Prible v. Lumpkin ( 2022 )

Case: 20-70010 Document: 00516424357 Page: 1 Date Filed: 08/08/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
August 8, 2022
No. 20-70010 Lyle W. Cayce
Clerk
Ronald Jeffrey Prible,
Petitioner—Appellee,
versus
Bobby Lumpkin, Director, Texas Department of Criminal
Justice, Correctional Institutions Division,
Respondent—Appellant.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:09-CV-1896
Before Dennis, Elrod, and Duncan, Circuit Judges.*
Stuart Kyle Duncan, Circuit Judge:
Early in the morning of April 24, 1999, Esteban “Steve” Herrera and
Nilda Tirado were shot to death in their Texas home. The killer doused
Tirado’s partially nude body with accelerants and set her on fire. Fumes from
their mother’s burning corpse asphyxiated the couple’s three young
*
Judge Dennis concurs in the judgment only.
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daughters, who were sleeping upstairs. The prime suspect was Ronald Jeffrey
Prible, who was later indicted for capital murder.
A state jury heard evidence connecting Prible to the killings. Prible had
been involved with Herrera in robbery and drug dealing. Prible was drinking
and shooting pool in Herrera’s garage on the night of the murders. Prible’s
semen was found in Tirado’s mouth. And while in prison Prible confessed to
the murders to Michael Beckcom, a murderer and repeat jailhouse snitch
who admitted he was angling for a lower sentence in another case.
The jury convicted Prible and sentenced him to death. After a decade
of federal proceedings, including extensive discovery and an evidentiary
hearing, the district court issued Prible a writ of habeas corpus and granted
him a new trial. We reverse.
I. Background
A. Murders and Investigation
In spring 1999, Prible and Herrera wanted to open a bar. To raise
capital, Prible robbed banks and gave the proceeds to Herrera, who bought
and sold drugs. Prible robbed six banks of about $46,000.
On the night of April 23, 1999, Herrera, his brother-in-law Victor
Martinez, and Prible drank beer and shot pool in Herrera’s garage. They
went to a club and returned to Herrera’s shortly after 2:00 a.m. They talked
in the driveway as Herrera and Prible smoked marijuana. Sometime before
3:30 a.m., Martinez left, and Herrera and Prible returned to the garage to play
pool.
Around 6:30 a.m., neighbors saw smoke pouring from Herrera’s
house and garage. They kicked open a door to the garage, found Herrera
dead, face-down in a pool of blood, and called 9-1-1. First responders found
Tirado dead, face-down on the couch in the den wearing only a t-shirt with
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blood around her head. Her corpse was so burnt “it was hard to tell who she
was.” First responders also found the couple’s three young daughters dead
upstairs.
Prible immediately became a suspect. That day, police visited his
parents’ house, which was less than a mile away, and asked to speak with him.
Prible accompanied police to the precinct, where he gave a DNA sample and
two written statements. He first explained that he and Herrera played pool
after Martinez left until about 4:00 a.m. when Tirado “came out into the
garage and gave a look at [Herrera].” Prible “knew it was time to leave,” so
Herrera drove him to his parents’ house, where he went directly to bed and
slept until 1:30 p.m. But when asked, “[w]hat if some of your semen is in or
on Nilda[?],” Prible changed his story. In his second statement, Prible said
he and Tirado had sex and she performed oral sex on him in the bathroom
while Herrera was outside. He said they had previously “mess[ed] around”
and kissed a few times, but this was the first time they had sex. He did not
initially tell the “entire story” to spare Tirado’s reputation.
The ensuing investigation revealed no signs of forced entry. Herrera
and Tirado were each executed with a close-range nine-millimeter gunshot
to the back of the neck—which the medical examiner described as “assassin
wound[s].” The bullets were fired from the same gun. The children died
from soot and carbon monoxide inhalation.
Arson investigators determined a flashfire had been lit with
accelerants in the den. They found next to Tirado’s body a plastic gasoline
container, a roll of paper towels soaked in an accelerant, an aerosol can, and
a gallon-size metal can of Kutzit, an extremely flammable tile-glue solvent.
They found more Kutzit cans in the garage and a storage shed behind the
house. Tirado’s burns indicated accelerants were poured on her and ignited
after she was shot.
