IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 13-31013

MILTON ISAAC,

Petitioner–Appellee

v.

BURL CAIN, WARDEN, LOUISIANA STATE PENITENTIARY,

Respondent–Appellant

Appeal from the United States District Court

for the Eastern District of Louisiana

USDC No. 2:10-CV-4591

Before HIGGINBOTHAM, JONES, and PRADO, Circuit Judges.

PER CURIAM:*

A Louisiana jury convicted Petitioner Milton Isaac (“Isaac”) of possession 

of heroin with intent to distribute. He applied for post-conviction relief in state 

court arguing that he was actually innocent of the “intent to distribute” prong 

of the crime of conviction. His federal constitutional claims alleged violations 

of Napue v. Illinois, 360 U.S. 264 (1959), and Brady v. Maryland, 373 U.S. 83 

(1963). After the state habeas trial court granted relief, the state appellate 

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not 

be published and is not precedent except under the limited circumstances set forth in 5TH 

CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

October 3, 2014

Lyle W. Cayce

Clerk

 

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court reversed and denied relief. On federal habeas review, the district court 

granted relief. We reverse.

I. BACKGROUND

A. Trial Proceedings1

The arresting officer testified at trial that, on December 3, 1985, he 

investigated a dark sedan with a woman sitting in it, parked in the middle of 

the street. This investigation was interrupted when he heard another woman 

shouting from the third story of a nearby apartment building that a man had 

a gun in someone’s mouth. Arriving at the apartment, the officer found Isaac 

pinned to the ground by Edgar Barabino (“Barabino”). Barabino had a pistol 

in Isaac’s mouth and tried to shoot the gun, but the officer prevented the gun 

from firing. When the officer patted down Isaac, he recovered $81 in cash 

wrapped around 21 packages of heroin. Moreover, Isaac was wearing a flak 

jacket, and two guns were found in the car parked in the middle of the street, 

the car in which Isaac had arrived.

Carolyn Harris (“Harris”) was the woman in the car. She testified at 

trial that she had been with Isaac and Terrell Sterling (“Sterling”) throughout

the course of that evening. Harris testified that Sterling was going through 

heroin withdrawal. Because Isaac had no heroin on him, she left with Isaac in 

search of drugs.

Officer Frank Benn is an expert in the packaging and distribution of 

controlled substances. He testified that heroin is normally packaged in 

“bundles” of 25 papers—individual packets—with a street value of $20–$25 per 

paper. While a heavy heroin user would use whatever amount of heroin he 

could get, the officer noted that it would be unusual to find more than two or 

1 We draw the trial proceedings—which is essentially undisputed—from the 

magistrate judge’s thorough findings and recommendations below.

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three papers in the possession of a user. He further testified that the heroin 

seized in this case was consistent with the normal amount for distribution of 

heroin. He also testified that dealers usually carry guns.

Isaac took the stand in his own defense. He testified that he was an 

addict and that he had gone to Barabino, a known dealer, to purchase heroin 

for his personal use. He said that when he found himself short of money, he 

attempted to take cash and drugs from Barabino by force, and that a scuffle 

ensued.

The State called Barabino in rebuttal, and he testified that he did not 

sell drugs. Barabino suggested that if Isaac had been carrying heroin, he must 

have had the drugs with him when he entered the apartment.

On June 17, 1986, a Louisiana state jury convicted Isaac of the crime of 

possession of heroin with intent to distribute under Louisiana Revised Statute 

Annotated § 40:966(A)(1). Isaac was sentenced to a mandatory term of life in 

prison without the possibility of parole. Isaac appealed his conviction and 

sentence to the Louisiana Fourth Circuit Court of Appeal (hereinafter the 

“Fourth Circuit”). The Fourth Circuit affirmed his conviction, but amended his 

life sentence by removing the prohibition against parole.

B. Post-Conviction Proceedings

After multiple unsuccessful requests for post-conviction relief, Isaac filed 

on March 1, 2007 a motion for a new trial based upon newly discovered 

evidence. The state trial court held two hearings—one on August 29, 2007, 

and the other on March 26, 2008—to take evidence on the motion, which it 

construed as an application for post-conviction relief.

