Lynn v. Tarney , 405 F. App'x 753 ( 2010 )


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  •                              UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    No. 09-2303
    ERIC D. LYNN,
    Plaintiff - Appellee,
    v.
    EDWARD TARNEY;    RICHARD    FALLIN;   RUSSELL   HAMILL;   WILLIAM
    WHELAN,
    Defendants - Appellants.
    Appeal from the United States District Court for the District of
    Maryland, at Greenbelt. Peter J. Messitte, Senior District
    Judge. (8:08-cv-02591-PJM)
    Argued:   October 26, 2010                 Decided:   December 23, 2010
    Before DUNCAN, AGEE, and DAVIS, Circuit Judges.
    Reversed by unpublished per curiam opinion.
    ARGUED: Patricia Prestigiacomo Via, COUNTY ATTORNEY’S OFFICE,
    Rockville, Maryland, for Appellants. Terrell Roberts, ROBERTS &
    WOOD, Riverdale, Maryland, for Appellee. ON BRIEF: Marc P.
    Hansen, Acting County Attorney, Edward B. Lattner, Chief,
    Division of Human Resources & Appeals, Silvia C. Kinch,
    Associate County Attorney, COUNTY ATTORNEY’S OFFICE, Rockville,
    Maryland, for Appellants. Christopher A. Griffiths, ROBERTS &
    WOOD, Riverdale, Maryland, for Appellee.
    Unpublished opinions are not binding precedent in this circuit.
    PER CURIAM:
    This is an interlocutory appeal from the district court’s
    denial of qualified immunity to four law enforcement officers.
    Appellee Eric Lynn was convicted after a non-jury trial in
    state court of the murder of a drug dealer; the victim was
    fatally shot in the course of an illegal narcotics transaction
    that turned into a robbery. The sole state’s eyewitness to the
    murder who testified at trial was a drug addict who had worked
    for    several       years       as     a     paid       informant      in     narcotics
    investigations. The eyewitness/informant had been present in the
    apartment      where    the    murder       occurred      and   first     reported      the
    murder to law enforcement. Lynn’s trial counsel knew that the
    eyewitness was a drug addict and a paid informant and indeed, he
    knew that she had arranged the very meeting at which the murder
    occurred.
    Lynn’s conviction was affirmed on direct appeal, but in
    post-conviction proceedings, the state courts granted Lynn a new
    trial, finding that he was deprived of his Sixth Amendment right
    to the effective assistance of counsel. The deficiency in the
    performance     of     defense    counsel         that    prompted   the      finding    of
    ineffective     assistance        was       counsel’s     failure    to      obtain,    and
    employ    at    trial,    an     accumulation            of   impeachment      evidence,
    including evidence that the eyewitness/informant was being paid
    by    investigators      for     her    assistance        and   cooperation      in     the
    2
    murder investigation and not simply for her past assistance in
    numerous narcotics investigations. Upon the retrial ordered by
    the    state     courts,    Lynn    was     represented        by    successor    counsel
    armed with detailed impeachment evidence, including information
    concerning the amount and timing of cash payments that had been
    made   to    the    eyewitness/informant           throughout        the   investigation
    and prosecution of the murder case. Lynn was acquitted of all
    charges by a jury.
    Proceeding under 
    42 U.S.C. § 1983
     and state law, Lynn sued
    Appellants,        detectives      Edward    Tarney,         Richard    Fallin,   Russell
    Hamill and William Whelan of the Montgomery County, Maryland
    police department, the law enforcement officers who had made (or
    were aware of) the payments to the eyewitness/informant during
    the    investigation        and    prosecution         of    the    murder     case.   Lynn
    alleged      that     the    detectives’         failure       to    disclose     to    the
    prosecutor handling the murder case that the detectives were
    paying      the      eyewitness/informant              for     her      assistance      and
    cooperation in the murder case deprived him of his due process
    right to a fair trial, resulting in his wrongful conviction.
    Appellants moved for summary judgment on the ground of qualified
    immunity at the close of discovery; the district court concluded
    that Appellants were not entitled to qualified immunity.
