UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 91-3515

FREDERICK KIRKPATRICK,

Petitioner-Appellant,

versus

JOHN P. WHITLEY, Warden, Louisiana

State Penitentiary, ET AL.,

Respondents.

ST. TAMMANY PARISH DISTRICT

ATTORNEY'S OFFICE,

Movant-Appellee.

Appeal from the United States District Court

For the Eastern District of Louisiana

( May 20, 1993 )

Before POLITZ, Chief Judge, KING and DAVIS, Circuit Judges.

POLITZ, Chief Judge:

Convicted of capital murder by a Louisiana jury and sentenced

to death Frederick Kirkpatrick seeks federal habeas relief for the

second time. The district court denied relief. We now vacate and

remand for an evidentia r y hearing to determine whether

Kirkpatrick's claims relating to prosecutorial misconduct are

supported in fact and to reconsider the abuse of the writ issue in1

_____ U.S.

_____, 112 S.Ct. 2514, 120 L.Ed.2d 269 (1992).

2 The Meridian Police seized the gun from Faulkner upon his

arrest. The gun belonged to the victim.

3 Kirkpatrick v. Butler , 870 F.2d 276, 277-78 (1989).

2 light of the intervening decision by the Supreme Court in Sawyer v.

Whitley

. 1

Background

In our prior panel opinion we summarized the facts:

On the night of January 27, 1982, Frederick Kirkpatrick

and Charles Faulkner were in the home of Steven Radoste,

who lived alone in the Pearl River area of St. Tammany

Parish. During the night, Radoste was murdered: he was

struck in the head with a heavy glass object, stabbed

with a butcher knife in the abdomen and chest, and shot

in the head. Radoste's house was robbed, and his pickup

truck was stolen.

. . . Kirkpatrick confessed that he

and Faulkner had driven the truck to a remote area and

that he had watched Faulkner burn it. He also stated

that Faulkner possessed a .22 caliber Derringer

firearm 2

. . . . Police seized several of Radoste's

belongings from Kirkpatrick' s apartment, as well as a

pair of Kirkpatrick's sneakers, the sole pattern of which

was matched to a bloody footprint at Radoste's home. 3

Kirkpatrick, on the advice of counsel, turned down a plea offer

which would have resulted in a life sentence. Faulkner was tried

separately and senten ced to life in prison. Kirkpatrick claimed

that he stabbed Radoste in self defense. Although his version of

th e events has been inconsistent, Kirkpatrick testified that he

stabbed Radoste after Radoste made, at gunpoint, unwelcome

homosexual advances.

Kirkpatrick explained his presence in Radoste's home by4 During opening statements the prosecution mused that

Faulkner shot Radoste. Only Julie Yarbrough, Faulkner's girlfriend

and the mother of his child, testified -- inconsistently with her

prior statement contained in the police reports

-- that Kirkpatrick

told her that he, and not Faulkner, shot Radoste.

Kirkpatrick complains of the prosecution approaching

witness Julie Yar brough on the day of the trial to take a hair

sample and fingerprints. Found at the murder scene was a bloody

fingerprint on a glass and a mass of hair firmly clasped in the

victim's hand. The defense was not informed that the prints and

hair did not come from Radoste, Faulkner, or Kirkpatrick. The

results of the test remain a mystery. We focus on the affidavits

of the first two officers to arrive at the scene which precipitate

our direction of an evidentiary hearing. The district court may

w ish to reconsider Kirkpatrick's other complaints to the ex tent

that the evidentiary hearings may bring new light on those issues.

3 claiming that Radoste gave him and Faulkner a ride when they were

hitchhiking in Mississippi, and invited them to his home in

Louisiana. According to Kirkpatrick, Radoste suggested that

Kirkpatrick take a shower and then, a fter he finished showering,

demanded sexual favors. When Kirkpatrick refused, Radoste pulled

a gun. Kirkpatrick claims that he then grabbed a knife, while

Radoste was distracted, and stabbed him. He offered no explanation

for the two pillows found on Radoste's head nor for the bullethole

through one and the bullet in the victim's head. 4

It is clear that the decedent's sexual preferenc e was a

significant issue at trial because it bore upon the factual basis

for K irkpatrick's claim of self defense. To rebut Kirkpatrick's

theo ry the prosecution called Officer McKormick, one of the

investigating officers, who testified that the only evidence found

of Radoste's sexual preference was a Playboy magazine, suggestive

of heterosexual interest. The prosecution also offered a5 Kirkpatrick v. Blackburn , 597 F.Supp. 1562 (E.D.La.

1984).

