*Of the United States Court of Appeals for the Tenth Circuit,

sitting by designation.

United States Court of Appeals

For the First Circuit

No. 04-1160

RANDY LAVALLEE,

Petitioner, Appellant,

v.

JANE COPLAN, Warden, New Hampshire State Prison,

Respondent, Appellee.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. James R. Muirhead, U.S. Magistrate Judge]

Before

 Selya, Circuit Judge,

Porfilio, Senior Circuit Judge,

*

and Lynch, Circuit Judge.

Christopher M. Johnson for appellant.

Jonathan V. Gallo, Assistant Attorney General, with whom Peter

W. Heed, Attorney General, was on brief, for appellee.

July 8, 2004
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LYNCH, Circuit Judge. Randy Lavallee appeals from the

denial of his habeas corpus petition under 28 U.S.C. § 2254. 

In early 1998, Lavallee was convicted in New Hampshire

state court of multiple counts of sexual assault against his stepdaughter, who was between the ages of twelve and fourteen at the

times of the assaults. He was sentenced to twenty-two and a half

to forty-five years confinement in New Hampshire state prison.

Before his state criminal trial started, Lavallee asked

the state court judge to order the disclosure of files concerning

his step-daughter that were in the possession of the New Hampshire

Department of Health and Human Services, Division of Children,

Youth, and Families (DCYF). DCYF had initiated abuse and neglect

proceedings against Lavallee and neglect proceedings against the

step-daughter's mother (Lavallee's wife) after the step-daughter

had made allegations of sexual abuse by Lavallee to the police.

DCYF files are confidential under New Hampshire's Child Protection

Act, N.H. Rev. Stat. Ann. § 169-C:25, III, and absent a court

order, even the prosecution may not access them, see State v.

Gagne, 612 A.2d 899, 899-900 (N.H. 1992) ("neither the prosecution

nor the defendant ha[s] access to the DCY[F] file"). The court

allowed Lavallee's motion, and DCYF provided the file materials to

the prosecutor, who gave them to the defense. 

After the jury began deliberations, but before it reached

a verdict, a DCYF employee notified the prosecutor that some
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portions of the step-daughter's DCYF files had inadvertently been

omitted when the materials had been produced earlier. The omitted

materials detail a DCYF caseworker's contacts with the stepdaughter, her family, and her foster-care providers beginning

shortly after the accusations against Lavallee were made and

continuing through the time of trial. The prosecution immediately

gave the new materials to the defense, and before a verdict was

reached, Lavallee moved to dismiss all of the charges because of

the late production of the documents. The trial judge reviewed the

new file materials that the defense said were pertinent, heard

arguments, and denied the motion.

The belatedly-produced materials from the DCYF files now

form the heart of Lavallee's habeas corpus claim. Lavallee argues

that the failure to disclose the complete file materials violated

the rule of Brady v. Maryland, 373 U.S. 83 (1963), which requires

the government to produce to defendants exculpatory and impeachment

evidence that is within its custody, possession, or control, id. at

87; see also Giglio v. United States, 405 U.S. 150, 154 (1972). To

constitute a Brady violation, "[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 whether willfully or inadvertently; and

prejudice must have ensued." Strickler v. Greene, 527 U.S. 263,
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281-82 (1994); United States v. Josleyn, 206 F.3d 144, 153 (1st

Cir. 2000). 

For purposes of the analysis here, we can assume that the

omitted file materials were favorable to Lavallee and focus on the

state court's handling of the second and third components of the

test. The second component is present only if the exculpatory or

impeaching evidence at issue (here, the omitted file materials) is

the type of evidence covered by the Brady rule; exculpatory or

impeaching evidence is so-called "Brady material" only if it is

within the government's custody, possession, or control. See

Josleyn, 206 F.3d at 151-53; see also Strickler, 527 U.S. at 280-

81. The third component captures the so-called "Brady materiality

requirement" and is satisfied where there is a reasonable

probability that the evidence would have changed the result. See

Josleyn, 206 F.3d at 151-52; see also Strickler, 527 U.S. at 280.

