RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b) File Name: 17a0045p.06 

### UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

A

NDREW L EE T HOMAS , J R ., Petitioner-Appellant ,

v

.

B RUCE W ESTBROOKS , Warden, Respondent-Appellee

. ┐ │ │ │ │ │ │ │ ┘ No. 15-5399

Appeal from the United St ates District Court for the Western District of Tennessee at Memphis. No. 2:12-cv-02333—Samuel H. Ma ys, Jr., District Judge. Argued: November 2, 2016 Decided and Filed: February 24, 2017 Before: MERRITT, SILER, and DONALD, Circuit Judges

_________________ COUNSEL
ARGUED: Robert L. Hutton, GLANKLER BROWN, PLLC, Memphis, Tennessee, for Appellant. Michael M. Stahl, OFFICE OF THE TENNESSEE A TTORNEY GENERAL, Nashville, Tennessee, for Appellee. ON BRIEF: Robert L. Hutt on, GLANKLER BROWN, PLLC, Memphis, Tennessee, Kevin Wallace, E lizabeth Cate, Mollie Richardson, WINSTON & STRAWN LLP, New York, New Yo rk, for Appellant. Michael M. Stahl, OFFICE OF THE TENNESSEE ATTORNEY GENERAL, Nashville, Tennessee, for Appellee. Mark A. Fulks, BAKER DONELSON BEARMAN CALDWELL & BERKOWTIZ, P.C., Johnson City, Tennessee, for Amicus Curiae. MERRITT, J., delivered the opinion of the court in which DONALD, J., joined. SILER, J. (pp. 13–15), delivered a separate dissenting opinion. 

### >No. 15-5399 Thomas v. Westbrooks Page 2

_________________ OPINION

_________________ MERRITT, Circuit Judge. In this Tennessee death penalty case, Petitioner Andrew Lee Thomas, Jr., appeals the district court’s denial of his petition fo r habeas corpus under 28 U.S.C. § 2254. 1 Thomas’s primary claim on appeal is that the State violated his rights under Brady v. Maryland , 373 U.S. 83 (1963), when it s uppressed evidence that the key witness against him had been paid $750 by the Fede ral Bureau of Investig ation prior to trial. We agree that the prosecutor had a duty to disclose this payment rath er than allow the witness to commit perjury by denying its existence, and we REVERSE and REMAND the district court’s denial of the writ.
I. Background While our decision today is based upon Thomas’s procedural rights as a criminal defendant—as opposed to the substantive char ges against him—a brief summary of the underlying facts provides helpful context. On Apr il 21, 1997, James Day, an armored truck driver in Memphis, was shot as he was movi ng a bag of cash into his armored truck from a Walgreens store. The shooter took the bag of cash and left in a getaway car. Day survived the shooting, but died two years later as a result of complications from his injuries. Authorities later identified Thomas as the shooter and Anthony Bond, Thomas’s friend and co-defendant, as the driver of the getaway car. For a mo re complete factual statement, see Tennessee v. Thomas , 158 S.W.3d 361, 373-75 (Tenn. 2005).
Thomas was convicted of offenses arising from those facts in both federal and state court. In a federal trial prior to Day’ s death, Thomas was convicted of interfering w ith interstate commerce, carrying a firearm in relation to a crim e of violence, and being a felon in possession

1 In a companion case to this one, Thomas also appeals th e district court’s denial of habeas from his federal conviction arising from similar facts. One factual difference between the two cases is important: Angela Jackson’s testimony about her receipt of reward money in the fede ral case does not appear to have been false since the payment in dispute was made after the conclusion of the federal trial. In a separate opinion also entered today, we affirm the district co urt’s denial of the writ in that case. Thomas v. United States , No. 15-6200 (6th Cir. Feb. 24, 2017).No. 15-5399 Thomas v. Westbrooks Page 3

