NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION F ile Nam e: 11a0799n.06 No. 10-5012 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

BI L L Y J EFF RI ES, Petitioner-Appellant,

v. J AMES MORGAN, Respondent-Appe llee. ) ) ) ) ) ) ) ) ) ) ON AP P E AL FROM THE UNI TED STATES DI STRI CT COU R T FOR THE EASTERN DI STRI CT OF KE NTUCKY

BEF ORE: ROGERS, McKEAGUE, a nd DONAL D, Circuit J udg es.

* ROGERS, Circuit J udg e. Billy J eff ries appea ls from the district court’s denial of his habea s corpus petition. J eff

ries is se rving a thirty -five- y ear state prison sentenc e for the 1995 murder and attempted rape of Mary Evely n McK ee in Shelby

ville, Kentucky

. J eff

ries arg ues that the prosec ution failed to disclose materia l evide n ce as required under Brady v. Maryland , and that there was insufficient evidenc e to support his conviction. Even assuming t h at t h e prosec ution should have disclosed the evidenc e at issue, the failure does not amount to a Brady violation beca use disclosure of the suppressed evidenc e would not have been rea sonably likely to chang e the outcome of the trial. J eff ries’ sufficie ncy of the evidenc e claim is without merit b eca use there was sufficie nt circ umstantial and fore nsic evidenc e from which a rea sonable jury could conclude that J eff ries had

At the time this case was arg ued, the Hon. Be rnice B. Donald was a district judge , sitti ng * by desig nation. On September 8, 2011, J udg e Donald beca me a judg e of the Court of Appea ls f or the Six th Circuit.No. 10-5012

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committed the crimes. There fore , there are no g rounds for g ranting the petition, a nd aff irmance is require d. Mary Evely

n McKe e, a 77-y ear -old widow, was murdere d in Fe bruar y of 1995. A neig hbor saw McK ee ta

king he r usual af

ternoon wa lk around 5:30 on Fe bruar y 20. The next day , McKe e’s housekee per f

ound McKe e’s house empty and in a pre-dinner state, l eading to the conclusion that McKe e had never returne d from her walk. M cK ee ’s b o d y was found behind a house in the neig hborhood early that evening

. She had been ki lled by repe ated blows to t he hea d with a rock. Her shirt was partially open, her skirt was lifted mid-way up her leg s, and her panty hose and panties had been remove d. Muddy fing erpr ints wer e found on McKe e’s thigh and buttocks. There was also

a p al m p ri n t on McKe e’s g lasses, which wer e found folded beside her body

. A head hair not belong ing to Mc Kee was found in he r panty hose. 1 On the same day on which McKe e was last seen, sever al teena g ers had g ather ed at a house in the neig hborhood to p as s t he President’s Day holiday

. J eff ries attended the g et-tog ether and, along with at least two other boy s, drank whiskey during the afte rnoon. On Fe bruar y 27, the police questioned J eff

ries about his wher eabouts following the party

. At t hat time, the police alre ady suspected J eff

ries’ involvement with the m urder —based, a t least in part, on int ervie ws with other teena g ers who place d J eff ries near the crime scene so o n af t er McKe e was last seen. The office rs

I n his brief, J eff

ries arg ues that the hair was found in McKe e’s panties and not her hose, but 1 the trial testimony

shows that the hair w as found in her hose. - 2 -No. 10-5012

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asked J eff ries to turn over clothes he had worn on Fe bruar y 20 and to walk the office rs throug h the path he ha d taken a fter le aving the par ty

. J eff ries was arr ested on Marc h 2, 1995. He g ave the police a statement and submitt ed fing er and palm prints that day

. J eff ries was tried in Marc h of 1 9 9 7

. T h e b u l k of the trial testimony explains the fore nsic evidenc e in the case . Analy sis of J eff ries’ clothing reve aled small amounts of blood on his jacket and shoe , but the quantity was inade quate to dete rmine whe ther the blood wa s

ev en human. Howeve r, a spot of bl ood on the i nside tongue of J eff ries’ left shoe was matched t o McKe e. Fur

ther, J eff ries’ palm print was matched to the print on McKe e’s g lasses. The hair found in McKe e’s panty

hose did not belong to J eff ries, and fibers found on her clothing wer e not matched to McKee ’s or Jeffrie s’ clothing

