### The Honorable David S. Doty, United State s District Judge for 1 

### the District of Minnesota. ___________ No. 95-2250

___________ Michael Wayne, also known as * Michael Wayne Fenney, * * Plaintiff - Appellant, * Appeal from the United States * District Court for the v. * District of Minnesota. * Dennis Benson, Warden, * * Defendant - Appellee. *

___________ Submitted: February 16, 1996 Filed: July 12, 1996

___________ Before McMILLIAN, LAY, and JOHN R. GIBSON, Circuit Judges.

___________ JOHN R. GIBSON, Circuit Judge.

Michael W ayne, also known as Michael Wayne Fenney, appeals from the dist rict court's denial of his petition for a writ of habeas corpu s 1 broug ht under 28 U.S.C. § 2254 (1994). Wayne is serving a term of lif e imprisonment following his convictions for murder in Minnesota state court

. Wayne argues that he did not receive a fair tria l because the State failed to disclose two pieces of evidence favorable to him. In addition, Wayne makes seven other arg uments in a pro se brief. We affirm the judgment of the district court.

### -2- Mona Armendariz was murdered during the early morning of July 29 , 1986 in her trailer home in the Janesville Trailer Court of Janesville , Minneso ta. She was stabbed thirteen times and her throat was cut. Th e Sta te charged Wayne with the murder and his defense at trial was tha t someone else, possibly Steven Sack, committed th e murder. Wayne was found guilty and was sentenced to life in prison.
Some three and a half years after Wayne's trial, Carolann Egger t gave
a stateme nt to an investigator that Steven Sack came to her home i n Janesville with Wade Abraham at two o'clock in the morning on July 29 , 1986. Eggert said Abraham "pound[ed] through [her] front door and wen t directlyto [her] son William's bedroom door and pounded on it." Whe n Eggert confronted Abraham about coming into her home at two o'clock in the morning, Abraham stat ed that "something terrible has happened." Eggert's
son William got up and spoke to Abraham outside of Eggert's hearing. At this time Eggert saw Sack standing in her home, with blood on his shirt, pants, and hands, holding a bloody butcher knife. She stated that th e knife was eight to ten inches long and about one and a half inches wide. Abrah amand Sack wanted to use Eggert's washing machine to wash Sack' s bloody clothes. Sack went into Eggert's kitchen and washed the blood off of the knife in her kitchen sink. Finally, Abraham and Sack left afte r Egger t angrily confronted them and told them to go to Abraham's aunt' s house. Eggert stated that this visit upset all of her children and that she talked to her sons Scott, William, and Mark to settle them down.

There is considerable dispute over when Eggert first told someon e else about Abraham an d Sack's visit to her house. Eggert claims that she told Sheriff Edward Kubat her story when he came to serve a subpoena on he r son before Wayne's trial. Kubat denies that Egg ert ever told him anything about Sack being at her home with a knife and blood on his clothes. Egger t also claims that before Wayne's trial she told a Janesville city polic e officer

### -3-

about Sack's visit, but she cannot remember the police officer's name

. Wayne has produced no evidence as to the identity of the police officer. Other than Sheriff Kubat and the city police officer, Eggert does not clai m to have told her story to anyone else before or during Wayne's trial.
After his trial, Wayne also discovered that the Janesville poli ce had found a knife on the roof of Ann Armendariz's trailer home. Ann Armendari z is the sister-in-law of the murder victim and a resident of the Janesville Trailer Court. On Se ptember 3, 1986, approximately five weeks after Mona Armendariz's murder, one of Ann's children found a knife on top of Ann's trailer home. Without disturbing the knife, Ann called the Janesvill e police who sent an officer out to get the knife. The officer took picture s of the knife and measured it before taking it back to the polic e department.
The police officer described the knife as a common paring knife which could be found in any kitchen. He also stated that there was nothing abou t the knife that would indicate its owner, where it came from, or how long it had been on Ann Armendariz's roof. The officer observed no blood on th e knife, nor any rust o r dirt, even though it was exposed to the weather on the roof. The knife' s blade was two and thirteen-sixteenths inches long.
Wayne filed a petition for post-conviction relief in Minnesota state court based on newly discovered evidence including Eggert's statement. Th e trial court denied Wayne's petition and he appealed. The Minnesota Suprem e Court affirmed the trial court's denial of Wayne's petition. Wayne v
. State , 498 N.W.2d 446 (Minn. 1993).