The newly discovered pieces of evidence were the recantations of two 

witnesses at trial, Harris and Barabino. They claimed that the prosecutor in 

the case, Assistant District Attorney Glynn Alexander (“Alexander” or “ADA 

Alexander”), elicited their false testimony in order to convict Isaac. In turn, 

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Isaac raised issues concerning perjured testimony in violation of Napue, 

suppressed evidence in violation of Brady, and actual innocence. Isaac 

contended that he was actually innocent of the “intent to distribute” prong of 

the statute, and conceded that he would have been guilty of simple possession 

of heroin. At the post-conviction hearings, Harris, Barabino, Isaac’s aunt 

Janice Isaac (“Ms. Isaac”), and Alexander testified as follows.

1. Testimony of Harris

On November 28, 2000, Harris submitted an affidavit describing her 

conversations with ADA Alexander before trial and her testimony at trial. As 

stated in the affidavit, she told ADA Alexander before trial that, on the day of 

Isaac’s arrest, Isaac had been experiencing extreme symptoms of heroin 

withdrawal. Isaac called Sterling, who then gave Isaac money so that Isaac 

could purchase heroin for his personal use. She told ADA Alexander that she 

then drove with Isaac to Barabino’s house to purchase heroin.

In response, ADA Alexander threatened to charge her for her role in the 

case if she did not alter her testimony to reflect that Sterling was the one 

suffering from withdrawal and that Isaac obtained the drugs from Barabino to 

distribute to Sterling. Harris stated that she agreed to testify falsely for three 

reasons: she felt that “Isaac needed some time off the street to get his life in 

order”; Alexander promised her that Isaac would only receive a 10-year 

sentence; and Alexander promised her that she would not be charged. Harris 

also stated that she received immunity in exchange for her false testimony.

Harris explained at the March 26, 2008 post-conviction hearing that 

Sterling brought Isaac $81 for Isaac to purchase heroin from Barabino. She 

further testified that she and Isaac stopped at Barabino’s apartment and 

procured some guns, which they put in the car. As Harris waited for Isaac 

outside the apartment, a police officer approached her and asked her for 

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identification. At that moment, a woman inside the apartment called out for 

help, exclaiming that Barabino had a gun in Isaac’s mouth. 

Harris testified that Alexander threatened to charge her with possession 

of the firearms if she did not testify against Isaac. In exchange for her 

testimony, Alexander allegedly paid for a hotel and all her expenses during the 

trial, and helped her obtain Section 8 housing. Moreover, according to Harris, 

Alexander told her that she “needed to say that [Sterling] was still in the 

house . . . so that [the prosecution] could say that [Isaac] went to get the drugs 

for [Sterling].” Harris testified that she chose to come forward and tell the 

truth after her grown daughter (Isaac’s child) discovered what happened.

The State cross-examined Harris. She acknowledged that even though 

she claimed that Alexander instructed her to testify falsely that Sterling had 

stayed behind while she and Isaac went to procure drugs from Barabino, she 

gave no such testimony at trial.

2. Testimony of Barabino

On July 30, 2007, Barabino submitted an affidavit stating that, on the 

day of Isaac’s arrest, Barabino purchased 20 to 25 bags of heroin from a thirdparty for himself and Isaac because both men were heroin addicts. According 

to Barabino, Isaac attempted to buy heroin from Barabino, but when Barabino 

refused to sell, Isaac threatened him with a gun, saying that he was sick and 

desperate for heroin. Barabino stated that at no point did Isaac attempt to 

distribute heroin to him or any other person. Barabino also stated that an 

unnamed prosecutor threatened to charge members of Barabino’s family with 

drug offenses unless he testified that Isaac was in possession of the heroin 

when the police arrived at Barabino’s apartment.

At the August 29, 2007 post-conviction hearing, Barabino testified that 

the prosecutor who had coerced him to testify was ADA Alexander. According 

to Barabino, Alexander told him that if Isaac was released from custody, Isaac 

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would kill Barabino. When that tactic proved unsuccessful, Alexander also 