    In   this     interlocutory        appeal       from    the     district   court’s
    denial      of     qualified      immunity,       we    conclude        that    the    fact
    3
    detectives paid the eyewitness/informant for her assistance in
    the    murder       case   (and    not   simply       for   her    assistance        in   past
    narcotics       investigations)          was       readily     available        to    Lynn’s
    defense counsel throughout the pretrial period leading up to
    Lynn’s trial. As the state post-conviction court emphatically
    found, Lynn’s counsel simply failed to take the steps he needed
    to    take     to    obtain       information        and    evidence     concerning       the
    payments (and other impeachment evidence). Thus, as a matter of
    law, Appellants did not violate Lynn’s due process right to a
    fair    trial       and    we,     accordingly,        reverse     the    order      of   the
    district court.
    I.
    A.
    We set forth the facts in the light most favorable to Lynn.
    First, however, we state with clarity certain aspects of the
    summary      judgment       record    that     the    parties     adduced    before       the
    district court and now before us. What plainly is not disputed
    is     that,    as        described      within,       using      governmental        funds,
    detectives      made       cash    payments    to     the    eyewitness/informant           on
    several occasions throughout the investigation and prosecution
    of the murder case at issue. Nor is it disputed that during the
    period of the eyewitness/informant’s cooperation in the murder
    case (May through November 1994), she provided no assistance in
    any     narcotics          investigations.           Nevertheless,        all        of   the
    4
    Appellants,         the     assistant       state’s          attorney        who    originally
    prosecuted         Lynn,    and    the     eyewitness/informant               herself,       have
    unwaveringly         asserted       that       the    cash       payments      made    to    the
    eyewitness/informant           during      her       assistance      and     cooperation       in
    the murder case were not in consideration for her assistance and
    cooperation in the murder case. Rather, Appellants have insisted
    that    the   payments        were    for       the    eyewitness/informant’s               prior
    assistance and cooperation in completed and on-going narcotics
    investigations        (and,       perhaps,      her    future      cooperation         in    such
    investigations).
    Lynn vigorously takes a contrary position. Lynn’s analysis
    of the summary judgment record emphasizes several features of
    the direct and circumstantial evidence surrounding the payments
    to the eyewitness/informant: (1) the manner and timing of the
    payments, which largely coincided with significant investigative
    activity      in    the    murder    case;       (2)       the   lack   of    any     on-going,
    contemporaneous work by the eyewitness/informant on behalf of
    the    narcotics      detectives         who    were       her   “handlers”        during     the
    pendency of the murder case; and (3) the opaque if not scanty
    documentary record memorializing the payments. From this mosaic,
    Lynn makes a more than plausible argument that a reasonable fact
    finder     could          conclude       that        the     payments        made      to     the
    eyewitness/informant during mid- to late 1994 were, at least in
    5
    part,       in    consideration                for     her    continuing        assistance         and
    cooperation in the prosecution of Lynn in the murder case.
    We agree that in this regard, Lynn has generated a genuine
    dispute      of    fact.       We    thus       adopt       Lynn’s     interpretation         of    the
    summary judgment record on the issue of whether a reasonable
    fact        finder        could           find         that      the      payments          to     the
    eyewitness/informant during May through November 1994 were in
    consideration for her assistance and cooperation in the murder
    case.    Nevertheless,              as     we       make    clear    within,    even       accepting
    Lynn’s       assertion         that        a        reasonable       finder     of     fact       could
    reasonably conclude that the payments were (at least in part)
    for the eyewitness/informant’s assistance and cooperation in the
    murder case, that fact is not material to the issue of qualified
    immunity;         the    outcome         of     this       appeal    is   the   same       whether    a
    finder of fact agreed with Appellants or Lynn on this issue.
    B.
    On    May        25,    1994,       Montgomery          County,      Maryland        homicide
    detectives Edward Tarney and Richard Fallin were assigned to
    investigate the murder of Ephraim Hobson that occurred earlier
    that day. They learned that their colleague, narcotics detective
    Russell      Hamill,          had     a       confidential          informant        who    had    had
    previous contact with Hobson and who had, in fact, witnessed the
    murder. Hamill spoke to the informant, Cassandra McRoy, known as
    “Sandy,”         who     had        been        a    confidential         informant         for    the
    6
    Montgomery County Police Narcotics Division for more than three
    years,     and    arranged         her    interview        by    homicide      detectives.
    (Hamill was the detective who worked with Sandy most frequently,
    although narcotics detective William Whelan also had frequent
    contact with her.)