In affirming the denial of Wayne's petition for post-convictio n relief, the Minnesota Supreme Court referred to the questionable nature of the Eggert testimony, analyzing its

### The Honorable Floyd E. Boline, United Sta tes Magistrate Judge 2 

### for the District of Minnesota.
-4- credib ility in detail, and stated that Eggert's statement was doubtful

. Id. at 448. First, the court stated that Eggert's story conflicted with those of her sons. Eggert's sons William and Mark both testified tha t while Abraham and Sack visited their home the night of the murder, their mother w as asleep during the visit. Id. The sons never mentioned an y blood on Sack in their testimony. Id. Second, the court stated tha t Eggert's story was less credible because she failed to come forward with it e arlier. Id. The court pointed out that Eggert did not reveal he r storyabout Sack, even though she kept up with Wayne's trial. Id

. Finally, even assuming Eggert's story to be true , the court stated that it
was highly unlikely that the eight-inch-long butcher knife, which Eggert
saw in Sack's possession, was the murder weapon. Id. At Wayne's trial,
a forensic pathologist testified that the murder weapon probably had a bla de about one and a half inches long and one-half inch wide. Id. I n light of these contra dictions, the Minnesota Supreme Court concluded that "Egger t's testimony would almost certainly not change the verdict" o f Wayne's trial, and that "the trial court did not abuse its discretion in deci ding that [her testimony] would not produce a different and mor e favorable result at a new trial." Id.

After his unsuccessful appeal to the Minnesota Supreme Court, Wayne filed this petition for a writ of habeas corpus in the district court. Hi s petit ion was referred to a magistrate judge who prepared a report an d 2 recommendation. The magistrate judge found that Eggert never told he r story to Sheriff Kubat, a Janesville police officer, or anyone els e
connec ted with the State before the end of Wayne's trial. The judg e
con cluded that even if Eggert's statement had been presented at Wayne' s trial, there was no reasonable probability that there would have been a different result. The judge stated that the credibility of Eggert's

### -5-

state ment was diminished by the passage of time, her history of menta l illness, and the obvious inconsistencies between her story and the other evidence in the case. Finally, the judge conclu ded that there was nothing about the paring knife which would have helped prove Wayne's guilt o r innocence and, therefore, its disclosure would n ot have changed the result of Wayne's trial. The magistrate judge recommended that the district cour t deny Wayne's petition . The district court adopted the magistrate judge's report and recommendation, and Wayne appeals.

I.

Wayne argues that the State violated his right to due process b y failing to disclose Eggert's statement to him before his trial. He assert s that the State knew about Eggert's statement bef ore his trial and that the statement would have helped him prove his innocence at trial.

Under the Due Process Clause of the Fourteenth Amendment, the State has a duty to disclose evidence which is favorable to Wayne and material to the issue of his guilt. Brady v. Maryland , 3 73 U.S. 83, 87 (1963). To prove a v iolation of this duty, Wayne must show that: (1) the Stat e suppressed evidence; (2) the evidence was favorable to him; and (3) th e evidence was material to the issue of his guilt. United States v. Thomas , 940 F.2d 391, 392 (8t h Cir. 1991). Favorable evidence is material to the issue of Wayne's guil t if there is a reasonable probability that, had the evidence been disclosed to him, the result of his trial would have bee n different. Kyles v. Whitley , 115 S. Ct. 1555, 1 565 (1995) (quoting United States v. Bagley , 473 U.S. 667 (1985)). There i s a reasonable probability of a different result if the State's suppressionof the favorable evidence undermines our confidence in the outcome of Wayne's trial. Id. at 1566.

