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ORDER – 1

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

ARDELL JOSHUA SHAW,

Petitioner,

v.

KENNETH QUINN,

Respondent.

CASE NO. C06-424JLR

ORDER

I. INTRODUCTION

This matter comes before the court upon a Report and Recommendation (“R&R”)

of the Honorable James P. Donohue, Magistrate Judge (Dkt. # 20) on Ardell Shaw’s

petition for a writ of habeas corpus under 28 U.S.C. § 2254. Judge Donohue

recommends granting in part and denying in part the petition. Having reviewed the R&R,

Respondent’s objections, and the balance of the record in this case, the court ADOPTS

IN PART the R&R. The court DENIES Mr. Shaw’s habeas petition (Dkt. # 1), DENIES

Mr. Shaw’s motion for release from custody (Dkt. # 23), and DISMISSES this action with

prejudice. 

Mr. Shaw, who is proceeding pro se, challenges two Washington State court

convictions for possession of cocaine with intent to deliver. His habeas petition presents

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While Mr. Shaw asserts six separate grounds for relief, the first five essentially present

the same claim. See Pet. at 7.

ORDER – 2

two claims for relief1 based on the misconduct of a forensic chemist at the state crime

laboratory, Michael Hoover. Mr. Hoover tested the drug evidence in Mr. Shaw’s cases

and then testified to his findings during Mr. Shaw’s 1999 trials. In 2000, Mr. Hoover

admitted that he stole heroin from the state crime laboratory, and regularly used it to selfmedicate his chronic back pain, commencing in the fall of 1998. In his first claim for

relief, Mr. Shaw alleges that the prosecution failed to disclose Mr. Hoover’s misconduct,

constituting a violation of Brady v. Maryland, 373 U.S. 83 (1963). See Pet. at 7. In his

second claim, Mr. Shaw alleges that Mr. Hoover’s misconduct disrupted the chain of

custody of drug evidence presented at his trials. Id. 

Judge Donohue found that Mr. Shaw’s claim relating to the chain of custody has

not been exhausted and therefore is procedurally barred. The court adopts this

recommendation. The court does not adopt Judge Donohue’s recommendation to the

extent that he recommends vacating Mr. Shaw’s convictions on the basis of his Brady

claim. The court dismisses this claim. As described below, the application of wellsettled legal principles to the facts of this case requires the court to deny Mr. Shaw’s

habeas petition in its entirety. 

II. BACKGROUND

Judge Donohue’s R&R provides a thorough background of this matter, which the

court incorporates by reference. The court provides a brief summary here.

A. Trial Court Proceedings 

Mr. Shaw challenges two separate convictions in the Snohomish County Superior

Court, both in 1999, for possession of cocaine with intent to deliver. 

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The following facts are drawn from the unpublished opinion of the Washington Court of

Appeals affirming, on direct appeal, Mr. Shaw’s conviction arising from the July 24 incident. 

See Admin. R., Ex. 3 at 1-2 (Dkt. # 13). Hereinafter, all citations to exhibits refer to the

Administrative Record (Dkt. # 13).

ORDER – 3

The first conviction involved events occurring on July 24, 1997 (the “July 24

incident”).2

 Everett Police Officers Harold Whatley and Daniel Smith responded to a

report of suspected narcotics activity at a gas station. The officers observed several

people standing near a pickup truck and a van, including Mr. Shaw, who was talking to a

man named Brent Coyle. Michael Heiges was standing nearby, as was Sharon Fulmer. 

According to testimony offered at trial, when Mr. Shaw saw the officers, he walked

quickly towards a nearby fenced area containing trash dumpsters. Despite Officer

Whatley’s command, “nobody move,” Mr. Shaw continued towards the dumpster area. 

Officer Smith observed Mr. Shaw make a twisting or lunging movement, which led

Officer Smith to believe that Mr. Shaw had thrown something into the nearby fenced

area. Mr. Shaw then returned to the vicinity of the officers. The officers arrested Mr.