    Detectives        Tarney      and    Fallin      met      with   Sandy      that    same
    afternoon. She told them that she had taken two men to Hobson’s
    apartment to purchase cocaine, and that one of the men had shot
    Hobson while the two attempted to rob him. She said that she
    recognized one of the suspects, “Eric,” as a local drug dealer
    whom she had known for about three years. In her description of
    “Eric,” Sandy described a man of considerably different height
    and weight from the height and weight of Lynn, and she failed to
    mention any facial hair, although Lynn had distinctive facial
    hair at the time. Sandy did not know the second suspect.
    On    the    same      day    as    Sandy’s     interview        by   the    homicide
    detectives, Tarney and Fallin, detective Hamill, the narcotics
    detective    and       one   of    Sandy’s     handlers,        paid   Sandy      $140.   The
    internal report documenting the payment described in detail the
    information she provided to detectives about Hobson’s murder,
    but   did        not     mention         any       other     drug      transactions        or
    investigations.
    On May 30, 1994, detectives Tarney and Fallin showed Sandy
    a photo array of offenders named “Eric,” from which she made a
    7
    tentative identification of Lynn. Two days later, on June 1,
    1994, detectives displayed to Sandy surveillance photos of Lynn.
    Then, on June 21, 1994, the detectives took Sandy on a “roving
    show up procedure” by automobile in Lynn’s neighborhood in their
    continuing attempt to solidify Sandy’s identification of Lynn as
    the    “Eric”    involved          in       the    Hobson      murder.      On     that      day,   the
    detectives paid Sandy $200, $100 of which was paid by one of the
    homicide        investigators                and     later       reimbursed            from     funds
    controlled       by   the        narcotics         detectives.            The    internal      report
    documenting       the       June       21,    1994       activity         and    related       payment
    stated “synopsis of contact.” Detectives arrested Lynn six days
    later on June 27, 1994, for the murder of Hobson.
    In the meantime, on June 17, 1994, the narcotics detectives
    had    requested        additional            government        funds       from       the    Special
    Investigations Division to be paid to Sandy. This request, for
    $1250,    was    described             as    based       on    the    informant’s         “previous
    assistance      and     .    .     .    continued         assistance            with   the    Special
    Investigations        Division.”             J.A.       675.   One    thousand         dollars      was
    approved by Captain Robert F. McKenna, Director of the Special
    Investigations Division, on the same day. It is undisputed that
    the narcotics detectives paid these funds to Sandy in several
    installments.
    On July 22, 1994, Sandy testified before the grand jury.
    That   day   she      received          another         payment      of    $200    for       “services
    8
    rendered.” J.A. 678. On September 28, 1994, the detectives took
    Sandy to meet with the murder case prosecutor to prepare for
    trial; the detectives paid her $100 “for services rendered in
    the past.” J.A. 681. She was then paid the remaining balance of
    the June 17 request — a sum of $500 — on December 6, 1994, nine
    days after she testified at trial against Lynn. The internal
    report documenting this transaction did not list a reason for
    the payment.
    Lynn    was   represented      in   the    murder   case   by    David   M.
    Simpson, Esq. In response to Simpson’s motion for discovery, the
    prosecutor provided “open file” discovery beginning some time in
    June   1994.    Simpson   was   not    provided     with   Sandy’s     full   name,
    however, or with any information from which he could locate her.
    Simpson later testified at Lynn’s post-conviction hearing that
    he believed the prosecutor had an obligation to disclose Sandy’s
    identity to him, but he acknowledged that he did not file a
    motion    to    compel    disclosure       of    that   information.     He   also
    testified that he did not believe that prosecutors ever filed a
    motion    to    protect    or   keep       confidential     Sandy’s     identity.
    Instead, Simpson agreed to let the prosecutor set up a meeting
    between Sandy and himself.
    Thus, Simpson and the prosecutor arranged to have Simpson
    and Sandy meet on the day of a scheduled status conference at
    the courthouse, a few weeks prior to trial, to permit Simpson to
    9
    interview her. Simpson expected that he would learn her identity
    at   this    meeting          so    he    could    run    record     checks       and    further
    explore      her        background.          He        admitted      that       during        these
    discussions with the prosecutors “it came to [his] attention
    that [Sandy] was an informant with the police, and . . . she was
    a paid informant.” J.A. 163. Simpson acknowledged that Sandy’s
    status      as     an    informant         was    significant        to     him    because      he
    recognized that her credibility was the “lynchpin” of the case.
