Steven Watkins v. Jim Rubenstein , 802 F.3d 637 ( 2015 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-6513
STEVEN A. WATKINS,
Petitioner - Appellee,
v.
JIM RUBENSTEIN, Commissioner of the Division of
Corrections; BENITA F. MURPHY, Chairperson of the West
Virginia Parole Board; DAVID TOLER, Supervising Parole
Officer,
Respondents - Appellants,
and
ADRIAN HOKE, Warden at Huttonsville Correctional Center;
MARVIN PLUMLEY, Warden, Huttonsville Correctional Center,
Respondents.
Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston. Joseph R. Goodwin,
District Judge. (2:12-cv-01309)
Argued: January 29, 2015 Decided: September 23, 2015
Before TRAXLER, Chief Judge, and NIEMEYER and MOTZ, Circuit
Judges.
Reversed by published opinion. Judge Niemeyer wrote the
majority opinion, in which Chief Judge Traxler joined. Chief
Judge Traxler wrote a concurring opinion. Judge Motz wrote a
dissenting opinion.
ARGUED: Elbert Lin, OFFICE OF THE ATTORNEY GENERAL OF WEST
VIRGINIA, Charleston, West Virginia, for Appellants. Michael
Brian Hissam, BAILEY & GLASSER, LLP, Charleston, West Virginia,
for Appellee. ON BRIEF: Patrick Morrisey, Attorney General,
Christopher S. Dodrill, Assistant Attorney General, OFFICE OF
THE ATTORNEY GENERAL OF WEST VIRGINIA, Charleston, West
Virginia, for Appellants.
2
NIEMEYER, Circuit Judge:
The district court granted Steven Watkins’ petition for a
writ of habeas corpus under 28 U.S.C. § 2254, finding that the
West Virginia prosecuting attorney had, after trial, admitted to
Watkins’ defense counsel that the victim of Watkins’ attempted
robbery crime told the prosecuting attorney before trial that
he, the victim, had not been put in fear by Watkins on the date
of the crime, an element essential to conviction under West
Virginia law, and that the prosecuting attorney had failed to so
inform Watkins. Based on this finding, the district court
concluded that the state habeas court had unreasonably applied
the principles of Brady v. Maryland, 373 U.S. 83 (1963).
On appeal, the West Virginia officials named in Watkins’
habeas petition (“the State”) claim that the district court
impermissibly found new facts and erred in failing to give the
appropriate deference to the state habeas court’s factual
findings and conclusions of law made with respect to its
adjudication of Watkins’ Brady claim. We agree and accordingly
reverse.
I
A. Underlying Criminal Proceeding
On June 7, 2007, Steven Watkins entered Zimm’s Pharmacy in
Fayetteville, West Virginia, wearing a hard hat, sunglasses, and
a red bandana that masked his face. When Watkins entered the
3
store, only the owner, Mike Zimm, and two female employees were
inside. Watkins began to ask Zimm a question, but Zimm could
not understand it and asked Watkins to repeat the question.
Watkins then “tried to move his mask, or his disguise . . . so
that [his speech] wouldn’t be muffled as much” and repeated his
question, asking Zimm whether he had “pushed the button” to
activate the store’s security system. Even though he had not
done so, Zimm told Watkins that he had in fact activated the
system, which prompted Watkins to flee the store and to enter a
nearby apartment building.
Watkins was eventually arrested and charged with “attempted
robbery in the second degree,” in violation of W. Va. Code § 61-
2-12(b), which punishes “[a]ny person who . . . attempts to
commit robbery by placing the victim in fear of bodily injury.”
At Watkins’ trial, Zimm testified on behalf of the State
and explained how Watkins had placed him in fear of bodily
injury:
Q: You indicated that you were fearful of [Watkins];
is that correct?
A: Yes, I was fearful. I didn’t know what to expect
for me or my employees.
Q: [W]as there anything going on . . . in your
business community at this time that triggered that
fear . . . ?
* * *
A: Yes, sir. There had been numerous robberies and,
just recently before that, there had been a couple
4
robberies in the Beckley area, Raleigh County. . . .
Pharmacies, pharmacists.
* * *
Q: And what thought went through your head when you
saw this man approaching you dressed . . . in the
manner that you saw that day?
A: I thought, “It’s my turn. They’ve come to
Fayette County.” That’s what I thought.
Zimm’s testimony at trial was consistent with a statement
he gave to police officers on the day of the incident. It was
also corroborated by the trial testimony of one of the employees
in the store who observed Zimm:
Q: [C]an you tell me what came into your mind as to
what was going on at [the time Watkins entered the
store]?
A: Well, at first when he came in and he approached
the counter, . . . I at first thought it was a joke,
because we have several customers that would do that.
And then I realized -- after he had asked [Zimm] about
the alarm, [Zimm] had the look of, you know,
something’s bad, something’s going on, and I knew it
wasn’t a [joke] anymore . . . .
At the conclusion of the State’s case, Watkins filed a
motion for a judgment of acquittal, arguing that the evidence
was insufficient to demonstrate that Zimm had been placed in
reasonable fear of bodily injury, but the trial court denied the
motion. And during closing argument, both Prosecuting Attorney
Brian Parsons and defense counsel James Adkins presented
argument with respect to the “fear” element.
5
The jury found Watkins guilty of the offense as charged,
and the court sentenced him to a term of imprisonment of between
5 and 18 years. The Supreme Court of Appeals of West Virginia
summarily denied Watkins’ appeal, and Watkins did not seek
review by the Supreme Court of the United States.
B. State Habeas Proceeding
Watkins filed a petition for a writ of habeas corpus in
West Virginia state court, claiming, among other things, that he
had been denied a fair trial because Prosecuting Attorney
Parsons had failed to inform defense counsel Adkins that Zimm
had told Parsons that he, Zimm, might not have been afraid of
Watkins on the day of the attempted robbery. Watkins claimed
that this nondisclosure was a violation of Brady v. Maryland,
373 U.S. 83 (1963), which requires the prosecution, upon
request, to provide the accused with evidence favorable to the
accused. Specifically, Watkins’ petition stated:
[Defense counsel Adkins] has provided a memorandum to
habeas counsel indicating that he was present during
a . . . conversation with [Prosecuting Attorney
Parsons] who allegedly uttered that the victim, Mike
Zimm[,] told him that he was never afraid and
[Parsons] responded [that] if that was the case then
they should stop prosecuting at that time. If that is
true . . . , then the State of West Virginia failed to
provide that exculpatory evidence to the defendant
herein[, in violation of Brady].
In the State’s written response to Watkins’ petition,
Prosecuting Attorney Parsons admitted that he had had at least
6
two discussions with Zimm before trial about the definition of
the “fear” element and exactly what had to be proved at trial.
But, as Parsons explained unequivocally:
Mr. Zimm did not state that he was “never afraid,” but
rather he sought a better understanding of what fear
meant in the context of this case.
Parsons attributed Zimm’s questioning to a “certain amount of
bravado” that existed in his relationship with Zimm and to the
hesitation of one man to acknowledge fear to another.
The state court conducted an evidentiary hearing on
Watkins’ petition, and defense counsel Adkins testified at the
hearing that, at an unrelated court proceeding after Watkins had
been convicted, Prosecuting Attorney Parsons stated that Zimm
“might not have been scared of Mr. Watkins” at the time of the
incident. Specifically, Adkins said:
Q: Do you recall . . . what was said at that time?
A. My contemporaneous note would probably be more
accurate than my memory. . . . [W]e were at another
hearing, and Mr. Parsons had stated something to the
effect that Mr. Zimm might not have been scared of
Mr. Watkins on . . . the day of the alleged robbery.
(Emphasis added). Prosecuting Attorney Parsons did not dispute
Adkins’ testimony. Rather, in cross-examining Adkins, he
obtained Adkins’ agreement that Parsons’ pretrial discussions
with Zimm, during which they discussed the “fear” element, were
appropriate:
Q: [Y]ou would agree with me that, although the term
“fear” or being afraid, has some sort of common sense
7
application or meaning, the term “fear” as it relates
to a legal standard of being afraid is something that
a person with an education such as Mr. Zimm might have
a question about? Is that fair to say?
A: Yes.
Q: [I]sn’t it also a fair statement that, if Mr.
Zimm was not afraid of Mr. Watkins, there’s really no
sense in the case being prosecuted? Isn’t that a fair
way to look at it from the State’s perspective?
A: [Yes].
Q: Do you have any problem with an attorney for the
State saying to a victim that, “If you’re not afraid
or you don’t feel that you were afraid, you need to
tell me and we’re not going to take this case
forward.” Do you have a problem with that
question? . . . Do you feel in your professional
opinion that that is coaching a witness?
A: No.
After receiving the evidence, the state habeas court denied
Watkins’ petition, issuing a written opinion that made findings
of fact and conclusions of law. The court’s relevant findings
and conclusions were as follows:
The Court FINDS that, during trial, State
witness/victim Mike Zimm testified that he was afraid
of [Watkins] based upon what [Watkins] said in
Mr. Zimm’s store and upon [Watkins’] appearance.
Mr. Zimm’s trial testimony was consistent with the
statement he gave to police at the time of the
incident.
The Court FINDS that, at some time after the trial of
this matter, [Adkins] was told that Mr. Zimm said he
was not “afraid” at the time of the incident at issue.
[Parsons] discussed with Mr. Zimm the definition of
the word “fear” as it applied to the elements of the
crime at issue, and that Mr. Parsons informed Mr. Zimm
that if the element of fear did not exist, then the
case could not be proven at trial. The discovery
8
provided to the defense did not contain any reference
to Mr. Zimm’s alleged statement that he was not
“afraid” or to the above described conversation
between Mr. Parsons and Mr. Zimm.
* * *
The Court CONCLUDES that the State’s alleged failure
to inform defense counsel of the conversation between
Mr. Parsons and Mr. Zimm regarding the requirement of
“fear” did not violate . . . Brady v. Maryland.
Additionally, the Court CONCLUDES that Mr. Parsons’
statements to Mr. Zimm with regard to the element of
“fear” were an accurate way to describe elemental
requirements to a lay person/witness and that there is
no evidence that Mr. Parsons suggested or improperly
influenced Mr. Zimm’s testimony.
Watkins appealed the court’s ruling to the Supreme Court of
Appeals of West Virginia, and that court affirmed, adopting and
incorporating the state habeas court’s order as its own.
C. Federal Habeas Proceeding
Finally, Watkins filed a petition for a writ of habeas
corpus in the district court, pursuant to 28 U.S.C. § 2254. He
again asserted, among other things, that he was “denied his
right to Due Process under . . . the United States Constitution
when the Prosecution knowingly withheld from him impeachment
evidence that was exculpatory,” in violation of Brady.
By order dated March 29, 2013, the district court stated
that it could not “determine whether the state court improperly
found that no Brady violation occurred” because “the state court
never made a finding concerning whether or not Zimm stated that
9
he was not in fear on the day of the subject incident.” The
court accordingly ordered a “plenary evidentiary hearing [to]
make an independent factual determination” regarding whether
Zimm had made the statement in question to Prosecuting Attorney
Parsons before trial. Later, however, the court realized that
such an evidentiary hearing would not be consistent with the
Supreme Court’s holding in Cullen v. Pinholster, 131 S. Ct. 1388
(2011) (holding that federal court “review under § 2254(d)(1) is
limited to the record that was before the state court that
adjudicated the claim on the merits”), and instead, it simply
issued a final order dated March 28, 2014, granting Watkins’
petition for a writ of habeas corpus.