6 Kirkpatrick v. Blackburn , 777 F.2d 272 (5th Cir. 1985),

cert

. denied

, 476 U.S. 1178, 106 S.Ct. 2907, 90 L.Ed.2d 993 (1986).

7 Kirkpatrick v. Butler

, 870 F.2d 276 (5th Cir. 1989),

cert

. denied

, 493 U.S. 1051, 110 S.Ct. 854, 107 L.Ed.2d 848 (1990).

4 photograph depicting a crutch near the victim. Beyond the obvious

potential of generating s ympathy for the victim, the crutch

p ointedly tended to discount the victim's ability to present the

sort of threat that would justify the use of deadly force in self

defense. The prosecution also presented testimony of Radoste's

neighbor, David Garrett, who claimed to have seen Radoste walking

on crutches when Garrett delivered a spaghetti dinner to Radoste,

at the same time Kirkpatrick claimed to have been riding in

Radoste's car.

Kirkpatrick filed his first state court application for habeas

relief on October 17, 1984. After a limited evidentiary hearing

relief was denied. On September 19, 1984, the Louisiana Supreme

Court denied remedial writs. Kirkpatrick promptly filed his first

federal application complaining of numerous deficiencies in his

trial as well as the method of electrocution. All relief was

denied. 5 We affirmed in part and vacated in part instructing the

district court to make factual findings regarding the sufficiency

of trial counsel's efforts to suppress physical evidence. 6 On

remand the dist rict court again found no basis for relief. We

a ffirmed. 7 A second state habeas application, raising all of the8 Brady v. Maryland

, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d

215 (1963). The state's appellate counsel candidly confirmed that

Kirkpatrick's counsel had made a timely Brady request.

5 points raised in this, his second federal application , won

Kirkpatrick a temporary stay of executio n, but permanent relief

ultimat ely was denied. Although it originally scheduled an

evidentiary hearing on Kirkpatrick's claims, the state court denied

relief without holding a hearing. The Louisiana Supreme Court

again refused to hear the case.

The present federal habeas petition alleges multiple grounds

for collateral relief. The claims raised can be summarized as

follows: (1) the prosecution did not share exculpatory material

with the defense, some of which flatly conflicted with the

prosecution's presentation of the facts, suggesting that the

prosecution suborned perjury or, at least, withheld exculpatory

material despite a Brady 8 request; (2) the prosecution tampered

with witnesse s by improper threats; (3) Kirkpatrick received

ineffective assistance of counsel; (4) the trial court erred in the

sentencing phase when it refused to instruct the jury on the

parolability of the defendant; and (5 ) death in the Louisiana

electric chair is cruel and unusual punishment.

The district court, in a thorough and reasoned opinion

withheld relief under the then-controlling standards. No

evidentia ry hearing was had. The court assumed the truth of the

first claim, suppression and/or knowing use of perjured testimony,

and further assumed that the claims were not barred by9 The court treated the report containing a prior

inconsistent statement of witness Garrett, Radoste's neighbor, as

a suppression issue rather than an issue relating to the knowing

use of perjured testimony. The court may wish to reconsider this

and other issues should an evidentiary base develop during the

directed evidentiary hearing.

10 The jury sent two notes to the trial judge inquiring as

to the duration of a life sentence and the possibility of parole.

The judge refused to give the instruct ion on parole. Such an

instruction is not constitutionally mandated. O 'Bryan v. Estelle

, 714 F.2d 365, 389 (5th Cir. 1983), cert

. denied sub nom

. O'Bryan v.

McKaskle , 465 U.S. 1013, 104 S.Ct. 1015, 79 L.Ed.2d 245 (1984).

11 Baker v. Metcalfe , 661 F.2d 391 (5th Cir. Unit B 1981),

cert

. denied , 456 U.S. 1011 (1982).

6 Kirkpatrick's failure t o raise them in the first petition but

denied relief, concluding that neither the conviction nor the

sentence were tainted by the assumed mis conduct. 9 The second

claim, tampering with witnesses, was reviewed to determine whether

a different outcome would have been reached had the tampering been

disclosed

-- the court answered the question in the negative. The

third claim, ineffective assistance of counsel, was dismissed for

abuse of t he writ. The jury instruction, the fourth claim, was

also dismissed for abuse of the writ and alternatively for lack of

merit. 10 The final claim, that Louisiana's chosen method of

execution was unconstitutional as applied, failed on its merits.

Kirkpatrick timely appeal ed. On appeal we review the factual

findings for clear error; mixed questions of fact and law generally

receive indep endent review, and questions of law are reviewed d e

novo

. 11

Analysis12 Apparently the testimony of Garrett was the only

admissible evidence of Radoste's use of a c rutch. Garrett's

testimony could also have been discredited by an autopsy report

indicating that spaghetti was not among the contents of the

victim's stomach.