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A consensual search of Prible’s residence revealed guns, ammunition,
a semi-automatic pistol magazine that did not fit any of the guns, and a pay
stub for nine-millimeter ammunition. The magazine “could have” fit the
murder weapon, and the pay-stub ammunition was consistent with the
ammunition used to kill Herrera and Tirado.
Investigators examined the scene for “trace evidence,” including
blood, hair, and fingerprints. An arson investigator opined that the
perpetrator could have traces of soot, smoke, or accelerants on his clothes,
shoes, or skin. No such evidence linked Prible to the crime, however. And
Prible had an alibi: a twelve-year-old next-door neighbor said she observed
Prible and Herrera that night talking in Prible’s driveway sometime after 1:00
a.m.
A swab of Tirado’s mouth revealed sperm cells, the DNA of which
matched Prible’s. But Tirado’s closest friends dismissed the notion of an
affair. They claimed Tirado had recently told them that Prible “gave her the
creeps,” “[s]he didn’t like him,” and “she was tired of him being [at her
home].”
B. State Trial Proceedings
1. The State’s case
A month after the murders, Prible pled guilty to bank robbery in
federal court. He was sentenced to 63 months’ imprisonment and sent to the
Federal Correctional Complex in Beaumont, Texas. In May 2001, the court
reduced his sentence to 36 months, setting his release for May 2002.
The State of Texas charged Prible with capital murder in July 2001. A
Harris County grand jury indicted him in August 2001. Assistant District
Attorneys Kelly Siegler and Vic Wisner tried the case a year later.
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The State presented evidence at trial that: (1) Prible was the last
person seen with Herrera at the house before the murders; (2) Prible and
Herrera’s struggling business venture supplied a motive; (3) the bullets that
killed Herrera and Tirado were fired from the same gun; (4) Prible’s semen
was deposited in Tirado’s mouth shortly before her death; (5) a fire was set
to destroy physical evidence, including Prible’s DNA; and (6) Prible
admitted to fellow inmate Michael Beckcom that he committed the murders.
Prible v. State, 175 S.W.3d 724, 730 (Tex. Crim. App. 2005). Prible’s claims
in this habeas action center around Beckcom’s testimony and the semen-
DNA evidence. We describe that testimony and evidence in detail below.
2. Beckcom’s testimony
At trial, Beckcom testified to his lengthy criminal history, including
his murder of a federal witness. He explained that he had testified in several
cases for sentence reductions and was testifying against Prible in exchange
for Siegler’s writing a letter to his prosecutor in California. He had been
placed in protective custody once word spread that he was testifying against
Prible.
Beckcom described the nature of his relationship with the prosecution
as an informant. He learned of Siegler through his cellmate, Nathan
Foreman, and first contacted her about Prible’s case in October 2001.
Beckcom understood from their conversation that “the only way for [Siegler]
to be interested” was if he knew “[s]pecifics about the case, facts.” So
Beckcom “sought to find out as much as [he] could.” After Prible confessed
to him, Beckcom and Siegler met for about an hour in early December 2001.
He gave her a letter with the information he had. They spoke “[t]wo or three
times” thereafter about Siegler’s recommending a sentence reduction.
Beckcom testified that he and Foreman met Prible through a shared
acquaintance and the three eventually became close friends. They engaged in
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“general conversation” before Prible asked about Beckcom’s murder case.
Prible slowly began to offer details of his own case “in bits and pieces of
conversations.” Prible mentioned police found his DNA on Tirado but
“[e]verybody knew they were messing around.” When Beckcom asked about
the murder weapon, Prible replied, “asphalt’s good some times for hiding
things.” Prible emphasized his service in the Marine Corps and implied he
would murder for hire. As they grew closer, Beckcom asked more direct
questions. Prible “softened up a little bit” and shared more details after
Beckcom said he did not care if Prible committed the murders.