In granting Watkins’ petition, the court stated:
I found in a prior order that the state habeas court
did not find whether Zimm had stated he “was never
afraid.” However, . . . there is an important
distinction between proof of the substance of Zimm’s
statement and proof that the State admitted that the
statement was made. I now FIND that the state court
found the State had admitted that Zimm made this
statement. Put differently, the state court did not
find that Zimm said he was not afraid; the state court
found that the prosecutor admitted that Zimm said he
was not afraid. In light of the clear admission that
the State was in possession of Brady material, I also
FIND the state court unreasonably applied clearly
established Supreme Court precedent to the facts.
To support its conclusion, the district court relied on the key
factual finding made by the state habeas court. But in doing
so, the court assumed facts that supported a Brady violation,
10
whereas the state habeas court had not assumed those facts and
found no such violation:
I now conclude that the state habeas court found that
Parsons . . . admitted to Adkins . . . that he, the
prosecutor, was in possession of Brady material. I
quote from the state court’s findings:
The Court FINDS that, at some time after
trial of this matter, trial counsel was told [by
the prosecutor] that Mr. Zimm said he was not
“afraid” at the time of the incident at issue.
To justify its contrary conclusion, the district court had
to assume, making an implied factual finding, that Zimm’s
statement that he was not “afraid” was imputable to Prosecuting
Attorney Parsons before trial. But the state habeas court had
found only that the pretrial conversation between Zimm and
Prosecuting Attorney Parsons related to a discussion of the
“fear” element, and it did not ascribe any particular importance
to the post-trial conversation between Prosecuting Attorney
Parsons and defense counsel Adkins, where Parsons observed that
“Zimm might not have been afraid of Watkins.” With this
additional implied finding, the district court concluded, “Based
on the state court’s factual finding and the evidence in the
record, it would be ‘objectively unreasonable’ to conclude that
no Brady violation occurred.”
The State filed this appeal, contending that the district
court failed to give the necessary deference to the factual
11
findings and legal conclusions of the state habeas court, as
required by 28 U.S.C. §§ 2254(d) and 2254(e)(1).
II
In Brady v. Maryland, 373 U.S. 83, 87 (1963), the Supreme
Court held that “the suppression by the prosecution of evidence
favorable to an accused upon request violates due process where
the evidence is material either to guilt or to punishment,
irrespective of the good faith or bad faith of the prosecution.”
To prove a Brady violation, a habeas petitioner must show that
the evidence was (1) favorable to him; (2) material; (3) in the
possession of the prosecution before trial; and (4) not
disclosed to him upon request. See United States v. Stokes, 261
F.3d 496, 502 (4th Cir. 2001). Stated otherwise, Brady mandates
the disclosure of favorable evidence when it “could reasonably
be taken to put the whole case in such a different light as to
undermine confidence in the verdict.” Kyles v. Whitley, 514
U.S. 419, 435 (1995). And, of course, the Supreme Court has
made clear that Brady only protects a defendant “before trial”
and that “nothing in [its] precedents suggest[s] that [Brady’s]
disclosure obligation continue[s] after the defendant [is]
convicted and the case [is] closed.” District Att’y’s Office
for the Third Judicial Dist. v. Osborne, 557 U.S. 52, 68-69
(2009) (emphasis added).
12
In this case, Watkins contends that Prosecuting Attorney
Parsons violated Brady in failing to produce before trial the
fact that Zimm had admitted before trial that he was not afraid
at the time of the attempted robbery. Of course, if that fact
were true, then the information would be favorable to Watkins,
and its nondisclosure would support his claim that a Brady
violation occurred. But Watkins’ claim is not supported by the
state habeas record or the state habeas court’s findings and
conclusions.
Watkins relies entirely on an amorphous statement made by
Prosecuting Attorney Parsons to Watkins’ defense counsel Adkins
after the trial had been completed. The record shows that
Prosecuting Attorney Parsons made a post-trial observation to
defense counsel Adkins “to the effect that Mr. Zimm might not
have been scared of Mr. Watkins” on the day of the attempted
robbery. That evidence, however, does not mean that that
information or belief was something known to Prosecuting
Attorney Parsons before trial. To the contrary, the post-trial
observation could have been based on something that some other
unidentified person had said to Parsons post-trial, or that Zimm
himself might have said to Parsons post-trial, or that amounted
to mere retrospective speculation. In any of those
circumstances, as well as others, it could not be said that
Parsons possessed Brady material.
13
The only evidence of a pretrial conversation between Zimm
and Prosecuting Attorney Parsons related to Parsons’ explanation
to Zimm of what constitutes “fear” and the necessity of proving
“fear” as an element of attempted robbery.
The state habeas court found on this record two distinct
facts. First, “at some time after the trial of this matter,
[defense counsel Adkins] was told that Mr. Zimm said he was not
‘afraid’ at the time of the incident at issue.” And second,
that Prosecuting Attorney Parsons had a pretrial conversation
with Zimm during which Parsons “discussed with Mr. Zimm the
definition of the word ‘fear’ as it applied to the elements of
the crime at issue, and that Mr. Parsons informed Mr. Zimm that
if the element of fear did not exist, then the case could not be
proven at trial.”
The district court, however, failed to accord the
appropriate deference to the state habeas court’s findings. The
district court, which was initially inclined to conduct a
plenary evidentiary hearing but ultimately did not do so,
nonetheless restated the state habeas court’s findings to
conclude that Parsons “had admitted that Zimm made the statement
[that he was not afraid],” thereby imputing knowledge of Zimm’s
lack of fear to Parsons before the trial began. The record
14
simply does not support such a leap. ∗ Section 2254 requires a
federal court conducting collateral review of a state court
adjudication to do so through a “highly deferential lens.”
DeCastro v. Branker, 642 F.3d 442, 449 (4th Cir. 2011); see also
28 U.S.C. § 2254(d). To that end, § 2254(e)(1) instructs the
district court to defer to a state court’s factual findings:
In a proceeding instituted by an application for a
writ of habeas corpus by a person in custody pursuant
to the judgment of a State court, a determination of a
factual issue made by a State court shall be presumed
to be correct. The applicant shall have the burden of
rebutting the presumption of correctness by clear and
convincing evidence.
28 U.S.C. § 2254(e)(1) (emphasis added); see also Conaway v.
Polk, 453 F.3d 567, 582 (4th Cir. 2006).
∗ The dissenting opinion also fails to recognize that the
state habeas court found two distinct conversations. The first
conversation that it found consisted of a statement made after
trial that Zimm said “he was not ‘afraid’ at the time of the
incident at issue.” The second conversation that it found was
one between Zimm and Prosecuting Attorney Parsons before trial
that explored the definition of the “fear” element. There is no
evidence to support a conclusion that the pretrial conversation
included a statement by Zimm that he was not afraid, and the
state habeas court did not find that the pretrial conversation
included such a statement. Indeed, the prosecutor testified
affirmatively that Zimm did not make such a statement in that
pretrial conversation -- “Mr. Zimm did not state that he was
‘never afraid,’ but rather he sought a better understanding of
what fear meant in the context of this case.” The dissent
simply conflates the two conversations, as did the district
court, concluding without record support, that the post-trial
conversation referred to the pretrial conversation and not some
other post-trial conversation. The state habeas court found the
conversations to be historically and substantively distinct.
15
In the present case, the district court did not find the
state habeas court’s factual findings “unreasonable . . . in
light of the evidence presented.” 28 U.S.C. § 2254(d)(2). Nor
did the court find that Watkins had rebutted the state habeas
court’s factual findings with “clear and convincing evidence.”
§ 2254(e)(1). On the contrary, the district court purported to
accept the state court’s factual findings. See J.A. 402 (“based
on the state court’s factual finding . . . , it would be
‘objectively unreasonable’ to conclude . . .”). Yet it
nonetheless placed its own gloss upon the state court’s factual
findings, impermissibly altering them to conclude that
Prosecuting Attorney Parsons admitted to having been told by
Zimm before trial that he was not afraid of Watkins. The facts
in the state court record are to the contrary, and no state
habeas court finding can be read to support the district court’s
conclusion.
We conclude that the state habeas court did not base its
decision on “an unreasonable determination of the facts,” see
28 U.S.C. § 2254(d)(2), and we note that Watkins did not attempt
to rebut the presumption of correctness by “clear and convincing
evidence,” see § 2254(e)(1). Similarly, we conclude that based
on its entirely reasonable factual findings, the state habeas
court did not apply the Brady rule in an “objectively
unreasonable” manner. See Barnes v. Joyner, 751 F.3d 229, 238-
16
39 (4th Cir. 2014) (holding that the federal court must defer to
the state habeas court’s legal conclusion, so long as it is not
“objectively unreasonable”); § 2254(d)(1). The facts found by
the state habeas court do not impute information to Prosecuting
Attorney Parsons before trial that Zimm had said he was not
afraid. Without such a fact in the record and such a factual
finding by the court, there could be no Brady violation.
To be sure, the state habeas court did find that
Prosecuting Attorney Parsons and Zimm had had a pretrial
discussion about the definition of “fear” and the necessity of
proving “fear” at trial. But that conversation was no more than
routine trial preparation. As the state habeas court concluded,
“Mr. Parsons’ statements to Mr. Zimm with regard to the element
of ‘fear’ were an accurate way to describe elemental
requirements to a lay person/witness and that there was no
evidence that Mr. Parsons suggested or improperly influenced
Mr. Zimm’s testimony.”
The district court’s order granting Watkins’ petition for a
writ of habeas corpus is accordingly
REVERSED.
17
TRAXLER, Chief Judge, concurring:
I concur in the majority opinion. The West Virginia state
court’s rejection of Watkins’ post-conviction claim -- that the
state prosecutor, Brian Parsons, failed to disclose an alleged,
exculpatory “lack-of-fear” statement made by the victim, Mike
Zimm, in violation of Brady v. Maryland, 373 U.S. 83 (1963) –-
was not an unreasonable one in light of the evidence presented
in the state court proceedings.
Watkins alleged in his state habeas petition that Parsons
told his trial counsel, James Adkins, that Zimm had told Parsons
prior to trial that he was not afraid of Watkins during the
attempted robbery. In other words, Watkins alleged that Parsons
admitted to Adkins after the trial that an exculpatory statement
was made by Zimm prior to the trial. In the written response to
the petition, Parsons denied Watkins’ allegation. Watkins did
not call either Zimm or Parsons as a witness at the evidentiary
hearing in state court. Watkins called Adkins as his sole
witness, but Adkins did not testify that Parsons admitted to him
that Zimm made the alleged Brady statement prior to trial or,
for that matter, after trial. In sum, Watkins failed to elicit
testimony or present other evidence that supported his Brady
allegation.