7 Kirkpatrick makes allegations, which are substantially

supported by evidence not previously available to him, that raise

serious questions about the reliability of the prosec ution's

evidence. Kirkpatrick claims that the prosecution knew: (1) that

Radoste possessed substantial hardcore homosexual pornography of

which Officer McKormick was aware; (2) that Radoste had a drawer

full of rubber gloves, which are commonly used by homosexuals;

(3) that Radoste's neighbor, David Garrett, did not see him when he

cla imed to or see him on crutches at any time; 1 2 and (4) that the

crutch was used as a stage prop for the photograph. Kirkpatrick

also claims that the prosecution tampered with witnesses by threats

and coercion.

The absence of an evidentiary hearing in either the state or

district court hampers our review of both the factual bases for

Kirkpatrick's claims and their effect, if any, on the outcome of

the trial. It is clear, however, from the affidavits of the first

two officers on the scene that neither saw a bloody crutch next to

Radoste's body or anywhere in Radoste's apartment. Moreover, they

claim that Officer McKormick hims elf showed them a "stack of

magazines that were filled with pictures of nude men." We focus on

the evidence which was not available to Kirkpatrick on his first

habeas petition.13 See also 28 U.S.C. § 2244(b) (".

. . a subsequent

application [by] such [a] person need not be considered by a court

. . . unless the application alleges and is predicated on a factual

or other ground not adjudicated on the hearing of the earlier

application for the writ, and unless the court . . . is satisfied

that the applicant has not on the earlier application deliberately

withheld the newly asserted ground or otherwise abused the writ.").

14 499 U.S. _____, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991).

15 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964).

8 1. Abuse of the writ

Before considering the merits of Kirkpatrick's cl aims, we

perforce consider whether the issues are properly before us. The

prosecution claims that Kirkpatrick's failure to raise these claims

in his first habeas petition constitutes abuse of the writ.

Rule 9(b) governing cases brought under 28 U.S.C. § 2254 provides:

A second or successive petition may be dismissed if the

judge finds that it fails to allege new or different

grounds for relief and the prior determination was on the

merits or, if new and different grounds are alleged, the

judge finds that the failure of the petitioner to assert

those grounds in a prior petition constituted abuse of

the writ. 13

The Supr eme Court's recent decision in M cCleskey v. Zant 14 guides

our analysis. In M cCleskey the habeas petitioner complained of the

admission of his statement to a cellmate. McCleskey alleged that

the fellow prisoner was an agent of the state and that placing the

agent in his cell violated his sixth amendment right to counsel as

interpreted in United States v. Massiah

. 15 He raised the claim in

his first state habeas petition but omitted it from his first

federal petition. It was not until his second federal habeas16 McCleskey , 111 S.Ct. at 1465, 113 L.Ed.2d at 538.

9 petition that McCleskey reurged the Massiah claim. The district

court granted relief but the Eleventh Ci rcuit reversed, finding

error in the district court's failure to find an abuse of the writ.

On certiorari the Supreme Court affirmed, clarifying for the

first tim e the standard to be employed to ascertain abuse of the

writ. Under the regime announced in M cCleskey

, when there has not

been a prior determination on the merits the government bears the

initial burden of pleading and proving abuse of the writ; the

habeas petitioner must then counter that claim.

In the instant case the government met its initial burden, but

the district court assumed, for the purposes of its decision, that

Kirkpatrick successfully establi shed that he had not abused the

wri t with respect to his claims that the prosecution suborned

perjury, withheld evidence, and tampered with witnesses. Equitable

principles govern this decision and, ultimately, it rests in the

sound discretion of the district court. 16 But that discretion is

not completely unfettered; the district court must recognize abuse

where it is evident. We must therefore determine whether the court

abused its discretion by not finding abuse in Kirkpatrick's failure

to raise these issues in his first federal petition.

Under the standards announced in McCleskey

, abuse of the writ

consist s either of the deliberate withholding of claims or

inexcusable neglect. The latter is applicable herein. The

McCleskey court adopted the cause-and-prejudice standard for17 McCleskey

.

18 945 F.2d 812 (5th Cir. 1991), aff 'd , _____ U.S. _____,

112 S.Ct. 2514, 2522, 120 L.Ed.2d 269 (1992).

1 9 McCleskey

, 111 S.Ct. at 1470, 113 L.Ed.2d at 544 (quoting

Murray v. Carrier , 477 U.S. at 488). The Court in McCleskey also

recognized "interference by officials" as a cause for the failure

to present claims in the previous habeas application. Unlike

McCleskey, Kirkpatrick did not himself possess knowledge of the

officers' identity or their knowledge of the events.

