SHANNON D. McGEE, SR.
JOSEPH McFADDEN, WARDEN
PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FOURTH CIRCUIT
petition for a writ of certiorari is denied.
JUSTICE SOTOMAYOR, dissenting from denial of certiorari.
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.
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.
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
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.
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).
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
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).
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 ...