After the hearing, the state court issued a 17-page written
opinion addressing Watkins’ habeas claims, including his Brady
18
claim. The opinion contains explicit factual findings and
conclusions. But not surprisingly, the state court did not find
that Zimm made the alleged Brady statement to Parsons. The
state court did not find that Parsons admitted to Adkins that
Zimm made the alleged Brady statement to him. And the state
court did not find that Parsons had knowledge of any such Brady
statement prior to Watkins’ trial. Consequently, the state
court did not address the question of whether the alleged but
unproven statement would have been material for Brady purposes
if Zimm had made it prior to trial.
On federal habeas review, we are not at liberty to rewrite
state court findings of fact, or imply additional ones, in a
manner that is unsupported by the evidence in the state court
record and inconsistent with the state court’s reasonable
rejection of a constitutional claim. We must give deference to
the state court’s ultimate and reasonable adjudication of the
claim, and we must give the state court the benefit of the doubt
when doing so. In this case, that deference is easily given.
The state court did not find the existence of a Brady statement
and the record does not compel that we do so.
I. The State Habeas Proceedings
A. The State Habeas Allegations
In his state habeas petition, Watkins alleged the following
claim as his eleventh ground for relief:
19
[T]he State of West Virginia failed to inform the
Defendant that the prosecuting witness/alleged victim
[Zimm] had told them that he was not afraid of the
Defendant.
J.A. 181. Elaborating upon the basis for this allegation,
Watkins represented that his trial counsel, James Adkins, had:
provided a memorandum to [state] habeas counsel
indicating that he was present during a pre-hearing
conversation with the Assistant Prosecuting Attorney
who tried th[e] case who allegedly uttered that the
victim, Mike Zimm told him that he was never afraid
and the APA responded if that was the case then they
should stop prosecuting at that time.
Id. (emphasis added). “If that is true and the case,” Watkins
asserted, “then the State of West Virginia failed to provide
that exculpatory evidence to [him].” Id.
In its written response to Watkins’ habeas petition, the
state agreed that APA Parsons had discussed with Zimm prior to
trial the element of fear necessary to obtain a conviction for
attempted robbery under state law, but denied that Zimm made the
alleged exculpatory lack-of-fear statement to Parsons during
that pretrial discussion. According to Parsons’ response:
[I] spoke with . . . Mr. Zimm on at least two
occasions prior to the trial of the matter . . . as a
part of the trial preparation process. I recall
having a conversation with Mr. Zimm about the
definition of the word “fear” as it applied to the
legal elements requiring proof in the trial of the
respondent. Mr. Zimm did not state that he was “never
afraid”, but rather he sought a better understanding
of what fear meant in the context of this case. (The
Court should understand that a certain amount of
bravado existed as to the relationship between counsel
and Mr. Zimm and a reluctance to express fear months
20
after an incident is natural between two men.) I did,
however, inform Mr. Zimm that if the element of fear
did not exist the case could not be proven at trial.
I believe this to be an accurate statement of the law
and at no time did counsel pressure, suggest or
influence Mr. Zimm to testify one way or the other.
Mr. Zimm’s trial testimony was consistent with his
statement given the day of the crime and in no way
exculpatory.
J.A. 303-04 (emphasis added). Parsons’ written account of this
pretrial conversation, including his explicit denial that Zimm
told him during that conversation that he was not afraid at the
time of the attempted robbery, is uncontroverted.
B. The Omnibus Evidentiary Hearing
The state habeas court held an omnibus evidentiary hearing,
providing Watkins the opportunity to prove his allegation.
Watkins did not do so.
Watkins did not call Zimm or Parsons as a witness to
substantiate his allegation that Zimm made the lack-of-fear
statement to Parsons prior to trial. As a result, the state
court did not hear from the only two witnesses who had first-
hand knowledge of the pretrial conversation that had taken place
between them.
Watkins did call his trial counsel Adkins as a witness,
presumably to substantiate his allegation that Adkins had
“provided a memorandum to [state] habeas counsel indicating that
he was present during a pre-hearing conversation with [Parsons]
. . . who allegedly uttered that [Zimm] told him that he was
21
never afraid.” J.A. 181. But Adkins did not do so. Adkins’
testimony regarding the issue was as follows:
Q: [by State Habeas Counsel]. [W]e have a contention
in . . . this habeas proceeding, whereby it’s alleged
that Mr. Parsons made some comments to the effect that
Mr. Zimm had told him that he wasn’t afraid during
this whole incident. Were you ever present when Mr.
Parsons spoke about that?
. . . .
A: I don’t recall that.
Q: Were you ever present in Judge Hatcher’s
courtroom at a time when it was perhaps yourself, Mr.
Parsons, Mallory – I think her name was Farris – the
court reporter, and a client of yours named Grasty
when Mr. Parsons suggested that Mr. Zimm had told him
he wasn’t afraid of Mr. Watkins?
A: I believe so, and I believe I may have made a
contemporaneous note and either placed it in the file
or . . . I think I might have given it to you.
Q: Yes, sir. Do you recall what that -- what was
said at that time?
A: My contemporaneous note would probably be more
accurate than my memory.
Q: Okay. Do you have any independent recollection
of that conversation?
A: Something to the effect that -- something to the
effect that -- yes, we were at another hearing, and
Mr. Parsons had stated something to the effect that
Mr. Zimm might not have been scared of Mr. Watkins on
that -- on the date of the alleged robbery.
Q: Is that what Mr. Parsons -- as far as you recall,
-- you said your recollection was fuzzy on some of
this, but as far as you recall, is that what was said?
A: Like I said, I believe I made a contemporaneous
note and retained a copy in my file. And I think when
22
I was aware that you were handling this on a habeas, I
think I might have provided you with a copy of it.
Q: Do you recall who was present at the time that it
was stated?
A: Other than me and Mr. Parsons, no.
Q: Did you -- do you recall responding at that time?
Did you say anything?
A: No. I was out of the case at that point in time.
J.A. 194-96 (emphasis added). Watkins did not call any of
the other persons who were present during this post-trial
conversation, and he did not introduce into evidence the
“contemporaneous note” that Adkins repeatedly referenced during
his testimony. 1
1 As discussed in more detail below, Watkins plainly
misrepresented the substance of Adkins’ state court testimony
during the federal habeas proceedings. In addition, Watkins
attached to his pro se federal habeas petition a typewritten
note that he now represents to be the “contemporaneous note”
mentioned by Adkins. This note references “chatter” amongst the
various persons during a sentencing hearing for an unrelated
defendant that occurred on April 1, 2008. We cannot know
whether the “contemporaneous note” that surfaced during these
federal habeas proceedings is the “contemporaneous note” that
Adkins referenced in his testimony. The place and time to
determine that was during the state court proceedings. But even
if we were to consider the note, it would create more problems
for Watkins. The note that Watkins chose not to show to the
state habeas court, but now urges us to see, dates the
conversation as having occurred on April 1, 2008, after Watkins’
trial but prior to his sentencing. Adkins was not “out of the
case” at that time, J.A. 196, and he would have necessarily been
aware of any alleged, exculpatory statement prior to the
conclusion of the state trial proceedings. In other words,
Watkins’ Brady claim would most likely be procedurally barred,
see W. Va. Code § 53-4A-1(c), which may well explain why state
(Continued)
23
Accordingly, the evidence presented in the state court
proceeding in support of Watkins’ “lack-of-fear” claim consisted
of: (1) Parsons’ agreement (in the written response) that he
had a pretrial conversation with Zimm about the element of fear
that did not include the alleged lack-of-fear statement by Zimm;
(2) Adkins’ testimony that he did not recall Parsons making
“comments to the effect that Mr. Zimm had told him that he
wasn’t afraid during th[e] incident,” J.A. 194; and (3) Adkins’
sole “independent recollection of that conversation,” which was
that Parsons “had stated something to the effect that Mr. Zimm
might not have been scared of Mr. Watkins . . . on the date of
the alleged robbery,” J.A. 195, which is more opinion than fact
and says nothing about when Parsons developed this belief. 2
habeas counsel did not produce the note during the state habeas
proceedings despite Adkins’ repeated references to it.
2 Watkins’ state habeas counsel might well have been
concerned about his ability to prove the existence of the
alleged lack-of-fear statement from the inception of the
evidentiary hearing. Prior to presenting Adkins’ testimony,
Watkins’ counsel had instead described the eleventh claim as one
involving alleged improper “coaching” of the witness. See J.A.
191 (advising the state habeas court that the “eleventh
contention involves an allegation that Mr. Parsons essentially
coached Mike Zimm, the prime witness and alleged victim in this
matter”). However, Adkins also provided no evidentiary support
for this more-recent claim. On cross-examination by the state,
Adkins testified that he did not “have any problem with an
attorney for the State saying to a victim that, ‘If you’re not
afraid or you don’t feel that you were afraid, you need to tell
me and we’re not going to take this case forward,’” and that he
(Continued)
24
C. The State Habeas Decision
In its decision denying habeas relief, the state court made
the following findings of fact:
(1) “[D]uring trial, [Mr. Zimm] testified that he was
afraid of the petitioner based upon what the
petitioner said in Mr. Zimm’s store and upon the
petitioner’s appearance.”
(2) “Mr. Zimm’s trial testimony was consistent with
the statement he gave to police at the time of the
incident.”
(3) “[A]t some time after the trial of this matter,
trial counsel was told that Mr. Zimm said he was not
‘afraid’ at the time of the incident at issue.
(4) “Assistant Prosecuting Attorney Brian Parsons,
esq. discussed with Mr. Zimm the definition of the
word ‘fear’ as it applied to the elements of the crime
at issue, and that Mr. Parsons informed Mr. Zimm that
if the element of fear did not exist, then the case
could not be proven at trial.
(5) “The discovery provided to the defense did not
contain any reference to Mr. Zimm’s alleged statement
that he was not ‘afraid’ or to the above described
conversation between Mr. Parsons and Mr. Zimm.”
J.A. 211 (emphasis added).
With regard to Zimm’s alleged “lack-of-fear” statement,
therefore, the state court did not find that Zimm “had told
[Parsons] that he was not afraid of the Defendant,” as Watkins
had alleged. J.A. 181. Nor did it find that Adkins overheard
Parsons “utter[] that . . . Zimm told him that he was never
did not “feel in [his] professional opinion that that is
coaching a witness.” J.A. 201.
25
afraid,” as Watkins had also alleged. J.A. 181. The evidence
presented at the hearing did not warrant either finding.
With regard to the element-of-fear conversation that
Parsons agreed had taken place between him and Zimm, the state
court’s description of that conversation likewise did not
include a finding that Zimm’s alleged lack-of-fear statement was
a part of it. Moreover, the state court continued to draw quite
an important distinction between the two things. Although the
court referred to the element-of-fear conversation as the
conversation that it had just described, the court continued to
refer to the alleged, lack-of-fear statement as just that -- an
allegation.
The state court’s conclusions of law also do not indicate
that the state court implicitly found that the pretrial
conversation included the alleged lack-of-fear statement.
(1) “The Court CONCLUDES that the State has an
obligation to disclose to the defendant favorable
impeachment or exculpatory [evidence] that is within
its knowledge.”
(2) “The Court CONCLUDES that the State’s alleged
failure to inform defense counsel of the conversation
between Mr. Parsons and Mr. Zimm regarding the
requirement of ‘fear’ did not violate the dictates of
Brady v. Maryland.”
