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Stevens v. Carlin

United States District Court, D. Idaho

February 7, 2018

TEREMA CARLIN, Respondent.


          Honorable Ronald E. Bush, United States Magistrate Judge.

         Pending before the Court is a Petition for Writ of Habeas Corpus filed by Idaho state prisoner Edward Stevens (“Petitioner” or “Stevens”). Petitioner challenges his Ada County conviction for first-degree murder. (Dkt. 1.) The Petition is fully briefed. (Dkt. 15, 23, 28.) The Court takes judicial notice of the records from Petitioner's state court proceedings, which have been lodged by the State. (Dkt. 10.) See Fed. R. Evid. 201(b); Dawson v. Mahoney, 451 F.3d 550, 551 n.1 (9th Cir. 2006).

         All named parties have consented to the jurisdiction of a U.S. Magistrate Judge to conduct all proceedings in this case, pursuant to 28 U.S.C. § 636(c) and Federal Rule of Civil Procedure 73. (Dkt. 9.) Having carefully reviewed the record in this matter, including the state court record, the Court concludes that oral argument is unnecessary. See D. Idaho L. Civ. R. 7.1(d). Accordingly, the Court enters the following Order granting Claim 1 of the Petition and requiring the State to release or to begin new trial proceedings against Petitioner within 120 days.


         Edward Stevens, the Petitioner in this case, was convicted in Idaho state court of the first-degree murder of an eleven-month-old child. Prosecutors based their case against him on the theory that Stevens violently shook the child and hit the child's head against a bathtub, causing a fatal skull fracture. Stevens has always maintained that the child's injuries resulted from an accidental fall down the stairs. The first-degree murder charge was based on the prosecution's theory that Stevens violently shook the child; without such shaking, the prosecution could not have obtained a conviction for first-degree murder.

         At trial, the strongest evidence against Stevens was expert testimony that a certain type of tissue damage found in the child's eyes after death was highly specific to shaken-baby syndrome. However, after Stevens had been convicted, two types of relevant evidence surfaced. First, it was discovered that the child's eyes might have been removed from the body for examination not at the autopsy, but after the body was released from State custody and embalmed. This fact would have established a break in the evidence chain of custody of the eyes. Second, Stevens obtained evidence that the tissue damage in the child's eyes might have been caused by the embalming process, instead of by shaking. These pieces of evidence, if true, would have called into question the prosecution's expert witness testimony, which was that the condition of the child's eyes was specific evidence showing that the child had been violently shaken.

         Upon finding the new evidence, Stevens's attorneys investigated whether Stevens could assert a claim under the decision in the case of Brady v. Maryland, 373 U.S. 83 (1963). In Brady, the United States Supreme Court ruled that due process of law requires a prosecutor to discover and disclose to the accused all of the evidence known to the prosecutor's investigative team that is favorable to the accused regarding guilt or punishment. In this case, the State did not disclose to Stevens available evidence suggesting that its expert had examined and based his testimony on eyes that had been embalmed. In response, prosecutors argued both that they did not know of the evidence before trial and that that they did not know the potential significance of the evidence.[1]

         Stevens filed a motion for a new trial in the state district court, based on this new evidence. When that was unsuccessful, he pursued a state court appeal. He then filed a state petition for post-conviction relief, in which he argued that prosecutors had failed to disclose evidence required by Brady and that Stevens had received ineffective assistance of counsel in the trial and appellate proceedings. The last step of Steven's state court proceedings was an appeal to the Idaho Court of Appeals. In that appeal, the Idaho Court of Appeals considered Stevens's Brady claim. In doing so, the court assumed that the child's eyes were removed after embalming; however, the court rejected the claim nonetheless. The Idaho Supreme Court declined to review the decision.

         When a person has sought and been denied relief from the state's highest court on alleged federal constitutional violations, as Stevens has, he may raise those challenges in federal court in a Petition for Writ of Habeas Corpus. A writ of habeas corpus is an order directing the custodian of a prisoner to produce the prisoner at a time and place stated in the order to prove that the prisoner is lawfully in custody. It is sometimes known as the “Great Writ, ” and has existed in various forms since the earliest days of English common law. The writ was a part of early American colonial jurisprudence and later incorporated in the United States Constitution, which provides that “the privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.” U.S. Const. Art. I, § 9, cl. 2.

