* Pursuant to 5TH CIR. R. 47.5, this court has determined that this opinion should not

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 06-20270

BRIAN MEGAS

Petitioner - Appellant

v.

NATHANIEL QUARTERMAN, DIRECTOR, TEXAS DEPARTMENT OF

CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION

Respondent - Appellee

Appeal from the United States District Court 

for the Southern District of Texas 

USDC No. 4:04-CV-4749

Before GARWOOD, CLEMENT and ELROD, Circuit Judges.

PER CURIAM:*

Brian Megas, who is currently incarcerated in the Texas Department of

Criminal Justice, Correctional Institutions Division, appeals the district court’s

denial of his petition for writ of habeas corpus under 28 U.S.C. § 2254. He

argues that his conviction and sentence for the felony murder of Pauline Tanner

violates the Constitution because the State withheld material, exculpatory

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

United States Court of Appeals

Fifth Circuit

F I L E D

June 9, 2008

Charles R. Fulbruge III

Clerk
No. 06-20270

2

I. FACTS AND PROCEEDINGS

A. Facts

The facts, as set forth by the First Court of Appeals of Texas in its opinion

affirming Megas’s conviction, are as follows:

[Megas] and Pauline Tanner were dating. On July 23, 1999,

[Megas] drove Tanner to a bar in Houston where they met some of

[Megas’s] co-workers. [Megas] and Tanner became intoxicated and

began arguing. [Megas] attempted to leave the bar around

midnight, but both Tanner and an acquaintance of [Megas] asked

him not to leave. [Megas] agreed to have Tanner drive them both

to her house, where her brother, Nicholas, was waiting for a ride to

[Megas’s] house.

On arriving at Tanner’s house, she got out of the car and

[Megas] moved to the driver’s side. [Megas] and Tanner continued

to argue, while Nicholas got into the passenger seat of the car and

Tanner got into the back seat. [Megas] yelled profanities at Tanner

and told Nicholas that, if he did not like it, he could get out of the

car. Nicholas got out of the car. [Megas] and Tanner left, heading

northbound on Highway 59.

At some point, [Megas] and Tanner pulled over to the lefthand side of the highway. Leolanna Pruitt was a passenger in a

vehicle traveling southbound on the highway, and observed

appellant punch and kick Tanner to keep her from getting out of the

car. Linda Tyler was traveling northbound on the highway and

observed Tanner running away from the car toward the barricade

while [Megas] was holding onto her with one hand and punching her

with the other. Tyler pulled over to render aid and began honking

her horn. [Megas] then stopped hitting Tanner, dragged her into

the car, and drove off.

A short time later, [Megas] swerved into the right barricade.

Two more witnesses observed [Megas] strike the barricade twice

and flip the car several times until it landed on its roof. Tanner was

partially ejected from the car and killed when the car rolled on top

of her.

The medical examiner determined thatthe cause of death was

asphyxia, due to compression and dislocation ofthe neck, and stated

the injuries from the accident caused the death. The medical

examiner also found bruises on Tanner’s arm that were consistent
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3

with defensive wounds, and bruises on her legs that were consistent

with being kicked repeatedly. [Megas] had a blood alcohol

concentration of 0.25 grams of alcohol per 100 milliliters of blood.

Megas v. State, 68 S.W.3d 234, 237–38 (Tex. App. 2002). 

B. Proceedings

(1) State trial and direct appeal proceedings

On October 1, 1999, Megas was indicted in the 183rd Judicial District

Court of Harris County, Texas for intoxication manslaughter and felony murder

in connection with the death of Tanner. The State dismissed the indictment for

intoxication manslaughter and tried Megas for felony murder, which was

predicated on the theory that Tanner was killed in the course of a kidnapping.

Megas pled not guilty. 

Before trial, Megas sought discovery of numerous items, including any

Brady material. On April 7, 2000, the trial court ordered the State to disclose

“all exculpatory evidence pursuant to Brady v. Maryland and related cases.”

The order provided that “the Defense should exercise reasonable diligence to

contact the State’s attorney and arrange a mutually convenient time for the

appointment.” This order also required the parties to comply by April 20, 2000.

