United States Court of Appeals Fifth Circuit 

## FILED August 24, 2006 Charles R. Fulbruge III Clerk UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

____________ No. 05-70032

____________ RYAN HEATH DICKSON,

Petitioner-Appellant,

versus NATHANIEL QUARTERMAN, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTIC E, CORRECTIONAL INSTITUTIONS DIVISION, Respondent-Appellee.

Appeal from the United States District Court For the Northern District of Texas

Before GARZA, DeMOSS, and CLEMENT, Circuit Judges. EMILIO M. GARZA, Circuit Judge: Ryan Heath Dickson, a Texas death row inmat e, appeals the denial of his 28 U.S.C. § 2254 habeas corpus petition. He claims th at the State failed to disclose the existence of two audiotapes containing potenti al impeachment evidence under Brady v. Maryland , 373 U.S. 83 (1963), and th at th e federal district court erred by denying his petition for habeas relief.-2- I On Novem

ber 27, 1994, police in Amarillo, Texas, were called to a small grocery store operated by Carmelo Surace and his wife, Marie. When they arrived, the officers found Marie dead and Carmelo critically injured. The police learned that four young males—Petitioner, his younger brother Dane Dickson, Freddie Medina, and Jeremy Brown—had been invo lved in an attem pt to steal beer from the store. After first gathering outside the store, the two brothers entered while Medina and Brown remained outside. Som etime t hereafter, Petitioner shot and injured Carmelo with a sawed-off rifle he had carried int o th e store. Before fleeing, Petitioner allegedly shot and killed Marie. Carmelo later died from his injuries. The State charged Petitioner separately fo r the murder of each vict im. Wit hout m ult iple vict ims, th e State had to prove th at Petitioner int entionally killed Carmelo Surace during the course of a robbery to establish capital murder under Texas Penal Code s ecti on 19.03(a)(2). S ee T EX . P ENAL C ODE § 19.03(a)(2) (2003) (stating th at a person com mit s capital murder if he commits murder under section 19.02(b)(1) and, inter alia , “t he person int entionally com mit s the murder in the

course of com

mit ting or attem

pting to com

mit kidnapping, burglary, robbery, aggravated sexual assault, arson, obstruction or retal iat io n, or terrori stic th

reat”). Alt hough Petitioner acknowledged responsibility fo r killing Carmelo, he denied th at he did so int entionally. He argued that Carmelo was killed during a struggle as Petitioner and his brother attempted to steal items from the store. The testimo ny of Medina and Brown (the boys who remained outside the store) was an impo rtant piece of th e State’s pr oof of int ent at tri al. Medina testified that, before going into the store, Peti tioner showed th e boys a gun. Brown asked him what it was for, and Petitioner responded th at he was going to shoot th e store owners. Brown also testified that Petitioner expressed an intent1 One of the State’s trial attorneys tape recorded his interviews with certain witnesses in

criminal cases. He acknowledged that he may have recorded his int erviews wit h other wit nesses in addition to Brown and Dane Dickson but never made any of the tapes or transcripts available to the defense team . According to the prosecutor, he never considered whether the tapes should be provided to th e defense team . “I don’t know that I consciously thought about i t on e way or the oth er. I believed it was like - - it was like taking notes to me. It was like my wo rk product.” Alt hough oth er State prosecutors were present during the int erviews, none of them ensured th at the audiotapes were placed in th e “o pen file” fo r the defense team . Alt hough not entirely clear, it appears th at a State attorney , before or during the state habeas proceeding, discovered the audiotapes of the Brown and Dane Dickson interviews and disclosed them. No other audiotapes were discovered in th e State’s files. -3- to shoot th e store owners but could not recall whether he saw Pet it io ner with the gun outside the store or at an earlier time th at day. Defense counsel argued that the only direct evidence of intent was th e testimo ny o f Brown and Medina and that this testimony was fabricated. The jury fo und Petitioner guilt y of capital murder, and the state court sentenced him to death. The Texas Court of Criminal Appeals affirmed the conviction and death sentence on direct appeal. After conviction, the State revealed that prosecutors had not given the defense access t o audiotapes of pretri al interviews with Brown and Dane Dickson. 1 During these interviews, prosecutors questioned the two about the day’s events and used written statements the young men had given to police at the time of th e killings t o both confirm and refresh their recollection prior to tri al. Transcripts of th ese sessions indicate that Brown and Dane Dickson questioned the accuracy of th eir prior written statements and expressed doubt regarding certain factual assertions that were relevant to the State’s case. Brown asserted in his written statem ent th at Petitioner verbalized an int ent to shoot Carmelo and Marie Surace prior to entering th e store: “I asked [Petitioner] if they were going to shoot them and he said, ‘yeah.’ ” During the pretrial interview, however, Brown equivocated and seemed unsure th at Peti tioner had done so.-4-