Shaw for drug loitering. Officer Smith searched the dumpster area and found an unsoiled

plastic baggie containing suspected cocaine. A search of Mr. Shaw’s person revealed a

pipe, hypodermic needles, and several hundred dollars in cash. 

The state charged Mr. Shaw with possession of cocaine with intent to deliver. The

forensic chemist, Mr. Hoover, tested the alleged cocaine on September 19, 1997. Trial

took place in October 1999, during which Mr. Hoover testified to his finding that the

substance tested positive for cocaine. Officers Whatley and Smith, Ms. Fulmer, and Mr.

Heiges also testified for the prosecution. After the first day of trial, Mr. Shaw’s counsel

withdrew, and Mr. Shaw proceeded pro se with the assistance of standby counsel. Mr.

Shaw testified in his own defense and gave his own closing argument. The jury

convicted Mr. Shaw, and the court sentenced him to 108 months imprisonment. 

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The following facts are drawn from the unpublished opinion of the Washington Court of

Appeals affirming, on direct appeal, Mr. Shaw’s conviction arising from the September 2

incident. See Ex. 4 at 1-3.

ORDER – 4

The second conviction involved events occurring on September 2, 1997 (the

“September 2 incident”).3

 During an undercover operation, Officer Cheryl Braley, posing

as “Christy,” arranged to buy cocaine from Mr. Shaw at an Albertsons parking lot. Mr.

Shaw arrived at the meeting in a car with two other people, including Ronald Waclawski. 

As police officers positioned nearby moved towards the car, they observed Mr. Shaw

furtively reach between the bucket seats into the back seat area. The officers arrested Mr.

Shaw and the passengers for suspicion of drug loitering and searched the car incident to

arrest. Tucked into the crack between the rear seat-back and the seat, the police found a

plastic baggie containing off-white rock-like chunks, which they suspected to be crack

cocaine. They also found a metallic smoking pipe, hypodermic needles, and $205 in

cash. 

The state charged Mr. Shaw with possession of cocaine with intent to deliver. 

Forensic chemist Mr. Hoover tested the drug evidence on November 18, 1997, and

determined that the baggie contained 6.4 grams of rock cocaine; he testified to this

finding during Mr. Shaw’s December 1999 trial. Mr. Waclawski also testified for the

prosecution, as did Officer Braley and two other officers who were present on the scene. 

The jury convicted Mr. Shaw, and the court sentenced him to 126 months imprisonment.

B. State Court Direct Appeal and Personal Restraint Petition

Mr. Shaw appealed both convictions to the Washington Court of Appeals and the

court affirmed the convictions in unpublished opinions. Exs. 3, 4. Mr. Shaw sought

review in the Washington Supreme Court, and in each case the court denied review. Exs.

8, 9, 13, 14. 

In August 2001, Mr. Shaw filed motions for relief from judgment in both cases in

the Snohomish County Superior Court. Exs. 16, 19. At issue in each motion was

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ORDER – 5

whether Mr. Shaw was entitled to relief from his convictions after it became known that

the forensic chemist who tested the substances in both of Mr. Shaw’s cases and testified

in both of Mr. Shaw’s trials acknowledged using heroin sent to the state crime laboratory. 

Id. Mr. Shaw argued that his convictions should be set aside because Mr. Hoover’s drug

use tainted the convictions. Id. The superior court transferred Mr. Shaw’s motions to the

Washington Court of Appeals for consideration as personal restraint petitions (“PRP”). 

Exs. 18, 21. 

The Washington Court of Appeals linked Mr. Shaw’s petitions with those of two

other petitioners whose PRPs involved the misconduct of the forensic chemist, Mr.

Hoover. The court of appeals transferred the cases to the Snohomish County Superior

Court for an evidentiary hearing concerning the timeframe of Mr. Hoover’s drug use and

the manner in which it progressed. Ex. 31. The superior court conducted hearings on

September 15 and 23, 2003, and thereafter entered written findings of fact and

conclusions of law. Ex. 32. The superior court found by a preponderance of the

evidence that Mr. Hoover’s heroin use began at least in the fall of 1998, although it noted

that his heroin use may have begun earlier. Id. 