of a firearm. The federal court sentenced him to life in prison. 2 After Day died of complications from his injuries, the State of Tennessee charge d Thomas with felony murder. A Tennessee state jury convicted Thomas and sentenced him to d eath. The Supreme Court of Tennessee affirmed Thomas’s conviction and death sentence on direct appeal. Id. at 383. Thomas then exhausted his post-conviction remedies under Tennessee law.
Angela Jackson, Thomas’s girlfriend at the time of the shooting, was the pivotal witness in both trials. Indeed, Jackson provided the only reliable testimony placing Thomas at the scene of the shooting. Her testimony also provided an important link between Thomas and various pieces of circumstantial evidence in the case. A more detailed account of the evidence presented at trial can be found in the dist rict court’s opin ion and order.
After the federal trial was concluded but before the state murder prosecution had commenced, the FBI paid Jackson $750 on behalf of the Safe Streets Task Force—a joint federal-state working group charged with inves tigating and prosecuting gang-related crime. Thomas was never notified of this payment and on ly discovered it years la ter during a hearing on his petition for habeas from his federal conviction.
When Tennessee moved to prosecute Thomas fo r murder, the federal authorities provided the State with relevant evidence and documentation from the federal case. The parties agree that the file contained a receipt docum enting the FBI’s payment to Jack son and that knowledge of the $750 payment must be “imputed” to the State’s pr osecutors. Despite the State’s concession that its prosecutors had “imputed” knowledge of the pa yment, they argue they should not be charged with “actual” knowledge. We discuss this argument in Section IV below.
Despite her acknowledged possession of evidence of the payment before trial, the State’s prosecutor did not inform Thomas of the paymen t. The prosecutor’s failure to disclose the evidence was particularly egregi ous in light of the State’s rep eated emphasis of Jackson’s highminded reasons for testifying—that is, that she was testifying because it was the “right thing to do.” This is all made even worse by the fact that the prosecutor failed to correct the record even

2 This court affirmed that conviction and sentence on direct appeal. United States v. Thomas , 29 F. App’x 241 (6th Cir. 2002). The companion case to this one denies Thomas’s petition for relief from his federal conviction. Thomas v. United States , 15-6200 (6th Cir. Feb. 24, 2017).No. 15-5399 Thomas v. Westbrooks Page 4

after Jackson squarely denied receiving any “r eward” money in exchange for her testimony against Thomas.
The relevant portion of Jackson’s di rect examination went as follows: Q: When did the FBI agents come to your house? A: I don’t remember the date, but it was in November of ‘97 Q: Did you ask them for your reward money? A: No. Q: Did you ever get any reward money? A: No. On cross-examination, Ms. Jackson testified: Q: You said you were here today to te stify because it was the right thing to do. Is that correct? A: Yes. Q: And that’s your only motivation intestifying today. Is that right? A: Yes, sir. Q: You haven’t receiving [sic ] a reward for any of this? A: No. Finally, on redirect, Jacks on testified as follows: Q: Have you collected one red cent for this? A: No, ma’am, I have not. After exhausting his post-conviction remedies in state court, Thomas petitioned the district court for a writ of habeas corpus under 28 U.S.C. § 2254. The district court rejected each of his claims and denied the petition in its entir ety. The district court specifically rejected Thomas’s Brady claim, reasoning that the fact of the payment was not sufficiently “material.”
This appeal followed.

II. Standard of Review

This court reviews the district court’s dism issal of a § 2254 petition de novo, but we must defer to the district court’s factual fi ndings unless they are clearly erroneous. Jones v. Bagley , 696 F.3d 475, 482 (6th Cir. 2012). When the state co urt is unable or refuse s to review a claim presented in a petition brought und er § 2254, the highly deferentia l standard prescribed in the Antiterrorism and Effective Death PenaltyAct of 1996 (AEDPA) does not apply. See Henley v.No. 15-5399 Thomas v. Westbrooks Page 5

Bell , 487 F.3d 379, 390 (6th Cir. 2007). Since both parties c oncede that the Tennessee state courts were unable to review Thomas’s Brady claim, we review the di strict court’s denial of those claims de novo.

