records, albeit after the autopsy,

did not change his opinion that Kevin's injury was acute or hyper-acute. Accordingly,

the state court found that Morales could establish no prejudice from this potential

Brady violation. We agree. Given Dr. Berkland's testimony to the contrary, Morales

did not show a reasonable probability that the "suppressed"8

 evidence would have

produced a different verdict. 

Morales next argues that the state violated Brady by not giving the microscopic

autopsy slides to his trial counsel. The Iowa courts rejected this argument on two

grounds.9

 First, the state courts found that the slides were not suppressed—they were
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produced to Morales through his original attorney, Benzoni, and through his expert

medical examiner, Dr. Berkland. The post-conviction district court stated:

One of the fundamental tenets of Brady is that exculpatory evidence was

actually suppressed. Brady v. Maryland, 373 U.S. 85, 87 (1963). The

court notes that the microscopic slides were produced to Petitioner via

his hired medical consultant, Dr. Berkland. Testimony of Doctor

Berkland, Apr. 16, 2001. Additionally, the court does not find any

evidence in the record that the microscopic slides were withheld at any

point up to and through the original trial.

Morales v. Iowa, No. PCCE 37829, slip op. at 5 n.3 (Iowa District Court for Polk

County Apr. 30, 2001). The Iowa Court of Appeals similarly found that the "slides

were made available to Morales's original counsel and defense expert." Morales v.

Iowa, No. 2-520/01-1328, slip op. at 12 (Iowa Ct. App. Nov. 15, 2002). Morales has

not rebutted these presumptively correct factual findings with clear and convincing

evidence, and we deem the findings reasonable. 

The Iowa courts' second basis for rejecting this argument was the lack of "direct

evidence that the microscopic slides were 'exculpatory.'" Morales v. Iowa, No. PCCE

37829, slip op. at 7 (Iowa District Court for Polk County Apr. 30, 2001). Again we

find the state courts' determination reasonable. Dr. Berkland reviewed the slides and,

despite having an incentive as a defense expert to make findings in Morales's favor,

concurred with Dr. Bennett's autopsy findings. See United States v. Rouse, 410 F.3d

1005, 1010 (8th Cir. 2005) (ruling that defendants cannot establish a Brady violation

when "defendants can only speculate that the [suppressed evidence] might have

contained material exculpatory information").

Finally, Morales asserts that the state violated Brady by destroying the

microscopic autopsy slides while his direct appeal was pending. Because Morales

failed to demonstrate that the slides were suppressed and were exculpatory, as
-16-

discussed above, the Iowa courts rejected this argument. The state courts were

reasonable in reaching this conclusion. The Iowa Court of Appeals also held that

Morales failed to demonstrate that the state destroyed the slides in bad faith. To

establish a due-process violation when a state destroys evidence that is potentially

useful to a criminal defendant, the defendant must show that the state acted in bad

faith. Illinois v. Fisher 540 U.S. 544, 547–48 (2004) (per curium); Arizona v.

Youngblood, 488 U.S. 51, 58 (1988). We agree that Morales did not make this

showing; the record indicates that the slides were destroyed as part of a blanket

disposition of closed files at the Iowa Department of Criminal Investigation. While

destroying this evidence during the pendency of Morales's direct appeal was certainly

negligent, nothing in the record indicates that it was done in bad faith. The District

Court appropriately denied relief on Morales's Brady claim.

V.

For the reasons discussed, the District Court's denial of Morales's petition for

writ of habeas corpus is affirmed.

BRIGHT, Circuit Judge, dissenting.

I respectfully dissent.

There is no overwhelming evidence of guilt in this case. The jury never heard

the complete medical facts because counsel failed to interview the most important

witnesses, Kevin's treating physicians. 