threatened to bring criminal drug charges against Barabino’s family members 

if he did not testify against Isaac. Barabino testified that Alexander claimed 

he would bring these charges based on Isaac’s statement to the police that the 

heroin found on Isaac had come from Barabino’s house. Barabino told 

Alexander that Isaac’s statement was untrue. Isaac’s post-conviction counsel 

then introduced into evidence an internal District Attorney memo—from the 

time of the prosecution—recommending the use of the specter of an aggravated 

assault charge to “encourage” Barabino to testify against Isaac. Barabino 

testified that prosecutors offered to “get rid of” an aggravated battery charge 

pending against him in state court if he testified against Isaac. But Barabino 

said that he “only [could] testify to the truth” that Isaac sought only to use 

heroin on the day he was arrested; that while he and Isaac would purchase 

heroin to use together, Barabino never knew Isaac to have sold heroin; and 

that Isaac did not attempt to sell or give Barabino heroin on the day in 

question. Barabino explained that after spending time in jail himself, he 

regretted having helped send Isaac to prison by offering false testimony at 

trial. During cross-examination, Barabino conceded that he never testified at 

trial that Isaac dealt drugs generally or that he had tried to sell heroin to 

Barabino on the date of his arrest.

3. Testimony of Ms. Isaac

At the post-conviction hearing, Isaac’s aunt, Janice Isaac, repeated her 

trial testimony that Isaac was a heroin addict at the time of his arrest. Ms. 

Isaac testified that ADA Alexander helped to house Harris during the 

prosecution and helped procure Section 8 housing for Harris. Ms. Isaac noted 

that the wait time to receive Section 8 housing at the time of the trial would 

have otherwise been lengthy. She also testified that Alexander tried to get her 

to convince Isaac to take a plea deal for 10 years.

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4. Testimony of Alexander

Former ADA Alexander testified that during the screening of Isaac’s 

case, he spoke with Barabino, who relayed to him the essential facts 

surrounding the interaction between him and Isaac on the day in question. In 

Alexander’s view, his intent was not to prove that Isaac had sold heroin to 

Barabino or anyone else. Rather, he theorized that Isaac was a “jackman” who 

had tried to rob Barabino of his stash. This theory was based on Alexander’s 

purported familiarity with the drug trade gained during his previous three 

years working as a criminal defense attorney. Alexander further testified that 

he did not coerce, threaten, or intimidate Harris or Barabino into testifying at 

Isaac’s trial because he “didn’t have any reason to.” His only instruction to 

either witness was to “[t]ell the truth,” which they did, to his knowledge. 

Alexander also testified that he harbored no particular grudge against Isaac 

and that Isaac’s prosecution was “just another case.”

On cross-examination, Alexander explained his theory at trial—that 

Isaac had intended to rob Barabino of his heroin stash—was based on the facts 

of the case, including Isaac’s possession of multiple firearms and a flak jacket. 

Alexander testified that Harris was a very cooperative witness who wanted to 

testify despite concerns that she might be in trouble. Alexander assured her 

that nothing was going to happen to her and that she needed to speak honestly 

about her knowledge about the case. Alexander testified that he did not 

provide Harris with housing during the prosecution and did not help her obtain 

Section 8 housing. He also categorically denied threatening Harris with jail if 

she did not testify against Isaac, and stated that anyone testifying that he did 

so “[would] be lying.” Finally, Alexander reiterated that he did not tell Harris 

to testify that Isaac procured drugs to give to Sterling.

On redirect examination, Alexander testified that he put the State’s offer 

of immunity for Harris on the record in open court.

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5. Post-Conviction Relief

The state habeas trial court granted the post-conviction application on 

May 30, 2008. The State then sought writs from the Fourth Circuit, and that 

court reversed the trial court on October 13, 2008. The Fourth Circuit found

that the petition was procedurally defective because it was time-barred and 

repetitive. In the alternative, the Fourth Circuit held that Isaac’s claims failed 

on the merits. The Fourth Circuit denied rehearing, and the Louisiana 

Supreme Court denied a request for supervisory writs.

On November 22, 2010, this Court granted Isaac authorization under 24 

U.S.C. § 2244(b)(3)(A) to file a second or successive petition. Isaac then filed 

his successive petition with the federal district court. Based upon newly 

discovered evidence, Isaac raised the following claims: (1) the State knowingly 

introduced perjured testimony at trial in violation of Napue; (2) the State 

withheld exculpatory material evidence from the defense and the jury in 

violation of Brady; and (3) Isaac is actually innocent of the crime for which he 

was convicted. 

The federal magistrate judge issued a report and recommendation that 

Isaac’s habeas application be dismissed as successive under § 2244(b)(2)(B). 