Q. Alright

. Do you recall asking [Petitioner] whether or no t h e was going to shoot som

ebody? A. I may have said do not shoot nobody but I don’t think I would’ve asked him what he was going to do.

. . . . Q. Okay. And yo u don’t recall - - in the statem ent here, it says, I asked [Petitioner] if th ey were goi ng to shoot them , and he said yeah. You don’t recall that? A. It may have happened like that. Q. I know it may have happened th at way, but what I need to know is did it or did it not happen th at way? See what I m ean? Because that’s important, don’t you think? A. That is an important piece. Q. Did that happen or did that not happen? And that’s what I need to know. A. I don’t know. Over th e course of th e int erview and aft er persistent questioning by prosecutors, Brown became mo re certain t hat Peti

tioner expressed an intent to kill prior to entering the store. Q. Okay. And before going in the store, how clear do you recall him ever talking about shooting them before he actually went in the store? A. I think it was pretty clear.

. . . . Q. You guys knew th at was what was fixing to happen before the store

- - before he went in that store and [you] backed out. A. I don’t know. We may have. Q. Okay. A. I knew at one point before they went in the store that - - what he was going to do, yes. Q. That he was going to shoot them? A. Right. I don’t know if it was before we left the house or not. Q. But you knew before he went in the store? A. Yes, sir. Toward th e end of th e int erview, prosecutors assured Brown th at he did not need to worry about being prosecuted fo r murder because his versio n of events was consistent with those of the other boys: “Otherwise, you would’ve been in deep trouble, okay ? But I - - again, I want you to know right now, I mean, I

- - yo u don’t need to sit and worry th at we’re going to drag yo u int o the capital-5-

murder, because it ’s pretty clear th at yo u did not have anyt hing to do wit h t he capital murder.” Ult imat ely, Brown’s tri al testimo ny supported the State’s theory th at Petitioner possessed an int ent to kill prio r to entering the store. Under questioning by prosecutors before tri al, Dane Dickson retrac ted certain factual assertions in his writ ten statem ent. In that statem

ent, he claimed to have been in the store when his brother shot Marie Surace. During his pretrial interview, however, Dane Dickson stated that he did not wit ness th e shooting but, rather, mist akenly “inco rporated” what his brother told him about the shooting int o his written statem ent to the pol

ice. Alt hough different from his written statement, Dane Dickson’s statem

ents during th e suppres s ed pretri al int erview are consistent wit h his lat er tri al testimo ny and the defense theory that Carmelo was killed during a struggle. Aft er prosecutors disclosed th e existence of the audiotapes, Petitioner filed an application fo r writ of habeas corpus in state court based, in part, on his claim that the State improperly withheld evidence th at could have been used to impeach both wit nesses. Aft er receiving evidence and argument, the state trial court found, inter alia , the following facts: 13. Evidence at tri al reveals th at Carmel[l]o Surace and his wife, Marie Surace, had both been shot during a robbery of their grocery store. Evidence also suggested th e weapon used was a single-shot, bolt-action, .22 cal iber rifle, which had been s a wed of f. Som e evidence was adduced showing that Mr. Surace might possibly have struggled with his assailant, might possibly have grabbed th e barrel of the weapon, and might possibly have been shot as a result of th e struggle. Evidence suggested that Mrs. Surace was probably shot after her husband. 14. The tri al testimo ny of Jeremy Brown indicated th at Applicant had told Jeremy of his int ent to shoot th e “t wo old people” before entering the store. The first portion of his tape recorded interview, however, is not so conclusive. 15. The tri al t estimo ny given by Dane Dickson was essentially the same as his tape recorded statem