Megas’s trial began on May 9, 2000. At the conclusion of the evidence,

Megas requested and received a jury instruction on the lesser-included-offense

of intoxication manslaughter. On May 11, 2000, a jury found Megas guilty of

felony murder, and on May 16, 2000, the same jury sentenced him to fourteen

years of imprisonment. Megas appealed to the First Court of Appeals of Texas,

and it affirmed his conviction on January 31, 2002. The Texas Court of Criminal

Appeals (“TCCA”) denied Megas’s petition for review on July 31, 2003. 

(2) State habeas proceedings 

Megas retained new counsel for post-conviction habeas proceedings, who

submitted an open records request to the prosecutor’s office. The office

subsequently turned over Megas’s file, which included a March 3, 2000 letter
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4

addressed to the prosecutor from Claire Tanner, Tanner’s mother and the State’s

witness. The letter, in relevant part, provided:

A week before the fatal accident, [Tanner and Megas] had a violent

argument, and we were sure [Megas] had hit her, because we could

see marks on her arms. She denied it, but was obviously shattered.

. . .

During the several months leading up to her death, Pauline began

to show signs of destabilization. She was distracted, depressed and

quick to anger. . . .

I am not trying to paint a picture of a helpless person here. Pauline

was physically strong, a devotee of TaeBo, and intelligent.

On October 21, 2003, following the discovery of this letter, Megas filed a state

application for writ of habeas corpus, alleging in part that the State failed to

turn over material, exculpatory evidence—the letter—in violation of Brady. In

support of this allegation, Megas attached an affidavit by his trial counsel,

Clinton Greenwood. Greenwood provided that the State never disclosed the

letter and that he never saw the letter in the prosecutor’s file. He further

asserted that (1) had he been aware of Tanner’s denial of the prior assault, he

would have cross-examined Claire Tanner differently and halted a damaging

line of questioning posed to Megas on cross-examination; (2) had he known of

Tanner’s emotional instability, he would have been better able to defend against

the kidnapping charge by showing that Megas was trying to protect Tanner from

running into the street when he restrained her; and (3) had he been informed of

Tanner’s physical strength, he could have better countered the State’s argument

that she was weak and could not escape Megas. 

The State filed a response, which included an affidavit by the assistant

district attorney handling Megas’s trial, Mike Trent. Trent admitted that he did

not disclose the letter to Greenwood, because he did not believe it contained any

material, exculpatory evidence that was not already available to Megas. He also

stated that even though he did not disclose it, the letter was kept in the
No. 06-20270

5

prosecutor’s file, which was made available to defense counsel through the

prosecutor’s open-file policy. 

On February 20, 2004, the state trial court entered findings of fact and

conclusions of law, recommending that Megas’s application be denied. The trial

court’s conclusion rested on the following findings: the disputed evidence was

(1) inadmissible; (2) not exculpatory to the murder charge; (3) could have been

obtained by the defense if reasonable diligence had been exercised; and (4) not

material because there was no reasonable probability that the outcome of the

trial would have been different had the disputed evidence been disclosed to

Megas. The TCCA adopted the trial court’s findings and denied relief on

December 15, 2004. 

(3) Federal habeas proceedings

Megas filed a 28 U.S.C. § 2254 petition for post-conviction relief on

December 17, 2004, alleging in part that the State withheld the letter in

violation of Brady. The district court denied relief on March 14, 2006, finding

that: (1) the letter’s contents, with respect to Tanner’s emotional instability and

physical strength, were readily discoverable to Megas; and (2) Tanner’s denial

that she had been previously assaulted by Megas was not material because

Claire Tanner believed that denial was untruthful and the denial did notimpact

the inculpatory evidence of the kidnapping on the night of her death. On

March 20, 2006, Megas appealed. On June 27, 2007, this court granted Megas’s

request for a certificate of appealability (“COA”) on his Brady claim.

II. STANDARD OF REVIEW

Megas’s petition is subject to review under the amendments to the federal

habeas corpus statutes embodied in the Antiterrorism and Effective Death

Penalty Act of 1996 (“AEDPA”). See 28 U.S.C. § 2254; Lindh v. Murphy, 521

U.S. 320, 336 (1997) (holding that AEDPA only applies to those habeas corpus

petitions filed after its effective date of April 24, 1996). Accordingly, Megas has
No. 06-20270

6

the burden to show that he is entitled to relief under the highly deferential

standard of AEDPA. See Woodford v. Visciotti, 537 U.S. 19, 24–25 (2002). 