Prible confessed to Beckcom and Foreman on November 24, 2001. He
described how during an argument he shot Herrera, Tirado ran into the den
to call the police, Prible followed and shot her too, and then he set a fire “to
cover his tracks.” Prible explained, “[Herrera] took $250,000 of my hard-
earned money” and “was going to kill me, so I handled my business.” Prible
looked in the house for the drug money, “but it wasn’t there.” When asked
how he got in and out without being seen, Prible said “his parents lived a
couple miles from there so it wasn’t far.” Referring to his military service, he
added, “it was a high intensive, low drag maneuver. That’s what I was
trained for, in and out. I’m a ghost.” Prible continued, “Anybody that can go
in a house and take out a whole family and get out without being seen is a bad
mother fucker and I’m that mother fucker.” To corroborate Beckcom’s
relationship with Prible, the State introduced a photograph of Prible,
Beckcom, and Foreman in the Beaumont visiting room the day Prible
confessed.
The defense cross-examined Beckcom about his criminal record and
history as an informant. Beckcom maintained that he learned the details of
the crime only through Prible. A character witness doubted Prible confided
in Beckcom because everyone in Beaumont, including Prible, knew Beckcom
would snitch “falsely or truly” to help himself. A jailhouse lawyer testified
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that Prible showed his probable-cause affidavit to several inmates at
Beaumont: “He talked about his case so much. I told him people would come
in and testify against him if he kept that stuff up. And ‘lo and behold.”
3. Semen-DNA testimony
Three witnesses testified about the semen in Tirado’s mouth. Dr.
Joye Carter, chief Harris County medical examiner, testified for the State
that sperm can be found in a person’s mouth “several hours” after
ejaculation. She opined that it was unlikely, but possible, that the semen was
deposited in Tirado’s mouth after she died. She saw “no indication” of
sexual assault.
Bill Watson, a PhD student who performed the DNA testing on the
sperm cells, testified for the State that his ability to generate a full male DNA
profile from the oral swab was “consistent with there being a great deal of
sperm present.” It was also “consistent with the male depositing the semen
in [Tirado]’s mouth moments, if not seconds, before she was killed.” He
opined that the sperm was likely deposited within the hour before Tirado
died.
Dr. Robert Benjamin, Watson’s PhD advisor, testified for Prible. He
said it was not “possible to extrapolate” from the “amount of DNA” found
“roughly what time [it] was placed there.” He warned such estimates are
“dangerous,” “hazardous,” and “not scientifically valid.” He claimed “no
controlled scientific studies” supported Watson’s opinion.
4. Closing arguments
The State relied on Beckcom’s testimony and the semen-DNA
evidence in closing arguments. Wisner claimed “Beckcom is telling the
truth” but maintained the State “ha[s] enough evidence without him.” He
emphasized that Beckcom testified to details beyond Prible’s probable-cause
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affidavit, debunking theories that Beckcom learned facts from the affidavit or
the prosecutors “fed him the information.” Citing Watson’s testimony,
Wisner submitted, “There is no way in the world that th[e] semen wasn’t
deposited either moments before or seconds after [Tirado] died.”
The defense attacked Beckcom’s credibility, calling him a “self-
admitting liar” and “snitch.” The defense claimed Beckcom could have
learned details about the case in talking with Siegler. Citing Dr. Carter’s
testimony, the defense argued the sperm in Tirado’s mouth could have been
deposited several hours before her death.
Siegler’s rebuttal pressed, inter alia, the semen-DNA evidence and
Beckcom’s testimony: “if Jeff Prible had managed to control his ejaculation
and his mouth, he might not have ever been caught.” She submitted that
Prible forced Tirado to perform oral sex on him at gunpoint before he killed
her. She acknowledged a “deal [was] cut” with Beckcom but argued the jury
could convict without believing him.
5. Conviction and sentence
The jury convicted Prible of capital murder. In accordance with the
jury’s answers to special issues, the court sentenced Prible to death. See
Tex. Code Crim. Proc. Ann. art. 37.071 § 2. The Court of Criminal
Appeals (CCA) affirmed. Prible, 175 S.W.3d 724, cert. denied, Prible v. Texas,
546 U.S. 962 (2005).
C. State and Federal Habeas Proceedings
1. State habeas and pro se filings
In November 2004, Prible filed a counseled state habeas application,
claiming ineffective assistance of trial counsel and that the jury did not reflect
a fair cross-section of the community. He did not challenge Beckcom’s
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testimony, allege prosecutorial misconduct, or otherwise raise informant
issues.