         In modern times, federal statutes and United States Supreme Court rulings govern how and when a federal court can issue a writ of habeas corpus. The authority of a federal court to issue a writ of habeas corpus regarding a state criminal conviction has been narrowly limited, so as to give deference to state court decisions. However, issuance of a writ of habeas corpus remains a proper exercise of a federal court's jurisdiction when the law, facts, and circumstances call for its application.

         As described in this decision, this Court concludes that the finding made by the initial post-conviction state district court that the child's eyes were removed at the autopsy, before release and embalming, was unreasonable in light of the evidence presented to that court. See 28 U.S.C. § 2244(d)(2). The Court further concludes that, even though the Idaho Court of Appeals assumed for the purposes of its decision that the eyes were removed after embalming, that court unreasonably ruled that the prosecution did not violate Brady by failing to discover and disclose the evidence of post-embalming removal. See 28 U.S.C. § 2254(d)(1). In particular, the Court rules that the evidence of post-embalming removal of the child's eyes could have been used to impeach the expert testimony regarding the cause of the injuries to the child's eyes. This important impeachment evidence would have lent support to Stevens's contention that the child died from an accidental fall rather than from shaking and abuse. This evidence may have been enough to raise a reasonable doubt in the mind of a juror as to Stevens's guilt.

         Because the Court finds that the state post-conviction court's factual finding was unreasonable, the Court is not bound by statutory standards that would otherwise require the Court to defer to the state court, as set forth in the habeas statute. See 28 U.S.C. §§ 2254(d), (e)(1). Instead, applicable law allows this Court to review Stevens's Brady claim “de novo, ” meaning anew.

         For the reasons that follow, on de novo review, the Court rules that Stevens is entitled to relief on his Brady claim. Therefore, the Court issues a conditional writ of habeas corpus. Issuance of a conditional writ of habeas corpus does not require the responding prison warden to immediately release Stevens from custody. This Order allows the State 120 days to decide whether to release Stevens or retry him.

         Because the Court has ruled that Stevens is entitled to relief and to issuance of a conditional writ of habeas corpus based upon his Brady claim, it is not necessary for the Court to rule upon the other claims made in his Petition.

         Table of Contents

         Background .......................................................................................................................... 8

         Habeas Corpus Standard of Law ........................................................................................ 19

         Discussion .......................................................................................................................... 26

         1. Clearly-Established Law ........................................................................................ 26

         2. In Denying Claim 1, the Idaho Court of Appeals Unreasonably Applied Brady v. Maryland, Kyles v. Whitley, and Bagley v. United States ...................................... 28

         A. Assuming Post-Release and Post-Embalming Removal of the Eyes, the State Court's Conclusion that the Evidence Was Not in the Government's Possession or Control Was Unreasonable ................................................... 29

         B. Assuming Post-Release and Post-Embalming Removal of the Eyes, the State Court's Implied Conclusion that the Evidence Was Not Impeaching Was Unreasonable ....................................................................................... 32

         3. On De Novo Review, Petitioner Is Entitled to Habeas Relief on His Brady Claim ............................................................................................... 36

         A. The Court Need Not Defer to the Idaho Post-Conviction Court's Factual Finding that C.W.'s Eyes Were Removed Before Release and Embalming .................................................................................................. 38

         i. The evidence presented in state court .............................................. 38

         ii. The state post-conviction court's finding of pre-release and pre-embalming removal .......................................................................... 54

         iii. The factual finding that C.W.'s eyes were removed at the autopsy was unreasonable in light of the evidence presented to the state court, and thus this Court need not apply the presumption of correctness ........................................................................................ 61

         B. The Prosecution Failed to Disclose Material Impeachment Evidence to the Defense ........................................................................................................ 68

         Conclusion ......................................................................................................................... 71


         Following a jury trial in the Fourth Judicial District Court in Ada County, Idaho, Petitioner was convicted of the first-degree murder of C.W., the eleven-month-old son of Petitioner's girlfriend.[2] The following facts are taken from Petitioner's state court proceedings:

On the afternoon of December 27, 1996, [C.W.] sustained a serious head injury while in the care of Stevens, the child's mother's boyfriend. The child died the next day after he was declared brain dead and removed from life support. Stevens claimed the head injury was the result of an accidental fall down the stairs, but the State contended the head injury occurred after Stevens violently shook the child and slammed the child's head onto the edge of a bathtub. Stevens was charged with murder in the first degree for killing the child during the course of committing an aggravated battery, Idaho Code §§ 18-4001, 18-4002, 18-4003(d).