Following the evidentiary hearing, on November 15, 2004, the court of appeals

issued a published opinion denying the PRPs of Mr. Shaw and the two other petitioners.

As to Mr. Shaw’s Brady claim, the court found that notwithstanding Mr. Hoover’s heroin

use at the time he testified in the 1999 trials, Mr. Shaw failed to establish a reasonable

probability that the results of his trials would have been different even if the prosecution

had disclosed Mr. Hoover’s misconduct. See In re Delmarter, 101 P.3d 111, 117-18

(Wash. Ct. App. 2004). 

Mr. Shaw filed a motion for discretionary review in the Washington Supreme

Court, wherein he presented the following issues: 

(1) Where the State fails to disclose a principal prosecution witness had been routinely stealing and using drugs from a state crime laboratory,

and fails to disclose the witness may have been under the influence of

heroin at the time he testified in two jury trials, has the State violated

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ORDER – 6

its obligations under the due process clause of the Fourteenth

Amendment, Brady v. Maryland, and Kyles v. Whitley [514 U.S. 419

(1995)]?

(2) Does a published Court of Appeals opinion which subverts both the standards and principles articulated in Brady v. Maryland and its

progeny, constitute obvious error warranting review by this court under

RAP 13.5(b)(1)?

(3) Does a published Court of Appeals opinion which pointedly eschews the analysis established by the United States Supreme Court regarding

discovery violations, constitute obvious or probable error requiring

review by this Court under RAP 13.5(b)(1) and (2)? 

Ex. 35 at 1-2.

The Washington Supreme Court, through its Commissioner, denied review in an

unpublished three-page opinion. Ex. 36. Mr. Shaw now seeks federal habeas review of

his convictions. 

III. ANALYSIS

In his first claim for relief (set out as grounds one through five in the petition), Mr.

Shaw alleges a Brady violation. He contends that the prosecution failed to disclose

exculpatory or impeachment evidence regarding the forensic chemist, Mr. Hoover, and

that the state courts’ adjudication of the issue was contrary to, or an unreasonable

application of clearly established federal law. In his remaining claim, Mr. Shaw alleges

that Mr. Hoover’s misconduct broke the chain of custody of drug evidence presented at

his trial. 

Judge Donohue concluded that Mr. Shaw’s second claim is procedurally barred,

but that the first claim entitles Mr. Shaw to habeas relief. The court turns to the second

claim first. 

 A. Failure to Exhaust the Claim Relating to Chain of Custody

As to Mr. Shaw’s claim that Mr. Hoover’s drug use broke the chain of custody of

evidence presented at his trials, Judge Donohue found that Mr. Shaw failed to fairly

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In his motion for discretionary review of the PRP to the Washington Supreme Court,

Mr. Shaw did not specifically argue as a federal or constitutional claim that Mr. Hoover’s

alleged misconduct broke the chain of custody. See Ex. 35 at 1-2.

ORDER – 7

present this claim to the Washington Supreme Court.4 Judge Donohue concluded that this

claim is procedurally barred because a federal habeas petitioner challenging a state court

conviction is generally not entitled to relief unless he has exhausted the available state

court remedies. See Baldwin v. Reese, 541 U.S. 27, 29 (2004) (citing 28 U.S.C. §

2254(b)). The court agrees and adopts the analysis and recommendation of Judge

Donohue in dismissing this claim. 

As to Mr. Shaw’s Brady claim, Respondent concedes that Mr. Shaw fairly

presented, and hence exhausted, this claim in his state PRP proceedings.