. I n additi o n to the fore nsic evidenc e, the Commonwealth prese nted two witnesses who testified to having seen Jeffr ies in the are a whe re Mc Kee ’s body was found around the time of the murder. The prosec ution also prese nted the testimony of Kay Fr anklin, a seamstre ss who stated that she had r epair ed a te ar in Jeffrie s’ jacke t in the day s following the murder. J eff ries testi fied in his own def ense, but no long er discla imed all knowledg e of the crime. I nstead, he testified that he had started toward a near by park afte r leaving the party , chang ed course , cut t hroug h the y ard where McKe e’s bod y wa s fo und, tripped over her body , and then ran toward home in te rror . J eff

ries’ fathe r also testified that he wa s driving a round the ne ighbor

hood looking for J eff ries on Fe bruar

y 20, encounte red him close to their home, beg an y elling at him for being late for a 6:00 p.m. appointment, and then drove him home. J effri es t es t i fi ed that he did not tell his

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pare nts about the bo d y b ec au s e t h ey wer e alre ady upset with him and telling would require a confe ssion that he had been drinking

. He stated that he did not initially tell the police about the body beca use he knew he was not involved and was sure that they wou l d fi nd the perpe trator. He explained that he had later lied to the police beca use he did not want them to know that he had been “rig ht there .” The jury convicted J eff ries on Marc h 21, 1997. J eff ries appea led, arg uing that there

was insufficient evidenc e to support the conviction. The Supreme Court of Kentucky reje cted that arg ument in an unpubli shed opi nion that emphasized the for ensic evidence and testi mony placing J eff ries nea r the c rime sce ne. Post-trial developments provided J eff ries a new avenue for cha lleng ing the conviction. I n Marc h 1998, J eff

ries’ counsel rec eived a letter from the Kentucky Attorney Gene ral explaining the results of an investiga tion into various third-par ty statements implicating another man, J ohn Dillon, in McKe e’s murder. None o f those statements had been known to the C ommonwealth before the trial. Howeve r, the p o lice had briefly investiga ted Dillon soon afte r the murder, based on a tip office rs rec eived while canva ssing the neig hborhood. A neig hbor (who was also Dillon’s probation office r) repor

ted having seen Dillon with an unidentified whi t e m al e (n o t J eff ries) half an hour befor e the crime was committed, a bout .7 mile f

rom wher e the body was found. The police called Dillon in for questioning and ruled him out as a suspect based on his uncorr oborate d alibi that he had been with a g irlfriend on the night in question and on his g randmother ’s assura nce that she had been keeping a close ey e on him. J eff ries’ trial counsel was not notifie d that the police had interviewe d Dillon even though counsel had reque sted a list of all indi v i d u al s the police had considere d to be

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organ suspects during the investiga tion, including any one who had been questioned in connec tion with the crime. H is counsel did rec eive the inve stiga tion notes containing the proba tion officer ’s tip. J eff ries soug ht a new trial, claiming that the prosec ution’s failure to disclose that Dillon had been interviewe d in connec tion with the murder amounted to a violation of Brady v. Maryland , 373 U.S. 83 (1963), beca

use the undisclosed information was materia l. J eff ries attache d two aff

idavits 2

to the motion: (1) Nikki Chesser’ s aff idavit stating that Dillon admitted killi n g M cKee and had threa tened to hurt her if she told any one; and (2) Chris Be ach’s af fi d av i t stating that he had overhear d Di l l o n d ecla

re his involvement in the killing. There wer e no aff idavits from the other individuals who wer e named in the letter provided to J eff ries’ counsel by the Attorney General’s office , and Chesser and Be ach did not testify at the hear ing on the motion for a new trial. J eff ries’ counsel did call three i n v es t i gat ing office rs to testify at the hear ing—D etec tive Ba rbiarz, who orig inally interviewe d Dillon; Detec tive Stephens, who receive d some of the post-trial statements about Dillon’s involvement; and Detec tive Pratt, who was involved with the orig inal investigation and also investiga ted t he post -trial allegations. Detec tive Pratt tes t ified t hat when he conducted a pos t -t ri al i n t er view with Dillon, Dillon restate d his alibi that he had been with a g irlfriend on the night in question. Pratt stated that he believed Dillon had identified the g irlfriend as J essica Pey ton.