During the proceedings, Prible inundated the CCA with pro se filings.
In November 2005, he filed a pro se “supplemental writ,” asserting, inter alia,
a claim under Brady v. Maryland, 373 U.S. 83 (1963), based on Siegler’s
conspiring with Beckcom, Foreman, Larry Wayne Walker, and other inmates
to offer false testimony against him and another Beaumont inmate, Hermilio
Herrero. Weeks later, he filed a letter stating that he had misidentified Larry
Wayne for Carl Walker Jr. Prible’s counsel, Roland B. Moore III, discouraged
Prible from pressing the informant conspiracy theory. He wrote in a letter to
Prible that nothing “anybody could say . . . would help. . . . [Even] if the ideal
witness came forward . . . nobody would believe it. I mean nobody.” Moore
advised Prible’s sister in an e-mail that the conspiracy claim was meritless
absent a recantation from Beckcom. Subsequent pro se filings and
correspondence—including requests for an evidentiary hearing and
production of the prosecutors’ e-mails—fleshed out the conspiracy theory.
Prible repeatedly complained of Moore’s representation. In May 2007, the
CCA responded to a pro se filing, advising Prible to address the matter to his
attorney because the CCA “does not recognize hybrid representation.”
In June 2007, Prible filed pro se a second state habeas application,
asserting claims under Brady and Massiah v. United States, 377 U.S. 201(1964). He claimed Siegler “hid her true ties” to Beckcom and other
informants, who conspired to “give false testimony for time reduction[s].”
He also claimed Siegler incentivized Beckcom to “get close to Prible and find
any information that would aid her in making her case” by offering to write a
sentence-reduction letter to Beckcom’s prosecutor. Prible argued he satisfied
the standard for filing a successive application. See Tex. Code Crim.
Proc. Ann. art. 11.071 § 5.
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In August 2007, Prible filed pro se a third state habeas application,
claiming trial counsel was ineffective for failing to interview Herrero. Prible
claimed Siegler prosecuted Herrero a month before him using “the same
group of jailhouse informants.” Prible alleged his trial counsel knew of this
ring of informants but did nothing.
The CCA denied Prible’s counseled application on the merits. Ex
parte Prible, Nos. WR–69,328–01, WR–69,328–02, WR–69,328–03, 2008
WL 2487786, at *1 (Tex. Crim. App. June 18, 2008) (per curiam). It
construed Prible’s two later pro se applications as “subsequent applications,”
found that they did not “contain[] sufficient specific facts . . . [to] meet[] one
of the exceptions set out in Art. 11.071, § 5,” and dismissed them as abuses
of the writ. Ibid. (citing Tex. Code Crim. Proc. Ann. art. 11.071 § 5).
Moore advised Prible that he “would not be adopting” the pro se
application because “[n]one of it [wa]s useful.” Prible wrote to the CCA,
with Moore’s letter attached, arguing “I did not, and will not be asking
[Moore’s] permission for [the application] to be added to my writ.”
2. Initial federal habeas petitions, subsequent state habeas filings, and state
evidentiary hearing
In June 2009, Prible timely filed a counseled federal habeas petition.
He quickly amended it to add supporting affidavits as exhibits. The amended
petition asserted eight claims, four of which related to the State’s
development and use of inmate testimony, including a Brady claim and a
Massiah claim. Respondent argued the four claims were defaulted because
they were unexhausted (i.e., Prible did not present them in state court) and
the state court would now reject them as abusive. The district court stayed
the case to allow Prible to seek review of the claims in state court.
In September 2010, Prible filed a counseled, fourth state habeas
application, asserting his Brady and Massiah claims. He claimed he obtained
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“insider information” from Carl Walker. Walker stated, inter alia, that
Beckcom and Foreman recruited him to inform on Prible, Siegler fed details
of Prible’s case to Foreman before Prible arrived at Beaumont, the
photograph with Prible was staged, and Siegler orchestrated similar
informant schemes in other murder cases. Prible argued his application
should not be barred as successive because this new evidence was unavailable
when he filed his first state habeas application.