B. State Court Adjudication of the Brady Claim

Judge Donohue found that the state courts’ analysis of the Brady claim was

unreasonable, and on this basis, granted Mr. Shaw’s habeas petition. The court does not

adopt this recommendation. For the reasons set forth below, the court finds that the state

court reasonably concluded that the evidence of Mr. Hoover’s misconduct was not

material to the outcome of Mr. Shaw’s trials. Accordingly, the court dismisses this claim. 

1. Standards and Scope of Review

The court begins with the standard governing review of a state court’s adjudication

of a habeas claim. The Anti-Terrorism and Effective Death Penalty Act of 1996

(“AEDPA”) prohibits a federal court from granting habeas relief unless a state court’s

decision (1) was contrary to clearly established federal law, as determined by the

Supreme Court, or (2) involved an unreasonable application of clearly established federal

law, as determined by the Supreme Court. 28 U.S.C. § 2254(d)(1). Under the “contrary

to” clause, a federal court may grant the writ only if the state court arrived at a conclusion

opposite to that reached by the Supreme Court on a question of law, or if the state court

decided a case differently than the Supreme Court on a set of materially indistinguishable

facts. Williams v. Taylor, 529 U.S. 362, 412-13 (2000). Under the “unreasonable

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ORDER – 8

application” clause, a federal court may grant the writ if the state court identifies 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. at 412-13. That is, the state

court decision must not only be an incorrect application of established federal law, but

also an “objectively unreasonable” one. Id. at 409-11. AEDPA instructs a federal court

to deny relief unless it is “firmly convinced” that a petitioner’s constitutional rights have

been violated. Id. at 389. 

The court must initially identify the state court decision that triggers AEDPA’s

standards of review. The court looks to the state’s last reasoned decision. Ylst v.

Nunnmaker, 501 U.S. 797, 802-04 (1991). Here, the last reasoned decision is the

Washington Supreme Court’s denial of discretionary review. That court, through its

Commissioner, issued a three-page order, concluding with little explanation that the court

of appeals reached a “reasonable conclusion” in denying Mr. Shaw’s PRP. See Ex. 36 at

2-3. In so doing, the supreme court substantially incorporated the reasoning from the

court of appeals’ decision. See Ylst, 501 U.S. at 803 (“Where there has been one

reasoned state judgment rejecting a federal claim, later unexplained orders upholding that

judgment or rejecting the same claim [are presumed to] rest upon the same ground.”). 

Accordingly, this court will consider both of these decisions simultaneously in order to

fully ascertain the reasoning of the state’s final decision in dismissing Mr. Shaw’s claim. 

See Lambert v. Blodgett, 393 F.3d 943, 970 (9th Cir. 2004) (discussing both the court of

appeals’ decision and that of the state supreme court, where the latter decision “largely

adopted” the reasoning of the court of appeals). 

2. The Brady Rule

It is well established 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.” Brady, 373 U.S. at 87. Both impeachment evidence and exculpatory

evidence “fall[ ] within the Brady rule.” United States v. Bagley, 473 U.S. 667, 676

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The court does not recite the court of appeals’ annunciation of the law. It suffices to

observe that the court identified Brady, accurately described its three prongs, and cited Strickler,

527 U.S. at 281-82, as providing the appropriate standard for assessing prejudice. See In re

Delmarter, 101 P.3d at 117-18. 

ORDER – 9

(1985). The prosecution “has a duty to learn of any favorable evidence known to the

others acting on the government’s behalf . . . .” Kyles, 514 U.S. at 437.

To succeed on a Brady claim, a petitioner must establish three essential elements:

(1) the evidence must be favorable to the accused; (2) it must have been suppressed by

the government, either willfully or inadvertently; and (3) the suppression must have been

material. Strickler v. Greene, 527 U.S. 263, 281-82 (1999). Evidence is material “if

there is a reasonable probability that, had the evidence been disclosed to the defense, the

result of the proceeding would have been different.” Kyles, 514 U.S. at 433-34 (citation

omitted). A “reasonable probability” of a different result is shown when the

government’s evidentiary suppression “undermines confidence in the outcome of the

trial.” Id. at 434. 