    J.A. 163.
    Remarkably,             despite       Simpson’s         acknowledgement            of     the
    critical importance of effectively attacking Sandy’s credibility
    in his representation of Lynn in the murder case, Simpson did
    not meet or speak with her until the day of the trial. 1 The
    planned meeting between Simpson and Sandy on the day of the
    status conference did not take place because Sandy failed to
    appear. Simpson and the prosecutor then arranged for Simpson and
    Sandy to meet about a week later. That meeting also did not take
    place,      this    time       because      Simpson       failed     to     appear       for    the
    meeting.         Simpson           then     spoke        to    the        prosecutor          about
    rescheduling,           but    they       were    unable      to   find     a     date   due    to
    Simpson’s “very tight calendar.” J.A. 168. Instead, they agreed
    1
    Indeed, the state post-conviction court noted that
    “Sandy’s testimony was the only piece of evidence that connected
    [Lynn] to the murder.” J.A. 258.
    10
    that Simpson would speak to Sandy on November 28, 1994, the
    first day of trial, prior to any proceedings. Despite the fact
    that   Simpson      had    not    interviewed    the   sole    eyewitness         whose
    “testimony was the only piece of evidence that connected [Lynn]
    to the murder,” J.A. 258, he did not file any motions to compel
    disclosure of her identity or any other information about her,
    nor did he ask the prosecutor for any additional information. At
    no time did he seek a postponement of the trial.
    On the day of trial, Sandy did not arrive on time for the
    meeting with Simpson. Indeed, she was a reluctant witness and
    only arrived after detectives arranged to locate her and bring
    her into court. Despite the fact that he was again unable to
    speak with Sandy, Simpson did not ask for a postponement or
    continuance. Instead, he decided that he would simply proceed
    with   a     pretrial     motions    hearing     without     speaking   to    Sandy
    beforehand. During the hearing, Simpson questioned Sandy about
    her status as a paid informant. She testified that she had been
    a paid informant for Detective Hamill for over three years. When
    Simpson asked her whether she had been paid for her cooperation
    in the murder case, she answered no. Simpson asked no further
    questions regarding her status as a paid informant or the cases
    she    had    worked      on.    Despite   his   admitted     knowledge      of    the
    importance     of   Sandy’s      credibility,    and   the    fact   that    he     now
    knew, as well (from her testimony at the suppression hearing)
    11
    that Sandy worked as a paid informant for law enforcement while
    also    collecting       fees   from   drug    dealers      for   arranging    drug
    transactions, Simpson determined that he did not need to speak
    to Sandy any further after the motions hearing and before the
    trial. He then proceeded directly to trial without asking for a
    postponement,       continuance,       or      any     additional     information
    regarding       Sandy,    her   history     with     law   enforcement,   or   the
    amount, timing, or reasons for the payments made to her.
    At the hearing on Lynn’s post-conviction petition in 2000,
    Simpson testified as follows, in part, about his thinking and
    decision-making in connection with his representation of Lynn:
    A: . . . I would have liked to talk to her, but
    since she was there for the motion, I was going to at
    least do the motion first and then get into, if I
    needed to talk to her more before we actually started
    the trial. But once we got done with the suppression
    hearing, I didn’t need to talk to her anymore.
    Q: That was the determination you made?
    A: Absolutely.
    Q: Based on what you got from her out of the
    suppression?
    A: Absolutely.
    Q: Now the suppression for her only revolved
    around her identification [of Lynn as a participant in
    the murder].
    A: That’s right.
    . . .
    12
    Q: Did you receive any information from                the
    State’s Attorney about her during the hearing?
    A: Not that I recall.
    . . .
    Q: Now, either before, during or after the
    suppression motion, did you bring to Judge Ruben’s
    attention that you had this informal agreement to
    resolve discovery about her, that you had had that
    informal agreement that it not take place?
    A: After the motion?
    Q: Or during it or before.
    A: No. We didn’t have any – I didn’t, I didn’t
    think it was necessary at that point.
    Q: Okay. So you never brought it to Judge Ruben’s
    attention?
    A: No.
    Q: And did you ever ask for any relief before,
    during or after that hearing of the judge regarding
    discovery concerning Sandy?
    A: No. I didn’t ask for anymore [sic].
    Q: And at that hearing, did you ever learn her
    true name?
    A: Not that – no. I don’t – no.