### -6- A.

The State argues that it did not violate its duty to disclos e Eggert's statement because it did not know about her statement until after Wayne's trial. The d istrict court adopted the magistrate judge's factual finding that the State did not know about Eggert's statement until after Wayne's trial. We must accept this factual finding unless it is clearly erroneous. Fed. R. C iv. P. 52(a); Anderson v. City of Bessemer City , 470 U.S. 564, 573-74 (1985).
Eggert claims that she told her story about Sack to Sheriff Kub at and an unnamed Janesville police officer before Wayne's trial. Sheriff Kubat denies that Eggert told him anything relating to Mona Armendariz's murder. Eggert has also faile d to identify the Janesville police officer she told her story to, and Wayne has produced no evidence as to the identity of the police officer. Eggert has never claimed to hav e told her story to anyone else connected with the State before Wayne's tri al. On this evidence, the district court's fact ual finding that the State was not aware of Eggert's statement before the end of Wayne's trial is not clearly erroneous

. Therefor e, the State did not violate its duty to disclose Eggert' s statement.

In addition to the district court's factual finding, the state trial
cou rt also concluded that Eggert lacked credibility with respect to he r assertion that she told Sheriff Kubat and a Janesville police officer abou t Sack 's visit before Wayne's trial. We must give state court factua l findings a presumption of correctness on federal habeas review. 28 U.S.C. § 2254(d) (1994); Prewitt v. Goeke , 978 F.2d 1073, 1076 (8th Cir. 1992). The district court could well have rested its analysis on the state court' s finding, as Wayne has established none of the circumstances enumerated in section 2254(d) that overcome the presumption of correctness, nor has he produced convincing evidence that the state

### -7-

court's factual determination was erroneous. 28 U.S.C. § 2254(d).

B.

Even assuming that the State knew of Eggert's statement befor e Way ne's trial, failure to disclose her statement does not undermine ou r confiden ce in the outcome of Wayne's trial. Eggert's statement i s
su bstantiallycontradicted by evidence presented at Wayne's trial o r available at the time of his trial.

Eggert's son Mark testified at the grand jury hearing conducte d before Wayne's trial. Mark, who lived with his mother, testified that Sac k arrived at their house alone just after midnight in the early morning of July 29, 1986, and th at Sack stayed and watched television with him until five o'clock in the m orning. Mark further testified that Abraham came to the house about a hal f-hour to an hour after Sack and that Abraham stayed and slept in the hous e until at least five o'clock when Mark went to bed. When asked about his mother, Mark stated that she went to bed around nine o'clock and was asleep when Abraham and Sack came to the house. Mark neve r mentioned any blood on Sack or that Sack was holding a butcher knife.

Eggert's son Scott also testified before the grand jury. Scot t stated that he went to bed around 11:30 P.M. on July 28, 1986, and that he never saw Sack at the house.

Eggert's son William testified at the grand jury hearing and a t Wayne's trial. At th e grand jury hearing William testified that he spoke for ten m inutes with Abraham sometime late during the night of July 28 , 1986. He stated that Abraham spoke for five minutes with Sack, after whic h Wil liamwent back to his bedroom. William did not mention seeing hi s mother awa ke when he saw Abraham and Sack at their house, nor did h e mention a knife or any blood on Sack.

### Wayne called William to testify at his tr ial. The prosecutor 3 

### thoroughly cross-examined Will iam over the differences between his testimony before the grand jury and at Wayne's trial. Willia m could not explain the differences and admitted at the trial that he was having "a lot of difficulty with his memory" and that hi s memory was probably better earlier than it was at trial.
-8- At Wayne's trial, William testified that sometime during the earl y morning of July 29, 1986 Abraham came over to hi s house to talk to him and that Sack arrived at his house sometime after Abraham. William testified that Sack appeared "p itch white" and "really scared," and that Sack began to sharpen a knife. William stated that Sack wanted to wash his clothes because Sack said that there was "mud on them or something." Finally , Williamtestified that Abraham and Sack slept overnight at his house and that Abraham left at seven or eight o'clock in the morning, while Sack lef t at five or six in the morning. 3