III. Brady Claim Thomas’s first argument on appeal is that th e State violated his due process rights as articulated in Brady v. Maryland when the prosecution failed to inform him that Jackson had received $750 from the FBI prior to trial. We agree and hold that this claim merits issuance of the writ.
A prosecutor’s suppression of ev idence violates a criminal de fendant’s due process rights when the evidence is favorable to the accused an d material either to guilt or punishment. Brady , 373 U.S. at 87. Brady ’s rule has been interpreted to require disclosure of all material evidence even if it is only relevant fo r the purpose of impeaching a government witness at trial. Bell v. Bell , 512 F.3d 223, 232 (6th Cir. 2008) (citing United States v. Bagley , 473 U.S. 667, 676-77 (1985)).

“A successful Brady claim requires a three-part showing: (1) that the evidence in question [is] favorable; (2) that the state suppressed the relevant evidence, either purposefully or inadvertently; (3) and that the state's actions resulted in prejudice.” Id. at 231 (citing Strickler v. Greene , 527 U.S. 263, 281-82 (1999)). This court finds prejudice in the Brady context whenever the suppressed evidence is “material.” See Robinson v. Mills , 592 F.3d 730, 735 (6th Cir. 2010) (equating the prejudice prong of Brady with materiality). On appeal, the State concedes that it suppressed the evidence in question and that th e evidence was favorable to Thomas. Thus, the only issue remaining for decision is whether the evidence of the FBI’s payment was sufficiently material to warrant relief under Brady

. Evidence is “material” for Brady purposes when, in view of all relevant evidence, its absence deprives the defendant of a fair trial, “‘ understood as a trial resu lting in a verdict worthy of confidence.’” Montgomery v. Bobby , 654 F.3d 668, 678-79 (6th Cir. 2011) (en banc) (quoting Kyles v. Whitley , 514 U.S. 419, 434 (1995)). Satisfying that standard requires more than a mere “possibility” but less than proof “by a preponderan ce that disclosure of the suppressed evidenceNo. 15-5399 Thomas v. Westbrooks Page 6

would have resulted ultimately inthe defendant’s acquittal.” Id. at 679 (quoting Kyles , 514 U.S. at 434).
Below, the district court rejected Thomas’s argument that the suppressed evidence of Jackson’s receipt of $750 from the FBI was material because “there was substantial evidence linking Thomas to the crime, other than Jackson’s testimony” and because Jackson’s testimony in both the state and federal cases was consistent. To the extent that these reasons appear to deny relief because there was su fficient evidence to support Thomas’s conviction, they mischaracterize the materiality inquiry under Brady

. See id. (quoting Kyles , 514 U.S. at 434) (“ Brady materiality ‘is not a sufficiency of evidence te st.’”). The dispositiv e question, instead, is whether the guilty verdict entered against Thomas is worthy of confidence in the absence of the suppressed evidence. Under the circ umstances, we hold that it is not.

In Robinson v. Mills , we addressed materiality in a fact ually similar case. In that case, the petitioner, Robinson, had been convicted in st ate court of first-degree murder after shooting a drug dealer in the ba ck of the head. Robinson , 592 F.3d at 733. At tria l, Robinson sought to mitigate his offense by claiming that he shot the victim in self-defense. Id. Kim Sims, an eyewitness, testified against Robinson at trial; he rs was the only testimony that tended to negate Robinson’s claim of self-defense. Id. at 736. Robinson’s attorneys attempted to impeach Sims as a witness by questioning her about her history of drug addiction and si gnificant disparities between her trial testimony and her testimony at a pretrial hearing. Id. at 734. Despite Robinson’s efforts to impeach Sims, th e jury convicted him of murder. Id. at 731-32. Unknown to Robinson, Sims had accepted $70 fr om the prosecuting jurisdiction’s police department in exchange for her cooperation as a confidential informant in an unrelated prosecution against the murder victim’s sister. Id. at 734. Sims had al so served as a paid confidential informant for the police department at least seven other times. Id. Despite the state’s recognition that Sims’s substantial connection to local law enforcement required appointment of a special prosecutor, the state never informed R obinson of Sims’s status as a paid confidential informant. Id.No. 15-5399 Thomas v. Westbrooks Page 7

Reviewing Robinson’s petition for habeas, this court held that the prosecution’s failure to inform Robinson of Sims’s receipt of payment for her services as a confidential informant warranted relief under Brady