    J.A. 170-72 (emphases and alterations added).
    The state’s case at trial, which was to the court without a
    jury, 2   consisted    of   the   testimony   of   four   law   enforcement
    2
    Simpson testified at the state post-conviction hearing
    that based on his knowledge of the veteran trial judge’s
    background in criminal cases, and the judge’s seeming skepticism
    13
    officers, a firearms investigator, and Sandy. Sandy testified
    that on May 25, 1994, she took Lynn and another man to Hobson’s
    apartment   to    purchase   drugs.   While   Hobson    was    preparing    the
    drugs for purchase, Lynn’s companion pulled a gun, pointed it at
    Hobson and demanded money. Hobson pulled a gun and shots were
    fired. On cross examination, Simpson’s inquiry into Sandy’s work
    as an informant was limited to a question regarding whether she
    was a paid informant, and for how long she had been one. Simpson
    asked her no questions about the specifics of the payments made
    to her during the course of the homicide investigation. Lynn was
    convicted   the    following   day    and   subsequently      sentenced    to   a
    total period of incarceration of life plus five years.
    C.
    After exhausting his direct appeal, Lynn filed a petition
    for post-conviction relief in state court. On August 18, 2000,
    the Circuit Court for Montgomery County granted post-conviction
    relief, finding that Lynn was denied his Sixth Amendment right
    to   the   effective   assistance     of    counsel    based    on   Simpson’s
    inadequate investigation of Sandy’s background. On the state’s
    appeal, the Court of Special Appeals of Maryland agreed that
    Simpson’s failure to investigate Sandy’s background constituted
    at Sandy’s testimony at the suppression hearing (e.g., according
    to Simpson, she appeared to be under the influence of drugs), he
    recommended to Lynn and Lynn acceded to his recommendation that
    jury trial be waived.
    14
    deficient performance under Strickland v. Washington, 
    466 U.S. 668
    , 687-88 (1984), but determined that Lynn had not established
    the second prong of a Strickland claim, i.e., prejudice, because
    there was no showing that any additional significant impeachment
    material   against   Sandy   existed.     See   
    id.
       The   appellate   court
    remanded the case for further proceedings and directed the post-
    conviction court to permit discovery.
    During    the   post-remand    proceedings,       counsel    for    Lynn
    conducted extensive discovery and the state turned over Sandy’s
    confidential   informant     file   and     control    log,    among    other
    documents. The file revealed the specific dates and amounts of
    the payments made to Sandy during the course of the homicide
    investigation and prosecution. In light of the evidence produced
    by Lynn after the remand, the circuit court determined that Lynn
    had demonstrated Strickland prejudice. 3 Accordingly, the court
    3
    Importantly, and contrary to Lynn’s seeming suggestion
    both before the district court and on appeal before us, the
    state post-conviction court did not conclude that it was the
    mere non-disclosure of the timing of the payments to Sandy that
    prejudiced Lynn’s right to effective assistance of counsel.
    Rather, the post-conviction court concluded that it was an
    accumulation of undiscovered additional impeachment evidence
    that prejudiced Lynn’s Sixth Amendment right. See J.A. 290-97
    (setting forth post-conviction court’s findings that Strickland
    prejudice arose from the following: (1) Simpson’s failure to
    uncover a second theft conviction imposed on Sandy; (2) his
    failure to uncover the fact that at the time of the first trial,
    an arrest warrant for Sandy for violation of probation was
    outstanding; (3) his failure to uncover the extent of Sandy’s
    drug addiction, including her admission for in-patient substance
    15
    again   granted   Lynn’s   petition,    vacated   his   conviction,   and
    ordered a new trial. Upon the state’s appeal from the grant of
    post-conviction relief, the Court of Special Appeals affirmed
    the order of the post-conviction court.
    The state elected to retry Lynn. Lynn’s second trial began
    on October 24, 2007, this time before a jury. Evidence of the
    specific payments made to Sandy was introduced by Lynn’s new
    lawyer (together with the raft of other impeaching evidence).
    Lynn was acquitted by the jury of all charges.
    II.