In determining whether a petitioner has demonstrated materiality, a court must

consider the undisclosed evidence in light of the evidence presented by the prosecution,

including forensic and other physical evidence, and the testimony of other witnesses. 

Strickler, 527 U.S. at 292-94. In Wood v. Bartholomew, the United States Supreme

Court warned that a court may not base its assessment of a reasonable probability on

“mere speculation” as to counsel’s preparation in a different manner, or the discovery and

introduction of additional evidence. 516 U.S. 1, 6 (1995). 

3. The State Courts’ Analysis of Materiality Under Brady

The Washington Court of Appeals rejected Mr. Shaw’s claim, finding that under

the third prong of Brady, the evidence of Mr. Hoover’s misconduct was not material to

the outcome of his trials. The court of appeals identified the proper standard for

analyzing a Brady claim5

; applying that standard to the facts of Mr. Shaw’s case, the

court held: 

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[Court of Appeals’ footnote 6]. Shaw also claims that because there was a strong

inference that Hoover was using and stealing heroin in 1997 when he tested the materials at

issue in Shaw’s cases, Hoover was required to disclose these activities. But the [superior] court

found that the evidence only supported a finding that Hoover began his misconduct in the fall of

1998. 

ORDER – 10

Shaw argues that the State violated Brady because Hoover failed to disclose

the fact that he was using drugs at the time he testified in Shaw’s trials.6

Assuming without holding that this is so, Shaw nevertheless fails to

demonstrate a reasonable probability that the results of his trials would have

been different. If Hoover’s misconduct had been known and revealed to the

defense, we think it is unlikely that the State would have called him as a

witness, despite the lack of evidence that he was using drugs at the time of the

tests or that the tests were in any way inaccurate, because his credibility was

simply devastated. Thus, the state likely would have been left with the field

tests and circumstantial evidence. Although the defense would have been able

to argue the weight the jury should give to the evidence, we are not persuaded

that the result likely would have been different, even if Hoover had not

testified. The July 24 case included testimony by two witnesses who were helping a third person arrange to buy cocaine. These witnesses testified that

Shaw arrived with the people they had paged in order to buy the drugs, and

approached them. When the police interrupted, Shaw then threw a baggie into

a nearby dumpster. One witness, an admitted cocaine user, testified that he

recognized the substance Shaw attempted to discard as cocaine. Shaw also

testified at trial that he had used and sold cocaine before, but denied that the

substance found in the dumpster belonged to him.

The September 2 incident involved an undercover officer’s attempt to arrange

a drug deal, posing as a buyer named “Christy.” Shaw arrived at the scene in

a car, but did not actually engage in a deal. When officers approached the car,

they observed Shaw make furtive movements, appearing to reach into the back

seat. After the arrest, they found a plastic baggie containing off-white rocklike chunks tucked into the crack between the rear seat-back and the seat.

Another passenger in the car testified that the he went with Shaw to sell the

cocaine to “Christy” and that the baggie contained cocaine belonging to Shaw.

Given this evidence, Shaw has failed to demonstrate a reasonable probability

that the outcome of the trials would have been different, such that his Brady

argument fails. 

In re Delmarter, 101 P.3d at 118. 

In denying review, the Commissioner of the Washington Supreme Court likewise

identified the correct legal standard and largely adopted the court of appeals’ analysis: 

The Court of Appeals assumed, without deciding, that the State violated Brady

in connection with Hoover’s misconduct, and further assumed that, had the

State known of the misconduct, it would not have called Hoover to testify at

Mr. Shaw’s trials. The court nonetheless determined that Mr. Shaw “failed to

demonstrate a reasonable probability that the outcome of the trials would have

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Nor is Mr. Shaw entitled to an evidentiary hearing where the factual basis of his claim

was fully developed, through an evidentiary hearing, in the state court proceedings. See

Williams, 529 U.S. at 430 (citing 28 U.S.C. § 2254(e)(2)).