His new trial motion was orig inally premised on the theory that the prosec ution had failed 2 to reve al its knowledg e of the third-par ty acc ounts of Dillon’s confe ssions, but it was clar ified that the Commonwealth lear

ned of the se statements only afte r the trial. Jeffrie s’ claim wa s allowed to proce ed, howe ver, be cause of the pre -trial non-disclosure of the Dillon interview. - 5 -No. 10-5012

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The trial c ourt denied the motion for a new trial but or dere d a g rand jury investiga tion into Dillon’s possible involvement in the crime. At the g rand jury proce eding s, J essica Pey ton testified that she was not living in Shelby County at the time of the murder and had never been romantica lly involved with Dillon. After hea ring from Pey

ton and ot hers, the g rand jury did not indict Dill on. The Kentucky Court of Appea ls aff irmed the denial of the motion for a new trial in October 2003. J eff ries broug ht his habea s petition in the Easter n District of Kentucky in Septe mber 2005,

an d the case was ref

err ed to a mag istrate judge

. On Marc h 20, 2006, J eff ries moved for leave t o expand the state court rec ord. The mag istrate judge issued his repor t and rec ommendation that the petition be denied on the merits on April 11, 20 0 6

. R .14. The mag istrate judge denied J eff ries’ motion to ex p an d t he rec ord as moot. R.14 at 28. The district court adopted the repor t and

rec ommendation o n M ay 2, 2006, R.16, and J eff ries subsequently applied for a cer tificate of appea lability on the Brady claim, the insufficienc y of the evidenc e claim, and his motion to expand the re cord, R.20. The district court g rante d the C OA on the Brady claim but denied the othe r two g rounds. On J anuar

y 17, 2007, this court expanded the COA to include the two excluded g rounds. On April 14, 2008, this court rema nded the case to the district court with instructions “that the entire trial rec ord be revie wed by the district court in assessing J eff ries’ petition.” Jeffries v. Morgan , 522 F. 3 d 6 4 0, 645 (6th Cir. 2008). The case was ag ain ref err ed to the orig inal mag istrate judge , wh o issued a six ty -six -pag e supplemental repor t and rec ommendation that ag ain rec ommended deny ing J eff ries’ petition. The district court adopted the supplemental repor t except for three fac tual finding s t h at ar e not rele vant to our dispositi on of the case . The district court denied the peti t i o n o n

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Dec ember 10, 2009. J eff

ries applied for a second COA on his Brady and sufficie ncy of the evidenc e claims. R.44. The district court g rante d the COA on January 20, 2010. 3 The failure to disclose the fac t and contents of the Dillon interview was not a Brady violation beca use the suppression does not undermine confide nce in the outcome of the trial. S ee United States v. W

arshak , 631 F.3d 266, 300 (6th Cir. 2 010). J eff ries arg ues that the undisclosed Dillon interview sa tisfies Brady ’s materia lity require ment, 373 U.S. at 87, in two respec ts. First, J eff ries contends that his defe nse was deprive d of evidenc e that would h ave bolstered the defe nse trial strateg y of questioning the quality of the police investiga tion. Second, he arg

ues that disclosure may have prompted independe nt investiga tion of Dillon’s alibi which would, in turn, have re v ealed at least that t h e al i bi was fra udulent and perha

ps that Dillon and a still -unidentified white male had actua lly killed McKee

. Evidence that discredits the police investiga tion may be materia l unde r Brady , see Kyles v. W hitley , 514 U.S. 419, 446 (1995), but the Dillon interview does not rise to that level beca use it was

mere ly cumulative for attacking the investiga tion’s reliability , see Brooks v. Tennessee , 626 F.3d 878, 893 (6th Cir. 2010). The investiga tors’ rea dy acc eptanc e of Dillon’s alibi may have bolstered the defe nse’s arg ument that the police’s exclusive fo cu s o n J eff ries cause d them to ignor e viable leads in the case . Howeve r, J eff ries was able to prese nt that arg ument in other way s throug hout the

W e re v i ew t h e district court’s deter minations de novo . I t is not nece ssary for us to 3 deter mine the extent to which AEDPA applies to the state court’s deter minations, a s aff

irmance is require d reg ardle ss.

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trial. J eff ries’ trial counsel’s openi n g s t atement emphasized that “fr om day one—day one—B illy J eff ries was their suspect, and they looked no further ,” and pointed out that “the spot of blood on the tennis shoe and the palm prints” wer e “collec ted afte r Billy J eff ries was alre ady arr ested and char g ed with this crime.” Def

ense counsel stated that during a neig hborhood canva ss, “[n] eig hbors tried to descr ibe what was g oing on . . . any suspicious people.