Under AEDPA, a federal petitioner may not obtain habeas corpus relief 

with respect to any claim that was adjudicated on the merits in

State court proceedings unless the adjudication of the claim—

(1) resulted in a decision that was contrary to, or

involved an unreasonable application of, clearly

establishedFederal law, as determined by the Supreme

Court of the United States; or

(2) resulted in 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). Courts review pure questions of law and mixed questions

of law and fact under subsection (d)(1) and pure questions of fact under

subsection (d)(2). See Martin v. Cain, 246 F.3d 471, 475–76 (5th Cir. 2001).

“Because a Brady claim involves a mixed question of law and fact, § 2254(d)(1)

applies instead of § 2254(d)(2).” DiLosa v. Cain, 279 F.3d 259, 262 n.2 (5th Cir.

2002). Thus, this court does “not decide de novo whether a state prisoner has

sufficiently proven a Brady violation”; “[r]ather, we decide whether the state

court’s Brady determination resulted in a decision thatis contrary to, or involved

an unreasonable application of, clearly established federal law.” Dickson v.

Quarterman, 462 F.3d 470, 477–78 (5th Cir. 2006). 

A state-court decision is contrary to clearly established federal law “if the

state court arrives at a conclusion opposite to that reached by [the Supreme

Court] on a question of law or if the state court decides a case differently than

[the] Court has on a set of materially indistinguishable facts.” Williams v.

Taylor, 529 U.S. 362, 413 (2000). A state-court decision is an unreasonable

application of federal law “ifthe state courtidentifies the correct governing legal

principle from [the Supreme Court’s] decisions but unreasonably applies that

principle to the facts of the prisoner’s case.” Id. 
No. 06-20270

1

In this prior altercation, Megas was driving a car, while he and Tanner had a violent

argument. The argument escalated and apparently became physical, which caused Megas to

veer into a curb and blow out his tire. At some point during this argument, Tanner discarded

Megas’s glasses.

7

[A] federal habeas court may not issue the writ simply because that

court concludes in its independent judgment that the state-court

decision applied [a Supreme Court case] incorrectly. Rather, it is

the habeas applicant’s burden to show that the state court applied

[that case] to the facts of his case in an objectively unreasonable

manner.

Price v. Vincent, 538 U.S. 634, 641 (2003) (internal quotations and citation

omitted); see also Wiggins v.Smith, 539 U.S. 510, 520–21 (2003) (explaining that

“[i]n order for a federal court to find a state court’s application of [Supreme

Court] precedent ‘unreasonable,’ the state court’s decision must have been more

than incorrect or erroneous. The state court’s application must have been

‘objectively unreasonable.’” (citations omitted)).

III. DISCUSSION

Megas argues that the district court should be reversed because the statecourt determination that there was no Brady violation is objectively

unreasonable. Megas’s argument rests solely on his assertion that the State

violated Brady by withholding Claire Tanner’s March 3, 2000 letter, which

contained the following material, exculpatory information: (1) Tanner denied

that Megas hit her on a previous occasion,1(2) Tanner was emotionally unstable

at the time of her death, and (3) Tanner was physically strong. Megas further

alleges that if he had this information before trial, then he would have been able

to better defend against the felony murder charge. We disagree. 

“The prosecution has a duty to disclose exculpatory evidence that is

material to either guilt or punishment.” Bower v. Quarterman, 497 F.3d 459,

476 (5th Cir. 2007) (citing Brady, 373 U.S. at 87). To establish a Brady violation,

a defendant must show: (1) the evidence was actually suppressed by the State,
No. 06-20270

8

either willingly or inadvertently; (2) the evidence was favorable to the defendant,

either because it was exculpatory or impeaching; (3) the evidence was material

either to guilt or punishment; and (4) the failure to discover the allegedly

favorable evidence was not the result of a lack of due diligence. See Strickler v.

Greene, 527 U.S. 263, 281–82 (1999); Parr v. Quarterman, 472 F.3d 245, 254 (5th

Cir. 2006).

A.