ent, but still t here were some differences.-6-

Ex Parte: Dickson , No. 38005-01-A, slip op. at 3-4 (47th Dist. Ct., Pot ter County , Tex. Sep. 22, 2000). The state tri al court then issued conclusions of law: 3. Even if th e non-disclosure of the tapes was inadvertent, the fact remains th at Defense counsel could possibly have used the contents of the tape recorded statem ents during cross-examination of these witnesses at trial. 4. Especially regarding Jeremy Bro wn’s tape recorded int erview, Defense [counsel] might have been able to impe ach Mr. Brown’s tri al t estimo ny by showing th at fo r th e fir st 40 to 50 pages of said int erview he wasn’t sure about Mr. Dickson’s intent. 5. Defense might also have shown th at in Mr. Brown’s tape recorded int erview, it is only aft er he is info rm ed th at he is not likely to be prosecuted f or hi s invo lvement in this crime th at he reveals Mr. Dickson’s statem ent concerning his int ent to kill. Alt hough, not a direct “deal” with a witness, Defense counsel might have been able to use the recorded int erview to impeach Mr. Brown’s tri al testimo ny by showing his reliance o n an implied grant of immunit y, or to expose hi s possible bias as a witness in the case. 6. While th e contents of th e tape recorded int erviews do not contain any directly exculpatory evidence, they do contain potenti al impeachment mat erial. Harm from th e non-disclosure (even th ough not int entional) of such impeachment mat erial may be presumed from the result obtained in this case. 7. Had th e tri al t estimo ny of Jeremy Brown been effectively impeached by the use of th e recorded statem ent, the jury might have chosen to disregard or disbelieve Mr. Brown’s tri al testimo ny about Applicant’s acknowledgment of int ent, and, since this convict io n is for the alleged capital murder of Carmel[l]o Surac e, o nly , (the alleged capital murder of Marie Surace is a separate indict ment which has not yet been tried), the jury might have reached a different conclusion. Id

. at 4-6. Alt hough the state tri al court was “not sure that the disclosure of the recorded interviews and th eir use by Defense counsel at trial would have caused the jury to reach a different verdict” it

recom mended th at Petitioner receive a new tri al “[b]ecause of the imp ortan ce of preserving and maint aining th e int egrity of th e adversarial tri al process, and bec ause of the obvious import of a capital murder verdict and death sentence.” Id . at 6.2 First, despite acknowledging that Bro wn’s pretri al int erview could have been used to

impeach, th e district court conclu ded that di sclosure of his earlier interview statements would not have undermined confidence in th e verdict because other evidence of Petitioner ’ s int ent to kill, including Medina’s tri al testimo ny th at Petitioner said he was “going to shoot the two old people in th e store” before entering, corroborated his testimo ny. Second, the district court stated that Brown’s pretri al int erview would not support a showing of bias because the prosecutor’s assurance of nonprosecuti on took pl ace only after Brown affirmed that Petitioner had expressed an intent to kill. Finally, th e district court concluded th at Dane Dickso n’s pretri al int erview could not be used to impeach because his testimo ny at tri al was “favo rab le” to the def ense and consistent with his statem ents in the pretrial interview. -7- The Texas Court of Criminal Appeals (“TCCA”) adopted the state tri al court’s “findings and conclusions wit h th e exception of conclusion number six wherein the tri al judge determ ined th at harm from th e non-disclosure of th e tape should be presumed.” E x Parte: Dickson , No. 47314-01, slip op. at 2 (Tex. Crim. App. Feb. 21, 2001). Citing Strickler v. Greene , 527 U.S. 263 (1999), and Kyles v. Whitley , 514 U.S. 419 (1995), the TCCA then denied habeas relief. Aft er exhausting his state remedies, Petitioner filed a federal peti tion fo r writ of habeas corpus and renewed his Brady claim. The district court reviewed the record and recounted the evidence supporting the convict ion. Applying the deferential habeas standard in AEDPA, the district court concluded th at th e peti

tion fo r writ of habeas corpus should be denied. D ickson v. Dretke , 2:01-CV0095, slip op. at 1-2 (N.D. Tex. Mar. 23, 2005). 2 Out of an abundance of caution and based upon the admonition of th e Supreme Court in Miller-El v. Cockrell , 537 U.S. 322 (2003), we issued a certificate of appealability (“COA”) to allow Peti tioner the opportunity to fully brief the merit s of his claim. D ickson v. Quarterman , 453 F.3d 643 (5th Cir. 2006); see Miller-El , 537 U.S. at 338 (“Indeed, a claim can be debatable even th ough every jurist of reason might a gree, af ter the COA has been granted and the case has received full consideration, th at peti

tioner will not prevail.”); Hernandez v. Johnson , 213 F.3d 243, 248 (5th Cir.-8-

