The Honorable David S. Doty, United States 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 Wayne, also known as Michael Wayne Fenney, appeals from the

district court's denial of his petition for a writ of habeas corpus

1

brought under 28 U.S.C. § 2254 (1994). Wayne is serving a term of life

imprisonment following his convictions for murder in Minnesota state court.

Wayne argues that he did not receive a fair trial because the State failed

to disclose two pieces of evidence favorable to him. In addition, Wayne

makes seven other arguments in a pro se brief. We affirm the judgment of

the district court.
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Mona Armendariz was murdered during the early morning of July 29,

1986 in her trailer home in the Janesville Trailer Court of Janesville,

Minnesota. She was stabbed thirteen times and her throat was cut. The

State charged Wayne with the murder and his defense at trial was that

someone else, possibly Steven Sack, committed the murder. Wayne was found

guilty and was sentenced to life in prison.

Some three and a half years after Wayne's trial, Carolann Eggert gave

a statement to an investigator that Steven Sack came to her home in

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 went

directly to [her] son William's bedroom door and pounded on it." When

Eggert confronted Abraham about coming into her home at two o'clock in the

morning, Abraham stated 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 the

knife was eight to ten inches long and about one and a half inches wide.

Abraham and 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 after

Eggert 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 someone

else about Abraham and Sack's visit to her house. Eggert claims that she

told Sheriff Edward Kubat her story when he came to serve a subpoena on her

son before Wayne's trial. Kubat denies that Eggert ever told him anything

about Sack being at her home with a knife and blood on his clothes. Eggert

also claims that before Wayne's trial she told a Janesville city police

officer
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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 claim

to have told her story to anyone else before or during Wayne's trial.

After his trial, Wayne also discovered that the Janesville police had

found a knife on the roof of Ann Armendariz's trailer home. Ann Armendariz

is the sister-in-law of the murder victim and a resident of the Janesville

Trailer Court. On September 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 Janesville

police who sent an officer out to get the knife. The officer took pictures

of the knife and measured it before taking it back to the police

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 about

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 the

knife, nor any rust or 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. The

trial court denied Wayne's petition and he appealed. The Minnesota Supreme

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-conviction

relief, the Minnesota Supreme Court referred to the questionable nature of

the Eggert testimony, analyzing its
 The Honorable Floyd E. Boline, United States Magistrate Judge 2

for the District of Minnesota.

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credibility 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 that

while Abraham and Sack visited their home the night of the murder, their

mother was asleep during the visit. Id. The sons never mentioned any

blood on Sack in their testimony. Id. Second, the court stated that

Eggert's story was less credible because she failed to come forward with

it earlier. Id. The court pointed out that Eggert did not reveal her

story about 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

blade about one and a half inches long and one-half inch wide. Id. In

light of these contradictions, the Minnesota Supreme Court concluded that

"Eggert's testimony would almost certainly not change the verdict" of

Wayne's trial, and that "the trial court did not abuse its discretion in

deciding that [her testimony] would not produce a different and more

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. His

petition was referred to a magistrate judge who prepared a report and

2

recommendation. The magistrate judge found that Eggert never told her

story to Sheriff Kubat, a Janesville police officer, or anyone else

connected with the State before the end of Wayne's trial. The judge

concluded 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
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statement was diminished by the passage of time, her history of mental

illness, and the obvious inconsistencies between her story and the other

evidence in the case. Finally, the judge concluded that there was nothing

about the paring knife which would have helped prove Wayne's guilt or

innocence and, therefore, its disclosure would not have changed the result

of Wayne's trial. The magistrate judge recommended that the district court

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 by

failing to disclose Eggert's statement to him before his trial. He asserts

that the State knew about Eggert's statement before 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, 373 U.S. 83, 87 (1963). To

prove a violation of this duty, Wayne must show that: (1) the State

suppressed evidence; (2) the evidence was favorable to him; and (3) the

evidence was material to the issue of his guilt. United States v. Thomas,

940 F.2d 391, 392 (8th Cir. 1991). Favorable evidence is material to the

issue of Wayne's guilt if there is a reasonable probability that, had the

evidence been disclosed to him, the result of his trial would have been

different. Kyles v. Whitley, 115 S. Ct. 1555, 1565 (1995) (quoting United

States v. Bagley, 473 U.S. 667 (1985)). There is a reasonable probability

of a different result if the State's suppression of the favorable evidence

undermines our confidence in the outcome of Wayne's trial. Id. at 1566.
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A.

The State argues that it did not violate its duty to disclose

Eggert's statement because it did not know about her statement until after

Wayne's trial. The district 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. Civ. 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 Kubat 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 failed 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 have told her story to anyone

else connected with the State before Wayne's trial. On this evidence, the

district court's factual finding that the State was not aware of Eggert's

statement before the end of Wayne's trial is not clearly erroneous.

Therefore, the State did not violate its duty to disclose Eggert's

statement.