Stevens v. State, 327 P.3d 372, 378 (Idaho Ct. App. 2013) (Stevens II).

         C.W. died from a head injury, but the State and Petitioner had vastly different versions of how C.W. sustained that injury. “Stevens argued the cause of the injury was accidental, asserting [Stevens] fell asleep and awoke approximately twenty minutes later to the sound of ‘thumps or a thud' and discovered the child lying at the bottom of the stairs not moving. After attempting to rouse the child and administer cardiopulmonary resuscitation (CPR), Stevens called 911 approximately five minutes later.” Id. at 379.

         The State's theory of the case was that “Stevens had been physically abusing the child since July, and on December 27, he was in the bathroom with the child, got frustrated with the child, violently shook the child, and then slammed the child's head against the side of the bathtub. The State further contended that Stevens then waited over half an hour to call 911.” Id. The prosecution offered four types of evidence to support that theory: “(1) evidence that Stevens gave inconsistent accounts of what happened on December 27; (2) evidence that the child had been abused over the prior six months; (3) evidence that a child could not receive as severe a skull fracture as suffered by the child from a fall down stairs; and (4) evidence that the child had been shaken on December 27.” Id.

         As explained by the state district court during post-conviction proceedings, the first three types of evidence were highly controverted at trial. The first type of evidence, Petitioner's allegedly inconsistent statements, was of limited significance:

First, the State claimed that Stevens gave different accounts of where he began CPR on [C.W.]. However, one of the individuals the State cited to specifically said he did not remember Stevens saying where CPR was started. At an interview on December 27, Stevens said that he began CPR in the kitchen, but gave [C.W.] a few breaths on the way from the bedroom to the kitchen. Second, the State claimed that Stevens gave inconsistent accounts of how many thumps he heard [when he awoke]. However, Stevens has maintained from the very beginning that he was not sure how many sounds he heard. Third, the State claimed that Stevens never told the police that [C.W.] had vomited in the bathtub the night before, and thus he had no explanation for why there was vomit in the bathtub. However, in an interview at St. Alphonsus on December 27, Stevens told Detectives that he was up with [C.W.] the night before because he was sick and “projectile vomiting.”

(State's Lodging C-11 at 2360 (internal citations omitted).) Petitioner also informed the police that C.W. had thrown up the morning of December 27. (State's Lodging A-9 at 1192-93.) Projectile vomiting was not unusual for C.W., who was undergoing a course of medical treatment for this reflux problem; sometimes the treatment would help, and sometimes it would not. (Id. at 682-85.)

         The State also “claimed that Stevens never told the police he removed [C.W.'s] shirt and shoes even though [C.W.'s] shirt and shoes were removed by the time the paramedics got there.” (State's Lodging C-11 at 2360.) However, Petitioner did state that he had removed the shirt while he was attempting to revive C.W. in the master bedroom and that “the only reason he did not disclose this fact earlier was that the police had never asked about it.” (Id.) Petitioner also stated that C.W. was wearing his shoes as Petitioner attempted to revive him but did not explain why he was not wearing shoes when the paramedics arrived. (Id.) It is unclear how Petitioner's failure to affirmatively state when and where he removed the shoes is actually inconsistent with the fact that C.W. was not wearing shoes when the paramedics saw him.

         With its second type of evidence, the State attempted to show that Petitioner had been abusing C.W. However, this testimony also was strongly disputed:

First, the State presented the testimony of various individuals who stated they almost always saw [C.W.] with bruising on his body. These opinions indicated the bruising looked like it was caused by abuse. Stevens countered this with the testimony of various individuals who said [C.W.] had normal bruising for a child of his age, including the testimony of [C.W.'s] pediatricians. Second, the State presented the testimony of several individuals who had heard Stevens call [C.W.] names such as Mr. shitty diapers, little asshole and little maggot. These individuals testified they did not think Stevens was joking when he used these names. Stevens contends that these names were used in jest, and [C.W.'s mother] admitted that she had also used the nickname Mr. shitty diapers to refer to [C.W.]. Third, the State presented instances of specific injuries [C.W.] sustained while on Stevens' watch. Mr. Stevens gave various explanations for how these injuries had occurred. Fourth, the State presented evidence that [C.W.] did not start getting bruises until he moved in with Stevens. Stevens' explanation for this was that [C.W.'s] bruising coincided with the point in [C.W.'s] life when he became mobile. Finally, the State argued Stevens failed to present any evidence that[] “anybody is responsible for bruises other than what occurred on the defendant's watch.” However, at least six different witnesses testified they had seen [C.W.] fall and bruise himself. Stevens also showed that no one, including [C.W's mother], had ever seen him hit or spank [C.W.].