The trial court sent Prible’s fourth application to the CCA because it
was successive. The CCA could not determine “whether the factual basis for
the[] claims was unavailable on the dates that [Prible] filed his previous
applications.” Ex parte Prible, No. WR–69,328–04, 2010 WL 5185846, at *1
(Tex. Crim. App. Dec. 15, 2010) (per curiam). It remanded the matter so the
“record c[ould] be supplemented with evidence relating to . . . when and how
[Prible] obtained the evidence at issue and whether he exercised reasonable
diligence to obtain this evidence at the earliest opportunity.” Ibid.In February 2011, Prible moved the state court for in camera review of
privileged work product in the State’s trial file. The State did not oppose the
motion and produced letters to Siegler from Beaumont inmates Carl Walker,
Jesse Gonzalez, and Mark Martinez, which the State had sealed, designated
as “attorney work product,” and not produced. In the letters, the inmates
claimed Prible shared details of the crime while in prison and expressed a
willingness to testify for “help” with their sentences.
The state trial court held an evidentiary hearing in June 2011. Moore
testified that Prible told him “a [black] man named Walker” had information
about Siegler’s ring of informants at Beaumont before he filed the initial state
habeas application. With little information on Walker, Moore considered the
task of locating him “impossible” and “a complete fool’s errand.” Moore
did not call or visit Beaumont, employ an investigator, issue a subpoena, seek
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a court order to obtain information, or attempt to contact any inmates named
Walker. Moore never spoke with Beckcom because his lawyer said he would
not talk. Moore contacted Foreman, but he refused to talk. And despite Prible
properly identifying Carl Walker and attempting to assert Brady and Massiah
claims in his pro se applications, Moore did not seek to supplement or amend
the initial application because he “did not feel [he] had adequate
information” and “it would just be . . . harmful to Mr. Prible in the long
run.”
In its findings of fact, the trial court held Prible’s fourth application
was barred under article 11.071, section 5(a)(1), because Prible “fail[ed] to
establish that the factual basis for his claims was unavailable on the dates that
[he] filed his three previous applications.” It found Walker’s statements
were “unpersuasive and ha[d] little evidentiary value” because they
“consist[ed] almost entirely of hearsay and speculation and contain[ed] no
direct evidence of [Prible’s] conspiracy theory.” It also found that although
Moore had “very limited information regarding the identity of Walker” and
had “investigated [Prible’s] conspiracy theory,” the factual basis for Prible’s
claims was available when he filed the initial application. It further found that
the factual basis for the claims was available when Prible filed his pro se
applications because they “explicitly raised the conspiracy theory,”
“identified witness Walker by name and federal inmate register number,”
and “indicated . . . that a witness had contacted [Prible’s] trial counsel.” The
CCA affirmed and dismissed the fourth application as an abuse of the writ.
Ex parte Prible, No. WR-69,328-04, 2011 WL 5221864, at *1 (Tex. Crim. App.
Nov. 2, 2011) (per curiam).
3. Subsequent federal habeas petitions and federal discovery
In August 2012, Prible filed a second amended petition back in federal
court. In November 2013, the district court granted Prible’s opposed motion
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for discovery to subpoena records from state and federal agencies. Prible filed
a third amended petition in September 2015. The court granted Prible’s
opposed discovery motions to subpoena additional records; to depose
Siegler, Wisner, Foreman, Beckcom, Walker, and Bureau of Prisons
personnel, among others; and to compel production of the prosecution’s
“Work Product” files and e-mails after in camera review.
In March 2018, Prible filed a fourth amended petition—the operative
petition. He alleged the State failed to disclose that Siegler received letters
from informants about Prible; met with Beckcom, Foreman, and other
informants months before Prible’s trial; used these informants in Herrero’s
case; and wrote sentence-reduction letters for them. Prible also alleged the
State failed to disclose that Pam McInnis, head of the Harris County crime
lab, had told Siegler semen could live in an oral cavity for up to seventy-two
hours, evidenced by a note discovered in the State’s work-product folder.