. Id. at 738. In reaching that conclu sion, the panel held that the evidence was “material” because Sims’s status as a paid informant was relevant to demonstrate bias in order to “call into question Si ms’[s] credibility and truthfulness.” Id. We reached that conclusion even though Sims’s services to the poli ce were rendered in cases entirely unrelated to Robinson’s. Id. Like Sims’s testimony in Robinson , Jackson’s testimony was pi votal to the State’s case against Thomas. Jackson provided the only credib le identification placi ng Thomas at the scene of the crime. She provided th e only testimony linking Thomas to Bond, his co-defendant, on the day of the shooting. And she provided the only te stimony affirmatively attr ibuting Thomas with responsibility for the transact ions cited by the State as ci rcumstantial evidence of his involvement in the shooting. Without Jackso n’s testimony linking Th omas to the events surrounding Day’s shooting, the State would have ha d a very difficult time proving its case. As such, we conclude—contrary to the State’s arguments—that Jack son’s testimony was vital to the State’s case-in-chief against Thomas.
In opposition to this conclusion, the State contends that Richard Fisher’s testimony independently placed Thomas in the passenger se at of the getaway car. However, Fisher’s testimony lacked credibility. When asked at tria l whether he saw the person he observed in the passenger seat in the courtroom, Fisher first identified Anthony Bond—Thomas’s codefendant—despite the State’s th eory that Bond had been the driver of the getaway car. When he was cross-examined by Bond’s attorney, Fisher was asked to take a very close look at the two defendants without his glasses. After doing so, Fisher recanted his earlier testimony that Bond had been in the passenger seat and then identified Thomas—the only other defendant—as the passenger in the getaway car. Fish er said he was “very sure” abouthis second iden tification, but a reasonable juror would likely have take n that confidence with a grain of salt.
The State further contends that independent , circumstantial evidence tying Thomas to several large expenditu res and bank deposits following th e shooting would have provided a sufficient basis for confidence in the verdict. This evidence tended to show that Thomas hadNo. 15-5399 Thomas v. Westbrooks Page 8

accompanied Jackson when she purchased a pink Chevrolet with gold whee ls in her own name, that he drove the vehicle off the lot, that the two stayed in a motel the night of the shooting, and that Jackson deposited a large sum of cash into a new account shortly after the shooting. However, none of that evidence overwhelmingly s uggests that Thomas was the shooter; at most, it suggests that either Thomas or Jackson came into substantia l wealth around the time of the shooting. Without Jackson’s testimony linking Th omas to Bond on the day of the shooting, it is much less persuasive evidence of Thomas’s guilt. As such, we reject the State’s claims that Jackson’s testimony was not important to the jury’s decision to convict Thomas.
As a criminal defendant, Thomas has the right to impeach the State’s witnesses against him on the grounds of pecuni ary bias in the case. Robinson , 592 F.3d at 737 (citing Davis v. Alaska , 415 U.S. 308, 316-17 (1974)). This right is especia lly important when, as here, the case “hinge[s] on the jury’s crit ique” of a key witness. Id. at 736. Without ev idence of the FBI’s payment, Thomas had no basis upon which to impeach Jackson on the basis of her possible financial interest in the case. In Robinson , this court found that the de fendant’s right to impeach the government’s witnesses had been unduly abridge d when he was not informed that the key witness had received $70 in conn ection with an entire ly unrelated case because it prevented him from demonstrating the witness’s pecuniary bias against him. Id. at 738. The facts here are even worse: The relevant payment was more than te n times larger than the payment at issue in Robinson . And, unlike the payment in Robinson , it was made in connection with a case against the same defendant involving the exact same fact s. If the suppression of evidence of the payment in Robinson rendered the verdict against the de fendant fundamentally unfair, then suppression of the payment here did as well.
The fact that the payment in Robinson was made as part of a confidential informant arrangement does not distinguish this case. While there is no allegation that Jackson formally served as a confidential informant to the FBI and the record does not disclose how the payment in question arose, counsel for the United States in the companion case to this one indicated at oral argument that a payment of this nature is “r are.” In justifying its fi nding of materiality, the Robinson panel noted: “Ordinary decent people are predisposed to dislike, distrust, and frequently despise criminals who ‘sell out’ and become prosecution witnes ses. Jurors suspectNo. 15-5399 Thomas v. Westbrooks Page 9