2000) (stating that the court resolves doubts in petitioner’s favor in death penalty cases).

II Under AEDPA, Petitione r i s not entitled to f ederal habeas relief unless the state court’s adjudication of his Brady claim

(1) resulted in a decision th at was cont rary to, or involved an unreasonable application of , clearly established Federal law, as determ ined by t he Supreme Court of the United States; or (2) resulted in a decision th at w as based on an unreasonable determ inat io n of the facts in light of the evidence presented in t he State court proceeding. 28 U.S.C. § 2254(d). Section 2254(d)(1) applies to pure questions of law as well as mixed questions of law and fact. M artin v. Cain , 246 F.3d 471, 475 (5th Cir. 2001). A decisio n is “contrary to” clearly established federal law “if th e state court arrives at a conclu sio n opposite to that reached by th [e Supreme] Court on a question of law or if the state court decides a case differently than th[e Supreme] Court has on a set of mat erially indist inguishable facts.” W illiams v. Taylor , 529 U.S. 362, 412-13 (2000). A d ecision involves an “unreasonable application of” clearly established federal law “if th e state court identifies th e correct governing legal principle from th [e] Court’s decisions but unreasonably applies that principle to the facts of the prisoner’s case.” Id . at 413. Section 2254(d)(2 ) applies to questions of fact. M artin , 225 F.3d at 475. Under § 2254(d)(2), federal courts “give deference to the state court’s findings unless they were based on

an unreasonable determ

inat io n o f t he facts in light of the evidence presented in the state court proceeding.” C

hambers v. Johnson , 218 F.3d 360, 363 (5th Cir. 2000) (int ernal quotation om it ted).3 Petitioner also contends that the federal district court erroneously held a de novo evidentiary

hearing and failed to defer to state tri al court findings of fac t . S ee 28 U.S.C. § 2254(e)(1) (“In a proceeding instituted by an application for a writ of habeas corpus by a person in custody pursuant to th e judgment of a State court, a determination of a factual issue made by a State court shall be presumed to be correct.”). He asserts that the state tri al court’s findings survived the denial of habeas relief by th e TCCA because th e TCCA expressly adopted all findings and conclusions of the state tri al court, except conclusion six which “presumed” harm from the result obtained in this case. S ee Craker v. Procunier , 756 F.2d 1212, 1213-14 (5th Cir. 1985) (stating that the factual findings of the state tri al court survived the appeal to the TCCA because the TCCA did not rej ect the factual findings). Because we accept th e validit y of th e state court’s findings of fact and conclusions of law as adopted by th e TCCA, we need not decide whether the district court erroneously failed to defer to state court findings of fact. -9- Factual determ

inat io ns by th e state court are presumptively correct and will not be disturbed unless rebutted by clear and convincing evidence under § 2254(e)(1). Morris v. Cain , 186 F.3d 581, 584 (5th Cir. 1999). Peti tioner argues th at th e state court adjudication of his Brady claim resulted in a decision th at is contrary to, or invo lves an unreasonable application of , federal law. 28 U.S.C. § 2254(d)(1). He argues th at th e recorded pre tri al int erviews with Brown and Dane Dickson contained “material” impeachment evidence under Brady on the issue of int ent to kill. 3 Respondent argues that the district

cou rt s hould be affirmed because the state determination that the evidence was not material is not objectively unreasonable. “[T]he suppression by th e prosecution of evidence favorable to an accused . . . violates due process where th e evidence is mat erial eit her to guilt or to punishment, irrespective of the good fait h