Alternatively, on the merits, the magistrate judge recommended Isaac could 

not demonstrate that the facts would be sufficient to establish by clear and 

convincing evidence that, but for constitutional error, no reasonable factfinder 

would have found him guilty of the underlying offense. Therefore, the 

magistrate judge recommended dismissing the habeas petition.

The district court sustained Isaac’s objections to the recommendation 

and, upon independent review, granted habeas relief. Notably, the district 

court stated that “[t]he Louisiana Fourth Circuit Court of Appeals, which 

overturned the hearing court’s findings, was not the finder of fact, and in this 

highly factual instance, this Court defers to [the state habeas trial court’s] 

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findings.” The district court then concluded that Isaac had overcome the 

procedural bar against successive petitions, and that he satisfied his burden 

under 28 U.S.C. § 2254(d) as to his Napue and Brady claims.

II. JURISDICTION AND STANDARD OF REVIEW

The district court had jurisdiction to consider Isaac’s § 2254 petition 

pursuant to 28 U.S.C. § 2241. Because this is an appeal of a final judgment of 

a district court, this Court has jurisdiction under 28 U.S.C. § 1291. When 

reviewing a district court’s grant of habeas relief, this Court reviews issues of 

law de novo and findings of fact for clear error. Woodfox v. Cain, 609 F.3d 774, 

788–89 (5th Cir. 2010).

If the state habeas court adjudicated a claim on the merits, then the 

Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), §§ 101–108, 

Pub. L. No. 104-132, 110 Stat. 1214 (codified as amended at 28 U.S.C. §§ 2244, 

2253–2266), provides the appropriate standard of review. Section 2254(d) 

states that a state prisoner’s application for a writ of habeas corpus “shall not 

be granted with respect to any claim that was adjudicated on the merits in 

State court proceedings unless the adjudication of the 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) encompasses two distinct inquiries. A “state court’s 

decision is ‘contrary to’ clearly established federal law if ‘the state court arrives 

at a conclusion opposite to that reached by [the Supreme Court] on a question 

of law or if the state court decides a case differently than [the Supreme Court] 

has on a set of materially indistinguishable facts.’” Hoffman v. Cain, 752 F.3d 

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430, 436–37 (5th Cir. 2014) (alterations in original) (quoting Williams v. 

Taylor, 529 U.S. 362, 413 (2000)). By contrast, “[a] state court’s decision 

involves an ‘unreasonable application’ of clearly established federal law if ‘the 

state court identifies the correct governing legal principle from [the Supreme 

Court’s] decisions but unreasonably applies that principle to the facts of the 

prisoner’s case.’” Id. at 437 (alteration in original) (quoting Williams, 529 U.S. 

at 413). As to this latter inquiry, we “focus on ‘the ultimate legal conclusion 

that the state court reached and not on whether the state court considered and 

discussed every angle of the evidence.’” Id. (quoting Neal v. Puckett, 286 F.3d 

230, 246 (5th Cir. 2002) (en banc) (per curiam)). To determine whether the 

state court unreasonably applied a Supreme Court decision, a federal habeas 

court “must determine what arguments or theories supported or, . . . could have 

supported, the state court’s decision; and then it must ask whether it is possible 

fairminded jurists could disagree that those arguments or theories are 

inconsistent with the holding in a prior decision of [the Supreme Court].” 

Harrington v. Richter, 131 S. Ct. 770, 786 (2011).

A challenge to a state court decision under § 2254(d)(2) challenges the 

state court’s determination of the facts. “[A] determination of a factual issue 

made by a State court shall be presumed to be correct” and the petitioner “shall 

have the burden of rebutting the presumption of correctness by clear and 

convincing evidence.” 28 U.S.C. § 2254(e)(1). “Section 2254(e)(1) is the 

‘arguably more deferential standard.’” Hoffman, 752 F.3d at 437 (quoting 

Wood v. Allen, 558 U.S. 290, 301 (2010)). A factual determination is “not 

unreasonable merely because the federal habeas court would have reached a 

different conclusion in the first instance.” Wood, 558 U.S. at 301.