ORDER – 11

been different” in the absence of the violation. In re Delmarter, 124 Wn. App. at 169, ¶ 26.

Mr. Shaw argues that that [sic] the court “utterly disregard[ed]” the proper

standard of prejudice. Mot. For Disc. Rev. at 10. But it did not. Since there

was no substantial evidence that Hoover was engaged in misconduct when he

tested Mr. Shaw’s samples in 1997, nor any evidence that Hoover did not

accurately test the samples as cocaine, evidence that Hoover was stealing and

using heroin during the time he later testified in Mr. Shaw’s trials would have

been only impeaching. The Court of Appeals thoroughly reviewed the

untainted evidence and reached the reasonable conclusion that Mr. Shaw

demonstrated no reasonable probability that the outcome of the trial court

would have been different in the absence of the purported Brady violation.

Mr. Shaw does not show that the court obviously or probably erred. 

Ex. 36 at 1-3. 

As to the state courts’ findings of fact concerning the timeframe of Mr. Hoover’s

misconduct, those findings are binding unless Mr. Shaw rebuts them by clear and

convincing evidence. See 28 U.S.C. § 2254(e)(1). The court of appeals found that Mr.

Hoover began stealing and using heroin from the lab in 1998, after he tested the cocaine

samples in 1997, but before he testified in Mr. Shaw’s cases in 1999. In re Delmarter,

101 P.3d at 116-17. On this basis, the court concluded that the evidence could have been

used to impeach Mr. Hoover’s testimony, but that it did not bear on the “accuracy of the

original tests performed at a time when no substantial evidence exists that Hoover was

stealing and abusing heroin.” Id. at 117 (emphasis in original). The supreme court

accepted this finding, stating that the evidence “would have been only impeaching.” Ex.

36 at 2. Mr. Shaw has not demonstrated, contrary to the state courts’ determination, that

Mr. Hoover was using heroin on-the-job at the time he tested the samples.7

 This court,

therefore, considers Mr. Hoover’s misconduct as the state court did – as bearing on Mr.

Hoover’s credibility, but not as invalidating the drug test results. 

The court of appeals assumed that the prosecution’s failure to disclose the

impeachment evidence against Mr. Hoover constituted a Brady violation. Nonetheless,

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ORDER – 12

the court of appeals dismissed Mr. Shaw’s claim, concluding that he failed to demonstrate

the materiality of the suppressed evidence such that there was a reasonable probability of

a different result at trial. The supreme court adopted this conclusion. Mr. Shaw argues

that the state courts “reinvented” the materiality prong of Brady as applied to the facts of

his case, constituting an unreasonable application of clearly established federal law. See

Pet. at 5. 

Where, as here, the prosecution suppresses impeachment evidence, clearly

established federal law instructs a court to assess materiality by gauging the impact of the

withheld evidence in view of the strength of the prosecution’s case, paying close attention

to the importance of the witness’s testimony. See, e.g., Banks v. Dretke, 540 U.S. 668,

700-01 (2004) (finding that impeachment evidence was material where witness was “the

centerpiece” of a case that lacked physical evidence); Strickler, 527 U.S. at 292-93

(finding that impeachment evidence against even an important witness was not material

when the record provided strong support for the conviction apart from the witness’s

testimony).

Mr. Shaw aptly observes that the court of appeals deviated from the correct

analysis of materiality in hypothesizing about what might have been. The court of

appeals observed that if Mr. Hoover’s drug use had been known and revealed to the

defense, it is unlikely that the prosecution would have called him as a witness because

“his credibility was simply devastated.” In re Delmarter, 101 P.3d at 118. The court of

appeals further opined that the state “would have been left with the field tests and the

circumstantial evidence.” Id. While the record indicates that positive field tests were

available in both of Mr. Shaw’s cases, the prosecution did not present this evidence in

either trial. See Exs. 2, 3 (probable cause statements); Exs. 47-49 (trial transcripts). The

court of appeals effectively speculated that the prosecution would have relied on the

introduction of positive field tests to prove that the substance was cocaine. In so doing,

the court of appeals departed from the United States Supreme Court’s directive in

Bartholomew, 516 U.S. at 6, that a court may not base its materiality analysis on “mere

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ORDER – 13

speculation” as to counsel’s preparation in a different manner or the introduction of

evidence not admitted during trial. 