(Id. at 2360-61 (internal citations omitted).)

         The third type of evidence presented by the State involved C.W.'s skull fracture. The State's theory was that C.W. “could not have received his skull fracture from a fall down the stairs, ” but-again-there was conflicting expert testimony on this issue:

First, the State claimed that [C.W.'s] fracture was diastatic, which means that the edges of the fracture are wide apart. The State's expert Dr. Smith testified that “considerably more force” is required to produce a diastatic fracture. However, two of the State's other witnesses, including the Doctor who performed [C.W.'s] autopsy, testified the fracture did not appear to be diastatic. Second, the State called a physicist, Dr. Saami Shaibani, who testified it would have been physically impossible for [C.W.] to get this fracture in this precise location from a fall down the stairs. However, another witness for the State testified that [C.W.] would only have to hit his head “somewhere in that area” not necessarily at any particular point on the skull to create this fracture.

(Id. at 2361 (alteration omitted).) The State called five experts who testified that C.W. could not have gotten the skull fracture from falling down the stairs, partly based on the length of the skull fracture as measured at autopsy, which was between eight and nine centimeters.[3] Petitioner called three experts who testified the fracture was, in fact, consistent with C.W. falling down the stairs. (Id.)

         As can been gleaned from this review of the first three types of evidence presented by the State at trial, what exactly happened to C.W. was the subject of much dispute, and there was evidence to support both the State's and Petitioner's versions of events. Therefore, as the state post-conviction court later acknowledged, the evidence that C.W. had shaken-baby syndrome “was the most important evidence in the State's case because it was direct evidence that [C.W.] was battered on December 27, which was a necessary element of the State's first degree murder charge.” (Id.) Without the evidence of violent shaking, “it is unlikely the State would have been able to prove its first degree murder charge.” (Id. at 2361-62.)

         However, this evidence also was contested, and scientific evidence was presented that supported each version of what happened to C.W. For example, there was blood present between the two hemispheres of C.W.'s brain. One state expert testified that this blood “could not be explained by a fall down the stairs, ” but a different state expert testified “that a severe fall down the stairs could possibly explain this type of injury.” (Id. at 2362.)

         The State also presented evidence that C.W. had “subarachnoid hemorrhaging and subdural hematomas.” (Id.) Several of the State's expert witnesses testified that these injuries were consistent with shaken-baby syndrome. But two of the State's experts also testified that “intracranial pressure can cause subarachnoid hemorrhages and subdural hematomas, ” which was consistent with Petitioner's account of C.W.'s injuries. (Id.) C.W. also had retinal hemorrhaging. The evidence established that such hemorrhaging “can be a red flag for shaken baby syndrome, ” but several of the prosecution's own experts “admitted that intracranial pressure and subarachnoid hemorrhaging can also cause retinal hemorrhaging.” (Id.)

         The most crucial scientific evidence as to whether C.W. was shaken was offered by State's expert Dr. Brooks Crawford, an ophthalmologist who testified regarding his examination of C.W.'s eyes. Several months after C.W.'s death, his eyes were sent to Dr. Crawford for analysis. (State's Lodging C-27.) Dr. Crawford testified that C.W. “had hemorrhaging in over 30% of his eyes, hemorrhaging in both eyes, and no hemorrhaging in the equatorial region”-occurrences which Dr. Crawford explained are “rarely seen in cases involving only blunt trauma.” (State's Lodging C-11 at 2362.)

         Dr. Crawford testified that he could “think of no other way to explain the findings, this constellation of findings that we have here, except for violent shaking. There's no other explanation for it.” (State's Lodging A-9 at 789 (emphasis added).) However, as later noted by the post-conviction court, Dr. Crawford's own pathology report seems to contradict at least one of these findings. (State's Lodging C-11 at 2362 (“Dr. Crawford's Eye Pathology Report appears to indicate that [C.W.'s] right eye did have hemorrhaging in the equatorial region.”).)