Overall, § 2254 establishes a “highly deferential standard for evaluating 

state court rulings, which demands that state-court decisions be given the 

benefit of the doubt.” Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (citation and 

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internal quotation marks omitted). Indeed, state courts are presumed to “know 

and follow the law.” Id. The petitioner has the burden of showing that “there 

was no reasonable basis for the state court to deny relief.” Richter, 131 S. Ct. 

at 784. “For claims that are not adjudicated on the merits in the state court, 

this Court applies a de novo standard of review.” Hoffman, 752 F.3d at 437 

(citation omitted).

III. DISCUSSION

We first determine whether the deferential AEDPA scheme applies and, 

if so, which court’s version of the facts to defer to. Then, we turn to Isaac’s 

Napue and Brady claims.

A. AEDPA Deference

Isaac argues that the Fourth Circuit did not adjudicate his Napue and 

Brady claims on the merits, and that the Fourth Circuit did not overrule the 

state habeas trial court’s factual findings as to those claims. We disagree with 

Isaac on both points and afford AEDPA deference to the Fourth Circuit’s 

decision, including its factual findings.

1. The Fourth Circuit’s Adjudication of Isaac’s Claims

As noted above, AEDPA deference to a state court decision applies only 

to claims the state court previously “adjudicated on the merits.” “When a 

federal claim has been presented to a state court and the state court has denied 

relief, it may be presumed that the state court adjudicated the claim on the 

merits in the absence of any indication or state-law procedural principles to 

the contrary.” Richter, 131 S. Ct. at 784–85 (citation omitted). That 

“presumption may be overcome when there is reason to think some other 

explanation for the state court’s decision is more likely.” Id. at 785. More 

recently, the Supreme Court applied the Richter presumption even though the 

“state court rule[d] against the defendant and issue[d] an opinion that 

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addresse[d] some issues but [did] not expressly address the federal claim in 

question.” Johnson v. Williams, 133 S. Ct. 1088, 1091 (2013).

Isaac argues that the “merits” portion of the Fourth Circuit’s opinion did 

not decide his federal claims on the merits. Instead, according to Isaac, the 

Fourth Circuit simply applied the Louisiana standard for a motion for a new 

trial to determine whether the trial court abused its discretion in granting a 

new trial. The State counters that the Louisiana standard was only used as a 

vehicle through which the Fourth Circuit adjudicated the federal claims on the 

merits.

Here, Isaac has not overcome the Richter presumption. The Fourth 

Circuit began its discussion by reciting Louisiana Code of Criminal Procedure 

article 851 and its four requirements for the grant of a new trial based on newly 

discovered evidence. The Fourth Circuit then held that the recantations were 

immaterial because there was more than enough other evidence to prove that 

Isaac possessed the requisite intent to distribute. In so holding, the Fourth 

Circuit cited to the materiality standard from United Stated v. Bagley, 473 U.S. 

667 (1985), a United States Supreme Court case that clarifies the materiality 

standard under Brady and its progeny. The Fourth Circuit then proceeded to 

question the veracity of the recantations by pointing to inconsistencies between 

the trial testimonies, affidavits, and the post-conviction testimonies of the two 

recanting witnesses. Finally, the Fourth Circuit turned to the allegation of 

prosecutorial misconduct. In rejecting that claim, it cited to Napue and 

expressly noted that it had already addressed two of three Napue factors, and 

then proceeded to discuss the remaining factor.

In light of this reasoning and the invocation of the appropriate federal 

standards, the Fourth Circuit “understood itself to be deciding . . . question[s] 

with federal constitutional dimensions.” See Williams, 133 S. Ct. at 1098. 

Isaac has not overcome the presumption that the Fourth Circuit adjudicated

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his federal claims on the merits. Accordingly, we apply the usual AEDPA 

deference to the Fourth Circuit’s merits decision. We discuss next whether the 

state habeas trial court’s factual findings survived that decision.

2. The Fourth Circuit’s Review of the State Habeas Trial Court’s 

Findings of Fact

Under AEDPA, this Court reviews “the last reasoned state court 

decision.” Batchelor v. Cain, 682 F.3d 400, 405 (5th Cir. 2012) (emphasis 

added) (citation and internal quotation marks omitted). Nevertheless, a state 

trial court’s factual findings may survive a state appellate court’s denial of 

habeas relief if the state appellate court did not explicitly or implicitly reject 

the factual findings of the state trial court. Compare Westley v. Johnson, 83 

F.3d 714, 720 n.2 (5th Cir. 1996) (deferring to the state habeas trial court’s 

factual findings where the state appellate court “did not reject the factual 

findings of the lower court” and the appellate court’s denial of habeas relief

“was not inconsistent with the factual findings” of the state habeas trial court), 