or bad faith of the prosecution.” Banks v. Dretke , 540 U.S. 668, 691 (2004) (quoting Brady , 373 U.S. at 87). “When the ‘reliability of a given witness may well be determinative of guilt or inno cence,’ nondisclosure of evidence affecting credibilit y falls wit hin t his general rule.” G iglio v. United States , 405 U.S. 150, 154 (1972) (quoting Napue v. Illinois , 360 U.S. 264, 269 (1959)). To4 “The statute compels federal courts to review for reasonableness the state court’s ultimate

decision, not every jot of its reasoning.” Santellan v. Cockrell , 271 F.3d 190, 193 (5th Cir. 2001); see Neal , 286 F.3d at 246 (holding th at a federal court’s “fo cus on the ‘unreasonable application’ test under section 2254(d) should be on th e ult imat e legal conclusion th at the state court reached and not on whether the state court considered and discussed every angle of evidence”). -10- prevail on a Brady claim, “[t]he evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; th at evidence must have been suppressed by the State, eit her willfully or inadvertently; and prejudice must have ensued.” S trickler , 527 U.S. at 281-82. Evidence is mat erial where th ere exists a “reasonable probability” th at had it been disclosed the result at tri al would have been different. Banks , 540 U.S. at 699. “A ‘reasonable probabilit y’ is a probability sufficient to undermine confidence in the outcome.” United States v. Bagley , 473 U.S. 667, 682 (1985). Under AEDPA, we do not decide de novo whether a state pri soner has sufficient ly proven a Brady vio lat io n. See Yarborough v. Alvarado , 541 U.S. 652, 665 (2004) (“We cannot grant relief under AEDPA by conducting our own independent inquiry int o whether the state court was correct

as a de novo mat ter.”); Neal v. Puckett , 286 F.3d 230, 236 (5th Cir. 2002) ( en banc ) (“We have no authori ty to grant habeas corpus relief simply because we conclude, in our independent judgment, th at

a state supreme court’s application of [federal law] is erroneous or inco rrect.”). Rather, we decide whether th e state court’s Brady determ inat io n resulted in a decision th at is contrary to, or invo lved

an unreasonable application of , clearly established federal law. B usby v. Dretke , 359 F.3d 708, 717 (5th Cir. 2004). 4 Here, th e TC CA accepted every factual finding and conclusion of law of the state habeas court except th e conclusion th at “harm” may be “presumed” from the result in the case. In citing Strickler and Kyles , th e TCCA rejected the st ate tri al court’s conclusion that any impeachment-11-

evidence in th e wit hheld pretri al int erviews was material. We review this dispositive determ inat io n th rough th e deferenti a l lens provided by Congress in AEDPA. S ee Rompilla v. Beard , 125 S.Ct. 2456, 2462 (2005) (stating th at, unde r AEDPA, the state court deci sio n must have been not only inco rrect or erroneous but obj ectively unreasonable). Dickson argues th at Brown’s pretri al interview was materi al t o th e issue of intent because “[o]ne can only speculate on the outcom e of the tri al if t he corroboration testimo ny o f Mr. Medina was challenged at trial with the undisclosed tape of Mr. Brown. Both Mr. Brown and Mr. Medina may have been impeached since one story corroborated another.” But alleging a speculative outcome is insufficient

. Rather, a petitioner must demonstrate a reasonable probability that the result at trial would have been different. B anks , 540 U.S. at 698-99. Petitioner has not done so. S ee United S tates v. Moore , 452 F.3d 382, 388 (5th Cir. 2006) (“[V]ague assertions do not establish any exculpatory evidence, let alo ne a reasonable probability that such evidence affected the outcom e of th e tri al.”). His argument regarding Dane Dickson’s pretrial interview statement is similarly deficient. Alt hough suggesting th at he could have used the statem ent, Petitioner does not establ ish ho w the result at tri al would have been different. Id