their motives from the moment they hear about them in a case, and they frequently disregard their testimony altogether as highl y untrustworthy and unreliable.” Id. at 737 (citation and internal quotation marks omitted). Jackson falls s quarely within this reasoning even if she was not serving specifically as a confidential informan t. Jackson clearly committed criminal acts in the aftermath of the shooting—housi ng a fugitive, lying on a federal firearms purchase form, and disposing of stolen assets, to name just a few. Thus, if the jury had been presented with evidence of an unusual payment to an individual who can be fairly characterized as an accessory after the fact, it might well have chosento disregard her testimony agains t Thomas as untrustworthy and unreliable for the r easons discussed in Robinson

. The State also argues that the payment was immaterial because any impeachment value would have been duplicative since Jackson had al ready been extensively cross-examined and her motives for testifying had been undermined as a result. See id. at 736 (“[W]here the undisclosed evidence merely furnishes an additional basis on which to challenge a witness whose credibility has already been shown to be questionable or w ho is subject to extensive attack by reason of other evidence, the undisclosed ev idence may be cumulative, and hence not material.” (internal quotation marks omitted) (alteratio n original)). But this assert ion ignores the clear lesson of Robinson that impeachment on the basis of pecuniary bias is fundamentally different than impeachment on the basis of character for dishones ty or other bad acts. Indeed, the witness in Robinson —like the witness here—had been thoroughly impeached on the basis of inconsistent testimony and past bad acts, but this court none theless held that evidence of her financial relationship with the prosecuting jurisdiction was “material” for Brady purposes. Id. at 736-38 (“Although Robinson attempted to demonstrate th at Sims’ trial testimony differed from her testimony at the preliminary hearing, the undiscl osed information was different in kind because the suppressed materials would have offered insi ght into why Sims’ testimony at trial differed from her testimony at the preliminary hearing.”). Since there was no evidence presented at trial that Jackson had a financial interest in the outco me of the case, this evidence cannot be properly considered “cumulative” as that term is used in Robinson . In short, the fact that Jackson had been thoroughly impeached on other grounds is no bar to a finding that evidence of her pecuniary bias against Thomas is material under Brady

.No. 15-5399 Thomas v. Westbrooks Page 10

Because of the importance of Jackson’s tes timony to the State’s cas e against Thomas and because the jury was not presented with any othe r evidence of Jackson’s pecuniary bias, we find the FBI’s $750 payment to Jackson was material to the jury’s determination of Thomas’s guilt. Accordingly, we reverse the district court’s judgment and hold th at the State’s suppression of the payment violated Thomas’s due pr ocess rights as articulated in Brady

. We pause to emphasize that our ruling today takes root in Thomas’s right to a fair trial. We neither review nor dispute the facts articu lated by the Supreme Court of Tennessee on direct appeal. In the context of a Brady claim, the reviewing court does not ask whether there was sufficient evidence to convict the defe ndant without the tainted evidence. See Kyles , 514 U.S. at 434. Rather, we ask whether the purported Brady violation rendered the defendant’s trial fundamentally unfair. See Strickler , 527 U.S. at 289-90. By focusing on the fairness of the defendant’s trial, we protect his constitutional right to present a complete and full-throated defense. As the Supreme Court noted in Brady : “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 is treated unfairly.” 373 U.S. at 87.

IV. Prosecutorial Misconduct Claim

In addition to his Brady claim, Thomas also claims the State committed prosecutorial misconduct when it knowingly failed to correct J ackson’s false testimony about her receipt of reward money.
The Supreme Court has long held that a prosec utor violates a criminal defendant’s due process rights when she knowingly allows pe rjured testimony to be introduced without correction. See United States v. Agurs , 427 U.S. 97, 103 (1976). Judged against a less exacting “materiality” standard than standalone Brady claims, see Rosencrantz v. Lafler , 568 F.3d 577, 584 (6th Cir. 2009), claims of prosecutorial mi sconduct require an additional showing that the prosecuting attorney or one of his subordinates actuallyknew that the testimony was perjured at the time of trial. Giglio v. United States , 405 U.S. 150, 154 (1972) (finding misconduct when the prosecuting attorney did not know of the perjury, but one of his subordinates did).No. 15-5399 Thomas v. Westbrooks Page 11