(3) “Additionally, the Court CONCLUDES that Mr.
Parson’s statements to Mr. Zimm with regard to the
element of ‘fear’ were an accurate way to describe
elemental requirements to a lay person/witness and
that there is no evidence that Mr. Parsons suggested
or improperly influenced Mr. Zimm’s testimony.”
26
J.A. 213-14 (emphasis added). Thus, the state court -- having
not found that Zimm made the alleged, exculpatory lack-of-fear
statement to Parsons prior to trial, or that the alleged
statement was within Parsons’ knowledge prior to trial -- only
addressed Watkins’ more-recently raised claim that Brady
required Parsons to disclose the pretrial element-of-fear
conversation that Parsons had described in the state’s response.
The state court closely reiterated Parsons’ uncontroverted
account of that conversation and reasonably concluded that
“there [was] no evidence that Mr. Parsons suggested or
improperly influenced Mr. Zimm’s testimony” during it. J.A.
214. 3
3
The dissent acknowledges that the state habeas court’s
“very wording closely mirrors that of the prosecutor’s response
to the habeas petition,” but does so as support for its view
that the state court must have “accepted and adopted Prosecutor
Parson’s uncontroverted account as to the timing of the alleged
fear statement.” Dissent at 5 (emphasis added). But this focus
on timing obfuscates the actual deficit in Watkins’ proof, and
confuses Watkins’ allegation regarding Zimm’s alleged “lack-of-
fear” statement with Parsons’ acknowledgment that he had a
conversation with Zimm about the requirement of fear that did
not include any such statement by Zimm. Obviously, the timing
of the pretrial conversation between Parsons and Zimm, which
served as the basis for Watkins’ “coaching” allegation, is not
in dispute. But the existence of Zimm’s alleged “fear
statement” during the pretrial conversation has always been in
dispute. The dissent persists in conflating the two things,
even though the state court never did. Thus, I agree that the
state habeas court appears to have “accepted and adopted
Prosecutor Parsons uncontroverted account” of the pretrial
conversation. Id. Indeed, it is the only account of that
conversation, because Watkins chose not to explore it or offer
(Continued)
27
II.
A.
Under the familiar principles of the Antiterrorism and
Effective Death Penalty Act of 1996 (AEDPA), we may not grant
federal habeas relief from a state court conviction unless the
state court’s adjudication of the claim “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,”
or “a decision that was contrary to, or an unreasonable
application of” Supreme Court precedent. 28 U.S.C. §
2254(d)(1), (2). Moreover, “a determination of a factual issue
made by a State court shall be presumed to be correct,” and
“[t]he applicant shall have the burden of rebutting the
presumption of correctness by clear and convincing evidence.”
28 U.S.C. § 2254(e)(1).
Here, Watkins has not rebutted the state court’s factual
findings, as written, by clear and convincing evidence. Nor
does he assert that the state court’s denial of his Brady claim
was based upon an unreasonable determination of the facts in
light of the evidence presented in the state court proceeding.
any other evidence about it. However, we cannot ignore the fact
that this same “uncontroverted account” by Parsons of the
pretrial conversation includes Parsons’ explicit denial that
Zimm made the alleged lack-of-fear statement during it.
28
Instead, he contends that we should imply a critical finding of
fact based upon evidence that he failed to present in the state
court proceeding -- a finding that the state court clearly
declined to make and that would be inconsistent with the state
court’s reasonable adjudication of his Brady claim. AEDPA
deference does not allow us to do so.
“By its plain terms, § 2254(d)(2) limits our review to the
evidence placed before the state PCR court.” Elmore v. Ozmint,
661 F.3d 783, 850 (4th Cir. 2011) (emphasis added); see also
Cullen v. Pinholster, 131 S. Ct. 1388, 1400 n.7 (2011).
Accordingly, “[w]e consider whether the state PCR court based
its decisions ‘on an objectively unreasonable factual
determination in view of the evidence before it, bearing in mind
that factual determinations by state courts are presumed correct
absent clear and convincing evidence to the contrary.” Elmore,
661 F.3d at 850 (quoting Baum v. Rushton, 572 F.3d 198, 210 (4th
Cir. 2009)). Under these highly deferential standards, we must
also give the state court decision “the benefit of the doubt.”
Burt v. Titlow, 134 S. Ct. 10, 13 (2013); Elmore, 661 F.3d at
850.
In some situations, AEDPA deference allows federal courts
to infer from the state court’s “explicit factual findings and
conclusion[s] implied factual findings that are consistent with
its judgment although unstated.” Hightower v. Terry, 459 F.3d
29
1067, 1072 n.9 (11th Cir. 2006) (emphasis added); see Marshall
v. Lonberger, 459 U.S. 422, 433 (1983) (applying presumption of
correctness to implicit finding against the defendant’s
credibility, where that finding was necessarily part of the
court’s rejection of the applicant’s claim); LaVallee v. Delle
Rose, 410 U.S. 690, 692 (1973) (per curiam) (same); Lee v.
Comm’r, Ala. Dep’t of Corr., 726 F.3d 1172, 1213 (11th Cir.
2013) (“[W]e afford AEDPA deference even where the state court’s
decision is a summary adjudication or engages in only some
evaluation because ‘implicit findings’ may be inferred from
dispositive rulings.” (emphasis added)); Blankenship v. Hall,
542 F.3d 1253, 1272 (11th Cir. 2008) (“We have previously
recognized a state court’s dispositive ruling may contain
implicit findings, which, though unstated, are necessary to that
ruling.” (internal quotation marks omitted)(emphasis added));
Valdez v. Cockrell, 274 F.3d 941, 948 n.11 (5th Cir. 2001) (“The
presumption of correctness not only applies to explicit findings
of fact, but it also applies to those unarticulated findings
which are necessary to the state court’s conclusions of mixed
law and fact.”); 9C Charles Alan Wright & Arthur R. Miller,
Federal Practice and Procedure, § 2579 (3d ed. 2004) (“In some
cases if the court fails to make a finding on a particular fact
it has been assumed that it found against the party carrying the
burden of persuasion on that fact or that it impliedly made a
30
finding consistent with its general disposition of the case.”)
(footnotes omitted).
“In such cases, we make the common sense judgment that
material factual issues were resolved by the [state] court in
favor of the judgment when it was reasonable for that court to
have done so in light of the evidence.” Hightower, 459 F.3d at
1072 n.9 (original alterations and internal quotation marks
omitted); see also Marshall, 459 U.S. at 433 (Where “it was
clear under the applicable federal law that the [state] court
would have granted the relief sought by the defendant had it
believed the defendant’s testimony, its failure to grant relief
was tantamount to an express finding against the . . .
defendant.”); LaVallee, 410 U.S. at 695 (same). 4
4
The dissent asserts that this “is simply not the law,” but
points us to no contrary authority. Dissent at 13. In none of
the cases cited by the dissent did the court imply an
inconsistent finding of fact, afford it a presumption of
correctness, and place the burden upon the state to rebut it.
On the contrary, the Blankenship decision, which is also relied
upon by the dissent, made it clear that a state court’s
“‘dispositive ruling may contain implicit findings, which,
though unstated, are necessary to that ruling.’” Blankenship v.
Hall, 542 F.3d 1253, 1272 (11th Cir. 2008) (emphasis added).
Such “necessary” findings “can be inferred from its opinion and
the record,” and they “are entitled to deference under § 2254(d)
to the same extent as explicit findings of fact.” Id. But
nowhere did the Blankenship court indicate that inconsistent,
and by definition unnecessary, state court findings of fact can
be inferred based upon our interpretation of an explicit factual
finding or the state court record. Moreover, “while state court
findings of fact can be implied” from the state court’s
dispositive ruling, “‘they cannot be imagined from thin air.’”
(Continued)
31
Here, however, Watkins urges us to do the opposite.
Watkins contends that he is entitled to federal habeas relief
from his state court conviction because the state habeas court,
in the course of denying his Brady claim, found that “at some
time after the trial of this matter, trial counsel was told that
Mr. Zimm said he was not ‘afraid’ at the time of the incident at
issue.” J.A. 211 (emphasis added). But instead of having us
interpret that single finding of fact in a manner consistent
with the state court’s other findings and conclusions, as well
as its reasonable disposition of the claim in light of the
evidence presented, Watkins urges us to rewrite and add to the
finding in a manner that is inconsistent with them.
Specifically, Watkins contends that the state court meant
to find, or impliedly found, instead, that “at some time after
the trial of this matter, trial counsel was told [by Parsons]
that Mr. Zimm said [to Parsons] that he was not afraid at the
time of the incident,” and that Zimm said this to Parsons prior
to Watkins’ trial. To be sure, these additions to the state
court’s actual finding of fact are critical to any plausible
claim on Watkins’ part that a Brady violation occurred. But we
Id. at 1272 n.5 (quoting Cave v. Singletary, 971 F.2d 1513, 1516
(11th Cir. 1992)). That is precisely what the district court
and the dissent would have us do here. Neither points to
evidence that Parsons admitted to Adkins that Zimm made the
exculpatory statement to him, because it does not exist.
32
cannot simply ignore the fact that the state court did not make
them or that, based upon the evidence presented, the state court
reasonably denied the Brady claim instead. Indeed, I do not see
how it had any other choice.
The state court did not find that Zimm made an exculpatory
statement to Parsons prior to trial. The state court did not
find that Parsons admitted to Adkins that Zimm made an
exculpatory statement to him prior to trial. And, of course,
the state court did not find that Parsons or the state had
knowledge of any exculpatory statement by Zimm prior to trial.
Watkins does not point to any evidence that would directly
support, much less compel, these modifications to the state
court’s findings of fact. Instead, he contends that we should
include them because the state did not produce evidence that
someone other than Parsons told Adkins that Zimm made the
alleged, exculpatory statement, and because the state did not
produce evidence that Zimm made the alleged, exculpatory
statement after the trial. This reasoning not only
impermissibly reverses the burden of proof from Watkins to the
state to disprove his allegation, it turns AEDPA deference on
its head.
B.
Although I cannot know precisely why the state habeas court
phrased this single factual finding in the manner that it did,
33
it is still entitled to a presumption of correctness, and the
state court’s decision on the merits of the Brady claim may not
be set aside unless it is an unreasonable one in light of the
evidence that was presented to the state court. One need only
read Adkins’ brief testimony about the whole matter to conclude
that it is not.
Frankly, if I had been the state court judge, I would not
have found that anyone told Adkins that Zimm said to anyone at
any time that he was not afraid during the attempted robbery.
But I am not the finder of fact. My obligation is to give
deference to the state court’s reasonable adjudication of the
constitutional claim in light of the evidence presented to it,
and to give the state court the benefit of the doubt when doing
so.
That said, there could be any number of reasonable
explanations for why the state court penned this single finding
as it did. Maybe the state court simply made a mistake. Or
maybe the state court meant to say exactly what it did and
nothing more. The state court record suggests that there were
other persons present during the post-trial conversation,
Adkins’ memory of the conversation was admittedly “fuzzy,” and
Adkins was not allowed to refresh his memory with the
contemporaneous note to which he persistently referred. J.A.
