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. e du/thir dc ir c uit_1998/228Filed September 11, 1998

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 97-2062

CHESTER HOLLMAN, Appellant

v.

HARRY E. WILSON, SUPERINTENDENT, RETREAT; THE

DISTRICT ATTORNEY OF THE COUNTY OF PHILADELPHIA; THE ATTORNEY GENERAL OF THE

STATE OF PENNSYLVANIA

On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. No. 97-cv-2115)

Argued June 9, 1998

Before: STAPLETON, COWEN, and RENDELL, Circuit Judges

(Filed: September 11, 1998)

NORRIS E. GELMAN [ARGUED] The Public Ledger Bldg.

6th & Chestnut Streets Philadelphia, PA 19106

Counsel for AppellantDONNA G. ZUCKER [ARGUED]

Office of the District Attorney

1421 Arch Street Philadelphia, PA 19102-1582

Counsel for Appellees

OPINION OF THE COURT

RENDELL, Circuit Judge.

Appellant, Chester Hollman, appeals from the distri ct court's denial of his habeas petition filed pursuan t to 28 U.S.C. S 2254, claiming that a violation of Brady v

. Maryland, 373 U.S. 83 (1963), undermines his murder conviction. For the reasons discussed below, we wil l affirm.

Factual Background

On May 4, 1993, a Common Pleas Court jury in Philadelphia convicted Hollman of second-degree mur der, possession of an instrument of crime, robbery, and criminal conspiracy for his involvement in the shooting deat h of Tae Jung Ho, a graduate student at the University of Pennsylvania. Ho had been walking with his girlfrie nd at 22nd and Sansom Streets in Philadelphia in the earl y morning of August 20, 1991, when the two were approached by Hollman and another man, who pushed H o to the ground. Hollman restrained Ho by sitting on his legs while the other assailant shot Ho in the chest; he was killed instantly. Hollman then robbed Ho and the two men r an back to their vehicle, a white Chevy Blazer.

The evidence against Hollman included the testimony of Deirdre Jones who had been traveling with Hollman i n the car that night. She testified that she had been dri ving around Center City with Hollman and two other individuals, a man and a woman. The two men stopped the car and discussed their plan to rob someone; Jones was instructed to act as a "lookout." The two men then left the car. Jones heard a gunshot and the two men jumped b ack into the vehicle and sped away. Shortly thereafter, the two

2other passengers exited the car and Hollman and Jon es

continued driving.

Two other witnesses near the scene testified that t hey heard a gunshot and saw two men jumping into a whit e Chevy Blazer which contained two passengers. One witness, a taxi driver, followed the car and was ab le to read the first few letters of the license plate, "YZA" b efore losing the car in traffic. The driver reported what he had seen and gave a description of the vehicle. Shortly thereaft er, a Philadelphia police officer stopped the car driven by
Hollman within blocks of the crime scene. It matche d the taxi driver's description and bore a license plate which started with the letters "YZA." As the officer ques tioned and searched Hollman he observed that Hollman was persp iring heavily and seemed highly agitated.

At trial, the only eyewitness who claimed to have a ctually seen the crime in progress was Andre Dawkins. Dawki ns was standing outside a convenience store across the street
from the crime scene. He testified that he saw Holl man and another man push Ho to the ground and heard Ho plea d for his life and the life of his girlfriend. Dawkin s claimed to have had a good view of Hollman running back to the car after the shooting and identified Hollman as the ma n who
had restrained Ho while the other assailant shot hi m.

During his interview with the police, Hollman denie d everything. However, when confronted with the state ment of Deirdre Jones, he blurted out, "I told that bitch t o keep her mouth shut, shit." During a search of Hollman's res idence, a .38 caliber revolver was discovered. An expert te stified at
trial that the bullet that killed Ho could have com e from that gun.

The jury convicted Hollman of second degree murder, possession of an instrument of crime, robbery, and criminal conspiracy.