The State’s briefing seems conf used about the requisite stan dard of knowledge applicable to claims of prosecutorial misconduct. At times, the State concedes “imputed” knowledge sufficient to support a prosecutorial misconduct claim under Giglio . However, at oral argument, the State seemed to say that the doctrine is a legal fi ction and strongly deni ed that any of its prosecutors had actualknowledge that Jackson’s testimony was perjured.
The latter view finds no support in the Supreme Court’s decision in Giglio . While Giglio never uses the phrase “imputed knowledge,” Black’s Law Dictionary defines it as a “bridge” to facilitate claims “against a principal in which kn owledge is a necessary element” on the basis of facts known by the principal’s agents. Doctrine of Imputed Knowledge , Black’s Law Dictionary (10th ed. 2014). Consistent with th at definition, the Supreme Court in Giglio held that a prosecuting attorney may be charged with the ac tual knowledge possessed by his subordinates at the time of trial under basic principles of agency law. See Giglio , 405 U.S. at 154. The Court did not adopt a recklessness-based, “knew or s hould have known” standard for knowledge in the context of prosecutorial misconduct claims. Id. Absent actual knowledge on the part of someone in the prosecutor’s office that a witness had perjured himself, th ere can be no finding of intentional prosecuto rial misconduct under Giglio

. The State’s unelaborated concession that the prosecuting attorney had “imputed” knowledge might be read either way on the issu e of actual knowledge. Were we to reach the merits of the prosecutorial misconduct claim, we might well charge the state prosecutor with actual knowledge that Jackson’s testimony about her receipt of reward money was perjured. Given the importance of Jackson’s testimony to the State’s case and the State’s repeated questioning about her purportedly high-minded reasons for testifying, it seems that any competent prosecutor would have carefully review ed the case file for evidence that Jackson might have been testifying for some less-than-altru istic reason in order to guard against the risk of impeachment. This seems esp ecially true in a case like this one where the witness had already testified against the same defendant in a related federal proceedi ng. Had the prosecutor done so, the parties agree that she would have come across a document indicating that Jackson had received a significant payment from the FBI after the conclusion of the federal trial. Thus, were we to presume that the State’s prosecutor engage d in diligent preparati on for trial, we wouldNo. 15-5399 Thomas v. Westbrooks Page 12

conclude that she knew of the payment at trial. However, we need not conclusively decide that issue here because we hold that Thomas is independently entitled to relief based upon his Brady claim.

V. Conclusion For the foregoing reasons, we hold that Thomas’s Brady claim in this case entitles him to relief from his Tennessee state cour t conviction under 28 U.S.C. § 2254. 3 Accordingly, we pretermit our discussion of the remaining issues raised in his petition. The judgment of the district court is REVERSED and we REMAND the case to the district court with directions to issue the writ of habeas corpus unless the State affords Petitioner a new trial within a period of time to be established.

3 In an opinion also entered today, we deny Thomas’s companion petition for habeas relief from his federal conviction and sentence in its entirety. Thomas v. United States , No. 15-6200 (6th Cir. Feb. 24, 2017).No. 15-5399 Thomas v. Westbrooks Page 13