. . . You’re not g oing to hear of any follow-up investiga tions on any

of these pe ople.” Trial counsel repe atedly highlig h t ed t h e ear ly and narr ow focus on J eff ries when crossexamining the Commonwealth’s witnesses. I n cross-e x amining Detec tive Ba rbia r z, c o u n s el pointed out that Ba

rbiarz t ook a description of J eff ries’ clothing withi n hours of the M cKe e autopsy , long befor e any fore nsic evidenc e had been analy zed and in spite of the fac t that the door-to-door canva ss did not produce any one s ay ing that J eff ries had been seen with McKe e that evening

. Pet’r App’x at 202-05. Counsel also pointed out that investiga tors took only J eff ries’ clothes for blood and fiber analy sis even though the only evidenc e implicating him at that point was two other party attendee s’ statements that they had seen J eff ries near wher e McKe e’s body was found. Pet’r App’x at 216-17. I n questioning fore nsic witnesses, J eff ries’ lawy er emphasized that cer tain fibers found at the scene had never been analy

zed and that the fibers and hair that wer e an aly zed did not match J eff ries’ clothing or hair. Pet’r App’x at 305-26. Trial counsel summarized a ll of this in closing and stated that “[w]e don’t know who els e h ad the opportunity , beca use as y ou hear d them say , no other

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descr iptions of any

bo d y was [si c] taken.” Pet’r App’x at 657. Given the abundanc e of evidenc e 4 put forth by J eff

ries’ counsel that the police had focuse d solely on J eff ries from th e o u t s et o f the investiga tion, the Dillon interview would have been, at most, cumulative on this point. There fore , 5 J eff ries’ a rg ument that information about the inter view was materia l beca

use i t casts doubt on the integ rity of the investig ation cannot support a Brady claim. J eff ries also arg ues that knowledg e of the Dillon interview could have chang ed the defe nse’s theory of the case . Rather than being fo rc ed to depict the crime as having become virtually unsolvable as a result of shoddy police work, J eff ries claims he could have pointed to actua l alterna tive suspects: Dillon and his unidentified white c ompanion (providing a source for the hair found in McKe e’s hose). Had the contents of the interview been reve aled, J eff ries arg ues, his tria l counsel may

have note d investiga tors’ uncr itical acc eptanc e of Dillon’s thin alibi. This may have led trial counsel to underta ke an independe nt investiga tion of Dillon’s story , which would not have held up beca

use J essica Pey

ton, the name Dillon later provided as the g irlfriend he had been visiti ng , did not even live in Shelby County at the time of the murder. Had trial counsel deter mined that Dillon’s alibi was false, the theory proce eds, they could have informed the jury that another suspect’s

The defense ’s repeate d claim t hat t he poli ce did not tak e other descriptions is called into 4 question by the rec ord. I nvestig ators’ notes from an interview with Be n Mills, J r. contain a descr iption of Scotty King ’s clothes and build. R.2-8 at 9. King was also at the party and drinking on Fe bruar

y 20. The notes provided do not show, howeve r, that investiga tors talked with King , and he wa s never

asked to provide his clothes for a naly sis. Evidence of the interview could actua lly have undermined the attack on the investigation, 5 since Dillon was inter

viewed a fter Jeffr ies’ ar

rest. - 9 -No. 10-5012

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alibi had not chec ked out. Perhaps they would have also underta ken further investiga tion that may have le d them to the people who e ventually implicated Dillon in McKee ’s dea th. This aspec t of J eff

ries’ Brady claim is substantially underc ut by the pol ice notes that wer e disclosed, which contained the probation office r’s tip that Dillon had been seen in the are a near the time of the offe nse. Those notes, which J eff ries’ counsel mentioned in g ener al terms during opening statements, clea

rly state that Dillon was within .7 mile o f t h e cr i m e scene in the half hour befor e McKe e was last seen alive. The notes even mention that Dillon was with an unidentified Cauca sian male. Given that Dillon had a known criminal history (albe it one he had established in conce rt with J eff ries) and that J eff

ries’ trial cou n s el was advancing a theory that the pol ice had overlooke d the

rea l perpe trator, the tip in the notes was sufficie nt to trig g er further investiga tion. J eff ries arg ues that if his counsel had known that the police had considere d and clea red Dillon as a s u s pect, counsel would have become more su s p i ci o u s of Dillon than when they believed he had been completely ignor ed. Although he downplay s the disclosure of the probation office r’s tip, J eff ries’ knowledg e of the tip p re cl u d es finding a Brady violation. This circ uit deter mined that no Brady violation had

occur red in Spirko v. Mitchell , 368 F.3d 603, 610-11 (6th Cir. 2004), wher e the d ef endant was otherwise on notice o f t h e i n fo rmation contained in notes on which he tried to stake a B r a d y claim—i n that case , evidenc e sug g esting that an alleg ed acc omplice may have been o u t o f state at the time of the crime. The court emphasized that a defe ndant only need have “the essential fac ts that would enable him to take advanta g e of the exculp at o ry ev i d ence ,” rathe r than all of the