Even acknowledging this misstep, AEDPA requires a federal court to attend “with

the utmost care” to state court decisions, “including all of the reasons supporting their

decisions, before concluding that those proceedings were infected by constitutional

error.” Williams, 529 U.S. at 386. Indeed, the court of appeals did not exclusively rest

its analysis on speculation as to what might have been; the court also considered the

impact of the withheld evidence in view of the strength of the prosecution’s case in each

trial. The court of appeals concluded that there was strong circumstantial evidence in

each trial showing that the substance was cocaine. In light of this independent evidence,

the court of appeals held that Mr. Shaw could not demonstrate a reasonable probability

that the impeachment of Mr. Hoover would have affected the outcome of the trials. Such

an analysis is a sound application of clearly established Supreme Court law governing the

materiality prong of Brady. Moreover, it was this analysis, i.e., the court of appeals’

“review of the untainted evidence,” which the Washington Supreme Court adopted. See

Ex. 36 at 2-3 (“The Court of Appeals throughly reviewed the untainted evidence and

reached the reasonable conclusion that Mr. Shaw demonstrated no reasonable probability

that the outcome of the trial court would have been different in the absence of the

purported Brady violation.”) (emphasis added). Because the scope of this court’s review

is restricted to the state’s last reasoned decision, the court focuses its analysis on this

rationale, which the supreme court explicitly adopted.

 Turning to the state courts’ reliance on the untainted evidence introduced by the

prosecution, the court finds that the state courts reasonably concluded that the Brady

violation was immaterial to the outcome of the trials. Contrary to Mr. Shaw’s contention

that there was “absolutely no other evidence introduced to establish the nature of the

substances,” Pet. at 11, the record indicates that there was significant circumstantial

evidence introduced in each trial showing that the substance was cocaine. Moreover, the

record does not suggest that Mr. Hoover was the centerpiece of the prosecution’s case in

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either trial. The court here briefly recounts the testimony of other witnesses in each trial. 

A review of this testimony demonstrates the strength of the prosecution’s cases and also

reveals that the testimony before each jury was replete with references to cocaine.

As to the July 24 incident, Officer Whatley testified that the officers were

responding to a reported drug sale when they encountered Mr. Shaw. Ex. 47 at 27-34. 

Officer Whatley testified that the baggie at issue contained a large amount of a white

substance, which he suspected to be crack cocaine. Ex. 47 at 37-38; Ex. 49 at 284-85. 

Officer Smith specifically testified that the baggie contained 243 rocks of cocaine. Ex. 49

at 284-85. Officer Whatley testified that a search of Mr. Shaw’s person revealed a pipe,

hypodermic needles, and several hundred dollars in cash. Ex. 47 at 42-46. In addition,

Ms. Fulmer testified that she, Mr. Heiges, and Mr. Coyle had gone to the gas station to

buy crack cocaine. Id. at 80-87. Ms. Fulmer testified that Mr. Shaw had provided her

with free samples of crack cocaine in the past. Ex. 48 at 161-63. Ms. Fulmer also

testified that Mr. Shaw offered to give her money if she testified that she did not see

anything. Ex. 47 at 89-90. Mr. Heiges likewise testified that he and Ms. Fulmer went to

the gas station to buy cocaine. Ex. 48 at 214-16. Mr. Heiges testified that he saw the

baggie found by the officers while he was detained at the gas station; he directly testified

that the baggie contained cocaine. Id. at 220. Mr. Heiges further testified that Mr. Shaw

offered to bribe him to testify that the cocaine belonged to another person. Id. at 224-25. 