195. As the finding is written, therefore, the state court
34
might well have decided to give state habeas counsel the benefit
of the doubt as to whether the Brady allegation had been made in
good faith, deserving of the evidentiary hearing that was
provided to Watkins to prove the claim. But it would not have
made a finding that was inconsistent with the balance of its
other findings and conclusions, unsupported by the evidence that
Watkins brought forth to support the allegation, or inconsistent
with its eminently reasonable decision to deny Watkins’ Brady
claim based upon that evidence
The line of cases relied upon by the dissent also would not
allow us to translate a single, ambiguous finding of fact, or
even a mistaken one, into an inconsistent one that is not
supported by the evidence, in order to upset the state court’s
reasonable rejection of the constitutional claim. See, e.g.,
Garcia v. Quarterman, 454 F.3d 441, 444 (5th Cir. 2006) (noting
that “‘[t]he statute compels federal courts to review for
reasonableness the state court’s ultimate decision, not every
jot of its reasoning’” (quoting Santellan v. Cockrell, 271 F.3d
190, 193 (5th Cir. 2001) (emphasis added)); see also Santellan,
271 F.3d at 193 (“[E]ven where a state court [has] made a
mistake, . . . ‘we are determining the reasonableness of the
state court’s ‘decision,’ . . . not grading their papers.’”)
(quoting Cruz v. Miller, 255 F.3d 77, 86 (2d Cir. 2001) (second
alteration in original); Cruz, 255 F.3d at 86 (“Although sound
35
reasoning will enhance the likelihood that a state court’s
ruling will be determined to be a reasonable application of
Supreme Court law, deficient reasoning will not preclude AEDPA
deference, at least in the absence of an analysis so flawed as
to undermine confidence that the constitutional claim has been
fairly adjudicated.” (internal quotation marks and citations
omitted)).
In the end, however, my interpretation of the state court’s
explicit finding of fact is irrelevant, for I am not at liberty
to pick it apart or rewrite it in the light most favorable to
Watkins. See, e.g., Wainwright v. Goode, 464 U.S. 78, 85 (1983)
(per curiam) (holding that where the state court “record [wa]s
ambiguous,” “the Court of Appeals erred in substituting its view
of the facts for that of the [state court]”; Palmer v. Estelle,
985 F.2d 456, 459 (9th Cir. 1993) (“Where the record is
ambiguous, [the state] court’s factual findings are deemed to be
‘fairly supported by the record.’” (quoting Wainwright, 464 U.S.
at 85). Watkins bore the burden of presenting clear and
convincing evidence that the state habeas court’s factual
finding, as written, was not entitled to the presumption of
correctness that AEDPA grants it. He has not done so. Even if
he had, he would only have shown that this single factual
finding was either incorrect or incomplete, neither of which
would compel us to replace it with a factual finding that is
36
unsupported by the evidence and inconsistent with the state
court’s decision. Watkins was required to show that the state
court’s ultimate rejection of his Brady claim was an
unreasonable one in light of the evidence presented to the state
court, see Winston v. Kelly, 592 F.3d 535, 555 (4th Cir. 2010),
and this he cannot do.
III. The Federal Habeas Proceedings
I turn now to the district court’s decision, and the
troubling factual misrepresentations that Watkins made to it
about the evidence of record.
A.
From the outset, Watkins represented to the district court
in his § 2254 petition that Adkins “testified that he heard
Prosecutor Parsons say (at an unrelated hearing) that at some
point before trial the alleged victim, Mike Zimm, told him that
he was not afraid on the day in question.” J.A. 235. That is
untrue.
Watkins then proceeded to further supplement Adkins’ actual
testimony with testimony that he wishes Adkins had given.
According to Watkins:
At some point after the trial, [Adkins] was present at
an unrelated hearing where [Parsons] was also present.
At the unrelated hearing, Adkins heard Brian Parsons
say that at some point before Watkins’ trial he met
with the alleged victim, Mike Zimm, and during that
meeting Zimm told Parsons that he was not in fear the
day Watkins came to his store. Parsons, in the
37
presence of Jim Adkins, then admitted that he then
told Zimm that if he wasn’t in fear that day, then it
was pointless to pursue the case as a robbery. Mr.
Zimm’s statement at that meeting with [P]arsons was
the opposite of what he testified to at Watkins’
trial.
. . . .
At Watkins’ Omnibus Habeas Corpus Hearing, Mr.
Adkins did testify to all of this, and then gave his
professional assessment that if he had known about
Zimm’s contradictory statements before trial, it would
have potentially affected the outcome. . . .
Mr. Parsons does not deny that such a
conversation between he and Mr. Zimm took place. In
fact, he admits to it in the State’s Response to
Watkins’ Petition.
J.A. 239-40. Again, this is untrue. If Adkins had actually
“testif[ied] to all of this,” id. at 240, Watkins might well
have had a plausible Brady argument. But Adkins did not.
Watkins’ summary is no mere “overstate[ment]” of “the
strength of Adkins’ testimony.” Dissent at 8. It is created
out of whole cloth. Adkins did not testify that Parsons told
him anything about his pretrial conversation with Zimm, much
less that Parsons admitted to him that Zimm made an exculpatory
statement. Instead, Watkins took selected portions of Parsons’
response to the state habeas petition, and put them into the
mouth of Adkins – except, of course, that most important portion
where Parsons denied that Zimm made the alleged, exculpatory
statement to him. Parsons did not deny having a pretrial
conversation with Zimm about the element of fear, but he most
38
certainly did “deny that such . . . conversation” included a
“contradictory statement” by Zimm that “he was not in fear the
day Watkins came to his store.” J.A. 240.
Unfortunately, the district court appears to have accepted
Watkins’ unsubstantiated factual narrative. It likewise
erroneously recounted Adkins’ testimony as follows:
During the [omnibus evidentiary] hearing, James
Adkins, the petitioner’s trial lawyer, testified that,
at an unrelated hearing after the petitioner’s trial,
he overheard Brian Parsons, the prosecutor at the
petitioner’s trial, describe a conversation he had
with Zimm before the petitioner’s trial. In Adkins’s
presence, prosecutor Parsons stated that Zimm told him
during this pretrial conversation that he had not been
in fear on the day the petitioner entered his store.
According to Adkins, the prosecutor said that his
response to Zimm was that if he was not in fear, the
case for attempted robbery could not proceed. Adkins
made a contemporaneous note of the conversation.
Although the note was not admitted into evidence, its
substance was discussed during the hearing and in the
parties’ briefing.
J.A. 391 (emphasis added). Again, no such testimony by Adkins
exists, and neither the “contemporaneous note” nor anyone’s
summary of it was introduced into evidence before the state
court.
Proceeding from this incorrect evidentiary premise from the
outset, the district court found that “[t]here [was] no evidence
to controvert” Adkins’ nonexistent testimony, and it rewrote the
state court’s factual finding into the one that Watkins wanted:
“[A]t some time after the trial of this matter, trial
counsel was told [by the prosecutor] that Mr. Zimm
39
said he was not ‘afraid’ at the time of the incident
at issue.”
J.A. 396 (alteration of state court finding in original)
(emphasis added). Having made this unsubstantiated factual
finding that Parsons admitted to Adkins that he had knowledge of
the alleged Brady statement, and operating under the additional,
assumption that Parsons had knowledge of it prior to trial, the
district court was then in a position to conclude that the state
court’s denial of relief in light of these implied findings was
unreasonable under 28 U.S.C. § 2254(d)(1). This was error.
The district court’s extraordinary steps to its grant of
federal habeas relief have gone far afield from the “evidence
presented in the State court proceeding,” 28 U.S.C. §
2254(d)(2), and give inadequate deference to the state court’s
reasonable adjudication of Watkins’ Brady claim in light of that
evidence.
B.
On appeal, the dissent has similarly stretched Adkins’
testimony into a version that does not exist. According to the
dissent, “Adkins identified Parsons, and only Parsons, as the
person who told him about Zimm’s alleged lack-of-fear
statement.” Dissent at 9. But in actuality Adkins did not
identify Parsons even once as a person who told him after trial
that Zimm had said he was not afraid during the crime.
40
Simply put, Adkins was the only witness that Watkins called
to substantiate his allegation, and Adkins did not do so. There
is no need for us to interpret or add to Adkins’ testimony. Nor
is it within our province to do so. Adkins’ testimony speaks
for itself.
When Adkins was explicitly questioned about Watkins’ Brady
allegation, he testified that he did not recall Parsons
“ma[king] comments to the effect that Mr. Zimm told him that he
wasn’t afraid during this whole incident.” J.A. 194. When
pressed by state habeas counsel, Adkins testified that he
“believe[d] he recalled a conversation that took place after
Watkins’ trial and that he “may have made a contemporaneous
note” of the substance of that conversation. Id. But Adkins
never agreed with state habeas counsel’s leading statement that
during this conversation “‘Parsons suggested that Mr. Zimm had
told him that he wasn’t afraid of Mr. Watkins.’” Dissent at 9.
Rather, Adkins immediately and repeatedly referred to the
contemporaneous note that he believed he had given to state
habeas counsel and he all but asked counsel to produce it to
him.
When Watkins’ counsel instead asked Adkins to put in his
own words his “independent recollection of that conversation,”
Adkins did not testify that Parsons “suggested that Mr. Zimm had
told him he wasn’t afraid of Mr. Watkins.” J.A. 194-95. And he
41
did not identify Parsons even once as a person who told him that
Zimm had said that he was not afraid during the attempted
robbery. On the contrary, Adkins testified, and only testified,
to his “independent recollection” and in his own words, that
“Parsons had stated something to the effect that Mr. Zimm might
not have been scared of Mr. Watkins on . . . the date of the
alleged robbery[,]” J.A. 195 (emphasis added), which is more
opinion than fact and offers nothing in the way of when or why
Parsons developed this belief about Zimm.
Interestingly, the dissent seemingly acknowledges Watkins’
failure of proof, as it too points to no testimony that would
support the district court’s implied factual finding that
Parsons admitted to Adkins that Zimm told Parsons that he was
not afraid of Watkins at the time of the robbery. 5 Instead, the
dissent focuses upon the state’s case, faulting Parsons for not
denying Watkins’ allegations in the way it believes he should
have and criticizing the state for putting up what it deems to
5In fact, the dissent acknowledges that “Adkins used
qualifying words and equivocal phrases about what, precisely, he
heard, and suggested that his ‘contemporaneous note would
probably be more accurate than [his] memory,’” Dissent at 8-9
(quoting J.A. 195) (emphasis and alteration in original), but
this only highlights the point. Adkins simply did not provide
the requisite support for Watkins’ allegation that “he was
present during a pre-hearing conversation with [Parsons] who
allegedly uttered that [Zimm] told him that he was never
afraid.” J.A. 181.
42
have been a “lackluster showing” at the state evidentiary
hearing. Dissent at 10 n.2.
For example, the dissent criticizes Parsons for not
“challeng[ing] Adkins’ recollection of his post-trial
conversation with Parsons” and for not “suggest[ing] that Zimm
could have made the alleged statement after trial.” Dissent at
5. But, of course, this was not the state’s burden to bear and
the state had no obligation to make any showing at the state
evidentiary hearing. It was Watkins’ burden to prove that Zimm
made the alleged, exculpatory statement, that he made it to
Parsons, and that he made it prior to trial. He did not.