         Perhaps the most definitive testimony from Dr. Crawford involved macular or perimacular folds, which occur in the eye when the internal limiting membrane tears away from the retina, allowing “the vitreous to contract a little bit and produce this fold that then goes around the macular area.” (State's Lodging A-9 at 775.) Dr. Crawford saw such folds in C.W.'s eyes. Although macular folds are not found exclusively in shaken-baby cases, Dr. Crawford testified that they are “very highly specific” to shaken-baby syndrome because it would take a rotational force like whiplash, rather than a translational force like a “straight blow to the head, ” to cause macular folding. (Id. at 776-77.) Dr. Crawford stressed that the folds almost always signal shaken baby syndrome, noting that there were only “two cases now in the world's literature of macular folds that were not seen in shaken baby syndrome.” (Id. at 842; see also Id. at 858 (“We know of at least one other case now or two cases now where a macular fold did occur in a person who did have a severe head injury.”).)

         Dr. Gregory Kent, an ophthalmologist who took photographs of C.W.'s eyes with a retinal camera while C.W. was still alive, testified that he did not see any macular folding. (Id. at 748, 754.) However, Dr. Kent went on to testify that the fact that he did not see the folds did not necessarily mean they did not exist, and that other techniques, such as a three-dimensional examination, might have been able to pick up injuries that were not visible from the retinal photographs. (Id. at 755.)

         Petitioner countered Dr. Crawford's eye testimony with the testimony of Dr. Lawrence Thibault, a professor of bioengineering, neurosurgery, and orthopedic surgery specializing in head injuries. (Id. at 1556-59.) Dr. Thibault disagreed with Dr. Crawford that retinal hemorrhages could be caused by a rotational force or shearing force, an opinion that was based on Dr. Thibault's research on guinea pigs. (Id. at 1584-85.) He also testified that shaking could not cause macular folds in the eyes because “there's no force produced during shaking to give you that event.” (Id. at 1586.) Petitioner also presented the testimony of forensic pathologist Dr. John Plunkett, who stated that short distant falls can cause retinal hemorrhaging and that with the injury that C.W. suffered, “there's a high probability that you are going to get retinal hemorrhage regardless of whether that injury was caused by a fall or someone picking him up and throwing him into a wall.” (State's Lodging A-9 at 1961, 1973.) With respect to the macular folding seen by Dr. Crawford, Dr. Plunkett testified that macular folds can be found with different types of injuries and that “[n]o one knows” the significance of the presence of macular folds. (Id. at 1978-79.)

         Petitioner was found guilty of first-degree murder. He was sentenced to life imprisonment without the possibility of parole.

         While the case was on appeal, Petitioner filed a motion for a new trial, based on newly discovered evidence, under Idaho Criminal Rule 34. (State's Lodging A-3 at 56-57; see also State's Lodging A-5 at 435-39.) The judge in Petitioner's trial, who after the trial had been elected to a position as a justice of the Idaho Supreme Court, was then specially appointed to sit as a district trial judge to hear and decide Petitioner's motion for a new trial.

         The newly discovered evidence “consist[ed] of, among other things, evidence that the child's eyes may have been damaged during embalming.” Stevens II, 327 P.3d at 379. This evidence included (1) “a mortuary report indicating the child was embalmed prior to his eyes being removed for examination, ”[4] id.; (2) a 2003 investigative report by Detective Jim Miller (a) stating that he and another detective (his brother, Detective Joe Miller) both remembered C.W.'s eyes being removed a day or two after the autopsy, (b) noting that on the day after the autopsy the coroner informed Detective Joe Miller that the eyes had been removed, and (c) concluding that the eyes were most likely removed on December 30 or 31, 1996, after the body had been released to the funeral home and embalmed on December 29; and (3) affidavits by forensic experts contending the damage to the eyes seen by Dr. Crawford occurred after death as a result of the embalming, rather than by shaking while the child was alive.

         After an evidentiary hearing, the court denied the motion, concluding that although the evidence strongly suggested that the eyes were removed after C.W.'s body was released to the funeral home and embalmed, “the evidence indicating the eye damage occurred after death . . . was not newly discovered evidence because counsel could have discovered it with due diligence.” Stevens II, 327 P.3d at 379. Thus, the evidence did not meet the standard for a new trial under Rule 34. The Idaho Supreme Court affirmed the conviction and the denial of Petitioner's motion for a new trial. State v. Stevens, 191 P.3d 217, 220 (Idaho 2008) (Stevens I).