10 determining whether neglect is excusable. Under this standard, the

habeas petitioner first must explain his failure to present the

claim by some objective factor external to the defens e which

impeded counsel's efforts to raise th e claim previously and must

also demonstrate actual prejudice resulting from the error. 17

Absent a showing of cause and prejudice, the failure to raise

a claim in a prio r habeas petition may be overlooked only when a

constitutional violation probably has resulted in the conviction of

one inn ocent of the crime. Finding cause and prejudice in the

evidence presented by the two police officers, we need not reach

the issue of actual innocence. We note, however, that

Kirkpatrick's claims of self defense would establish a lack of

criminal responsibility under the test announced in Sawyer v.

Whitley

. 18 On remand, the district court should examine the abuse

issues in light of the new standards.

The claims of suppression and falsification of evidence were

not raised in the first federal habeas petition for obvious

r easons: the "'factual . . . basis . . . was not reasonably

available to counsel.'" 19 Although Kirkpatrick's trial counsel made20 In 1984 Louisiana amended its public records provisions

to provide for public examination of initial police reports. La.

R.S. 44:3A(4)(a) (West Supp. 1993). The amendment took effect on

September 1, 1985; Kirkpatrick was tried in 1982 and the federal

district court denied his first federal habeas application in 1984.

21 Rule 6, 28 U.S.C. § 2254.

22 As it is, counsel for Kirkpatrick explained at argument

that he obtained the report by serendipity when a police official

offered it in response to a request for other information.

11 a Brady request before trial, the statements, indeed the very

identity, of the first two officers on the murder scene, were not

d iscovered at trial because the then-controlling state law would

not permit discovery of the initial p olice report. That law has

since been amended. 20 Notwithstanding, that report was not produced

during the previous federal or state habeas proceedings.

While we are confident that the district court would have

allowed discovery in the first habeas proceeding had counsel reason

to request it, we recogni ze that in order to obtain discovery in

habeas proceedings "good cause" must be shown. 21 Counsel could not

establish good cause for the production of information of which he

had n o knowledge. The discovery rules do not permit the sort of

fishin g expedition that would have been necessary to locate the

reports of the first two officers on the scene. 22 In short, we find

much support for the district court's assumption that "cause"

existed for Kirkpatrick's failure to raise this issue in the first

federal habeas proceeding.23 During deliberations the jury sent out notes suggesting

that they were inclined toward life imprisonment if parole were not

possible. They were not informed that under Louisiana law there is

no parole from a life sentence.

24 In light of Sawyer 's teachings, the district court may

wish to revisit other issues previously deemed barred.

25 See Morgan v. Illinois , 112 S.Ct. 2222, 119 L.Ed.2d 492

(1992).

12 We also agree with the distr ict court's assumption that

Kirkpatrick met his burden of proving actual prejudice. If the

errors of which he complains are supported by the evidence adduced

at the evidentiary hearing then Kirkpatrick will ha ve confirmed

that the prosecution presented falsified evidence and suppressed

exculpatory evidence. The presentation of falsified evidence and

the withholding o f exculpatory evidence from the jury might have

led to a d ifferent result not only with respect to the sentence

imposed, 23 but also to th e jury's consideration of Kirkpatrick's

defense.

We theref o re agree with the district court's preliminary

assumption that Kirkpatrick did not abuse the writ by failing to

raise these issues in his first federal habeas application. 24

2. Falsification and suppression

We turn now to Kirkpatrick's allegations of falsification and

suppression of evidence. While we are cognizant of the toll habeas

wreaks on finality, we are also concerned that both fairness and

the appearance of fairness be preserved, especially in light of the

punishment assessed. 25 In our criminal justice system the26 Imbler v. Pachtman

, 424 U.S. 409, 96 S.Ct. 984, 47

L.Ed.2d 128 (1976). S ee also ABA Model Rules of Professional

Conduct, Rules 3.2(a)(4), 3.4(a), (b), and (f), and 3.8, all of

which Kirkpatrick claims to have been violated by the prosecution.

27 See Derden v. McNeel , 978 F.2d 1453 (5th Cir. 1992) ( en

banc ).