As of the trial, Morales's counsel knew or should have known the following: (1)

Doctors Carlstrom and Moorman treated Kevin on the night he died; (2) Doctors

Carlstrom and Moorman concluded, at the time he was admitted to the hospital, that

Kevin died as a result of a rebleed of a chronic subdural hematoma; (3) Kevin's
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medical records, the CT Scan, and Doctor Carlstrom's observations of Kevin's skull

during surgery showed that the blood in Kevin's head displayed characteristics

consistent with a rebleed of a chronic subdural hematoma; (4) Doctors Carlstrom and

Moorman attended a meeting (along with another one of Kevin's treating physicians)

orchestrated and attended by at least four county prosecutors and medical examiner

Doctor Bennett, all of whom maintained that Kevin died from shaken-slammed baby

syndrome; (5) one of the county prosecutors who attended the meeting assisted in a

child death review team and was romantically involved with medical examiner Doctor

Bennett; (6) after the meeting, Doctors Carlstrom and Moorman changed their

opinions to be consistent with those of Doctor Bennett and the government that Kevin

died from shaken-slammed baby syndrome; and (7) Doctors Carlstrom and Moorman

would testify for the government at trial. 

Yet, despite this knowledge, the record shows that trial counsel did not

personally interview Doctor Carlstrom or Doctor Moorman. It is clearly established

that "[defense] counsel has a duty to make reasonable investigations or to make a

reasonable decision that makes particular investigations unnecessary." Strickland v.

Washington, 466 U.S. 668, 691 (1984). This court has explained that under Strickland

"[r]easonable performance of counsel includes an adequate investigation of facts,

consideration of viable theories, and development of evidence to support those

theories." Foster v. Lockhart, 9 F.3d 722, 726 (8th Cir. 1993). Morales's counsel's

failure to interview Doctors Carlstrom and Moorman to investigate the circumstances

of their changed testimony fell below constitutional standards of competence in light

of the doctors' changed opinions as to the cause of Kevin's death. 

This deficient representation undoubtedly undermines any confidence in the

verdict against Morales, see Strickland, 466 U.S. at 694, and the state court's

determination to the contrary was unreasonable. The record establishes that the

important medical evidence and opinions of the attending physicians could

significantly impair the government's theory that Kevin's death resulted from shaken-
10As part of the record before us, I have examined two pages (which was all that

was provided to this court) of deposition testimony of Doctor Carlstrom, apparently

taken by Morales's former counsel prior to trial and which were available to Morales's

trial counsel. Counsel's reliance on this deposition alone serves as inadequate

investigation of the doctors' change in testimony. The deposition reveals that Doctor

Carlstrom changed his original medical opinion, which he had based on his own

personal observations, upon inducement by the medical examiner and not based on

any objective medical evidence that Doctor Carlstrom had observed. The information

gleaned from the deposition, at a minimum, required further investigation by

competent counsel in preparation for trial. 

Indeed, a number of the other bases on which Morales argues ineffective

assistance of counsel, such as failure to investigate and impeach Doctor Bennett and

failure to pursue the slides, are derivative of counsel's failure to interview Doctors

Carlstrom and Moorman. These two interviews would have resulted in counsel's

appreciation of the significance of the slides and Doctor Bennett's improper influence

as avenues for Morales's defense. The slides, unfortunately, are no longer available

as they have been destroyed by the State of Iowa.

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slammed baby syndrome and demonstrates that Kevin died from an old, chronic

condition rather than a recent injury. Moreover, the record shows that prosecutors

played a key role in presenting skewed medical opinion evidence from the physicians

who treated Kevin on the day he died by hosting a meeting, not disclosed to or

attended by defense counsel, and using the opinion of a possibly biased medical

examiner to persuade the treating physicians to change their initial opinions. That

meeting resulted in Doctor Carlstrom changing his opinion as to the cause of Kevin's

death. All of this would have come to light if defense counsel did what any minimally

competent lawyer would do: personally interview the important witnesses.10

Armed with the information counsel would have obtained by interviewing the

physicians, Morales's trial would have been quite different. First, Doctor Carlstrom's

testimony would have been less persuasive, if not entirely different. Judge Sackett of

the Iowa Court of Appeals, writing separately in this case on direct appeal, explained

that in determining that Kevin suffered from shaken-slammed baby syndrome he
11See App. at 660-663 (from Doctor Carlstrom's post-conviction testimony).