. Even if we assume th e defense could have effectively impeached Brown and Dane Dickson, oth er probative evidence of an intent to kill prevents us from co ncluding that the state court determ ination of immat erialit y r esulted in a decision that involves an unreasonable application of federal law. The State offered evidence that Petitioner: (1) carried a loaded gun into the store; (2) admit ted to fir ing th e gun th at killed Carmelo Surace; and (3) killed Marie Surace shortl y thereafter. Furthermore, the prosecution presented evidence th at Petitioner int ended to rob the store by fo rce or threat of fo rce, including: (1) testimo ny th at, in the weeks before the offense, Petitioner stated a5 Alt hough a competent defense attorney might have used the taint of bias and misrecollection

as to Brown to diminish t he effectiveness of Medina’s testimony, we cannot say that the TCCA unreasonably concluded th at th e evidence was immat erial given the other evidence of int ent presented at tri al. S ee United States v. Weintraub , 871 F.2d 1257, 1262 (5th Cir. 1989) (“Courts have fo und

. . . th at impeachment evidence improperly wit hheld was not mat erial where the testimo ny of th e wit ness who might have been impeached was strongl y co rroborated by additional evidence supporting a guilt y verdict. In contrast, where the withheld evidence would seriously undermine the testimo ny of a key wit ness on an essential issue or there is no strong corroboration, the withheld evidence has been found to be material.”) (citations omitted). -12- desire to rob a store; (2) evidence th at Petitioner stole th ree .22 caliber rifles prior to the robbery; and (3) evidence th at Petitioner sawed of f the barrel of the rifle and whit tled the stock so th at it could be concealed. The state court could reasonably concl ude that this combined evidence rendered the undisclosed impeachment evidence immat erial because confidence in th e outcom e was not undermined. S ee Kopycinski v. Scott , 64 F.3d 223, 226 (5th Cir. 1995) (ex amining corroborating evidence and stating th at th e mat erialit y inquiry assesses whether disclosure “would have placed the

case in a different light so as to undermine confidence in the jury verdict”); Edmond v. Collins , 8 F.3d 290, 294 (5th Cir. 1993) (noting th at nondisclose d impeachment evidence is cumulative and immat erial when the witness was impeached sufficiently at trial). 5 We affirm th e district court’s deni al o f relief because, even assuming the pretrial interview recordings contained beneficial impeachment evidence, other evidence of Petitioner’s int ent to kill prevents this court from concluding th at the state court’s immat erialit y determ inat io n resulted in a decision th at invo lved an unreasonable application of federal law. S ee Yarborough , 541 U.S. at 665 (“Alt hough the question of what an ‘unreasonable application’ of law might be difficult in som e cases, it is no t difficult here.”). We pause, however, to express our concern regarding the State’s failure to turn over pretri al int erview statem

ents by two key wit nesses in a death penalty case. The duty of a prosecutor, as the6 Concession of a disclosure obligatio n under B rady does not, of course, concede a

redressable Brady vio lat io n. S ee Strickler , 527 U.S. at 281 (noting th at “t he term ‘ B rady vio lat io n’ is som etimes use d to ref

er to any breach of the broad obligation to disclose exculpatory e vidence . . . al

th ough, strictl

y speaking, there is never a real ‘ B rady vio lat io n’ unless the nondisclosure was so serious th at th ere is a reasonable probability th at the suppressed evidence would have produced a different verdict”).

7 The Supreme Court has not decided “whether B rady requires a prosecutor to turn over his work prod uct.” M incey v. Head , 206 F.3d 1106, 1133 n.63 (11th Cir. 2000). At least one com ment ator states: “Because B rady is based on the Constitution, it overrides court-made rules of procedure. Thus, the work-product immunit y fo r di scovery in Rule 16(a)(2) prohibits discovery under Rule 16 but it does not alter the prosecutor’s duty to disclose mat erial th at i s within Brady .” 2 C HARLES ALAN WRIGHT , FEDERAL P RACTICE AND P ROCEDURE § 254.2 (3d ed. 2000). Alt hough som e jurisdictions recognize that “opinio n work product” may enjo y so me protection, s ee, e.g. , Williamson v. Moore , 221 F.3d 1177, 1182 (11th Cir. 2000), the State agreed at oral argument th at -13- representative of th e sovereign in a criminal case, is “no t th at it shall win a case, but th at justice shall be done.” B erger v. United States , 295 U.S. 78, 88 (1935); see United States v. Leon , 468 U.S. 897, 900-01 (1984) (recognizing th e goal of establishing “procedures under which criminal defendants are ‘acquitted or convicted on th e basis of all the evidence which exposes the truth’ ” (quoting Alderman

