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 JUSTICE, 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 inmate, appeals the denial of his 28 U.S.C. § 2254

habeas corpus petition. He claims that the State failed to disclose the existence of two audiotapes

containing potential impeachment evidence under Brady v. Maryland, 373 U.S. 83 (1963), and that

the federal district court erred by denying his petition for habeas relief.
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I

On November 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 JeremyBrown—had been involved in an attempt to steal

beer from the store. After first gathering outside the store, the two brothers entered while Medina

and Brown remained outside. Sometime thereafter, Petitioner shot and injured Carmelo with a

sawed-off rifle he had carried into the store. Before fleeing, Petitioner allegedly shot and killed

Marie. Carmelo later died from his injuries.

The State charged Petitioner separately for the murder of each victim. Without multiple

victims, the State had to prove that Petitioner intentionally killed Carmelo Surace during the course

of a robbery to establish capital murder under Texas Penal Code section 19.03(a)(2). See TEX.

PENAL CODE § 19.03(a)(2) (2003) (stating that a person commits capital murder if he commits

murder undersection 19.02(b)(1) and, inter alia, “the person intentionally commitsthe murder in the

course of committing or attempting to commit kidnapping, burglary, robbery, aggravated sexual

assault, arson, obstruction or retaliation, or terroristic threat”). Although Petitioner acknowledged

responsibility for killing Carmelo, he denied that he did so intentionally. He argued that Carmelo was

killed during a struggle as Petitioner and his brother attempted to steal items from the store.

The testimony of Medina and Brown (the boys who remained outside the store) was an

important piece of the State’s proof of intent at trial. Medina testified that, before going into the

store, Petitioner showed the boys a gun. Brown asked him what it was for, and Petitioner responded

that he was going to shoot the store owners. Brown also testified that Petitioner expressed an intent
1 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 interviews with other witnesses 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 the defense team. “I don’t know that I consciously thought about it one way or the

other. I believed it was like - - it was like taking notes to me. It was like my work product.”

Although other State prosecutors were present during the interviews, none of them ensured that the

audiotapes were placed in the “open file” for the defense team. Although not entirely clear, it appears

that 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

the State’s files.

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to shoot the store owners but could not recall whether he saw Petitioner with the gun outside the

store or at an earlier time that day. Defense counsel argued that the only direct evidence of intent was

the testimony of Brown and Medina and that this testimony was fabricated.

The jury found Petitioner guilty of capitalmurder, and the state court sentenced himto 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 to

audiotapes of pretrial 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 the killings to both confirm and refresh their recollection prior to

trial. Transcripts of these sessions indicate that Brown and Dane Dickson questioned the accuracy

of their prior written statements and expressed doubt regarding certain factual assertions that were

relevant to the State’s case.

Brown asserted in his written statement that Petitioner verbalized an intent to shoot Carmelo

and Marie Surace prior to entering the 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

that Petitioner had done so. 
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Q. Alright. Do you recall asking [Petitioner] whether or not he was going to

shoot somebody?

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 you don’t recall - - in the statement here, it says, I asked

[Petitioner] if they were going 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 that way, but what I need to know is did it or

did it not happen that way? See what I mean? 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 the course ofthe interview and after persistent questioning byprosecutors, Brown becamemore

certain that Petitioner 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 that was what wasfixing 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 the end of the interview, prosecutors assured Brown that he did not need to worry about

being prosecuted for murder because his version 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 - - you don’t need to sit and worry that we’re going to drag you into the capital
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murder, because it’s pretty clear that you did not have anything to do with the capital murder.”

Ultimately, Brown’s trial testimony supported the State’s theory that Petitioner possessed an intent

to kill prior to entering the store.

Under questioning by prosecutors before trial, Dane Dickson retracted certain factual

assertions in his written statement. In that statement, 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 witness the shooting but, rather, mistakenly “incorporated” what his brother told him about the

shooting into his written statement to the police. Although different from his written statement, Dane

Dickson’s statements during the suppressed pretrial interview are consistent with his later trial

testimony and the defense theory that Carmelo was killed during a struggle.