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"look[ed] particularly to the testimony of Dr. Thomas Carlstrom, the neurosurgeon

who operated on the victim[.]" If counsel had interviewed Doctor Carlstrom, a jury

would have heard his original (and current) opinions as to the cause of Kevin's death:

the blood in Kevin's skull was liquid, consistent with a rebleed of a chronic hematoma;

the CT scan and other treating physicians confirmed this observation and diagnosis;

the injury Doctor Carlstrom had observed was the type of injury that very little trauma

could cause to rebleed; a fall down a flight of stairs, hitting a concrete wall at the

bottom, could cause a linear fracture and, because of the presence of the chronic

hematoma, could cause a rebleed and ultimately death.11 

By way of example, of the information described above, the jury heard Doctor

Carlstrom state, on direct examination, that the blood in Kevin's skull was liquid and

that was "a bit unusual." On cross examination, Doctor Carlstrom surmised that

Kevin's blood was probably unable to clot. Had counsel interviewed or made a

complete investigation of Doctor Carlstrom prior to trial, counsel could have

confidently inquired further and a jury would have heard Doctor Carlstrom state, as

he did in his post-conviction testimony:

Well, I think that the blood clot itself, when I saw it, what I saw at

the time of surgery and on the CT scan, everything that I saw pointed to

this blood clot being an old blood clot. I was quite certain it was. I have

never seen a brand-new blood clot liquid like this one was. This would

be the only case I have ever seen like that, and the only explanation for

it could be that undeniable pathological identification would indicate that

there was no – that this was not a chronic subdural hematoma. I still can't

explain how one can have a blood clot hours old that was all liquid.

That's a very difficult – a very difficult pathological – very difficult to

occur.

App. at 660.
12Characterization of Doctor Bennett's testimony by the state courts as

"cumulative" belittles the weight a jury would give a state medical examiner's

testimony. See Iowa v. Morales, No. 8-074/97-152, slip op. at 6 (April 24, 1998) (en

banc).

13Doctor Carlstrom has stated now that he no longer considers Doctor Bennett

trustworthy, explaining: "I think that Dr. Bennett's testimony in other child abuse

cases has come into question because I think he's just a bit overzealous in his opinion

giving. I have disagreed with his opinions on a number of occasions." App. at 661.

If only Morales's counsel had fully investigated this case, Doctor Carlstrom's

skepticism of Doctor Bennett would not have come so late. 

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In addition, if counsel had investigated the cause of the doctors' changed

opinions, they could have presented that information in court, discrediting not only

Doctor Bennett, the state medical examiner,12 but also the prosecution itself in this

case. Although counsel attempted to make a professional statement about Doctor

Bennett's romantic relationship with a county prosecutor, they failed to make an

adequate offer of proof and failed to link it in a material way to the case. Had counsel

interviewed Doctor Carlstrom and investigated the cause of his changed testimony

(the improper meeting hosted by Doctor Bennett and the prosecutor's office), counsel

would have been able to connect Doctor Bennett's alleged bias to the case and

significantly impair the credibility of the state's witnesses in this case. Significantly,

then Doctor Carlstrom himself might have begun to question the propriety of the

meeting and Doctor Bennett's conclusions.13

Both the district court and my colleagues on this court have noted that every

court that has reviewed this case has been troubled by issues of fairness it presents.

Those issues represent substantial flaws in Morales's conviction. Those flaws should

have bothered Morales's trial counsel enough to prompt them to fully prepare and

investigate a case calling for a possible life sentence. 
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Accordingly, I dissent. Morales is entitled to relief and the writ of habeas

corpus should have been ordered by the district court. 

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