After the trial, Hollman's counsel learned that, du e to an apparent clerical error, the prosecution had not ha d, and thus did not provide him with, a full and accurate report of Dawkins's criminal history. This error was not dete cted until Dawkins was arrested for robbery several mont hs after the Hollman trial. Dawkins had accidently bee n given

3two different identification numbers in the police computer

system. The record retrieved by the government and provided to defense counsel contained a recent arre st for burglary, a prior arrest under the alias John Johns on, and several open bench warrants. However, it did not co ntain significant aspects of Dawkins's criminal history i ncluding robbery and conspiracy convictions, and a prior con viction for filing a false report of incriminating evidence with the
authorities.

Hollman moved for a new trial in state court arguin g, inter alia, that the prosecution's failure to turn over this impeachment evidence constituted a Brady violation. See Brady v. Maryland, 373 U.S. 83 (1963).1 Hollman
contended that had the information been available d uring trial, the credibility of Dawkins could have been i mpeached using his prior crimen falsi convictions. The trial court held a post-trial hearing on the matter and then denied the motion, sentencing Hollman to life in prison. The S uperior Court rejected the same argument and the Supreme Co urt of Pennsylvania denied an allowance of appeal. Holl man then filed this S 2254 motion in the district court on March 2, 1997. The district court, adopting the opinion o f the Magistrate Judge, denied relief finding that the fa ilure to produce Dawkins's entire criminal record did not wa rrant a new trial under Brady. As the district court grante d a certificate of appealability, we have jurisdiction pursuant to 28 U.S.C. S 2253(a). We likewise deny Hollman's hab eas petition.

Standard of Review

We exercise plenary review over a district court's legal conclusions made in reviewing a S 2254 petition. Se e Orban v. Vaughn, 123 F.3d 727, 729 (3d Cir. 1997), cert. denied, 118 S. Ct. 717 (1998). Because Hollman filed his pe tition before the district court on March 24, 1997, it is governed by the provisions of the Antiterrorism and Effectiv e Death Penalty Act ("AEDPA") which became effective on Apr il 24, 1996. The AEDPA creates the following standard that

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1. Hollman raised other issues in his state court m otions but the appeal before us focuses on the alleged Brady violation.

4federal courts must apply when reviewing a habeas p etition

brought by a state prisoner:

An application for a writ of habeas corpus o n behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respec t to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the c laim--

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, cle arly established Federal law, as determined by th e Supreme Court of the United States, or

(2) resulted in a decision that was based on an unreasonable determination of the facts in l ight of the evidence presented in the State court procee ding.

28 U.S.C. S 2254(d). The issue raised in Hollman's habeas petition was clearly adjudicated on the merits in s tate court. Because the question before us is one of law we examine the state court's decision to determine if it was "contrary to, or involved an unreasonable applicati on of clearly established federal law." As we find that t he state court's decision on Hollman's petition was not defi cient under this standard, we will deny habeas relief.

We recognize that we have not yet defined the conto urs of the new AEDPA standard. See Berryman v. Morton, 100 F.3d 1089, 1103 (3d Cir. 1996) (stating that "we ha ve not
determined the extent of the deference that federal habeas courts must afford to the legal or the factual dete rminations made by state courts").2 However, we need not do so here, because the Pennsylvania Superior Court did not ren der a decision contrary to clearly established federal la w under any reading of the relevant standard.

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2. Cf. O'Brien v. DuBois, 145 F.3d 16 (1st Cir. 199 8) (setting forth that circuit's interpretation of the AEDPA); Green v. Fr ench, 143 F.3d 865 (4th Cir. 1998) (same); Neelley v. Nagle, 138 F.3d 917 (11th Cir. 1998) (same); Drinkard v. Johnson, 97 F.3d 751 (5th Cir. 1996), cert. denied, 117 S. Ct. 1114 (1997) (same).