After prosecutors disclosed the existence ofthe audiotapes, Petitioner filed an application for

writ of habeas corpus in state court based, in part, on his claim that the State improperly withheld

evidence that could have been used to impeach both witnesses. After receiving evidence and

argument, the state trial court found, inter alia, the following facts:

13. Evidence at trial reveals that Carmel[l]o Surace and his wife, Marie Surace,

had both been shot during a robbery of their grocery store. Evidence also

suggested the weapon used was a single-shot, bolt-action, .22 caliber rifle,

which had been sawed off. Some evidence was adduced showing that Mr.

Surace might possibly have struggled with his assailant, might possibly have

grabbed the barrel of the weapon, and might possibly have been shot as a

result of the struggle. Evidence suggested that Mrs. Surace was probably

shot after her husband. 

14. The trial testimony ofJeremyBrown indicated that Applicant had told Jeremy

of hisintent to shoot the “two old people” before entering the store. The first

portion of his tape recorded interview, however, is not so conclusive.

15. The trial testimony given by Dane Dickson was essentially the same as his

tape recorded statement, but still there were some differences.
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Ex Parte: Dickson, No. 38005-01-A, slip op. at 3-4 (47th Dist. Ct., Potter County, Tex. Sep. 22,

2000). The state trial court then issued conclusions of law:

3. Even if the non-disclosure of the tapes was inadvertent, the fact remains that

Defense counsel could possibly have used the contents of the tape recorded

statements during cross-examination of these witnesses at trial.

4. Especially regarding Jeremy Brown’s tape recorded interview, Defense

[counsel] might have been able to impeach Mr. Brown’s trial testimony by

showing that for the first 40 to 50 pages of said interview he wasn’t sure

about Mr. Dickson’s intent.

5. Defense might also have shown that in Mr. Brown’stape recorded interview,

it is only after he is informed that he is not likely to be prosecuted for his

involvement in this crime that he reveals Mr. Dickson’sstatement concerning

his intent to kill. Although, not a direct “deal” with a witness, Defense

counsel might have been able to use the recorded interview to impeach Mr.

Brown’s trial testimony by showing his reliance on an implied grant of

immunity, or to expose his possible bias as a witness in the case.

6. While the contents ofthe tape recorded interviews do not contain any directly

exculpatory evidence, they do contain potential impeachment material. Harm

from the non-disclosure (even though not intentional) of such impeachment

material may be presumed from the result obtained in this case.

7. Had the trial testimony of Jeremy Brown been effectively impeached by the

use of the recorded statement, the jury might have chosen to disregard or

disbelieve Mr. Brown’strial testimony about Applicant’s acknowledgment of

intent, and, since this conviction is for the alleged capital murder of

Carmel[l]o Surace, only, (the alleged capital murder of Marie Surace is a

separate indictment which has not yet been tried), the jurymight have reached

a different conclusion.

Id. at 4-6. Although the state trial court was “not sure that the disclosure of the recorded interviews

and their use by Defense counsel at trial would have caused the jury to reach a different verdict” it

recommended that Petitioner receive a new trial “[b]ecause of the importance of preserving and

maintaining the integrity of the adversarial trial process, and because of the obvious import of a

capital murder verdict and death sentence.” Id. at 6.
2 First, despite acknowledging that Brown’s pretrial interview could have been used to

impeach, the district court concluded that disclosure of his earlier interview statements would not

have undermined confidence in the verdict because other evidence of Petitioner’s intent to kill,

including Medina’s trial testimony that Petitioner said he was “going to shoot the two old people in

the store” before entering, corroborated histestimony. Second, the district court stated that Brown’s

pretrial interview would not support a showing of bias because the prosecutor’s assurance of nonprosecution took place only after Brown affirmed that Petitioner had expressed an intent to kill.

Finally, the district court concluded that Dane Dickson’s pretrial interview could not be used to

impeach because his testimony at trial was “favorable” to the defense and consistent with his

statements in the pretrial interview.

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The Texas Court of Criminal Appeals(“TCCA”) adopted the state trial court’s “findings and

conclusions with the exception of conclusion numbersix wherein the trialjudge determined that harm

fromthe non-disclosure ofthe tape should be presumed.” Ex 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.