Megas fails to make the threshold showing that the State suppressed the

March 3, 2000 letter and that his failure to discover it was not the result of a

lack of due diligence. See Parr, 472 F.3d at 254. “Brady and its progeny permit

the government to make information within its control available for inspection

by the defense, and impose no additional duty on the prosecution team members

to ferret out any potentially defense-favorable information from materials that

are so disclosed.” United States v. Pelullo, 399 F.3d 197, 212 (3d Cir. 2005)

(citing United States v. Mmahat, 106 F.3d 89, 94 (5th Cir. 1997)); see also Mathis

v. Dretke, 124 F. App’x 865, 877 (5th Cir. 2005) (“It is well established that the

prosecution has no duty under Brady to give defense counsel guidance as to

where in the prosecution’s open file to find exculpatory evidence.”). This court

has held that “[w]hen information is fully available to a defendant at the time

of his trial and his only reason for not obtaining and presenting the evidence to

the court is his lack of reasonable diligence, the defendant has no Brady claim.”

United States v. Mulderig, 120 F.3d 534, 541 (5th Cir. 1997) (internal quotations

and citations omitted). The TCCA held that the letter could have been obtained

by Megas’s trial counsel if he had exercised reasonable diligence. 

In his attempt to challenge this finding, Megas submitted an affidavit by

Greenwood, his trial counsel, which stated that he never saw the letter when he

reviewed the file. Greenwood, however, did not expressly state when he

reviewed the file. The State submitted an affidavit by Trent, the prosecutor
No. 06-20270

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handling Megas’s case, which stated that the letter was kept in the file after its

receipt (a short time after March 3, 2000) and that the file was made available

to defense counsel under the open-file policy on at least three occasions prior to

trial in May 2000. In addition, when the State turned over the file to Megas’s

habeas counsel, that counsel easily discovered the letter in the file. Given this

conflicting evidence and the lack of specificity in Greenwood’s affidavit, the

TCCA’s holding is not objectively unreasonable. Megas has not clearly

established that the letter was not in the file after it was received and thus not

readily discoverable with reasonable diligence. 

B.

Even if this court were to hold that the State suppressed the letter, Megas

failed to demonstrate that it was material. See Parr, 472 F.3d at 254.

“‘[E]vidence is material only if there is a reasonable probability that, had the

evidence been disclosed to the defense, the result of the proceeding would have

been different. A reasonable probability is a probability sufficient to undermine

confidence in the outcome.’” Bower v. Quarterman, 497 F.3d at 476 (quoting

United States v. Bagley, 473 U.S. 667, 682 (1985)). The TCCA held that the

letter was not material, and the district court agreed, at least as to Tanner’s

denial of the prior assault. 

(1) Tanner’s denial of the prior assault by Megas 

The information contained in the letter regarding Tanner’s denial of the

prior assault by Megas is immaterial. First, the prior assault is merely

collateral as it had no bearing on the kidnapping on the night of Tanner’s death,

which is the predicate for felony murder here. Under Texas law, kidnapping

occurs when a person “intentionally or knowingly abducts another person.” TEX.

PENAL CODE ANN. § 20.03. “‘Abduct’ means to restrain a person with intent to

prevent [her] liberation by . . . secreting or holding [her] in a place where [she]

is not likely to be found.” Id. § 20.01(2)(A). “‘Restrain’ means to restrict a
No. 06-20270

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person’s movements without consent, so as to interfere substantially with [her]

liberty, by moving [her] from one place to another or by confining [her].” Id.

§ 20.01(1). “Restraint is ‘without consent’ if it is accomplished by . . . force,

intimidation, or deception.” Id. § 20.01(1)(A). The State established these

elements with the testimony of two independent witnesses, Pruitt and Tyler.

Contrary to Megas’s argument, the State did not prove kidnapping by showing

that Megas was an “evil person” who had previously physically abused Tanner.

Second, the State’s reference to the prior assault during its redirect

examination of ClaireTanner was brief and elicited only in response to questions

posed to her by defense counsel. During its direct examination of Claire Tanner,

the State never asked her about the prior assault. On cross examination,

however, defense counsel asked her specifically about the prior incident in the

following exchange:

Q: In fact, if I’m not mistaken, on [Tanner]’s birthday or the night

after, there was a prior incident of [Tanner] and [Megas] having an

altercation, correct?