5State Court's Determination

When the error regarding Dawkins's criminal identification numbers was discovered, Hollman move d for a new trial on the basis of the claimed Brady viola tion and argued that his counsel had been ineffective in fai ling to produce other evidence to impeach Dawkins. The tria l court conducted a post-trial hearing. The court determine d that the failure to produce Dawkins's entire criminal re cord did not constitute a Brady violation and that even if d efense counsel had known about the earlier convictions, th e result
of the trial would not have been different. The tri al court
thus concluded that a new trial was not warranted. Hollman appealed to the Superior Court which determ ined that the mistakenly omitted evidence did not consti tute a Brady violation, that Hollman was not entitled to a new trial on the basis of after-discovered evidence, an d that the court's charge did not deny Hollman due process.3 T he Supreme Court of Pennsylvania denied an allowance o f appeal on April 1, 1996. As Hollman has exhausted h is state court remedies with respect to the issues rai sed in this appeal, we can review his claim brought under S 2254.

Discussion

In Brady, the Supreme Court held that "the suppress ion by the prosecution of evidence favorable to an accu sed upon request violates due process where the evidenc e is material either to guilt or punishment." 373 U.S. a t 87. A new trial will be granted for a Brady violation onl y if the defendant can demonstrate both that the prosecution withheld exculpatory evidence, and that the evidenc e was material, in that the defendant did not receive a f air trial
because of its absence. See United States v. Pelull o, 105 F.3d 117, 122 (3d Cir. 1997). It is well establishe d that

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3. Although the Superior Court decision that Brady was not violated rested on an erroneous view that impeachment materi al cannot constitute exculpatory evidence under Brady, the pa rticulars of the reasoning do not affect our ruling because we hold that, in any event, the state court adjudication did not result in a de cision that was contrary to, or an unreasonable application of, cle arly established

federal law because we, too, find that Brady is not implica ted.

6impeachment evidence can constitute exculpatory evi dence

under Brady and its progeny and Hollman is correct that evidence of a government witness's prior criminal h istory is evidence which must be produced to the defense. See United States v. Bagley, 473 U.S. 667, 676 (1985); Giglio v. United States, 405 U.S. 150, 153 (1972).

The law is clear that the prosecution must not "wit hhold" impeachment evidence. It is equally clear that the government is only "obligated to produce certain ev idence actually or constructively in its possession or acc essible to it." United States v. Perdomo, 929 F.2d 967, 970 (3 d Cir. 1991).4 Where the prosecutor had no actual or const ructive possession of information, there can be no Brady vi olation
for failure to disclose it. It is uncontested that the prosecution did not have actual possession of the f ull criminal record of Dawkins. Constructive possession means that a prosecutor "should . . . have known that the material at issue was in existence." United States v. Joseph , 996 F.2d 36, 39 (3d Cir. 1993).

In Perdomo, we found a Brady violation where the government failed to provide the defense with a wit ness's criminal history report. 929 F.2d at 971. In that c ase, however, the government's search for available info rmation was deficient in that it failed even to request a c riminal history report from the Virgin Islands. Id. It was the government's failure to seek "information readily a vailable to it" which prompted the court to find that the fi rst prong of Brady had been violated. Id. Thus, we, along wit h several other circuits have imposed upon the prosecution a duty to search accessible files to find requested exculpato ry material. See United States v. Brooks, 966 F.2d 150 0, 1502- 03 (D.C. Cir. 1992); Carey v. Duckworth, 738 F.2d 8 75, 878

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4. By discussing Third Circuit caselaw construing B rady we are not concluding that it is necessarily pertinent, let al one controlling, in applying the standard under the AEDPA. There are co nflicting views among the courts of appeals referenced above as to the relevance and weight of precedents established by courts other th an the Supreme Court in applying the AEDPA, and we have yet to exp lore this issue. However, Perdomo is useful to demonstrate that even our court of appeals, in applying Brady, has not ventured from t he concept that it is
available and accessible information that must be d isclosed.

7(7th Cir. 1984); United States v. Auten, 632 F.2d 4 78, 481

(5th Cir. 1980). As one court has noted, the duty r ests on the notion that "government failure to turn over an easily turned rock is essentially as offensive as one base d on government non-disclosure." Brooks, 966 F.2d at 150 3. The duty to search discourages the government from intentionally keeping itself ignorant of informatio n useful to the defense. See Carey, 738 F.2d at 878. However, w here the government has diligently searched, no Brady vi olation will be found. See United States v. Young, 20 F.3d 758, 764 (7th Cir. 1994) (declining to find Brady violation where government diligently searched national and localfi les for information about witness's criminal history but fa iled to
search records of other states).