and Craker v. Procunier, 756 F.2d 1212, 1214 (5th Cir. 1985) (deferring to state 

habeas trial court’s factual findings because the state appellate court “did not 

reject the factual findings of the state [trial] court; it merely held that the facts 

as found did not entitle Craker to relief”), with Micheaux v. Collins, 944 F.2d 

231, 232 (5th Cir. 1991) (en banc) (per curiam) (affording no deference to state 

habeas trial court’s factual findings because they were “not adopted []or 

incorporated in the action of the [state appellate court], [and were] directly 

inconsistent with that court’s peremptory denial of relief”).

Here, the Fourth Circuit divided its analysis of the merits of Isaac’s 

claims into three subsections. First, in a subsection entitled “Materiality of 

Recantation,” the court found the new evidence immaterial in that it would not 

have warranted an acquittal had it been produced at trial. Second, in a 

subsection entitled “Veracity of Recantations,” the court found that Harris’s 

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and Barabino’s recantations were not credible or reliable. In light of this 

finding, the Fourth Circuit held the new evidence would not create reasonable 

doubt in the minds of a new jury. Finally, in a subsection entitled “Allegations 

of Prosecutorial Transgressions,” the Fourth Circuit found that there was 

insufficient evidence that Alexander coerced perjury.

The parties disagree over which factual findings govern: the state habeas 

trial court’s finding that Harris’s and Barabino’s post-conviction testimonies 

were “valid and credible,” or the Fourth Circuit’s finding in its second 

subsection that “there [were] factors present that cast a shadow over the 

truthfulness of the recanted statements.” The State argues that the Fourth 

Circuit overturned the state habeas trial court’s factual findings. Isaac 

disagrees, arguing that the Fourth Circuit focused only on whether the trial 

court abused its discretion in concluding that the recantation was material 

under Louisiana’s standard for a new trial.

Isaac’s argument would have us consider only the first subsection of the 

Fourth Circuit’s decision and ignore the rest. We decline Isaac’s invitation to 

do so. A review of the Fourth Circuit’s opinion reveals that, in the second 

subsection, it did not accept the trial court’s version of the facts. Instead, the 

Fourth Circuit faulted the trial court for its “glaring omissions of critical facts”

as to both Isaac’s Napue and Brady claims. And, as described in Part III(B)(1), 

infra, the Fourth Circuit introduced and relied upon these critical facts that 

the trial court omitted. Accordingly, we review and afford deference to the 

Fourth Circuit’s decision as the last reasoned state court decision.

B. Isaac’s Napue and Brady Claims

The Fourth Circuit’s denial of habeas relief was neither based on an 

unreasonable determination of the facts, nor based on an unreasonable 

application of federal law.

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1. The Fourth Circuit’s Determination of Facts

The evidence as to Isaac’s Napue and Brady claims is virtually the same, 

and so we review the Fourth Circuit’s factual determinations on both claims 

together under § 2254(d)(2). Isaac has “the burden of rebutting the 

presumption of correctness [of the Fourth Circuit’s factual findings] by clear 

and convincing evidence.” See 28 U.S.C. § 2254(e)(1). We hold that Isaac has 

not satisfied this burden.

At the outset, there is a long-established view under both federal and 

state law that recantations are highly suspicious. Spence v. Johnson, 80 F.3d 

989, 1003 (5th Cir. 1996) (“[R]ecanting affidavits and witnesses are viewed 

with extreme suspicion by the courts.” (citation and internal quotation marks 

omitted)); State v. Prudholm, 446 So. 2d 729, 736 (La. 1984) (“[R]ecantations 

are highly suspicious and, except in rare circumstances, a motion for new trial 

should not be grated on the basis of a recantation since that disclaimer is 

tantamount to admission of perjury so as to discredit the witness at a later 

trial.”). With this in mind, the Fourth Circuit pointed to a number of 

inconsistencies between the trial testimonies, the affidavits, and the postconviction testimonies of the recanting witnesses.