After exhausting hisstate remedies, Petitioner filed a federalpetition for writ of habeas corpus

and renewed his Brady claim. The district court reviewed the record and recounted the evidence

supporting the conviction. Applying the deferential habeas standard in AEDPA, the district court

concluded that the petition for writ of habeas corpusshould be denied. Dickson 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 the Supreme Court in

Miller-El v. Cockrell, 537 U.S. 322 (2003), we issued a certificate of appealability (“COA”) to allow

Petitioner the opportunity to fully briefthe merits of his claim. Dickson v. Quarterman, 453 F.3d 643

(5th Cir. 2006);see Miller-El, 537 U.S. at 338 (“Indeed, a claim can be debatable even though every

jurist of reason might agree, after the COA has been granted and the case has received full

consideration, that petitioner will not prevail.”); Hernandez v. Johnson, 213 F.3d 243, 248 (5th Cir.
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2000) (stating that the court resolves doubts in petitioner’s favor in death penalty cases). 

II

Under AEDPA, Petitioner is not entitled to federal habeas relief unless the state court’s

adjudication of his Brady claim

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

unreasonable application of, clearly established Federal 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). 

Section 2254(d)(1) applies to pure questions of law as well as mixed questions of law and

fact. Martin v. Cain, 246 F.3d 471, 475 (5th Cir. 2001). A decision is “contrary to” clearly

established federal law “if the state court arrives at a conclusion 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 ofmaterially indistinguishable facts.” Williams v. Taylor, 529 U.S. 362,

412-13 (2000). A decision involves an “unreasonable application of” clearly established federal

law “ifthe state court identifiesthe 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. Martin, 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 determination of the facts in light of the evidence presented in the state court

proceeding.” Chambers v. Johnson, 218 F.3d 360, 363 (5th Cir. 2000) (internal quotation omitted).
3 Petitioner also contends that the federal district court erroneously held a de novo evidentiary

hearing and failed to defer to state trial court findings of fact. See 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 the 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 trial court’s findings survived the denial of habeas

relief by the TCCA because the TCCA expressly adopted allfindings and conclusions ofthe state trial

court, except conclusion six which “presumed” harmfromthe result obtained in this case. See Craker

v. Procunier, 756 F.2d 1212, 1213-14 (5th Cir. 1985) (stating that the factual findings of the state

trial court survived the appeal to the TCCA because the TCCA did not reject the factual findings).

Because we accept the validity of the state court’sfindings of fact and conclusions of law as adopted

by the TCCA, we need not decide whether the district court erroneously failed to defer to state court

findings of fact. 

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Factual determinations by the 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).

Petitioner arguesthat the state court adjudication of his Brady claimresulted in a decision that

is contrary to, or involves an unreasonable application of, federal law. 28 U.S.C. § 2254(d)(1). He

argues that the recorded pretrial interviews with Brown and Dane Dickson contained “material”

impeachment evidence under Brady on the issue of intent to kill.3 Respondent argues that the district

court should be affirmed because the state determination that the evidence was not material is not

objectively unreasonable.

“[T]he suppression by the prosecution of evidence favorable to an accused . . . 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.” 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

innocence,’ nondisclosure of evidence affecting credibility falls within this general rule.” Giglio v.

United States, 405 U.S. 150, 154 (1972) (quoting Napue v. Illinois, 360 U.S. 264, 269 (1959)). To
4

“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 that a federal court’s “focus on the ‘unreasonable application’test

under section 2254(d) should be on the ultimate legal conclusion that the state court reached and not

on whether the state court considered and discussed every angle of evidence”).

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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; that evidence must have been suppressed by the State,

either willfully or inadvertently; and prejudice must have ensued.” Strickler, 527 U.S. at 281-82.

Evidence is materialwhere there exists a “reasonable probability” that had it been disclosed the result

at trial would have been different. Banks, 540 U.S. at 699. “A ‘reasonable probability’ 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 prisoner has sufficiently proven a

Brady violation. See Yarborough v. Alvarado, 541 U.S. 652, 665 (2004) (“We cannot grant relief

under AEDPA by conducting our own independent inquiry into whether the state court was correct

as a de novo matter.”); Neal v. Puckett, 286 F.3d 230, 236 (5th Cir. 2002) (en banc) (“We have no

authorityto grant habeas corpusreliefsimplybecause we conclude, in our independent judgment, that

a state supreme court’s application of [federal law] is erroneous or incorrect.”). Rather, we decide

whether the state court’s Brady determination resulted in a decision that is contrary to, or involved

an unreasonable application of, clearly established federal law. Busby v. Dretke, 359 F.3d 708, 717

(5th Cir. 2004).4

Here, the TCCA accepted every factual finding and conclusion of law of the state habeas

court except the conclusion that “harm” may be “presumed” from the result in the case. In citing

Strickler and Kyles, the TCCA rejected the state trial court’s conclusion that any impeachment
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evidence in the withheld pretrial interviews was material. We review this dispositive determination

through the deferential lens provided by Congress in AEDPA. See Rompilla v. Beard, 125 S.Ct.