If Lavallee's Brady claim "was adjudicated on the merits

in State court proceedings," then we must accept the state's legal

ruling on that claim unless it is "contrary to, or involved an

unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States." 28 U.S.C.

§ 2254(d)(1). If his claim was not adjudicated on the merits in

the state court proceedings, then we review the claim de novo. See

Norton v. Spencer, 351 F.3d 1, 5 (1st Cir. 2003); Fortini v.

Murphy, 257 F.3d 39, 47 (1st Cir. 2001).
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The Brady claim formed the basis of Lavallee's motion to

dismiss to the state trial court. As noted, the state trial judge

reviewed the newly-produced DCYF materials and denied the motion

for dismissal. The trial judge ruled that the materials were not

within the scope of Brady, and, in any event, that they did not

meet Brady's materiality requirement. The late production of the

DCYF materials then became one of the two bases for Lavallee's

direct appeal to the New Hampshire Supreme Court. State v.

Lavallee, 765 A.2d 671, 672 (N.H. 2000). That court also rejected

the Brady claim. The court held that the DCYF files were not the

type of evidence covered by Brady-type disclosure rules under the

New Hampshire Constitution, because neither the investigating law

enforcement agency nor the prosecution was in possession of them.

Id. at 672-73. The court also implicitly concluded that the

evidence was not covered under the Brady rule, reasoning that the

protections concerning Brady material under the New Hampshire

Constitution are at least as broad as those under the federal

constitution. Id. As a result, the New Hampshire Supreme Court

did not reach the issue of Brady materiality, unlike the state

trial judge. 

In April 2002, Lavallee filed a federal habeas corpus

petition. It was heard by a magistrate judge in the United States

District Court for the District of New Hampshire. Contrary to the

New Hampshire trial court and the New Hampshire Supreme Court, the
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federal court determined that the DCYF files were within the scope

of Brady. Lavallee v. Coplan, 239 F. Supp. 2d 140, 145-47 (D.N.H.

2003). In a subsequent order, the district court turned to the

questions of whether the files met the standard for materiality

under Brady and whether the state trial court's decision that the

undisclosed evidence was not material was "contrary to, or involved

an unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States" under 28

U.S.C. § 2254(d)(1). The federal court reviewed the state court

record and determined that the DCYF files did not meet the Brady

materiality requirement. Accordingly, it denied the petition.

Under conventional Brady doctrine, the New Hampshire

Supreme Court and trial court were correct in their respective

conclusions that the DCYF files did not trigger a duty under Brady

because they were not within the custody, possession, or control of

the prosecution. Whether we engage in deferential review or, as

Lavallee seeks, de novo review, the outcome would be the same: the

DCYF files are not the type of evidence covered under conventional

Brady doctrine. See United States v. Bender, 304 F.3d 161, 163-64

(1st Cir. 2002) (Brady doctrine does not require a prosecutor to

seek out and disclose exculpatory or impeaching material not in the

prosecution's possession). The files were self-evidently not

within the custody or possession of the prosecution, so the

question becomes whether they were nonetheless within the
1 Lavallee argues that there are a number of "connections"

between DCYF and the police and prosecution and that those

connections support treating DCYF files as Brady material.

Lavallee points out, for example, that police officers had some

contact with DCYF and with the step-daughter while she was in

foster care and that members of the prosecutor's office had some

contact with DCYF workers. However, the New Hampshire Supreme

Court clearly resolved the issue against him and that determination

is entirely sound. 

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prosecutor's control. There is no claim that the prosecutor had

any reason to think that the original files turned over from DCYF

were incomplete. And while prosecutors may be held accountable for

information known to police investigators, Kyles v. Whitley, 514

U.S. 419, 437-38 (1995), DCYF is neither the police nor the

equivalent of the police in assisting the prosecution. DCYF was

not the prosecuting agency and is independent of both the police

department and the prosecutor's office. Indeed, in its decision on

Lavallee's direct appeal, the New Hampshire Supreme Court held that

DCYF shared no special relationship with the prosecutor or the

police.1 Lavallee, 765 A.2d at 673.

