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McGee v. McFadden

United States Supreme Court

June 28, 2019

SHANNON D. McGEE, SR.
v.
JOSEPH McFADDEN, WARDEN

          ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

         The petition for a writ of certiorari is denied.

          JUSTICE SOTOMAYOR, dissenting from denial of certiorari.

         Pro se petitioner Shannon McGee has a strong argument that his trial and resulting life sentence were fundamentally unfair because the State withheld material exculpatory evidence. See Brady v. Maryland, 373 U.S. 83, 87 (1963). The state courts offered flawed rationales for rejecting that claim. Nevertheless, the District Court denied McGee federal habeas relief, and both the District Court and the U.S. Court of Appeals for the Fourth Circuit summarily declined to grant McGee a "certificate of appealability" (COA), 28 U.S.C. §2253(c), concluding that his claim was not even debatable. Without a COA, McGee cannot obtain appellate review on the merits of his claim. See ibid. Because the COA procedure should facilitate, not frustrate, fulsome review of potentially meritorious claims like McGee's, I would grant the petition for writ of certiorari and reverse the denial of a COA.

         I

         McGee is serving a life sentence without possibility of parole in a South Carolina state prison, having been convicted in 2006 of sexually abusing his minor stepdaughter. The State's case at his trial featured testimony from a jailhouse informant named Aaron Kinloch, who claimed that McGee confessed the abuse to him while the two men were incarcerated together. The prosecutor trumpeted Kinloch's apparent altruism in his closing argument:

"[N]ormally you will hear a defendant-a defense lawyer get up here and scream about a deal, what he got out of it, or, you know, some kind of expectation of reward for this lie, but again, the defense is really going to have to search for a really, sort of hidden agenda of this Aaron Kinloch. ... I don't know what motive he would have to come in here and fabricate this awful story." App. in McGee v. State, No. 2014-000297 (S. C), pp. 152-153.

         As it turns out, that was not the full story. Shortly after the trial ended, the prosecutor turned over a letter from Kinloch not previously disclosed to the defense in which Kinloch volunteered his testimony in exchange for the prosecutor's "help" with pending charges. Kinloch wrote: "I'm willing to help, if you are cause I do need your help. . . . P.S. If Need Be I WILL Testify!" Id., at 524. Kinloch sent the letter three days after learning of the charges against him.[1]

         Ever since the belated disclosure of the letter, McGee has persistently but unsuccessfully argued that he is entitled to a new trial at which he could use the letter to call into question Kinloch's testimony. See generally App. to Pet. for Cert. 57-61. The state courts denied McGee's claim on both direct and postconviction review. The District Court denied McGee's pro se petition for federal habeas corpus relief under 28 U.S.C. §2254 and declined to issue a CO A. The Court of Appeals likewise denied a COA. McGee, still pro se, petitioned for a writ of certiorari to review that denial.

         II

         Withholding Kinloch's letter could be a classic violation of the prosecutor's constitutional duty to disclose material evidence favorable to the defense. See Kyles v. Whitley, 514 U.S. 419, 432-433 (1995); Giglio v. United States, 405 U.S. 150, 153-155 (1972); Brady, 373 U.S., at 87. The trial court said unequivocally that the letter should have been turned over. See App. C to Brief in Opposition 4 (describing the prosecutor's decision as showing "clear disregard for his responsibility as a prosecutor to seek justice"). The main question throughout the history of McGee's case has been whether the letter was "material" to the jury's guilty verdict. See, e.g., Wearry v. Cain, 577 U.S. __, __ (2016) (per curiam) (slip op., at 7).

         To establish that the letter was "material" (and thus to prevail in the state courts), McGee had to show only that the letter would "'undermine confidence' in the verdict," not that he would have been acquitted with it. Ibid. That is, he had to show a "'"reasonable likelihood"'" that the letter "could have '"affected the judgment of the jury."'" Ibid.; see also Kyles, 514 U.S., at 434-435. Under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), McGee must further show on federal habeas review that the state court's adjudication of his Brady claim was (1) "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined, by the Supreme Court," or (2) "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).

         The lower courts should have granted McGee a COA to allow review of the District Court's conclusion that the AEDPA standard was not met, because McGee has at least made "a substantial showing of the denial of a constitutional right." §2253(c)(2). "At the COA stage, the only question is whether the applicant has shown that 'jurists of reason could disagree with the district court's resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further.'" Buck v. Davis, 580 U.S. __, __ (2017) (slip op., at 13) (quoting Miller-El v. Cockrell, 537 U.S. 322, 327 (2003)). This "threshold" inquiry is more limited and forgiving than "'adjudication of the actual merits.'" Buck, 580 U.S., at (slip op., at 13) (quoting Miller-El, 537 U.S. __, __ at 337); see also id., at 336 (noting that "full consideration of the factual or legal bases adduced in support of the claims" is not appropriate in evaluating a request for a CO A).

         Indications abound that McGee's Brady claim "deserve[d] encouragement to proceed further." Miller-El, 537 U.S., at 327. First, Kinloch's letter evinces a particularized motive to lie, one distinct from and potentially more probative than any generalized doubts about Kinloch's credibility that McGee ...


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