2456, 2462 (2005) (stating that, under AEDPA, the state court decision must have been not only

incorrect or erroneous but objectively unreasonable).

Dickson argues that Brown’s pretrial interview was material to the issue of intent because

“[o]ne can only speculate on the outcome of the trial if the corroboration testimony of 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 storycorroborated 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. Banks, 540 U.S. at 698-99. Petitioner has not done so. See United

States v. Moore, 452 F.3d 382, 388 (5th Cir. 2006) (“[V]ague assertions do not establish any

exculpatory evidence, let alone a reasonable probability that such evidence affected the outcome of

the trial.”). His argument regarding Dane Dickson’s pretrial interview statement is similarly deficient.

Although suggesting that he could have used the statement, Petitioner does not establish how the

result at trial would have been different. Id.

Even if we assume the defense could have effectively impeached Brown and Dane Dickson,

other probative evidence of an intent to kill prevents us from concluding that the state court

determination of immateriality resulted 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)

admitted to firing the gun that killed Carmelo Surace; and (3) killed Marie Surace shortly thereafter.

Furthermore, the prosecution presented evidence that Petitioner intended to rob the store by force

or threat of force, including: (1) testimony that, in the weeks before the offense, Petitioner stated a
5 Although a competent defense attorney might have used the taint of bias and misrecollection

as to Brown to diminish the effectiveness of Medina’s testimony, we cannot say that the TCCA

unreasonablyconcluded that the evidencewasimmaterialgiven the other evidence ofintent presented

at trial. See United States v. Weintraub, 871 F.2d 1257, 1262 (5th Cir. 1989) (“Courts have

found . . . that impeachment evidence improperly withheld was not material where the testimony of

the witness who might have been impeached was strongly corroborated by additional evidence

supporting a guilty verdict. In contrast, where the withheld evidence would seriously undermine the

testimony of a key witness on an essential issue or there is no strong corroboration, the withheld

evidence has been found to be material.”) (citations omitted). 

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desire to rob a store;(2) evidence that Petitionerstole three .22 caliber rifles prior to the robbery; and

(3) evidence that Petitioner sawed off the barrel of the rifle and whittled the stock so that it could be

concealed. The state court could reasonably conclude that this combined evidence rendered the

undisclosed impeachment evidence immaterial because confidence in the outcome was not

undermined. See Kopycinski v. Scott, 64 F.3d 223, 226 (5th Cir. 1995) (examining corroborating

evidence and stating that the materiality inquiry assesses whether disclosure “would have placed the

case in a different light so asto undermine confidence in the jury verdict”); Edmond v. Collins, 8 F.3d

290, 294 (5th Cir. 1993) (noting that nondisclosed impeachment evidence is cumulative and

immaterial when the witness was impeached sufficiently at trial).5

We affirm the district court’s denial of relief because, even assuming the pretrial interview

recordings contained beneficial impeachment evidence, other evidence of Petitioner’s intent to kill

prevents this court from concluding that the state court’s immateriality determination resulted in a

decision that involved an unreasonable application of federal law. See Yarborough, 541 U.S. at 665

(“Although the question of what an ‘unreasonable application’ oflaw might be difficult in some cases,

it is not difficult here.”). 

We pause, however, to express our concern regarding the State’sfailure to turn over pretrial

interview statements by two key witnesses in a death penalty case. The duty of a prosecutor, as the
6 Concession of a disclosure obligation under Brady does not, of course, concede a

redressable Brady violation. See Strickler, 527 U.S. at 281 (noting that “the term ‘Brady violation’

is sometimes used to refer to any breach of the broad obligation to disclose exculpatory

evidence . . . although, strictly speaking, there is never a real ‘Brady violation’ unless the

nondisclosure wasso seriousthat there is a reasonable probabilitythat the suppressed evidence would

have produced a different verdict”).