Here we cannot say that the prosecutor should have- - or even could have -- known about, or searched for, th e clerical error which resulted in Andre Dawkins bein g given
two different criminal identification numbers. The cause of the failure is characterized by the parties as an
administrative mistake. Without some record evidenc e that it was something more than a mistake, we cannot con clude that the government withheld information that was r eadily available to it or constructively in its possession

. Accordingly, we find that the government did not wi thhold Dawkins's full criminal history and that the failur e of the government to produce this material does not consti tute a Brady violation.

We note that Hollman is really arguing that we expa nd the scope of what constitutes Brady material, since he does not dwell on the issue of accessibility, but focuse s, rather, on his view that the defendants' proceeding to tria l without this type of information simply should constitute a violation of Brady. We have little difficulty rejecting this argument as it clearly entails extending Brady beyond the scope of any federal case precedent.

Even if we were to view the prosecution's failure t o retrieve Dawkins's complete record as a violation o f Brady,
he would not be entitled to a new trial unless we
determined that the favorable evidence was "materia l" in
that Hollman did not receive a fair trial because o f the absence of that evidence. See Pelullo, 105 F.3d at 122

8(citations omitted). A fair trial is one deemed wor thy of

confidence. See Kyles v. Whitley, 514 U.S. 419, 434 (1995).
The defendant must show that "the favorable evidenc e could reasonably be taken to put the whole case in such a different light as to undermine confidence in the v erdict." Id. at 435. The question here is whether Dawkins's crimen falsi convictions are material, that is, whether th ere is a reasonable probability that disclosure of his crimi nal record
would have led to a different result at trial. Id. at 432-42.

Hollman asserts that the absence of a record of Dawkins's prior crimen falsi convictions was materi al and deprived him of a fair trial in three ways. First, Dawkins was able to perjure himself with impunity regarding his criminal history; second, the government relied on Dawkins's credibility in its closing; and third, th e jury instructions given by the trial judge somehow buttr essed the credibility of Dawkins's testimony. Like the di strict court, we disagree.

It should be noted at the outset that Dawkins's cre dibility was impeached repeatedly during the trial. The cros sexamination of Dawkins focused on inconsistencies i n his statements to the police and in his trial testimony .5 During his cross-examination, defense counsel established that Dawkins had an extensive history of conflict with l aw enforcement which he blamed on police harassment. T he jury was made aware of the fact that Dawkins had a criminal record.6 In addition, Dawkins admitted tha t bench

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5. Dawkins admitted that when questioned by the pol ice he had initially denied seeing the murder and lied in his statement to the police because he "didn't want to get involved." App. at 1359-62. He also admitted that he did not reveal his address to police officers bu t claimed to be living
on the streets because he feared he would be consid ered a "snitch" for reporting what he saw. App. at 1337.

6. Defense counsel questioned Dawkins about his mos t recent burglary arrest, about his prior conviction for theft and on his use of an alias in
connection with that arrest. He denied his involvem ent in the burglary and his use of an alias but admitted, "I have summa ries. I have a burglary. I ain't been a saint all of my life." App . at 1267.

9warrants had been issued for him in several "summar y

cases." App. at 1255.7

When Dawkins was questioned about his most recent arrest for burglary, he denied that he had committe d the crime and complained of extensive harassment by the police. However, the arresting officer testified th at at the time of his arrest Dawkins admitted to having commi tted the burglary and that he was able to describe the i tems removed from the apartment. App. at 1557-58. In add ition, the detective told the jury that Dawkins asked for help in dealing with his crack cocaine addiction. App. at 1 559. During his testimony, Dawkins had stated that he ha dn't used drugs for years. App. at 1286.