There is a wrinkle, though, and it lies in the Supreme

Court's 1987 opinion in Pennsylvania v. Ritchie, 480 U.S. 39

(1987). In Ritchie, a defendant in state criminal court sought the

production of files from a state child protection agency,

equivalent to DCYF. 480 U.S. at 43-44. The agency pointed to a

state statute that made its files confidential, subject to certain

exceptions, and refused to produce the files, which concerned the

alleged victim of sexual abuse by the defendant. Id. The trial
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court judge refused to order the disclosure of the files, the

defendant was convicted, and he appealed. Id. at 44-45. An

intermediate state appellate court vacated the conviction and

remanded on the ground that the failure to disclose the agency

files violated due process. Id. at 45. The state appealed, and

the Supreme Court of Pennsylvania agreed that the conviction had to

be vacated and the case remanded to determine if a new trial was

necessary in light of the information in the agency files. Id. at

46. The court also held that the defendant was entitled to review

the entirety of the agency's files to search for any useful

evidence. Id. On review of that ruling, the U.S. Supreme Court

noted the government's duty "to turn over evidence in its

possession that is both favorable to the accused and material to

guilt or punishment," citing United States v. Agurs, 427 U.S. 97

(1976), and Brady. 480 U.S. at 57. The Court did not ask the

question that usually begins the Brady analysis -- namely, whether

the agency file at issue was within the custody, possession, or

control of the prosecutor. The Court upheld the vacatur and remand

and held, under the Due Process Clause, that the defendant was

entitled to have the agency file reviewed by the trial court to

determine whether it contained information "that probably would

have changed the outcome of his trial." Id. at 58. However, the

Court reversed the state supreme court's ruling to the extent that
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it allowed the defendant immediate access to the entirety of the

agency's files. Id. at 61. 

Because of our sense that there is some ambiguity about

the relationship between Ritchie and Brady, we would be very

hesitant to conclude, as the magistrate judge did, that the New

Hampshire Supreme Court opinion, which analyzed the Brady claim in

classic terms, was nonetheless "contrary to" the holding in Ritchie

or that the particular doctrine invoked here was "clearly

established" as a Brady doctrine. Moreover, petitioner did not

cite Ritchie to the New Hampshire Supreme Court on his appeal; he

cited it for the first time in his motion to that court for

reconsideration, so he may not have sufficiently raised it in state

court. In any case, the answer to those questions need not be

resolved because Lavallee's petition fails for other reasons.

Ritchie required that a state judge review the agency

file and determine whether it contained information that probably

would have changed the outcome of defendant's trial. That was done

here. The trial judge here concluded, pre-verdict, that even if

the documents were within the scope of Brady, there was no

reasonable probability of a different result if they had been

produced earlier (i.e., they failed the Brady materiality test).

The court accepted the defense argument that the additional

documents were pertinent in two ways to the defense theory that the

victim had fabricated her allegations of abuse against her step-
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father in order to be with her boyfriend, Brad. Defense counsel,

acknowledging that the victim had already testified that she was

still in love with Brad and still maintaining contact with him at

the time of trial, argued that the new documents would support the

defense theme that her strong, ongoing relationship with Brad had

colored her testimony and led to false accusations against her

father. He also argued that some of the notes in the newlyproduced DCYF materials could be used to undercut the stepdaughter's credibility as to her testimony about whether she had

made certain phone calls to Brad and whether she had told her

mother about the alleged abuse. The trial judge, citing Brady,

ruled that "[b]y and large, the material is cumulative and really

doesn't add a heck of a lot with regard to the Brad issue beyond

what is already in evidence." As to the impeachment value of the

evidence, the trial judge found it to be "not so weighty as to

produce a reasonable probability of a different result if there

were a guilty verdict on one or more of the charges." Even were

those sound determinations before us on direct review and not on

habeas, we would affirm. The new material, which was largely

cumulative of what the jury had already heard, would have added

little to the defense theme.

We affirm the denial of habeas corpus.