7 The Supreme Court has not decided “whether Brady requires a prosecutor to turn over his

work product.” Mincey v. Head, 206 F.3d 1106, 1133 n.63 (11th Cir. 2000). At least one

commentator states: “Because Brady is based on the Constitution, it overrides court-made rules of

procedure. Thus, the work-product immunity for discovery in Rule 16(a)(2) prohibits discovery

under Rule 16 but it does not alter the prosecutor’s duty to disclose material that is within Brady.”

2 CHARLES ALAN WRIGHT, FEDERAL PRACTICE AND PROCEDURE § 254.2 (3d ed. 2000). Although

some jurisdictions recognize that “opinion work product” may enjoy some protection, see, e.g.,

Williamson v. Moore, 221 F.3d 1177, 1182 (11th Cir. 2000), the State agreed at oral argument that

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representative of the sovereign in a criminal case, is “not that it shall win a case, but that justice shall

be done.” Berger v. United States, 295 U.S. 78, 88 (1935);see United States v. Leon, 468 U.S. 897,

900-01 (1984) (recognizing the goal of establishing “procedures under which criminal defendants are

‘acquitted or convicted on the basis of all the evidence which exposesthe 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 unmitigated by any prosecutorial obligation for the sake of truth,

the government simply cannot avoid responsibility for knowing when” disclosure isrequired. Kyles,

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 to “consciously th[ink] about it one way or

the other.”

At oral argument, the State conceded the tapes contain impeachment evidence and implied

that an attorney with a “better understanding” of Brady would have disclosed them.6 Although the

trial prosecutor apparently believed these recordings were protected work product, these recorded

pretrial interview statements contain no protected attorney opinion.7 Even if the prosecutor wrongly
the prosecutor’s assertion of work product in this case was “obviously wrong.”

8

See In re: United States, 397 F.3d 274, 285 (5th Cir. 2005) (“In the ordinary case, a party

must claim privilege with specificity, and a court can ultimately demand in camera review of

privileged documents.”); Thomas v. State, 837 S.W.2d 106, 114 (Tex. Crim. App. 1992) (en banc)

(asserting that an in camera inspection by the trial court accommodates the interest of the State in

protecting the identity of informants and the interest 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 information contained in confidential government files, the trial court must balance the

competing interests of the defendant and the government in deciding whether and in what form such

discovery will be allowed.”); United States v. Dupuy, 760 F.2d 1492, 1501 (9th Cir. 1985)

(“Consultationwith the judge is particularly appropriate when the Government haslegitimate reasons

for protecting the confidentiality of the material requested, for the trial judge can then weigh the

Government’s need for confidentiality against the defendant’s need to use the material in order to

obtain a fair trial.”); United States v. Bocra, 623 F.2d 281, 285 (3d Cir. 1980) (“The submission of

discovery materials to the court for an in camera inspection and decision as to which materials are

discoverable is commonly used when the Government’s need for preserving confidentiality over the

materials must be balanced with the defendant’s constitutional right to evidence material to his

defense.”).

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believed the statements contained some protected attorney opinion, he should have known that the

duty lay with the trial judge, not the prosecutor, to weigh the need for confidentiality against the

defendant’s need to use the material to obtain a fair trial.8

“Courts, litigants, and juries properly anticipate that ‘obligations [to refrain from improper

methodsto secure a conviction] . . . plainly rest[ing] upon the prosecuting attorney, will be faithfully

observed.’ ” Banks, 540 U.S. at 696 (citation omitted) (alteration in original). Indeed, the

preservation of our civil liberties depends upon the faithful and ethical exercise of power by those

who bear the mantle of public trust. See Cheney v. U.S. Dist. Court for D.C., 542 U.S. 367, 386

(2004) (“The rigors of the penalsystem are . . . mitigated by the responsible exercise of prosecutorial

discretion” by a “publicly accountable prosecutor . . . under an ethical obligation, not only to win and

zealously to advocate for his client but also to serve the cause of justice.”). Where, as here, the

actions of officials are contrary to these aspirational principles, whether for improper or guileless
9

See Brady, 373 U.S. at 87 (“Society wins not only when the guilty are convicted but when

criminal trials are fair; our system of the administration of justice suffers when any accused istreated

unfairly.”); id. at 87-88 (“A prosecution that withholds evidence . . . which, if made available, would

tend to exculpate [a defendant] or reduce the penalty helps shape a trial . . . that does not comport

with standards of justice, even though . . . his action is not ‘the result of guile[]’ . . . .”). 

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reason, courtroom 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.