For example, both Harris and Barabino tried to recant testimony not 

actually given at trial. In both her affidavit and post-conviction testimony, 

Harris claimed that Alexander coerced her into testifying at trial that Isaac 

went to Barabino to purchase drugs for Sterling. And, at the post-conviction 

hearing, Harris testified that Alexander wanted her to testify that Sterling was 

still at Harris’s house in order to further prove that Isaac was procuring the 

heroin to distribute to Sterling. At trial, however, Harris did not testify that 

Isaac purchased heroin from Barabino in order to distribute it, nor did she 

testify about Sterling’s whereabouts after she and Isaac left her apartment. 

Barabino similarly tried to recant testimony that he had not actually given: at 

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the post-conviction hearing, Barabino claimed that he was forced by Alexander 

to testify at trial that Isaac intended to distribute the drugs, but the record 

reveals that he never actually gave such testimony at trial.

The Fourth Circuit also described the expansion of Harris’s and 

Barabino’s post-conviction testimonies from the time of their affidavits. In her 

affidavit, Harris asserted that she testified falsely because Alexander 

convinced her that Isaac needed some time off the streets, that he would serve 

only 10 years, and that it would prevent her from being charged and prosecuted 

herself. By contrast, at the post-conviction hearing, Harris asserted that she 

testified falsely for additional reasons, such as Alexander paying for her living 

expenses during the prosecution and helping her obtain Section 8 housing.

And in his affidavit, Barabino asserted that he agreed to testify based on 

Alexander’s threat to charge his family members with drug offenses. At the 

post-conviction hearing, however, Barabino testified that Alexander 

additionally coerced him by raising the idea that Isaac was going to kill 

Barabino if he ever got out of prison.

From these inconsistencies, the Fourth Circuit concluded that Isaac’s 

“claims could be denied alone as to the issue of the veracity of the recanted 

statements of Ms. Harris and Mr. Barabino.” Apparently relying upon his 

argument that the Fourth Circuit did not overturn the trial court’s factual 

findings, Isaac makes no attempt to rebut the Fourth Circuit’s findings on the 

veracity of the recantations. Accordingly, Isaac has not shown clear and 

convincing evidence to overcome the presumed correctness of these findings 

under § 2254(d)(2).

2. The Fourth Circuit’s Application of Federal Law

We also must determine whether the Fourth Circuit’s adjudication of the 

Napue and Brady claims was contrary to, or an unreasonable application of,

clearly established federal law in violation of § 2254(d)(1).

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Under Napue, “a conviction obtained through use of false evidence, 

known to be such by representatives of the State, must fall under the 

Fourteenth Amendment.” 360 U.S. at 269 (citations omitted). “To establish a 

due process violation based on the government’s use of false or misleading 

testimony, a petitioner must show (1) that the witness’s testimony was actually 

false, (2) that the testimony was material, and (3) that the prosecution knew 

the witness’s testimony was false.” Fuller v. Johnson, 114 F.3d 491, 496 (5th 

Cir. 1997).

Under Brady, the State may not suppress evidence favorable to the 

accused when that evidence is material either to guilt or punishment. 373 U.S. 

at 87. “To make a Brady claim, [the petitioner] must prove: (1) that the 

‘evidence at issue [is] favorable to the accused, either because it is exculpatory, 

or because it is impeaching;’ (2) that the ‘evidence [has] been suppressed by the 

State, either willfully or inadvertently;’ and (3) that ‘prejudice [has] ensued.’” 

Summers v. Dretke, 431 F.3d 861, 874 (5th Cir. 2005) (alterations in original) 

(quoting Strickler v. Greene, 527 U.S. 263, 281–82 (1999)).

Here, the Fourth Circuit rejected both claims based on its revised factual 

determinations. As to Isaac’s Napue claim, the revised facts support the 

conclusion that the trial testimonies were not actually false. And as to Isaac’s 

Brady claim, the revised factual determinations discrediting Harris’s and 

Barabino’s post-conviction testimonies, and implicitly accepting Alexander’s, 

indicate that no evidence was suppressed. As discussed above, these factual 

findings have not been shown to be error by clear and convincing evidence. In 

light of these factual findings, we hold that the Fourth Circuit’s rejection of 

Isaac’s Napue and Brady claims on these grounds was not an unreasonable 

application of clearly established federal law.

IV. CONCLUSION

We REVERSE the district court’s grant of habeas relief.

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 Case: 13-31013 Document: 00512792766 Page: 17 Date Filed: 10/03/2014