    This § 1983 damages action was timely removed to federal
    district court from the Circuit Court for Prince George’s County
    on October 3, 2008. On December 5, 2008, the district court
    issued an order dismissing all counts of the complaint except
    Lynn’s claim for deprivation of due process against Appellants,
    detectives Tarney, Fallin, Hamill and Whelan. At the conclusion
    of discovery, the detectives filed a motion for summary judgment
    on the sole remaining count, asserting that they did not violate
    abuse treatment a mere four months before the May 1994 murder;
    and finally, (4) his failure to uncover the specific timing of
    the cash payments to Sandy during the pendency of the murder
    case, about which the court stated: “[W]hether it could be
    reasonably inferred that certain payments were recompense for
    assistance and cooperation in the homicide case was a proper
    impeachment issue.”).
    16
    Lynn’s due process right to a fair trial and that they were
    entitled     to    qualified          immunity.         At    a   hearing      on   October     20,
    2009, the district court ruled from the bench that a jury could
    find that the detectives had willfully and maliciously withheld
    evidence      from       Lynn,    and     that      a        reasonable     law       enforcement
    officer would have known that doing so was against the law.
    Consequently, the district court concluded that the detectives
    were not entitled to summary judgment.
    III.
    In this timely interlocutory appeal, over which we have
    jurisdiction       pursuant       to    
    28 U.S.C. § 1291
    ,   we    review    solely
    legal issues, see Mitchell v. Forsyth, 
    472 U.S. 511
    , 529 n.9
    (1985); Johnson v. Jones, 
    515 U.S. 304
    , 313 (1995), applying a
    de novo standard, see, e.g., Johnson v. Caudhill, 
    475 F.3d 645
    ,
    650   (4th    Cir.    2007).       Whether         an    asserted     factual         dispute    is
    material to qualified immunity is also a legal determination
    subject to de novo review. See, e.g., Elliott v. Leavitt, 
    99 F.3d 640
    , 644 (4th Cir. 1996).
    When    evaluating          a    claim       of        qualified    immunity,       courts
    consider two questions: (1) whether the facts alleged, taken in
    the   light       most     favorable      to       the        plaintiff,       show    that     the
    defendants’       conduct        violated      a    constitutional          right,       and    (2)
    whether the right was clearly established. Saucier v. Katz, 533
    
    17 U.S. 194
    , 200-01 (2001). These questions may be considered in
    the order most appropriate for the specific case. Pearson v.
    Callahan,   
    129 S. Ct. 808
    ,   818   (2009)   (“The   judges    of   the
    district courts and the courts of appeals should be permitted to
    exercise their sound discretion in deciding which of the two
    prongs of the qualified immunity analysis should be addressed
    first in light of the circumstances in the particular case at
    hand.”).
    “Qualified immunity does not override the ordinary rules
    applicable to summary judgment proceedings, nor does it give
    special substantive favor to the defense.” Henry v. Purnell, 
    619 F.3d 323
    , 333 (4th Cir. 2010) (internal quotations omitted),
    pet. for rehearing en banc pend. However, Lynn still bears the
    burden of projecting evidence from which a jury could reasonably
    conclude that the detectives violated his right to due process.
    Cf. Carr v. Deeds, 
    453 F.3d 593
    , 608 (4th Cir. 2006) (“[T]he
    burden on the moving party may be discharged by showing-that is,
    pointing out to the district court-that there is an absence of
    evidence    to    support     the   nonmoving   party's   case.”)     (quoting
    Celotex Corp. v. Catrett, 
    477 U.S. 317
    , 325 (1986)).
    18
    IV.
    A.
    We conclude that this case properly may be disposed of at
    the first step of the Saucier analysis, that is, on the issue of
    whether Lynn has projected sufficient probative evidence which,
    if believed by the fact finder, would establish that Appellants
    deprived      him   of    his      due    process    right     to   a   fair   trial.    We
    indulge several assumptions favorable to Lynn. First, we assume
    that    the     outcome       of   Lynn’s     second      trial,    acquittal     on    all
    counts, resulted in whole or in part from his new counsel’s use
    of the evidence showing the specific dates the detectives made
    cash payments to Sandy. Second, we assume that if the detectives
    had    volunteered       to     the      murder    case   prosecutor,      and   if    that
    prosecutor had volunteered to Simpson that, by the time of the
    first trial (in November 1994), Sandy had received the specific
    cash payments delivered to her on May 25, 1994 (the date of the
    murder), and thereafter on specific dates in June, July, and
    September 1994, then the trial judge who conducted the non-jury
    trial would likely have harbored a deeper skepticism as to the
    reliability of Sandy’s identification of Lynn as a participant
    in the robbery/murder of Hobson and, consequently, would likely
    have harbored a reasonable doubt as to Lynn’s guilt. Finally, we
    assume,    as    mentioned         earlier,       that    a   reasonable   fact   finder
    could reasonably conclude that the cash payments the detectives
    19
    made to Sandy from on and after the date of the murder to the
    date of the trial were, in whole or in part, for her assistance
    and cooperation in the murder investigation, and not merely in
    consideration       for    her   assistance    and   cooperation     in    drug
    investigations. Ultimately, none of these assumptions salvages
    Lynn’s claim.