Watkins chose not to call Zimm or Parsons as a witness to
explore their pretrial conversations. Watkins chose to call
Adkins to prove his claim, but Adkins’ memory did not allow him
to serve that role and Watkins did not produce Adkins’
contemporaneous note to refresh his memory.
Indeed, why would Parsons have felt the need to challenge
Adkins’ recollection of the post-trial conversation? And why
would he have endeavored to find and present evidence that Zimm
made the alleged “lack-of-fear” statement after trial or to
someone else? Parsons had already denied that Zimm made the
alleged Brady statement to him and Adkins had not contradicted
this denial with testimony that Parsons had admitted to him that
the exculpatory statement was made. Little wonder, therefore,
43
that the state court did not find that Zimm made the alleged
statement to Parsons, did not find that Zimm made the alleged
statement to anyone else, and did not find that Parsons told
Adkins about the alleged statement.
The dissent likewise criticizes the manner in which Parsons
denied Watkins’ allegation in the state’s response to Watkins’
state habeas petition. Although the dissent admits that Parsons
denied Watkins’ allegation, it urges us to brush this
inconvenient fact aside as well because, in its opinion, Parsons
“had every reason to minimize Zimm’s ‘lack-of-fear’ during the
robbery.” Dissent at 10. But the dissent points to nothing in
the record that supports this assumption about Parsons’ motives,
much less its implied finding that the state court was of this
unspoken view as well.
The dissent also creates a host of additional implied
findings pertaining to Parsons’ denial. The dissent has decided
that “Parsons attempted to finesse exactly what witness Zimm
said at their pre-trial meetings,” that he “parsed and qualified
their exchanges” during these meetings, and that he
intentionally “le[ft] open the possibility that Zimm did say
something short of never being afraid but still not amounting to
the required not in ‘fear of bodily injury.’” Dissent at 11.
Again, there is nothing in the record to support these
44
accusations against Parsons, and the state court certainly did
not make any such adverse credibility findings against him.
In effect, the dissent faults Parsons for not explicitly
denying an endless variety of unspoken but theoretically
possible variations of the allegation that Watkins made and that
Parsons denied, all the while ignoring the fact that Watkins
could have explored any such suspicions about Parsons’ response
at the evidentiary hearing. Parsons did not choose the words
that comprised the allegation against him. Watkins did. And I
certainly cannot fault Parsons for phrasing his denial of
Watkins’ accusation by using the same accusatory words that were
used against him. 6
In any event, such speculation about prosecutorial motives
during the pleading stage is misplaced given our deferential
standard of review and Watkins’ clear failure to prove his
allegation. The question is whether the state court’s decision
to reject Watkins’ Brady claim was an unreasonable one in light
of the evidence that Watkins presented in support of it.
Watkins cannot excuse his failure of proof by relying upon an
6To the extent there is any confusion, the only “written
statement [submitted] to the state habeas court,” Dissent at 11,
was the state’s response to Watkins’ habeas petition, denying
Watkins’ sole claim that Zimm had made the alleged “lack-of-
fear” statement prior to trial. Those pleadings, of course,
provide no basis for the implication that Parsons was engaged in
such word-play on the day of the evidentiary hearing.
45
alleged “lackluster showing” by the state, nor can we. Dissent
at 10 n.2. All agree that Watkins’ sole allegation in his
petition was that Zimm told Parsons prior to trial that he was
“never afraid,” J.A. 181, and all agree that Parsons denied
Watkins’ allegation. As the dissent also acknowledges, Parsons
was in the courtroom. Watkins could have called Parsons as a
witness to ask him, for example, whether Zimm “sa[id] something
short of never being afraid.” Dissent at 11. More simply,
Watkins could have just asked Parsons what Zimm said to him.
Watkins also could have called Zimm as a witness and asked Zimm
what he said to Parsons. In short, Watkins was provided a full
opportunity to explore any and all pre-trial conversations
between Zimm and Parsons. Instead, Watkins did nothing, and now
wags his finger at the state for not disproving his unproven
allegation. 7
7 As noted earlier, on the morning of the state evidentiary
hearing, Watkins changed the focus of his Brady claim from the
alleged “lack-of-fear” statement by Zimm (which was alleged in
the petition) to the “coaching” allegation against Parsons
(which was grounded in Parsons’ response to the petition). On
cross-examination by the state, however, Adkins equally failed
to support this newly-raised claim and it too was rejected by
the state court.
On federal habeas review, Watkins has attempted to change
the focus back to his original allegation. But in order to do
so, he falsely represented Adkins’ testimony to the district
court and attempted to introduce for the first time the alleged
“contemporaneous note” authored by Adkins. That note, however,
contradicts Adkins’ testimony that he was “out of the case” at
the time of this alleged “post-trial” conversation between him
(Continued)
46
C.
To conclude, Watkins’ arguments are plentiful, but they are
based upon summaries of evidence that does not exist. The
district court’s implied finding that Parsons admitted the Brady
violation to Adkins is likewise built upon nonexistent evidence
and supposition. Parsons did not agree in the state’s response
to Watkins’ state habeas petition that Zimm made the alleged
exculpatory statement during their pretrial conversation.
Watkins points to no testimony by Adkins that Parsons admitted
that Zimm made the alleged exculpatory statement to him prior to
trial. The state court did not find that Parsons admitted to
Adkins that Zimm made the exculpatory statement, and the
evidence presented in the state court proceeding does not
require us to imply a finding that would be contrary to the
state court’s reasonable adjudication of this claim. Even if I
were at liberty to review Watkins’ state habeas petition de
novo, I could find no basis upon which to grant relief on this
and Parsons, and places it as having instead occurred prior to
the conclusion of the trial proceedings. By withholding the
note from the state court, Watkins deprived the state court of
the ability to address not only the substantive content of the
note but also the procedural implications that stem from it.
Hardly a better case could be made for why we must defer to the
state habeas court’s reasonable rejection of Watkins’ claim in
light of the evidence that was presented to it.
47
record. I certainly cannot say that the state court’s decision
to deny relief was an unreasonable one. 8
8 On appeal, the dissent seeks to write into the state
court’s decision yet another implied finding, i.e., that the
alleged, exculpatory statement was not material. I do not
concede that the alleged but unproven statement by Zimm would
have been material under Brady if there was evidence that he
actually said it, much less that the state court would have been
unreasonable under AEDPA’s deferential standard of review if it
had found that the statement was not material. The state court
never found that Zimm made the alleged statement, or that
Parsons had knowledge of any such statement prior to Watkins’
trial, or that Parsons failed to disclose any exculpatory
evidence to Watkins in a timely manner. Consequently, it had no
reason to address materiality and it did not make any such
materiality finding.
48
DIANA GRIBBON MOTZ, Circuit Judge, dissenting:
With respect, I dissent. The district court understood and
deferred to the facts found by the state habeas court, and then
correctly concluded that the state court unreasonably applied
Brady v. Maryland, 373 U.S. 83 (1963), to those facts.
Accordingly, we should affirm its grant of the writ of habeas
corpus to Steven Watkins.
I.
I agree with the majority that the state court did not base
its denial of habeas relief on an unreasonable finding of the
facts and that a federal court reviewing a state habeas ruling
must defer to the state court’s factual findings. But for these
very reasons, I cannot agree that the district court erred in
granting habeas relief. For in holding that the district court
impermissibly “placed its own gloss upon the state court’s
factual findings,” the majority itself does precisely that.
This move enables the majority to reconstruct the narrative of
this case to one more to its liking, but one that the state
court never found, the State never espoused, and the record
simply does not support.
A jury found Watkins guilty of the West Virginia crime of
attempted robbery in the second degree, which requires proof
that the would-be robber placed “the victim in fear of bodily
49
injury.” W. Va. Code § 61-2-12(b). At the core of the majority
opinion is the erroneous conclusion that the state habeas court
did not find that before trial the prosecution possessed
evidence that the victim of the attempted robbery had made an
inconsistent statement about an element of the charged offense -
- i.e., that he had not been “in fear of bodily injury” during
the attempted robbery, as was required for conviction. The
concurrence then adds some equally flawed arguments in an
attempt to bolster this conclusion.
On the basis of these mistaken theories, the majority holds
that the prosecutor’s failure to inform the defense about this
impeachment evidence did not violate Brady. But careful review
of the record requires the contrary conclusion. The state
habeas court did indeed find that before trial the prosecutor
had evidence of the critical witness’s lack-of-fear statement.
And the prosecutor’s failure to inform the defense of this
evidence clearly violated Brady.
The factual finding of the state court at issue here reads
in its entirety as follows:
The Court FINDS that, at some time after the trial of
this matter, trial counsel [Adkins] was told that Mr.
Zimm [the witness] said he was not “afraid” at the
time of the incident at issue. Assistant Prosecuting
Attorney Brian Parsons, [E]sq. discussed with Mr. Zimm
the definition of the word “fear” as it applied to the
elements of the crime at issue, and that Mr. Parsons
informed Mr. Zimm that if the element of fear did not
exist, then the case could not be proven at trial.
50
The discovery provided to the defense did not contain
any reference to Mr. Zimm’s alleged statement that he
was not “afraid” or to the above described
conversation between Mr. Parsons and Mr. Zimm.
J.A. 211. The state court found that after trial, Defense
Counsel Adkins was told that the victim-witness, Mike Zimm,
stated that he had not been afraid during the charged attempted
robbery. The first sentence of the above paragraph makes that
clear. Equally clear is that in the second sentence, the state
court found that before trial, Prosecutor Parsons and witness
Zimm had a conversation in which Parsons told Zimm that without
evidence of his fear during the alleged attempted robbery, “the
case could not be proven at trial.” And in the third sentence,
the state court indisputably found that the prosecution did not
turn over to the defense, prior to trial, any evidence about
this conversation or about any statement the witness, Zimm, made
during the conversation.
A.
The majority opinion focuses on the timing of Zimm’s
alleged lack-of-fear statement, holding that the district court
erred in concluding the state court found Zimm’s alleged lack of
fear statement to have occurred before trial. But it is the
majority that errs here. The timing of Zimm’s alleged statement
has never been in dispute. The State has never contended that
51
Zimm made the alleged statement to the prosecutor after trial,
and does not do so on appeal before us.
To the contrary, Prosecutor Parsons himself, in responding
to the habeas petition in state court, recounted that the
conversation about the fear element took place prior to trial in
the course of a discussion about the necessity of proof of this
element at trial. Thus, in the State’s written response to the
habeas petition, Parsons explained:
[I] spoke with the [sic] Mr. Zimm on at least two
occasions prior to the trial of the matter to [sic] as
a part of the trial preparation process. I recall
having a conversation with Mr. Zimm about the
definition of the word “fear” as it applied to the
legal elements requiring proof in the trial of the
respondent. Mr. Zimm did not state that he was “never
afraid”, but rather he sought a better understanding
of what fear meant in the context of this case. (The
Court should understand that a certain amount of
bravado existed as to the relationship between [me]
and Mr. Zimm and a reluctance to express fear months
after an incident is natural between two men.) I did,
however, inform Mr. Zimm that if the element of fear
did not exist the case could not be proven at trial.