A: Yes.

Q: And, basically, the altercation was that [Megas] was driving

[Tanner], and he had been in an argument and somehow she

slapped, hit, or something and he veered off the road and blew out

a tire. Correct?

. . . .

A: I don’t have personal knowledge. I wasn’t there. I know what I

was told the next day.

Defense counsel continued to question Claire Tanner about this prior altercation,

inquiring about Megas’s glasses, whichTanner told her mother that she thought

she had thrown into an open field. On redirect examination, the prosecutor

posed the following questions to Claire Tanner about the incident:

Q: Ms. Tanner, a couple weeks prior to the accident, did you see

some bruises on [Tanner]?
No. 06-20270

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A: Yes.

Q: And did those bruises cause you any concern?

A: Yes.

Q: Were you ever satisfactorily—were those bruises ever

satisfactorily explained to you as to how they had been inflicted?

A: No.

The prosecutor then introduced a picture of Tanner with these bruises as State’s

Exhibit 40. As the record reveals, the State did not spend a significant amount

of time on the prior assault and referenced it only because of defense counsel’s

questions. Moreover, other than a general allegation, Megas fails to show how

his examination of Claire Tanner or other family members would have been

“completely different”if he had known aboutTanner’s denial ofthe prior assault.

Third, the State’s reference to the prior assault during its crossexamination of Megas was brief. The State showed Megas Exhibit 40 and asked

him the following questions:

Q: And do you see the bruises on [Tanner’s] arm?

A: She has some bruises on her arm.

Q: How did she get those?

A: I have no idea.

Q: So, you don’t know whether you inflicted these in that supposed

altercation over the glasses?

A: I didn’t.

Q: You know that you didn’t inflict those?

A: No, sir.

As the record demonstrates, this line of questioning was brief, and once again,

only occurred because of defense counsel’s prior questioning of Claire Tanner.

Megas also fails to show specifically how he could have halted this line of

questioning if he had known about the letter.
No. 06-20270

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Fourth, neither the State nor defense counsel referenced the prior assault

in their closing arguments at trial, further showing the collateral nature of this

issue. 

Finally, Megas simply fails to demonstrate how this collateral issue, which

was briefly referenced in questioning, undermines the confidence in the outcome

of the trial. Megas cannot demonstrate that if he had knowledge of Tanner’s

denial of the prior assault, then he would have been able to show that he was not

abusive. Nor can Megas show that the State’s characterization of him as being

abusive or of Tanner as being a victim of classic abuse is even misleading. Claire

Tanner testified that she did not believe Tanner’s denial. In addition, Nicholas

Tanner and Julia Tanner testified that Tanner and Megas had a troubled

relationship and that Megas verbally abused Tanner. Further, Tanner’s denial

of the prior assault is in stark contrast to the physical evidence—there was a

violent argument between Tanner and Megas two weeks before Tanner’s death

and immediately thereafter bruises appeared on Tanner’s arm. Accordingly,

Megas fails to show how Tanner’s denial of the prior assault is material, and the

TCCA’s holding is not objectively unreasonable.

(2) Tanner’s emotional and physical condition

The information contained in the letter regarding Tanner’s emotional and

physical condition is also immaterial. Megas argues that knowledge of Tanner’s

emotional instability would have strengthened his defense to kidnapping, where

he contended that he merely restrained Tanner to prevent her from running into

the street and injuring herself. Megas, however, generally admits that he does

not remember many details from the altercation on the side of the road due to

his high level of intoxication. Megas also contends that knowledge of Tanner’s

physical strength would have bolstered his argument that he could not have

physically restrained her. Megas, however, does not mention that Tanner was

highly intoxicated that night, which may have affected her ability to fight Megas
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off. Megas also consistently ignores that two independent witnesses, Pruitt and

Tyler, each testified thatthey saw Megas hit, kick, and force Tanner into the car

shortly before it flipped and caused Tanner’s death. Based on this evidence,

neither Tanner’s emotional nor her physical condition in the weeks prior to her

death is material, and thus the TCCA’s holding is not objectively unreasonable.

IV. CONCLUSION

For the foregoing reasons, the denial of habeas relief is AFFIRMED.