v. United States , 394 U.S. 165, 175 (1969))). “Unless, indeed, the adversary system of prosecution is to descend to a gladiatorial level unmit igated by any prosecutori al obligation fo r the sake of truth, th e government simply cannot avoid responsibility fo r knowing when” disclosure is required. K yles , 514 U.S. at 439. Accordingly, a prosecutor faithfully discharges his duty where he fully understands his obligations under Brady , not where, as here, he fails t o “consciously th [ink] about it one way or th e other.” At oral argument, the State conceded the tapes contain impeachment evidence and implied th at an attorney wit h a “better understanding” of Brady would have disclosed them. 6 Alt hough the tri al prosecutor apparently believed these recordings were protected work product, these recorded pretri al int erview statem

ents contain no protected attorney opinio n. 7 Even if the prosecutor wronglyth e prosecutor’s assertion of work product in this case was “obviously wrong.”
8 S ee In re: United States , 397 F.3d 274, 285 (5th Cir. 2005) (“In the ordinary case, a party must cl aim privilege wit h specificit y, and a court can ultimately demand i n camera rev iew of privileged docum

ents.”); Thomas v. State , 837 S.W.2d 106, 114 (Tex. Crim. App. 1992) ( en banc ) (asserting th at an in camera inspection by the trial court accommodates the interest of the State in protecting th e identity of info rmants and the int erest of the defendant in Brady evidence); see also United States v. Phillips , 854 F.2d 273, 277 (7th Cir. 1988) (“[W]hen a criminal defendant seeks to discover info rmation contained in confidential government files, the tri al court must balance the com peting int erests of th e defendant and the government in deciding whether and in what fo rm such discovery will be allo wed.”); United States v. Dupuy , 760 F.2d 1492, 1501 (9th Cir. 1985) (“Consultation wit h th e judge is particularly appropri ate when the Government has legit imat e reasons fo r protecting th e confid enti alit y o f t he material requested, for the trial judge can then weigh the Government’s need fo r confidentiality against the def endant’s need to use the material in order to obtain a fair tri al.”); United States v. Bocra , 623 F.2d 281, 285 (3d Cir. 1980) (“The submission of discovery mat erials to th e court fo r an in camera inspection and decision as to which mat erials are discoverable is com

mo nly used when the Government’s need fo r preserving confidentiality over the mat erials must be balanced wit h th e defendant’s con stitutional right to evidence material to his defense.”). -14- believed th e statem

ents contained some protected attorney opinio n, he should have known th at the duty lay wit h th e tri al judge, not th e prosecutor, to weigh the n eed for conf identiality against the defendant’s need to use the material to obtain a fair trial. 8 “Courts, lit igants, and juries properl y anticipate th at ‘obligations [to refrain from improper met hods to secure a conviction]

. . . plainly rest[ing] upon the prosecuting attorney , will be fait hfully observed.’ ” B anks , 540 U.S. at 696 (citation om it ted) (alteration in original). Indeed, the preservation of our civil libert ies depends upon the fait hful and ethical exercise of power by those who bear the mant le of public tru st. See Cheney v. U.S. Dist. Court for D.C. , 542 U.S. 367, 386 (2004) (“The rigors of th e penal syst em are . . . mit igated by the responsible exercise of prosecutori al discretion” by a “publicly accountable prosecutor . . . under an ethical obligation, not only to win and zealously to advocate fo r his cl ient but also to serve the cause of justice.”). Where, as here, the actions of of

ficials are c ontrary to th ese aspirational principles, whether for improper or guileless9 S ee Brady , 373 U.S. at 87 (“Society wins not only when the guilt y are convicted but when

criminal tri als are fair; our syst em of th e administ ration of justice suffers when any accused is treated unfairly.”); id

. at 87-88 (“A prosecution th at wit hholds evidence

. . . which, if made available, would tend to exculpate [a defendant] or reduce the penalty helps shape a trial . . . that does not comport wit h standards of justice, even though . . . his action is not ‘the result of guile[]’ . . . .”). -15- reason, co urtroom victories may prove pyrrhic, and such conduct “should attract no judicial approbation.” Banks , 540 U.S. at 696. 9 III We AFFIRM the district court’s denial of relief under 28 U.S.C. § 2254.