J.A. 303-04 (emphasis added). Absent from Parsons’ explanation
to the state habeas court is any suggestion that the contention
in the habeas petition as to the timing of Zimm’s alleged lack
of fear statement was wrong -- i.e., that the statement did not
take place before trial. To the contrary, Parsons defended his
nondisclosure of evidence of Zimm’s statement by placing it in
the context of pre-trial witness “preparation” regarding proof
of the fear element at trial.
52
Moreover, Prosecutor Parsons took exactly the same approach
at the evidentiary hearing before the state habeas court. When
he cross examined Defense Counsel Adkins, Parsons neither
challenged Adkins’ recollection of his post-trial conversation
with Parsons nor suggested that Zimm could have made the alleged
statement after trial. See J.A. 200-01; 195. Rather, Parsons
again sought to place Zimm’s alleged statement within their pre-
trial conversation about the fear element. In sum, the state
prosecutor’s consistent account -- in his written response to
the state habeas petition and at the evidentiary hearing before
the state court -- was that Zimm’s alleged fear statement
occurred before trial.
It is clear from the state habeas court’s factual findings
that the court accepted and adopted Prosecutor Parsons’
uncontroverted account as to the timing of the alleged fear
statement. Indeed, the state court’s very wording closely
mirrors that of the prosecutor’s response to the habeas
petition. Compare J.A. 211, with J.A. 303-04. Thus, in
context, there is only one way to read the first two sentences
of the state court’s factual findings: the initial sentence
describes how, after trial, Prosecutor Parsons told Defense
Counsel Adkins that the witness, Zimm, stated he had not been
afraid; and the second sentence places this statement in the
context of a pre-trial conversation between prosecutor and
53
witness about the necessity of proof of the element of fear at
trial. This conclusion, contrary to the majority’s suggestion,
does not conflate the conversation between Parsons and Zimm
before trial with the conversation between Parsons and Adkins
after trial. Rather, it recognizes that in his post-trial
conversation with Defense Counsel Adkins, Prosecutor Parsons
relayed the substance of his pre-trial conversation with Zimm.
On appeal before us, the State repeats this very same
version of the critical events for a third time. Its brief to
this court is utterly bereft of any suggestion that the district
court’s conclusion about the timing of Zimm’s alleged statement
is incorrect. To the contrary, the district court’s view that
the state court found that the alleged statement occurred before
trial is one in which the State explicitly concurs. Thus, in
its appellate brief, the State recounts: “After finding that
Mike Zimm [the witness] made a pre-trial statement to the
prosecutor that he was not ‘afraid’ during the attempted
robbery, the state [habeas] court concluded that no Brady
violation had occurred.” Appellant Br. 13 (emphasis added); see
also id. at 20-21.
In sum, the record offers no support for the majority’s
conclusion that the district court “impermissibly alter[ed]” the
state habeas court’s factual findings to conclude that Zimm’s
alleged statement to the prosecutor occurred before trial. That
54
the state court found that Zimm’s alleged statement occurred
before trial -- a view espoused by the State itself -- is the
only reading that finds support in the record. 1
B.
The concurrence offers some additional arguments in an
attempt to bolster the decision to deny habeas relief to
Watkins. None is convincing.
First, the concurrence adopts the sole argument offered by
the State itself as to why the district court assertedly erred
in concluding that the state court had found that Prosecutor
Parsons told Adkins about Zimm’s alleged lack-of-fear statement.
Although the state court expressly found that “at some time
after the trial of this matter,” Adkins “was told that Mr. Zimm
said he was not ‘afraid’ at the time of the incident,” J.A. 211,
the concurrence contends that, in doing so, the state court
“clearly declined” to find that it was Prosecutor Parsons who
told Adkins this. The State similarly asserts that an
1
Indeed, if the state habeas court had found that the
alleged statement occurred after trial, that determination would
have been unreasonable. The only evidence as to the timing of
Zimm’s alleged statement that was presented to the state habeas
court was Parsons’ account that it took place before trial. For
the state court to have disregarded this account and instead
concluded that the alleged statement occurred at some other time
would have been flatly contradicted by the record before it, and
thus a patently unreasonable finding of fact. Such unreasonable
fact findings, of course, provide the basis for habeas relief.
See 28 U.S.C. § 2254(d)(2).
55
“unidentified individual” told Adkins “about an alleged
statement by Zimm.” Appellant Br. 18.
By using the passive voice, the state habeas court did not
identify by name the individual who, after trial, told Defense
Counsel Adkins that Zimm had said, prior to trial, that he was
not afraid. And it may well be that in his federal habeas
petition, Watkins overstated the strength of Adkins’ testimony
describing the post-trial conversation in which Prosecutor
Parsons told him about witness Zimm’s statement. But we must
defer to the state court’s finding that Adkins “was told” that
Zimm stated he was not afraid at the time of the robbery, J.A.
211, in light of the evidence that was before the state court.
As the district court concluded, that evidence offers not even a
suggestion that anyone other than Prosecutor Parsons told Adkins
about Zimm’s alleged statement. Rather, the only possible
conclusion to draw from the record is that Parsons is the person
who relayed this information to Adkins.
To be sure, Adkins initially indicated that he did not
“recall” a conversation in which Parsons told him that Zimm had
made the lack-of-fear statement. J.A. 194. Immediately
thereafter, however, Adkins corrected himself and testified that
he did recall this conversation with Parsons. Adkins used
qualifying words and equivocal phrases about what, precisely, he
heard, and suggested that his “contemporaneous note would
56
probably be more accurate than [his] memory.” J.A. 195. But
despite his qualifications about what was said during this
conversation, Adkins was not at all equivocal about who said it.
It was the prosecutor: Parsons. Id. When asked whether
“Parsons suggested that Mr. Zimm had told him he wasn’t afraid
of Mr. Watkins,” Adkins responded in the affirmative. Id. at
194. Moreover, throughout the rest of his testimony, Adkins
identified Parsons, and only Parsons, as the person who told him
about Zimm’s alleged lack-of-fear statement. Id. at 194-95
(when asked about his “independent recollection of that
conversation,” responding “yes . . . Mr. Parsons had stated
something to the effect that Mr. Zimm might not have been scared
of Mr. Watkins;” and when asked if he recalled “who was present
at the time that it was stated,” responding “other than me and
Mr. Parsons, no.”).
No evidence was presented at the habeas hearing that anyone
else relayed this information to Adkins. No evidence was
presented to suggest that it was not Parsons who made the
statement to Adkins. And Prosecutor Parsons himself, appearing
as the State’s counsel at the habeas hearing, did not dispute
that it was he. Thus, in finding that after trial, Adkins “was
told” that Zimm said he was not afraid during the attempted
57
robbery, J.A. 211, the state habeas court necessarily found that
Prosecutor Parsons told Adkins this. 2
Second, the concurrence maintains that in his written
statement, Prosecutor Parsons asserted “that he had a pretrial
conversation with Zimm about the element of fear that did not
include the alleged lack-of-fear statement,” and “explicit[ly]
deni[ed] that Zimm made the alleged lack-of-fear statement.”
(emphasis in concurrence). But in fact Parsons, who the state
habeas court undoubtedly recognized had every reason to minimize
Zimm’s “lack-of-fear” during the robbery, nowhere asserted -- in
his written statement or orally -- that their pre-trial
conversation “did not include [Zimm’s] alleged lack-of-fear
statement.” Nor did Parsons “explicit[ly] den[y] that Zimm made
the alleged lack-of-fear statement.” And Parsons never disputed
that he told Adkins, after trial, about Zimm’s alleged lack-of-
fear statement. In other words, Prosecutor Parsons, although in
2The concurrence finds it significant that Watkins could
have presented a stronger case to support this finding and
repeatedly argues that I have “shift[ed] the burden to the state
to disprove [Watkin’s] allegations.” These arguments
misconstrue what is simply the proper deference due to a state
habeas court’s factual findings. Of course, Watkins’ case, like
most others, in retrospect could have been stronger. But when
considered in conjunction with the prosecution’s lackluster
showing at the evidentiary hearing, Watkins certainly provided a
sufficient basis for the state court’s finding that Prosecutor
Parsons told Adkins about Zimm’s alleged statement. The
critical fact remains that the state habeas court made this
finding, and AEDPA requires that we owe it deference.
58
the courtroom when accused of a Brady violation, never denied
that he possessed during trial helpful impeachment evidence that
he failed to turn over to the defense.
Rather, Parsons attempted to finesse exactly what witness
Zimm said at their pre-trial meetings. Thus, in his written
statement to the state habeas court, Parsons parsed and
qualified their exchanges. He did not explicitly deny that he
acquired exculpatory information at that time, nor did he deny
that Zimm had told him he might not have been afraid at the time
of the attempted robbery. Instead, Parsons simply stated that
Zimm “did not state that he was ‘never afraid.’” J.A. 304.
These words, of course, leave open the possibility that Zimm did
say something short of never being afraid but still not
amounting to the required not in “fear of bodily injury.”
Prosecutor Parson’s statement is certainly not the categorical
denial one would expect from a prosecutor accused of a Brady
violation.
Moreover, Parsons acknowledged in the same written
statement that “a certain amount of bravado existed as to the
relationship between [himself] and Mr. Zimm,” and thus Zimm had
“a reluctance to express fear months after” the attempted
robbery. Id. And Parsons conceded in his statement that he had
informed Zimm “that if the element of fear did not exist[,] the
case could not be proven at trial.” Id. Thus, upon
59
consideration of the entire record before it, the state habeas
court was certainly justified in making the factual finding that
it did; i.e., that “at some time after the trial of this matter,
[Watkins’] trial counsel was told that Mr. Zimm said he was not
‘afraid’ at the time of the incident at issue.” J.A. 211. The
concurrence apparently disagrees with the finding, but we must
defer to a state habeas court’s factual findings unless
unreasonable. 28 U.S.C. § 2254(d)(2). Nothing is unreasonable
about this finding.
In sum, the record is devoid of support for the
concurrence’s suggestion that the experienced district court
judge “rewrote the state court’s factual finding” in order to
conclude that it was Parsons who told Adkins that Zimm made the
alleged lack-of-fear statement. Based on the record before the
state court, the only possible source of this information
regarding Zimm’s alleged statement was Prosecutor Parsons, who
never denied that he had possessed exculpatory evidence prior to
Watkins’ trial. There was, and is, no basis for the state court
to have found that Adkins “was told” about Zimm’s alleged lack-
of-fear statement without also finding that Parsons is the
person who told him about it.
C.
My colleagues seek to exploit the state habeas court’s
failure to more explicitly articulate factual findings that were
60
unassailably clear from the record. This approach fails to
defer, as we must, to those implicit factual findings of a state
habeas court, which are compelled by its explicit findings:
i.e., it was Prosecutor Parsons who told Adkins, after trial,
that Zimm had stated, before trial, that he was not afraid
during the attempted robbery.