Prible asserted sixteen claims. Relevant here are claims two, three, four, five,
six, and ten, which boil down to (1) ring-of-informants Brady claims, (2) a
Massiah claim relating to Beckcom, and (3) a semen-DNA Brady claim. 1
Respondent answered and moved for summary judgment. Prible
cross-moved for an evidentiary hearing on Respondent’s arguments that
1
Specifically, those claims are: (2) the State suppressed evidence that Beckcom
and Foreman were part of an organized attempt to fabricate a false confession in exchange
for leniency (Brady); (3) the State suppressed evidence that Foreman gave a fabricated
account different from Beckcom’s (Brady); (4) the State suppressed evidence impeaching
Beckcom’s testimony about the circumstances of Prible’s confession (Brady); (5) the State
suppressed evidence the trial court had ordered produced (Brady); (6) the State employed
Beckcom as a state agent to elicit incriminating statements from Prible (Massiah); and (10)
the State suppressed evidence that McInnis advised Siegler that semen could survive
seventy-two hours in an oral cavity (Brady).
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Prible’s claims are time-barred, unexhausted, and procedurally defaulted and
on the merits of the claims. The court granted Prible’s cross-motion.
4. Federal evidentiary hearing
At the three-day evidentiary hearing, the court heard testimony from
Foreman, Walker, Beckcom, Siegler, and others. Foreman testified that he
first learned facts about Prible’s case in 2001 from inmate Jesse Moreno.
Foreman, Beckcom, Moreno, and another inmate then contacted Siegler. In
August 2001, Foreman met with Siegler about Prible, but he could not
remember the content of the conversation. Foreman said Prible “didn’t
really talk about” his offenses and certainly never confessed to the murders.
The court found Foreman credible. Prible v. Davis, No. H-09-CV-1896, 2020
WL 2563544, at *15 (S.D. Tex. May 20, 2020).
Walker testified that he learned “a plethora of information” about
Prible’s case from Foreman, Beckcom, and inmate Oscar Gonzalez before he
met Prible. The group suggested Walker testify against Prible to get a
sentence reduction. They “strategized” to befriend Prible and to send letters
to the prosecutor asking to be witnesses. Walker said the group staged the
photograph with Prible to create a perception that they had a “close
connection.” Walker sent his letter to Siegler offering to testify that Prible
had confessed. He said the group sent the letters to “corroborate each
other’s story.” To Walker’s knowledge, “Prible never confessed.” The
court found Walker credible. Id. at *16.
Beckcom testified that he learned about Siegler from Foreman and
called her to discuss a possible sentence reduction. Beckcom said he took
notes on what Prible said to memorialize the information “Siegler asked
[him] to get.” Beckcom testified that during his experience as an informant,
no prosecutor, including Siegler, ever fed him details about a crime. Beckcom
and Foreman discussed “trying to get a confession” from Prible, but
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Foreman never gave him information about Prible’s case. Beckcom claimed
Foreman was present when Prible confessed. Siegler led Beckcom to believe
he would receive a significant time-cut for his testimony. Despite recognizing
Beckcom’s testimony was supported by the record, the court found, without
explanation, that “Beckcom was not a credible witness” and “it [wa]s
obvious that Beckcom was dishonest when it suited his needs.” Id. at *18.
Siegler testified that her August 2001 meeting with Foreman was
unrelated to her decision to seek an indictment. She said Foreman later tried
calling her, but she “knew he was a liar.” Siegler maintained she did not need
to disclose her contacts with Foreman because he “was not a witness” at
trial. Siegler recalled receiving the letters from Walker, Martinez, and
Gonzalez but claimed she did not believe their accounts. She said they were
in her file available to the defense. She remembered speaking to McInnis but
could not recall if she relayed that conversation to the defense. The court
found Siegler “was not credible on both minor and major points,”
highlighting inaccuracies in her testimony and noting she was “combative in
demeanor and did not appear forthcoming.” Id. at *19.