         Petitioner then filed a petition for state post-conviction relief, asserting that the State failed to disclose evidence that the victim's eyes were removed after embalming, as required by Brady v. Maryland, 373 U.S. 83 (1963), and that Petitioner's trial counsel rendered ineffective assistance in several areas, including by failing to discover the evidence of post-release and post-embalming removal of C.W.'s eyes. In April 2011, the court held an evidentiary hearing on Petitioner's Brady claim.[5] Following the hearing, the post-conviction court denied the petition. (State's Lodging C-11 at 2355-83; C-12.)

         Petitioner appealed, and the Idaho Court of Appeals affirmed. The court held that Petitioner's Brady claim failed for the reasons that the undisclosed evidence of post-release and post-embalming removal was not exculpatory and was not in the possession or control of the government. Stevens II, 327 P.3d at 384-85. The court also rejected Petitioner's ineffective assistance of counsel claims, holding that Petitioner's counsel did not perform deficiently because, although counsel could have discovered the “date discrepancy” before trial, “the mere fact counsel did not discover it did not amount to deficient performance where counsel's investigation was otherwise reasonable.”[6] Id. at 391. The Idaho Supreme Court denied review. (State's Lodging D-12.)

         Now, in his federal habeas corpus Petition, Petitioner raises these claims: (1) a due process claim under Brady, based on the prosecutor's failure to disclose evidence that the victim's eyes were removed after the body was released to the funeral home and embalmed; (2) a claim of ineffective assistance of trial counsel, based on counsel's failure (a) to discover the evidence regarding the timing of the removal of the victim's eyes, (b) to investigate reports that medication the C.W. was taking for his reflux problem could cause cardiac arrest, providing an additional reason why he might have fallen down the stairs, and (c) to consult with an expert regarding a scan of the victim's skull showing that the skull fracture was smaller than previously believed; and (3) a claim of ineffective assistance of direct appeal counsel, based on counsel's failure to challenge Justice Eismann's special appointment to hear Petitioner's motion for a new trial. (Dkt. 1.)

         For the reasons that follow, the Court concludes that Petitioner is entitled to habeas relief on his Brady claim. Therefore, the Court need not address Petitioner's claims of ineffective assistance of counsel.


         It is “a fundamental precept of liberty” that a person is guaranteed freedom from unlawful restraint, and the writ of habeas corpus is “a vital instrument to secure that freedom.” Boumediene v. Bush, 553 U.S. 723, 739 (2008). Habeas relief is available to obtain release from state custody only when a federal court determines that the petitioner “is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a).

         Congress has placed limits upon the availability of such relief described in § 2254(d), as amended by the Anti-terrorism and Effective Death Penalty Act of 1996 (“AEDPA”). That statute constrains the issuance of a writ of habeas corpus to those instances where the state court's adjudication of the petitioner's 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). This means that, in most cases, a federal district court will defer to the findings and conclusions of the state courts out of comity and respect for the important role the state courts play in adjudicating federal constitutional issues in state criminal cases. This concept is often referred to as “AEDPA deference.” A federal habeas court reviews the state court's “last reasoned decision” in determining whether a petitioner is entitled to relief. Ylst v. Nunnemaker, 501 U.S. 797, 804 (1991).

         When a party contests the state court's legal conclusions, including application of the law to the facts, § 2254(d)(1) governs. That section consists of two alternative tests: the “contrary to” test and the “unreasonable application” test.

         Under the first test, a state court's decision is “contrary to” clearly established federal law “if the state court applies a rule different from the governing law set forth in [the Supreme Court's] cases, or if it decides a case differently than [the Supreme Court] [has] done on a set of materially indistinguishable facts.” Bell v. Cone, 535 U.S. 685, 694 (2002). Under the alternative second test of “unreasonable application, ” the petitioner must show that the state court, although identifying “the correct governing legal rule” from Supreme Court precedent, nonetheless “unreasonably applie[d] it to the facts of the particular state prisoner's case.” Williams (Terry) v. Taylor, 529 U.S. 362, 407 (2000). “Section 2254(d)(1) provides a remedy for instances in which a state court unreasonably applies [Supreme Court] precedent; it does not require state courts to extend that precedent or license federal courts to treat the failure to do so as error.” White v. Woodall, 134 S.Ct. 1697, 1706 (2014) (emphasis omitted).