The grand jury testimony of Eggert's three sons substantiall y contradicts her testimony. Mark told the grand jury that his mother was asleep when Abraham and Sack visited their house in the early morning of July 29, 1986. William never mentioned his mother when he describe d Abrahamand Sack's visit, even when he was asked specifically about hi s mother. None of Eggert's sons mentioned Sack being covered in blood o r possessing a knife. Eggert testified that the commotion surrounding Sack' s bloody vi sit woke up everyone in the house. However, her son Scot t testified that he went to bed at 11:30 P.M. on July 28, 1986 and that he never saw Sack at the house. While Eggert testi fied that she told Abraham and Sack to leave and that they did as she asked , Mark told the grand jury that Sack sat up and watched television with him until five o'clock in the morning and that Abraham slept at the house unti l at least five o'clock in the morning. Eggert's testimony about her angry confrontation with Abraha m and Sack is flatly contradicted by the grand jury testimony of her three
sons.

### -9- Wil liam's trial testimony also largely contradicts Eggert' s testimo ny. While William did testify that Sack had a knife and that h e wanted to wash his clothes, William never mentioned the presence of hi s mother, much less an angry confrontation between his mother and Sack and Abraham, or blood on Sack's clothes.

In addition to the contradictory testimony of Eggert's three sons , the tr ial testimony of Doctor Lindsey Thomas also contradicts Eggert' s story. Dr. Thomas, a forensic pathologist, conducted the autopsy of Mona Armendariz. Dr. Thomas testified that the stab wounds on Mona Armendariz' s bodywere consistently about one-half inch in width and one and a hal f inches in depth and that a knife with a blade ap proximately one and a half inches long and one-half inch wide probably made all of the stab wounds. Dr. Thomas testified that a larger knife could have produced the sta b wounds, b ut that it was unlikely that someone could make so many wound s that are consistently the same depth with a larger knife. Thus, even if Eggert sa w Sack with a bloody butcher knife with a blade eight to te n inches long and one and a half inches wide, Dr. Thomas testified that it was unlikely that suc h a large knife could have been the one used to kill Mona Armendariz. In light of all of this contrary testimony, we conclude that E ggert's testimony, even if suppressed, does not undermine ou r confidence in the outcome of Wayne's trial.

II.

Wayne argues that the State should have disclosed to him it s discovery of the knife found on top of Ann Armendariz's trailer home

. There is no evidence, however, which connects the knife to Mon a Armendariz's murder. First, the knife was discovered approximately five weeks after the murder, and there was no indication how long it had been
on the roof. Second, there was nothing about the knife indicating where it came from or who o wned it. Third, while there was no evidence linking the knife to any

### Kyl es requires us to consider collectivelyall of th e 4 

### evidence that the State failed to disclose to Wayne when w e determine whether the undisclosed evidence undermines ou r confid ence in the outcome of Wayne's trial. 115 S. Ct. at 1567

. While th e district court found that the State did not know abou t Egg ert's statement before Wayne's trial, and that finding is no t clearl yerroneous, we hold that the State's failure to disclos e both E ggert's statement and the knife does not undermine ou r confidence in the outcome of Wayne's trial.
-10- murder, there was evidence that it could not have been the knife used in Mona Armendariz's mur der. Dr. Thomas testified that it was unlikely that
a knife with a blade longer than an inch and a half was used to murder Mon a Armen dariz. The knife's blade was almost three inches long, making i t unlikelythat it was the murder weapon. The State's failure to disclose its discovery of this knife does not undermine our confidence in th e outcome of Wayne's trial. 4

III.

Wayne a lso submitted a pro se brief along with the brief submitte d by his appointed coun sel in his appeal to this court. This court granted leave to file this brief, although generally we do not consider pro s e briefs when a party is represented by counsel. Hoggard v. Purkett , 29 F.3 d 469, 472 (8th Cir. 1994). We have considered th e arguments in Wayne's pro se brief and they are without merit.
Accordingly, we affirm the judgment of the district court denyin g Wayne's petition for a writ of habeas corpus.

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.