Further, Dawkins admitted at trial that he had a hi story of mental problems. Specifically, Dawkins testified that he had spent seven months in a state mental institutio n because he "didn't know who [he] was." App. at 1285 . He also stated that he was no longer taking his psychi atric medication and had not been taking the medication a t the time he observed Ho's murder. App. at 1286. We conc lude that the additional impeachment material contained in the complete criminal record would have been merely
cumulative. We find that even had defense counsel b een provided with Dawkins's crimen falsi convictions, t he additional impeachment evidence would not have put the whole case in such a different light as to undermin e our confidence in the verdict.

Hollman contends that the harm created by the purported Brady violation was exacerbated because Dawkins escaped challenge for his perjury on the st and.8 It

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7. In response to a question about outstanding benc h warrants Dawkins replied,

I had summary bench warrants. It's from the case I got a little --
it
used to haunt me. I used to dream about it s o much that I had an attitude constantly, so much of an attitude that if someone said something to me, I would tell them off. They would not leave me alone. They still don't leave me alone. . . . And I told off many a police officer, many a people, and they lock ed me up.

App. at 1255-56.

8. This perjury consisted of three instances where Dawkins denied having a criminal record. App. at 1267; 1268; 1272.

10is true that Dawkins perjured himself by not reveal ing that

he did have a criminal record but this does not giv e rise to separate rights under Brady. Further, we note that had all the parties had Dawkins's full criminal history, it is unlikely that he would have testified that he had n o record. Rather, it appears that Dawkins was attempting to b enefit from the clerical error which seemingly purged a po rtion of his criminal past.

Hollman's contention that the government, in its cl osing argument, relied on the credibility of Dawkins is s imilarly flawed. App. at 1686; 1689-90.9 To the contrary, th e prosecutor did not place undue reliance on the cred ibility of Dawkins and, seemingly realizing his questionable credibility, advised the jury that there was suffic ient evidence to convict Hollman without the testimony o f Dawkins. App. at 1679. Finally, Hollman's argument that the jury instructions invited the jury to rely on t he testimony of Dawkins is without merit. The trial ju dge gave standard jury instructions that would have been una ffected if Dawkins had been impeached using his crimen fals i
convictions.

The record as a whole lends further support to the
conclusion that there was sufficient evidence to co nvict Hollman without the testimony of Dawkins. Compellin g evidence was provided by Deirdre Jones who was trav eling in the car with Hollman that night. While the trial court properly instructed that her testimony was subject to scrutiny as a "corrupt and polluted source," her ve rsion of the events was corroborated by the other witnesses in the case. For example, two witnesses heard the shooting , saw two men fleeing, and supplied information about the white

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9. In the two passages cited by Hollman, the prosec utor asked the jury
to decide if Dawkins was "shaken" on the stand. How ever, the passages, read in their entirety reveal that the prosecutor r ecognized that his witness was flawed. First, the prosecutor stated:"N o, I won't apologize for Andre Dawkins because there's dignity in everyt hing. I submit to you that you saw him on the stand. Was he articulate? W as he shaken on cross-examination?" App. at 1686. Later, he asked, "I say to you, in the examination of Andre Dawkins, was he shaken? And do you think less
of Andre Dawkins because of what a detective said t hat had nothing to do with nothing? If so, it's your decision." App. a t 1690.

11vehicle. One was able to note that the license plat e started

with "YZA." Shortly after the crime, and within blo cks of the crime scene, a police officer stopped Hollman drivi ng a vehicle matching this description. The officer test ified as to Hollman's anxious demeanor upon being searched. Upo n being informed that Jones had provided a statement, Hollman exclaimed, "I told that bitch to keep her m outh shut, shit." Finally, the bullet which killed Ho ca me from a .38 caliber gun. A .38 caliber gun was found in Hol lman's apartment.

Thus, we conclude that the Superior Court's decisio n that the failure of the government to provide the f ull criminal history of Andre Dawkins did not constitut e a violation of Hollman's rights under Brady was not a decision that was contrary to or an unreasonable application of federal law.

For the foregoing reasons, we will affirm the distr ict court's order of November 25, 1997, denying Hollman 's petition for habeas corpus.

A True Copy:

Teste:

Clerk of the United States Court of Appeals
for the Third Circuit

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