         Significantly, a federal court cannot grant habeas relief simply because it concludes in its independent judgment that a state court's decision is incorrect or wrong; rather, the state court's application of federal law must be objectively unreasonable to warrant relief. Lockyer v. Andrade, 538 U.S. 63, 75 (2003); Bell, 535 U.S. at 694. If fair- minded jurists could disagree on the correctness of the state court's decision, then relief is not warranted under § 2254(d)(1). Harrington v. Richter, 562 U.S. 86, 102 (2011). On that subject, the Supreme Court has emphasized that “even a strong case for relief does not mean the state court's contrary conclusion was unreasonable.” Id. To be entitled to habeas relief under § 2254(d)(1), “a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Id. at 103.

         Further, AEDPA deference is required even where the state court denied a petitioner's claim without expressly addressing it. In such a case, the federal court must “conduct an independent review of the record to determine what arguments or theories could have supported the state court's decision.” Bemore v. Chappell, 788 F.3d 1151, 1161 (9th Cir. 2015) (internal quotation marks and alterations omitted). The court must then decide “whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a decision of the Supreme Court.” Id. (internal quotation marks and alterations omitted).

         The source of clearly established federal law must come from the holdings of the United States Supreme Court, but circuit court decisions may be persuasive authority for deciding whether a state court decision is an unreasonable application of Supreme Court precedent. Duhaime v. Ducharme, 200 F.3d 597, 600-01 (9th Cir. 2000). However, circuit law may not be used “to refine or sharpen a general principle of Supreme Court jurisprudence into a specific legal rule that th[e] Court has not announced.” Marshall v. Rodgers, 569 U.S. 58, 64 (2013).

         As to the facts, the Supreme Court has instructed that “review under § 2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on the merits.” Cullen v. Pinholster, 563 U.S. 170, 180 (2011). This means that evidence not presented to the state court may not be introduced on federal habeas review if a claim was adjudicated on the merits in state court and if the underlying factual determinations of the state court were reasonable. See Murray v. Schriro, 745 F.3d 984, 999-1000 (9th Cir. 2014); (“After Pinholster, a federal habeas court may consider new evidence only on de novo review, subject to the limitations of § 2254(e)(2).”); Hurles v. Ryan, 752 F.3d 768, 778 (9th Cir. 2014) (“If we determine, considering only the evidence before the state court, that the adjudication of a claim on the merits . . . was based on an unreasonable determination of the facts, we evaluate the claim de novo, and we may consider evidence properly presented for the first time in federal court.”).

         Two separate statutory subsections govern a federal court's review of state court factual findings:

Factual determinations by state courts are presumed correct absent clear and convincing evidence to the contrary, § 2254(e)(1), and a decision adjudicated on the merits in a state court and based on a factual determination will not be overturned on factual grounds unless objectively unreasonable in light of the evidence presented in the state-court proceeding, § 2254(d)(2) . . . .

Miller-El v. Cockrell, 537 U.S. 322, 340 (2010).

         A court reviews a state court's factual determination pursuant to § 2254(d)(2) when a petitioner contests the reasonableness of that determination based on the state court record. Taylor v. Maddox, 366 F.3d 992, 999 (9th Cir. 2004), abrogated on other grounds as recognized in Murray, 745 F.3d 984 (9th Cir. 2014). Under subsection (d)(2), there are two methods generally used to challenge factual findings as unreasonable. “First, a petitioner may challenge the substance of the state court's findings and attempt to show that those findings were not supported by substantial evidence in the state court record. Second, a petitioner may challenge the fact-finding process itself on the ground that it was deficient in some material way.” Hibbler v. Benedetti, 693 F.3d 1140, 1146 (9th Cir. 2012) (internal citations omitted).

         Importantly, a “state-court factual determination is not unreasonable merely because the federal habeas court would have reached a different conclusion in the first instance.” Wood v. Allen, 558 U.S. 290, 301 (2010). “The question under AEDPA is not whether a federal court believes the state court's determination was incorrect but whether that determination was unreasonable-a substantially higher threshold.” Schriro v. Landrigan, 550 U.S. 465, 473 (2007).

         Under the second subsection dealing with state court findings of fact, 28 U.S.C. § 2254(e)(1), such factual findings are presumed to be correct, and the petitioner has the burden of rebutting this presumption by clear and convincing evidence. This standard “is demanding but not insatiable, ” and “deference does not by definition preclude relief.” Miller-El v. Dretke, 545 U.S. 231, 240 (2005) (internal quotation marks and alteration omitted).