In addition to the district court's factual finding, the state trial

court also concluded that Eggert lacked credibility with respect to her

assertion that she told Sheriff Kubat and a Janesville police officer about

Sack's visit before Wayne's trial. We must give state court factual

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

B.

Even assuming that the State knew of Eggert's statement before

Wayne's trial, failure to disclose her statement does not undermine our

confidence in the outcome of Wayne's trial. Eggert's statement is

substantially contradicted by evidence presented at Wayne's trial or

available at the time of his trial.

Eggert's son Mark testified at the grand jury hearing conducted

before Wayne's trial. Mark, who lived with his mother, testified that Sack

arrived at their house alone just after midnight in the early morning of

July 29, 1986, and that Sack stayed and watched television with him until

five o'clock in the morning. Mark further testified that Abraham came to

the house about a half-hour to an hour after Sack and that Abraham stayed

and slept in the house 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 never

mentioned any blood on Sack or that Sack was holding a butcher knife.

Eggert's son Scott also testified before the grand jury. Scott

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 at

Wayne's trial. At the grand jury hearing William testified that he spoke

for ten minutes with Abraham sometime late during the night of July 28,

1986. He stated that Abraham spoke for five minutes with Sack, after which

William went back to his bedroom. William did not mention seeing his

mother awake when he saw Abraham and Sack at their house, nor did he

mention a knife or any blood on Sack.
 Wayne called William to testify at his trial. The prosecutor 3

thoroughly cross-examined William over the differences between his

testimony before the grand jury and at Wayne's trial. William

could not explain the differences and admitted at the trial that he

was having "a lot of difficulty with his memory" and that his

memory was probably better earlier than it was at trial.

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At Wayne's trial, William testified that sometime during the early

morning of July 29, 1986 Abraham came over to his house to talk to him and

that Sack arrived at his house sometime after Abraham. William testified

that Sack appeared "pitch 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,

William testified that Abraham and Sack slept overnight at his house and

that Abraham left at seven or eight o'clock in the morning, while Sack left

at five or six in the morning.3

The grand jury testimony of Eggert's three sons substantially

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 described

Abraham and Sack's visit, even when he was asked specifically about his

mother. None of Eggert's sons mentioned Sack being covered in blood or

possessing a knife. Eggert testified that the commotion surrounding Sack's

bloody visit woke up everyone in the house. However, her son Scott

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 testified 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 until at least five o'clock in

the morning. Eggert's testimony about her angry confrontation with Abraham

and Sack is flatly contradicted by the grand jury testimony of her three

sons.
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William's trial testimony also largely contradicts Eggert's

testimony. While William did testify that Sack had a knife and that he

wanted to wash his clothes, William never mentioned the presence of his

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 trial 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

body were consistently about one-half inch in width and one and a half

inches in depth and that a knife with a blade approximately 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 stab

wounds, but that it was unlikely that someone could make so many wounds

that are consistently the same depth with a larger knife. Thus, even if

Eggert saw Sack with a bloody butcher knife with a blade eight to ten

inches long and one and a half inches wide, Dr. Thomas testified that it

was unlikely that such a large knife could have been the one used to kill

Mona Armendariz. In light of all of this contrary testimony, we conclude

that Eggert's testimony, even if suppressed, does not undermine our

confidence in the outcome of Wayne's trial.

II.

Wayne argues that the State should have disclosed to him its

discovery of the knife found on top of Ann Armendariz's trailer home.

There is no evidence, however, which connects the knife to Mona

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 owned it. Third, while there was no evidence linking

the knife to any
 Kyles requires us to consider collectively all of the

4

evidence that the State failed to disclose to Wayne when we

determine whether the undisclosed evidence undermines our

confidence in the outcome of Wayne's trial. 115 S. Ct. at 1567.

While the district court found that the State did not know about

Eggert's statement before Wayne's trial, and that finding is not

clearly erroneous, we hold that the State's failure to disclose

both Eggert's statement and the knife does not undermine our

confidence in the outcome of Wayne's trial.

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murder, there was evidence that it could not have been the knife used in

Mona Armendariz's murder. Dr. Thomas testified that it was unlikely that

a knife with a blade longer than an inch and a half was used to murder Mona

Armendariz. The knife's blade was almost three inches long, making it

unlikely that it was the murder weapon. The State's failure to disclose

its discovery of this knife does not undermine our confidence in the

outcome of Wayne's trial.4

III.

Wayne also submitted a pro se brief along with the brief submitted

by his appointed counsel in his appeal to this court. This court granted

leave to file this brief, although generally we do not consider pro se

briefs when a party is represented by counsel. Hoggard v. Purkett, 29 F.3d

469, 472 (8th Cir. 1994). We have considered the arguments in Wayne's pro

se brief and they are without merit.

Accordingly, we affirm the judgment of the district court denying

Wayne's petition for a writ of habeas corpus.

A true copy.

Attest:

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