_________________ DISSENT

_________________ SILER, Circuit Judge, dissenti ng. I concur with the facts as related by the majority opinion in this case, but I re spectfully dissent from the final conclusion that the Brady claim entitles the petitioner, Andrew L ee Thomas, Jr., to a writ of habeas corpus for the reasons stated herein.
First, I agree with the parties and with the majority that the Brady claim was not decided by the Tennessee state courts, so our review is de novo. I also ag ree with the majority that the State conceded that knowledge of the payment of $750.00 to Angela Jackson is imputed to the state prosecutors for purposes of Thomas’s claim under Brady . It is not material that the state prosecutor did not find the receipt of $750.00 to Jackson in the file, nor that the state prosecutor was told of that payment. As the majority indicates, it would seem logical that the state prosecutor would have found something in the case f ile about the payment, but that is not in our record before this court. Thomas has benef ited from the assumption unde r law that the successor prosecutor has the imputed knowledge that Jack son was paid the $750.00 and did not admit it later when questioned. However, I part from the majo rity at this point. As the majority states, “a successful Brady claim requires a showing . . . that the state’s actions resulted in prejudice.” Bell v. Bell , 512 F.3d 223, 231 (6th Cir. 2008)(citing Strickler v. Greene , 527 U.S. 263, 281-82 (1999)). Prejudice results whenever th e suppressed evidence is “material.” Robinson v. Mills , 592 F.3d 730, 735 (6th Cir. 2010).
As the majority relates, evidence is material for Brady purposes when, in view of all relevant evidence, its absence deprives the defe ndant of a fair trial, “understood as a trial resulting in a verdict worthy of confidence.” Montgomery v. Bobby , 654 F.3d 668, 678-79 (6th Cir. 2011) (en banc) (quoting Kyles v. Whitley , 514 U.S. 419, 434 (1995)). The majority opinion depends upon our prior decision in Robinson , 592 F.3d at 738. However, in Robinson , the prosecution depended upon an informant, Sims, w ho had been used by the prosecution in many investigations, whereas, in the present case, Jack son was an important witness, but she was not present at the robbery or the homicide of Jame s Day, the armored truck driver. She had neverNo. 15-5399 Thomas v. Westbrooks Page 14

been a paid informant in other cases. Certai nly, Jackson’s evidence was material, because she related the fact that Thomas came to Jackson’s apartment with a large am ount of money and that Anthony Bond, the codefendant, was with him and wa s carrying a gun. She also related the fact that she and Thomas took Thomas’s money and bought a car and other items. Thomas also admitted to her that he shot the driver (Day ) and that the money was from the robbery.
There is one significant difference in th e proof in this case and the proof in Robinson

. Here, Jackson gave a statement to federal agents long before either trial, describing the events on the day of the crime and her knowledge of Thom as’s involvement. Her statements in 1997 are consistent with her testimony at the federal tria l in November 1998 and the state trial in 2001. Her statements were given before she ever rece ived any money from the federal agents, because she received the $750.00 after the comple tion of the first trial in 1997. In Robinson , the paid witness had not given earlier consistent statements . She had testified at a preliminary hearing a year before trial, but her testimony at the preliminary hear ing differed substantially from the testimony later at the trial.
Moreover, additional evidence introduced at trial placed Thomas at the crime scene. Several witnesses observed Bond and another man get into the car and drive away after the shooting. One of those witnesses, Richard Fisher, testified that he was cl ose to the getaway car as it drove by and he was able to provide in-court identification that Thomas was the passenger in the car. As the majority points out, Fisher originally pointed to Bond as the person in the passenger seat, but as he got closer to Thomas in the courtroom, he identified Thomas as the passenger. The majority is very skeptical about that, but, ha d the jury believed Fisher’s statement that Thomas was the passenger in th e car, it could have found Thomas guilty, because the jury decides the credib ility of the witnesses.

Other evidence at the trial corroborated Jack son’s testimony. For instance, there was evidence about how Jackson and Thomas bought a car with cash soon afte r the robbery. There was also proof about Jackson’s opening a bank acc ount and depositing a large sum of cash in it.
In addition, Jackson was thoroughly impeachedduring her testimony during trial. She was cross-examined on alleged inconsistent stat ements to law enforcem ent and her relationshipNo. 15-5399 Thomas v. Westbrooks Page 15

with Thomas, including allegations by Thomas th at she had been cruel to his son, suggesting a bias by Jackson against Thomas. She was also questioned about purchasing a gun for Thomas and opening a bank account with proceeds from the robbery.
I agree that under Brady , the state was required to reveal to defense counsel the payment of $750.00 to Jackson before the state trial. Howe ver, because that payment was not prejudicial under Brady , the writ of habeas corpus should not be granted. I would affirm the district court in denying the writ.