         The relationship between subsections (d)(2) and (e)(1) of § 2254 is not entirely clear. In Taylor v. Maddox, the Ninth Circuit held that “the presumption of correctness and the clear-and-convincing standard of proof [as set forth in § (e)(1)] only come into play once the state court's fact-findings survive any intrinsic challenge [under § (d)(2)]; they do not apply to a challenge that is governed by the deference implicit in the ‘unreasonable determination' standard of section 2254(d)(2).” 366 F.3d at 1000. However, in Cullen v. Pinholster, the United States Supreme Court held that new evidence introduced in federal court “has no bearing” on a merits review of a state court's legal conclusions. 563 U.S. at 185.

         In Murray, the Ninth Circuit explained that the decision in Pinholster “eliminated the relevance of ‘extrinsic' challenges when … reviewing state-court decisions under AEDPA.” 745 F.3d at 999. As a result, the interplay between § 2254(d)(2) and § 2254(e)(1) is unresolved. Id. at 1001 (noting that the Supreme Court has, in some cases, assumed that § (e)(1) merely qualifies § (d)(2) and that “we too have continued to struggle with the relationship between §§ 2254(d)(2) and (e)(1) when reviewing state-court factual findings under AEDPA”); see also Wood, 558 U.S. at 300 (declining to address the issue). To date, courts of precedent facing this dilemma have not found the differences between § 2254(d)(2) and § 2254(e)(1) determinative under the particular facts before those courts. See Wood, 558 U.S. at 304-05 (“Because the resolution of this case does not turn on them, we leave for another day the questions of how and when § 2254(e)(1) applies in challenges to a state court's factual determinations under § 2254(d)(2).”); Murray, 745 F.3d at 1001 (“[W]e do not believe the difference between our two lines of cases is determinative in this case, and thus we need not resolve the apparent conflict to decide this case.”).

         If a petitioner satisfies § 2254(d)-either by showing that the state court's adjudication of the claim was contrary to, or an unreasonable application of, Supreme Court precedent, or by establishing that the state court's factual findings were unreasonable-then the federal habeas court must review the petitioner's claim de novo.[7]Hurles, 752 F.3d at 778. As in the pre-AEDPA era, a district court considering a habeas claim de novo may draw upon United States Supreme Court and circuit precedent, limited only by the non-retroactivity rule of Teague v. Lane, 489 U.S. 288 (1989).

         However, if the factual findings of the state court are not unreasonable under § 2254(d)(2), then even on de novo review the Court must apply the presumption of correctness found in 28 U.S.C. § 2254(e)(1) to any facts found by the state courts. See Pirtle v. Morgan, 313 F.3d 1160, 1167-68 (9th Cir. 2002). Conversely, if a state court factual determination is unreasonable, the federal court is not limited by § 2254(e)(1) and may consider evidence outside the state court record, except to the extent that § 2254(e)(2) might apply. See Murray, 745 F.3d at 1000.

         Generally, even if a petitioner succeeds in demonstrating a constitutional error in his conviction, he is entitled to federal habeas relief only if he also “can establish that [the error] resulted in ‘actual prejudice.'” Brecht v. Abrahamson, 507 U.S. 619, 637 (1993). Under the Brecht standard, an error is not harmless and habeas relief must be granted if the federal court has “grave doubt about whether a trial error of federal law had substantial and injurious effect or influence in determining the jury's verdict.” O'Neal v. McAninch, 513 U.S. 432, 436 (1995) (internal quotation marks omitted). However, some types of claims “are analyzed under their own harmless error standards, which can render Brecht analysis unnecessary.” Jackson v. Brown, 513 F.3d 1057, 1070 (9th Cir. 2008). Brady claims are in this category, and if a court has found a Brady violation, “it cannot subsequently be found harmless under Brecht.” Kyles v. Whitley, 514 U.S. 419, 436 (1995).


         In Claim 1, Petitioner asserts that the prosecution failed to disclose, in violation of Brady v. Maryland, evidence that C.W.'s eyes were removed for examination after the victim's body was released to the funeral home and embalmed.

         1.Clearly-Established Law

         Under the Due Process Clause of the Fourteenth Amendment, the prosecution has a duty to disclose evidence favorable to the defense that is material to guilt or punishment, regardless of whether the defense has requested such evidence. Brady, 373 U.S. at 87; United States v. Bagley, 473 U.S. 667, 676 (1985). A meritorious Brady claim contains three essential components: (1) the evidence must be favorable to the accused, either because it is exculpatory or because it is impeaching; (2) the government must have withheld the evidence, either intentionally or inadvertently; and ...

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