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state’s evidenc e on the point in question. Id

. at 611. Be cause J eff ries was on notice that J ohn Dillon had been seen close to th e crime scene at the rele vant time, the prosec ution’s failure to identify Dillon as a suspec t or to reve al that he wa s questioned does not amount to a Brady violation. A rational juror could fi n d b ey ond a rea sonable doubt that J eff ries had murdere d and attempted to rape McKe e. The district court there fore proper ly reje cted J eff ries’ sufficie ncy of the evidenc e claim. Ba sed on witness testimony placing J eff ries near the scene , J eff

ries’ palm print on McKe e’s g lasses, McKe e’s blood on J eff ries’ shoe, and J eff

ries’ admitted lies to investiga tors, a jury could rea sonably conclude that he had committed the alleg ed crimes. See Jack son v. Virginia , 443 U.S. 307, 319 (1979). The partial state of undress in which McKee’ s b o d y was found supports a conviction for attempted rape

. J eff ries arg ues that there was insufficient evidenc e to advance the theory that he alone committed the crime. The b asi s for this claim is the hair and fiber evidenc e that did not match J eff ries or McKe e, the fac t that J eff ries’ clothing did not have substantial amounts of blood, and that J eff ries was only 110 pounds at the time of the murder—a nd there fore not phy sically strong enoug h to car ry the vi ctim from the road to the s pot wher e she wa s fo u n d

. But a rational jury could have

rea sonably discounted t his evidenc e. There was trial testimony that hair and fibers easily transfe r in the course of daily life. The jury could rationally conclude that the fibers that wer e not matched to the clothing J eff

ries and McKe e wer e wea ring on Fe bruar

y 20 came from someone else that one of them had encoun t er ed befor e the crime, or even from other clothes in McKe e’s closet. The Commonwealth’s brief sugg ests that the j ury may have concluded that the hair found i n McKe e’s

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hose had landed on the hose, which wer e hang ing from a bush at the crime scene , afte r falling from

some passer

by ’s head. Wh et her this is more or less likely than the defe nse’s theory that the rea l killer contributed the hair is be side the point, so long as the finding was not c ompletely irrational. As to the fac t that only small amounts of blood wer e found on J eff ries’ clothing, the jury could have

rea sonably conclude d that J eff ries had washe d his clothes betwee n the time of the crime and the time the police collecte d them. The Commonwealth Attorney also sug g ested during closing arg uments that perha ps blood would not have spattere d onto the perpe trator beca use of the ang le of attack. Pet’r App’x at 688. The jury may have acc epted either of these two explana t i o ns for the fac t that there

was only sca n t blood evidenc e on J eff ries’ clothing. The only evidenc e that J eff ries was slightly built at t he time of the murde r wa s J eff ries’ ow n testimony , which the jury might have discounted

as a self-se rving exagg era tion in light of the fac t that he was 6’3” and 200 pounds at the time of trial. See Pet’r App’x at 584. Adolesce nts c an g row quite quickly , but without some objective evidenc e of J eff ries’ astounding g rowth, the jury was not irrational in concluding that he could have been larg e enoug h to commit the crime in 1995. J eff ries arg ues that his palm print on McKe e’s g lasses is actua lly exculpatory

. The palm print

was clea n, while there wer e muddy fing er prints on the body

. J eff ries contends that the same person could not have contributed the muddy prints on the body and a clea n print on the g lasses. As noted below, the prints wer e from d i fferent hands—the palm print from the rig ht and the muddy fing er prints from the lef

t, and the jury

could re asonably

have c oncluded that only J eff ries’ left hand had been muddy . Mag . Op. at 21. This explanation is no more difficult to believe than Jeffr ies’ story

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that he tripped over McKe e’s body and planted his palm on her g lasses without brea king the lens or the stems. A jury could rationally choose the first explanation over the second, and the lack of mud on the g lasses does not exonera te J eff ries. When the fore nsic evid en ce i s considere d along with the testimony of Be n Mills, J r. and Ashley Gibbs that J eff

ries was near the crime scene at the ti m e o f t h e k i lling, Kay Fr anklin’s testimony about re pairing J eff

ries’ torn coat soon after

the murder , and Jeffries’ admission that he had repe atedly lied to the police, a rational jury could rea sonably conclude that J eff ries committed the cr imes. There fore , J eff ries’ suf ficienc y of the e vidence claim must fail. For the fore g oing r easons, the district c ourt’s denia l of the petition is affirme d.

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