13 pro secutor has at his disposal the substantial resources of the

government as well as considerable other advantages. In exchange,

that system reposes great trust in the prosecutor to place the ends

of justice above the goal of merely obtaining a conviction. 26

Kirkpatrick's claims, if true, raise serious questions about

both the reality and appearance of fairness in his conviction and

punishment. We may not, absent an adequate factual record, sweep

away these charges on the assumption that the jury would not have

arrived at a different conclusion at either stage of the trial had

they been told of the matters Kirkpatrick attributes to the

prosecution. As Kirkpatrick's counsel points out, the use of

Officer McKormick's testimony with respect to Radoste's sexual

preferences, and the introduction of the photograph depicting the

crutches at the scene of the murder, may constitute knowing use of

perjured testimony and false evidence. The same may be true of the

testimony of Julie Yarbrough, the only witness to testify that

Kirkpatrick admitted shooting the victim, or David Garrett, who may

not have seen the victim on crutches or at a time when the defense

claimed that Radoste was with Kir kpatrick and Faulkner. The

cumulative effect of this scenario likewise is manifestly

uncertain. 272 8 United States v. Bagley

, 473 U.S. 667, 105 S.Ct. 3375, 87

L.Ed.2d 481 (1985).

2 9 Bagley

, 473 U.S. at 682, 105 S.Ct. at 3383, 87 L.Ed.2d at

494 (opinion of Blackmun, J., joined by O'Connor, J.); James v. Whitley

, 926 U.S. 1433, 1439 (5th Cir. 1991); but see United States

v. Buchanan , 891 F.2d 1436, 1441 (10th Cir. 1989).

14 Regardless of their label, Kirkpatrick's cl aims are serious

and, at least at this stage, sufficiently supported. Whether they

have firm grounding in reality remains to be seen. To the extent

that they are supported, the critical question will be whether the

prosecution simply withheld evidence or put on evidence it knew to

be false. The withholding of exculpatory information in violation

of Brady merits relief where the information is so material that

the prosecution's withholding would deprive the defendant of a fair

trial. 28

We observe that different standards of materiality apply to

Brady claims and claims that the prosecution has knowingly used

perjured testimony or false evidence. The materiality standard for

Brady claims, regardless of whether the defense made a specific or

general request (or no request at all) for the withheld evidence

prior to trial, 29 is as follows: "'The evidence is material only

if there is a reasonable probability that, had the evidence been

disclosed to the defense, the result of the proceeding would be

different. A "reasonable probability" is a probability sufficient30 James , 926 F.2d at 1439 (quoting Bagley , 682 U.S. at

682).

31 Bagley , 682 U.S. at 679 n.9 ( c iting Napue v. Illinois

, 360 U.S. 264 (1959)) (emphasis added).

32 United States v. Agurs , 427 U.S. at 103 (footnote

omitted).

3 3 Louisiana law requires unanimity in a jury's sentence of

death. La. Code Crim. Proc. art. 905.6 (West 1984). We have

frequently recognized the strategic value of relying on "residual

doubt." E .g.

, Smith v. Black , 904 F.2d 950 (5th Cir. 1990),

vacated , 112 S.Ct. 1463, 117 L.Ed.2d 609 (1992).

15 to undermine confidence in the outcome.'" 3 0 Conversely, if the

prosecutor has knowingly used perjured testimony or false evidence,

the standard is considerably less onerous: the conviction "must be

set aside if there is any reasonable likelihood that the false

testimony could have affected the jury's verdict. . . ." 31

Thus, should the evidence adduced support Kirkpatrick's claims

of perjury, the proper question is whether "there is any reasonable

likelihood that the false testimony could have affected the

judgment of the jury." 32 Such a corruption of the truth-seeking

process would strike at the confi dence of the conviction and

sentence. Moreover, given the unanimity required at the Louisiana

punishment phase, the proper frame of reference, at least with

regard to the punishment assessed, is whether the mind of one juror

could have been changed with respect to the imposition of the

sen tence of death. 3 3 If, on the other hand, no misconduct

appropriately is attr ibutable to the prosecution, the court must

consider the proper context of any Brady violations it finds.3 4 Streetman v. Lynaugh

, 812 F.2d 950 (5th Cir. 1987). See

also Townsend v. Sain

, 37 2 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770

(1963) (listing circumstances mandating a hearing) and its partial

codification at 28 U.S.C. § 2254(d).

16 We express no opinion about the v eracity of any of

Kirkpatrick's claims. That remains initially for the trial court.

We do note that appellate counsel disagreed about the two officers

on whose affidavits Kirkpatrick relies

-- were they police officers

or emerge ncy medical technicians? Would that make a difference?

These and other facts, and the assessment of credibility of the

witnesses are, necessarily, to be resolved by the trial court after

a hearing. 3 4 But resolve them we must before the ultimate

punishment constitutionally may be imposed.

VACATED and REMANDED.