    B.
    The   Fourteenth     Amendment   prohibits     states   from   depriving
    any   person   of    her   liberty   without   first   affording     her   “due
    process of law” by means of a fair trial. 4 Cone v. Bell, 129 S.
    4
    We note that Lynn has insisted that his claim arises
    directly under Brady v. Maryland, 
    373 U.S. 83
     (1963), and its
    progeny. As we describe in the text, the duty imposed by the
    Brady doctrine is an obligation on prosecutors, rooted in the
    due process clauses of the Fifth and Fourteenth Amendments, to
    disclose exculpatory evidence (including impeachment evidence).
    See 
    id. at 87
     (“We now hold 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.”) (emphasis added); Kyles v. Whitley,
    
    514 U.S. 419
    , 437 (1995) (noting that “the individual prosecutor
    has a duty to learn of any favorable evidence known to the
    others acting on the government's behalf in the case, including
    the police”). Semantics aside, it is clear that, in essence,
    where a law enforcement officer “suppresses” favorable evidence
    such that the prosecutor fails to learn of it, a violation of
    the Brady doctrine by the prosecutor results.
    This court’s jurisprudence in respect to the cognizability
    of Brady-type claims against law enforcement officers remains in
    a state of uncertainty. Compare Jean v. Collins, 
    221 F.3d 656
    ,
    658-63 (4th Cir. 2000) (Wilkinson, J., concurring in the denial
    of rehearing en banc by an equally divided en banc court) with
    
    id. at 663-77
     (Murnaghan, J., dissenting from the denial of
    rehearing en banc by an equally divided en banc court). This
    20
    Ct. 1769, 1772 (2009). In Brady v. Maryland, 
    373 U.S. 83
     (1963),
    the Supreme Court held that “when a State suppresses evidence
    favorable     to     an    accused    that       is    material    to     guilt    or    to
    punishment,     the       State   violates       the    defendant's     right     to    due
    process, ‘irrespective of the good faith or bad faith of the
    prosecution.’” Cone, 
    129 S. Ct. at 1772
     (quoting Brady,                                 
    373 U.S. at 87
    ); see also United States v. Jeffers, 
    570 F.3d 557
    ,
    573 (4th Cir. 2009); United States v. Wilson, 
    901 F.2d 378
    , 380
    (4th Cir. 1990). The Court’s opinion in Giglio v. United States,
    
    405 U.S. 150
    ,    154-55      (1972),    extended      the    Brady    doctrine      to
    impeachment evidence.
    It is plain, however, that no due process violation is made
    out if the allegedly withheld or suppressed evidence was readily
    available to the defense. See Wilson, 
    901 F.2d at 381
     (“[W]here
    the   exculpatory         information       is    not    only     available       to    the
    defendant but also lies in a source where a reasonable defendant
    would have looked, a defendant is not entitled to the benefit of
    the   Brady    doctrine.”);        see   also     Hoke    v.    Netherland,       
    92 F.3d 1350
    , 1355 (4th Cir. 1996).
    Here, we conclude as a matter of law that Lynn has not
    satisfied his burden of projecting evidence from which a jury
    case provides no necessity and thus no opportunity to clarify
    that uncertainty, however, inasmuch as we conclude that under no
    potentially applicable standard would a Brady-type damages claim
    be made out by Lynn against Appellants.
    21
    could reasonably conclude that the detectives denied Lynn his
    due process right to a fair trial. Evidence of the detectives’
    cash payments to Sandy between the date of the murder and the
    commencement of trial was readily available to Simpson before
    trial. 5
    The state agreed to make Sandy available to Simpson for an
    interview several weeks before trial. Although Sandy failed to
    appear for the first scheduled meeting, Simpson himself then
    cancelled    a     subsequent   meeting     and   failed    to   reschedule   any
    subsequent meeting, citing his busy schedule.