Finally, Mr. Shaw testified. Mr. Shaw admitted that he was a drug dealer and that

he had used cocaine in the past, but denied dealing drugs on that particular day. Ex. 49 at

398-402. Mr. Shaw denied that the baggie found by the officers was his, but he did not

deny that the baggie contained drugs. Id. at 401-02. In fact, Mr. Shaw referred to the

“bag of drugs” during his testimony. Id. at 401. The issue Mr. Shaw disputed at trial was

not whether the substance was cocaine, but whether he was the person who possessed the

cocaine. See Ex. 50 at 461-78.

As to the September 2 incident, Officer Braley testified that she posed as

“Christy,” and arranged to buy cocaine from Mr. Shaw at Albertsons. Ex. 43 at 119-37. 

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Mr. Waclawski, who was arrested with Mr. Shaw, testified that he and Mr. Shaw went to

Albertsons to sell cocaine to a woman named “Christy.” Id. at 74-75. Mr. Waclawski

directly testified that Mr. Shaw possessed cocaine; he also testified that the substance

seized from Mr. Shaw’s car at Albertsons was cocaine. Id. at 75. Officer Fifield testified

that following Mr. Shaw’s arrest, officers found in Mr. Shaw’s car a plastic baggie

containing, based upon his experience, what appeared to be cocaine. Id. at 149-54. In

addition to the baggie, a search incident to arrest unveiled a metallic smoking pipe,

hypodermic syringes, and $205 in Mr. Shaw’s sock. Id. at 157-68, 192-93. Finally,

Officer Taylor testified that Mr. Shaw admitted under oath in a prior trial – i.e., the trial

concerning the July 24 incident described above – that during this time he was a drug

dealer who dealt in cocaine. Id. at 211-13. 

This testimony of the officers, eyewitnesses, and Mr. Shaw himself both

corroborated the results of Mr. Hoover’s drug tests and provided independent proof that

Mr. Shaw possessed cocaine. In light of all of the evidence before the jury in each case,

the court finds that the state courts reasonably concluded that the undisclosed evidence of

Mr. Hoover’s heroin use would not have been critical to the jury’s assessment of the

substance at issue. At a minimum, the state courts’ decision was not contrary to, or an

unreasonable application of, clearly established federal law. Accordingly, the court

denies Mr. Shaw relief on the basis of his Brady claim. 

The court concludes by acknowledging the gravity of the facts of this case. It is

troubling to consider the introduction of a forensic chemist’s testimony against a criminal

defendant, who is facing the deprivation of liberty, without apprising the defendant or his

counsel that the chemist may have been under the influence of heroin. There is no

question that Mr. Shaw was deprived of the opportunity to fully and adequately crossexamine Mr. Hoover on his findings that the substances tested positive for cocaine. Even

so, that is not the test for federal habeas relief. In enacting AEDPA, Congress “intended

to give effect to state convictions to the extent possible under the law. When federal

courts are able to fulfill [this goal] within the bounds of the law, AEDPA instructs them

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to do so.” Williams, 529 U.S. at 386. Under the present circumstances, this court is not

at liberty to disrupt the finality of Mr. Shaw’s state court convictions. 

IV. CONCLUSION

For the foregoing reasons, the court ADOPTS IN PART Judge Donohue’s R&R

(Dkt. # 20) to the extent that it recommends dismissing Mr. Shaw’s claim based on

disruption of the chain of custody of drug evidence. The court declines to adopt Judge

Donohue’s recommendation as to Mr. Shaw’s Brady claim. The court dismisses this

claim. 

Thus, the court DENIES Mr. Shaw’s petition for writ of habeas corpus (Dkt. # 1)

and DENIES Mr. Shaw’s motion for release from custody (Dkt. # 23). The court

DISMISSES this action with prejudice. The court directs the clerk to enter judgment

consistent with this order. 

Dated this 25th day of April, 2007.

A JAMES L. ROBART

United States District Judge

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