The concurrence refuses to afford deference to these
implicit factual findings because it maintains that they are
“inconsistent” with the state court’s decision to “deny Watkins’
Brady claim.” Not so. The finding that a prosecutor possessed
and failed to disclose to the defense favorable impeachment
evidence is not inconsistent with a denial of habeas relief. A
prosecutor’s withholding of such evidence does not automatically
trigger a Brady violation. Rather, the evidence withheld must
also be material. Brady, 373 U.S. at 87. Thus, in a given
case, a state habeas court could certainly find that a
prosecutor had withheld exculpatory evidence, but conclude that
the evidence was not material, and so deny Brady relief. That
apparently is precisely what the state court did here. For
after making its findings, it summarily concluded that the
State’s actions “did not violate the dictates of Brady v.
Maryland,” without specifying why this was so. This conclusion
-- that the prosecution withheld evidence without violating
61
Brady -- is not logically inconsistent with the denial of
Watkins’ Brady claim. 3
Moreover, even were the state court’s factual findings
somehow inconsistent with its judgment, we could not withhold
deference on that ground. The concurrence errs in suggesting
that we owe deference to implicit findings only when they are
“consistent with” or “necessary to” the state court’s judgment.
That is simply not the law. Rather, the presumption of
correctness afforded to a state habeas court’s factual findings
broadly “extends not only to express findings of fact, but to
the implicit findings of the state court.” Garcia v.
Quarterman, 454 F.3d 441, 444 (5th Cir. 2006); see also Taylor
v. Horn, 504 F.3d 416, 433 (3d Cir. 2007) (same); Lujan v.
Tansy, 2 F.3d 1031, 1035 (10th Cir. 1993) (same). Were the rule
otherwise, federal courts could read ambiguities into state
habeas findings and then invent scenarios to resolve them that
justify denying habeas relief. AEDPA deference does not permit
this. 4
3
However, as explained below, the evidence withheld here is
material and so in this case the state court erred as a matter
of law in denying habeas relief.
4
Even when we review a state court’s summary adjudication
of a habeas claim, in which the court has made no explicit
factual findings to which we can defer, we infer implicit
findings “from . . . [the state court’s] opinion and the record”
of the state habeas court -- not from the judgment alone.
(Continued)
62
To be sure, as the concurrence notes, when appropriate, on
AEDPA review federal courts do imply factual findings that align
with the state court’s ultimate judgment. That is undoubtedly
the correct course in a case where “it can scarcely be doubted
from [the state court’s] written opinion that [the petitioner’s]
factual contentions were resolved against him.” LaVallee v.
Delle Rose, 410 U.S. 690, 692 (1973); see also Marshall v.
Lonberger, 459 U.S. 422, 433 (1983) (implying factual finding
from the judgment where state court’s “failure to grant relief
was tantamount to an express finding against . . . the
defendant”). But this is not such a case. Here, “it can
scarcely be doubted” from the state court’s “written opinion,”
LaVallee, 410 U.S. at 692 (1973) -- including its express
findings of fact and “the inferences fairly deducible from these
facts,” Marshall, 459 U.S. at 435 -- that Watkins’ factual
contentions were resolved in his favor, notwithstanding the
court’s ultimate judgment against him.
In sum, when viewed in light of the evidence before it, the
state court’s factual findings compel only one version of
Blankenship v. Hall, 542 F.3d 1253, 1272 (11th Cir. 2008)
(emphasis added). As the concurrence concedes, implied factual
findings, even those that may be consistent with the state
court’s judgment, “‘cannot be imagined from thin air.’” Id. at
1272 n.5 (quoting Cave v. Singletary, 971 F.2d 1513, 1516 (11th
Cir. 1992)).
63
events: that Parsons told Adkins, after trial, that Zimm
stated, before trial, that he was not afraid during the
attempted robbery. We cannot eschew a straightforward reading
of the state court’s factual findings simply because it renders
that court’s ultimate judgment unreasonable. Rather, AEDPA
expressly instructs that we grant habeas relief in such
circumstances. See 28 U.S.C. § 2254(d). 5
II.
Of course, Watkins cannot prevail on his Brady claim simply
by proving that, prior to trial, the prosecution possessed
favorable impeachment evidence which it did not disclose. 6
Watkins must also show that such evidence was material,
5The concurrence contends this approach “turns AEDPA
deference on its head,” but it is the concurrence that has it
backwards. The proper approach, of course, is to first examine
the state court’s factual findings and to accord them a
“presumption of correctness,” deferring to them unless
unreasonable. 18 U.S.C. § 2254(e)(1). The concurrence,
however, on the basis of its evaluation of the strength of
Watkins’ evidence, assertedly gives the state court “the benefit
of the doubt” by reading that court’s factual findings to accord
with the concurrence’s own evaluation of the evidence. It is
not surprising that, starting from the wrong premise, the
concurrence arrives at the wrong conclusion.
6The State does not dispute that evidence of Zimm’s
statement regarding fear was favorable to Watkins. And the
state habeas court expressly found that “[t]he discovery
provided to the defense did not contain any reference to
Mr. Zimm’s alleged statement that he was not ‘afraid’ or to the
above described conversation between Mr. Parsons and Mr. Zimm.”
J.A. 211. Thus, Watkins has satisfied these Brady requirements.
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Strickler v. Greene, 527 U.S. 263, 281-82 (1999), and that the
state court unreasonably determined that the prosecution’s
failure to disclose such evidence did not violate Brady.
Harrington v. Richter, 562 U.S. 86, 97-98 (2011); see also 28
U.S.C. § 2254(d)(1).
The test for materiality in this context is well-
established. Undisclosed evidence is material if “there is a
reasonable probability that, had the evidence been disclosed [to
the defense], the result of the proceeding would have been
different.” Smith v. Cain, 132 S. Ct. 627, 630 (2012)
(quotation marks and citation omitted). A court considering the
materiality of undisclosed evidence “need not be convinced to an
absolute[] certainty that proper disclosure[] . . . would have
resulted in a different verdict.” Monroe v. Angelone, 323 F.3d
286, 316 (4th Cir. 2003). For “[a] reasonable probability does
not mean that the defendant would more likely than not have
received a different verdict with the evidence,” but rather that
“the likelihood of a different result is great enough to
undermine confidence in the outcome of the trial.” Smith, 132
S. Ct. at 630 (citing Kyles v. Whitley, 514 U.S. 419, 434 (1995)
(quotation marks and alterations omitted)).
In this case, the record makes clear that Zimm’s trial
testimony that he had feared the defendant during the alleged
attempted robbery was fundamental to a successful prosecution.
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The record is also clear that the element of fear was fiercely
contested throughout trial. Thus, the likelihood of a different
result had the prosecution disclosed evidence that Zimm stated
before trial that he had not been afraid during the alleged
attempted robbery is great enough to undermine confidence in the
outcome of the trial.
Critically, at trial, Zimm was the State’s primary witness,
and the State’s only witness who testified to being in fear of
bodily injury from defendant Watkins. The jury was properly
instructed that, to prove attempted robbery in the second
degree, the State had to prove beyond a reasonable doubt that
Watkins committed an “assault that placed Mike Zimm in fear of
bodily harm.” J.A. 130. Prosecutor Parsons himself confirmed
Zimm’s role as the key witness on the fear element in his
memorandum to the state habeas court, recounting that he had
“inform[ed] Mr. Zimm that if the element of fear did not exist
the case could not be proven at trial.” J.A. 304.
The State nevertheless contends that evidence that Zimm
stated before trial that he had not been afraid was not material
because other evidence at trial suggested that Zimm had in fact
been fearful. To this end, the State cites evidence that the
other pharmacy employees knew of a rash of recent pharmacy
robberies in the area; that Watkins’ clothing “made clear” that
he intended to rob the pharmacy; that Watkins had his hands at
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his waistband, “where he could have had a weapon”; and that
another pharmacy employee described how Zimm’s facial expression
changed when Watkins entered the store, thereby “corroborat[ing]
Zimm’s description of his fear.” Appellant Br. at 21-22
(emphasis in original).
As the district court noted, however, all of this evidence
was relevant only to show that Zimm was credible and to
corroborate his trial testimony about being afraid. J.A. 402.
Of course, as the State suggests, the jury could have discounted
evidence of Zimm’s pre-trial lack of fear statement, even if the
State had disclosed it. But this argument “merely leaves us to
speculate about which of [Zimm’s] contradictory declarations the
jury would have believed.” Smith, 132 S. Ct. at 630. Such
speculation does not render evidence immaterial. For, although
“the State’s argument offers a reason that the jury could have
disbelieved” Zimm’s alleged lack of fear statement, it “gives us
no confidence that it would have done so.” Id. (emphases in
original).
Not only was Zimm’s trial testimony that he was in fear of
the defendant literally elemental to the prosecution’s case,
attacking the fear element was the sine qua non of the defense’s
trial strategy. From opening statement to closing argument, the
defense repeatedly and vigorously contended that the evidence
did not demonstrate that an assault (requiring fear of bodily
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harm) had taken place. See, e.g., J.A. 14; 138-39. At the
close of the State’s case, the defense moved for a directed
verdict, relying in large part on the State’s failure to prove
fear. Defense Counsel Adkins argued that because his client did
not swing at Zimm, did not brandish a weapon, and did not
verbally threaten him, Zimm could not have been in fear of
bodily harm. J.A. 98. The State responded that during trial
Zimm “said that he was fearful,” that Zimm had also testified
that he was aware of several recent pharmacy robberies, and that
the defendant had been dressed and behaved in a way that caused
Zimm to “have apprehension.” J.A. 100-01. In denying the
motion for directed verdict, the state trial court twice
remarked that “it’s a close call,” but ultimately determined
that “the jury may well find that Mr. Zimm was, in fact, under
assault and . . . feared for himself.” J.A. 104.
Plainly then, evidence that Zimm had stated, before trial,
that Watkins had not caused him to be afraid would have been
crucial to the defense. The defense could have used that
evidence to argue reasonable doubt, to reinforce other evidence
suggesting that Zimm was not afraid, or perhaps most critically,
to undermine Zimm’s credibility on the central issue of fear.
“[W]hen the witness in question supplied the only evidence of an
essential element of the offense,” impeachment evidence is
frequently material, “especially if the undisclosed evidence was
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the only significant impeachment material.” See United States
v. Parker, No. 13-4989, slip op. at 16 (4th Cir. 2015)
(quotation marks and citation omitted). Indeed, we have noted
that when, as here, “the jury had to believe that [the witness]
was credible and that his version of events was in fact truthful
and accurate in order to support [the defendant’s] conviction,”
the materiality of evidence impeaching that witness is
“manifest.” See Wolfe v. Clarke, 691 F.3d 410, 424 (4th Cir.
2012) (quotation marks and citation omitted).
Watkins established before the state habeas court a clear
Brady violation: the prosecutor possessed and did not disclose
evidence that a witness said that he was not afraid during the
alleged attempted robbery; fear was an essential element of the
crime; that witness was the State’s key witness on the fear
element; and the fear element was hotly contested throughout the
trial. Given the critical nature of the impeachment evidence
here, it was unreasonable for the state habeas court not to
conclude that the State had violated its Brady obligations.
The district court properly granted habeas relief. The
majority’s contrary holding piles a further injustice on a man
already victimized by improper governmental action.
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