    Simpson then agreed to delay his interview of Sandy until
    immediately prior to the suppression hearing on the first day of
    trial.     Then,     when   Sandy   arrived       late     for   the   scheduled
    interview, Simpson did not file any motions for disclosure or
    request a continuance or postponement. Instead, he determined he
    could simply question Sandy on the stand during the hearing. At
    the   hearing,      Sandy   admitted   she    was   a    paid    informant,   but
    Simpson did not ask Sandy anything about the payments she had
    5
    The finding of the state post-conviction court is wholly
    unambiguous:
    This Court concludes that the duty to investigate
    in this case was breached, not only because of [the
    expert opinion testimony introduced by Lynn], but
    because common sense dictates that investigation of
    the sole witness in a first degree murder case is
    required.
    J.A. 261.
    22
    received or the cases she worked on for the police. Nor did he
    examine detective        Hamill       about       the       types   of   cases     for   which
    Sandy was paid, when the payments were made, or how much the
    payments     were.     Then,       after    the       hearing,      Simpson       elected   to
    proceed     directly    to     a    non-jury          trial    without    requesting        any
    further discovery or information about Sandy, apparently hoping
    he    had    accurately        read        the     presiding        judge’s       non-verbal
    intimations that Sandy would be disbelieved. See supra p. 13
    n.2. He never filed any motion to compel disclosure of Sandy’s
    identity, and in fact he never learned her actual identity. Nor
    did   he    request    documentation         of       the     payments    made     to    Sandy,
    despite his appreciation that her credibility was the “lynchpin”
    of Lynn’s case. J.A. 163. He recommended, and Lynn agreed to, a
    non-jury trial.
    In light of these facts, it is indisputably clear that Lynn
    was denied the effective assistance of counsel in consequence of
    Simpson’s     failure    to    conduct           anything      close     to   a   reasonable
    investigation in the murder case. Nevertheless, these facts do
    not remotely suggest that the detectives’ acts and omissions
    denied Lynn his right to a fair trial. Indeed, as the post
    conviction      court     concluded,             it     was     the      accumulation        of
    undiscovered additional impeachment evidence (including a second
    theft conviction; the outstanding arrest warrant for Sandy for
    violation of probation; and Sandy’s extensive drug use) that
    23
    combined with Simpson’s failure to uncover the timing of the
    cash        payments    during   the       pendency    of    the       murder   case    that
    deprived Lynn of substantial justice. In short, Lynn has only
    projected evidence sufficient to show that his Sixth Amendment
    right       was   compromised        by    Simpson’s    deficient         performance    in
    failing to uncover information that was both available to him
    and    in     a   source     where    it    would    have    been      uncovered   by    any
    reasonably competent lawyer. 6 Hoke, 
    92 F.3d at 1355
     (finding no
    due process violation where the defendant’s lawyer had access to
    all of the allegedly withheld witnesses and would have learned
    of them had he undertaken a reasonable investigation); Wilson,
    
    901 F.2d at 381
     (denying relief where defense counsel could have
    obtained the exculpatory information by questioning a witness in
    preparation for trial); Lugo v. Munoz, 
    682 F.2d 7
    , 9-10 (1st
    Cir.    1982)      (where     facts       are   available    to    a    diligent   defense
    attorney,         no   due   process       violation   can    be       established)(cited
    with approval in Wilson, 
    901 F.2d at 380
    .).
    6
    Of course, our holding does not mean that a criminal
    defendant cannot suffer the denial of a fair trial on two or
    more distinct bases. We hold only that on the record before us,
    as a matter of law, it was a Sixth Amendment deprivation, not a
    Fourteenth Amendment deprivation, that inflicted injury, if any,
    on Lynn.
    24
    V.
    In this §   1983 damages action, Lynn has failed to satisfy
    his burden at the summary judgment stage to project evidence
    from which a jury could conclude that Appellants violated his
    due   process   right   to   a   fair    trial.   Instead,   he   has   only
    projected evidence from which a jury could reasonably find that
    his defense attorney probably committed professional malpractice
    under state law. As he has failed to support his assertion that
    Appellants violated his right to a fair trial, summary judgment
    on the ground of qualified immunity should have been granted.
    See Saucier, 533 U.S. at 200-01. Accordingly, the order of the
    district court is
    REVERSED.
    25