5. District court grant of habeas relief
In May 2020, the district court granted habeas relief on Prible’s ring-
of-informants Brady claims, his Massiah claim relating to Beckcom, and his
semen-DNA Brady claim. Id. at *43; see supra note 1. The district court held
Prible showed cause and prejudice to excuse the procedural default of his
claims. Prible, 2020 WL 2563544, at *23, *37. As to cause, the court explained
that Siegler suppressed evidence of her relationships with the informants and
the McInnis note, that the informant evidence from Walker “was not
available” to Prible “despite his diligent attempts to discover it,” and that
Prible and Moore had no reason to know Siegler suppressed evidence. Id. at
*24–27, *37. As to prejudice, the court reasoned that “the suppressed
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evidence taken as a whole would have allowed the defense to seriously
undercut” the veracity of Beckcom’s testimony and the State’s theory that
Prible deposited his semen in Tirado’s mouth shortly before her death. Id. at
*33–35, *39. The court held Prible established Brady violations because the
suppressed evidence was favorable to him, id. at *27–35, and a Massiah
violation because Beckcom deliberately elicited the confession while acting
as a state agent, id. at *38–39. Respondent timely appealed.
II. Standard of Review
In reviewing a grant of habeas relief, we review issues of law de novo
and findings of fact for clear error. Hughes v. Vannoy, 7 F.4th 380, 386 (5th
Cir. 2021) (citation omitted). Whether a petitioner has shown cause and
prejudice to excuse a procedural default is reviewed de novo. See Gonzalez v.
Thaler, 623 F.3d 222, 224 (5th Cir. 2010) (citation omitted).
III. Discussion
Respondent challenges the grant of habeas relief on the grounds that
(1) Prible has not overcome the procedural default of his claims, (2) 28
U.S.C. § 2254(e)(2) bars new evidence, and (3) Prible’s claims fail on the
merits. Because we conclude Prible has not overcome procedural default, we
do not reach the latter two points. 2
2
The Supreme Court recently explained that, under section 2254(e)(2), a court
improperly holds an evidentiary hearing or considers new evidence to determine whether
cause and prejudice exist to overcome procedural default “if the newly developed evidence
never would ‘entitle the prisoner to federal habeas relief.’” Shinn v. Ramirez, 142 S Ct.
1718, 1739 (2022) (alteration omitted) (quoting Schriro v. Landrigan, 550 U.S. 465, 474
(2007)). Because we conclude Prible has not overcome procedural default even on the
expanded record developed below and thus do not reach Respondent’s section 2254(e)(2)
arguments or the merits of Prible’s claims, we express no view on the district court’s
decision to hold a hearing and consider new evidence.
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A. Cause and Prejudice Standards
We may not review the merits of procedurally defaulted claims absent
a showing of cause and prejudice to excuse the default. Dretke v. Haley, 541
U.S. 386, 388 (2004); Hughes v. Quarterman, 530 F.3d 336, 341 (5th Cir.
2008); accord Shinn v. Ramirez, 142 S. Ct. 1718, 1732 (2022). Cause exists
when “some objective factor external to the defense impeded counsel’s ef-
forts to raise the claim in state court.” Canales v. Stephens, 765 F.3d 551, 562
(5th Cir. 2014) (quoting McCleskey v. Zant, 499 U.S. 467, 493 (1991)). “A
factor is external to the defense if it ‘cannot fairly be attributed to’ the pris-
oner.” Davila v. Davis, 137 S. Ct. 2058, 2065 (2017) (quoting Coleman v.
Thompson, 501 U.S. 722, 753 (1991)).
It is well established that “a failure to raise a claim in an earlier habeas
petition may not be excused for cause ‘if the claim was reasonably available’
at the time of the first petition.” Ford v. Davis, 910 F.3d 232, 237 (5th Cir.
2018) (quoting Fearance v. Scott, 56 F.3d 633, 636 (5th Cir. 1995)); see also
Canales, 765 F.3d at 562 (noting cause exists where “the factual or legal basis
for a claim was not reasonably available to counsel” (quoting McCleskey, 499
U.S. at 494)). The cause requirement “is based on the principle that peti-
tioner must conduct a reasonable and diligent investigation aimed at includ-
ing all relevant claims and grounds for relief in the first . . . habeas petition.”
McCleskey, 499 U.S. at 498. 3 Cause can exist where “interference” by state
officials makes it “impracticable” to raise the claim in state court. Canales,
765 F.3d at 562 (quoting McCleskey, 499 U.S. at 494); see also Banks v. Dretke,
3
See also Brian R. Means, Federal Habeas Manual § 9B:51, Westlaw
(database updated May 2022); 2 Randy Hertz & James S. Liebman, Federal
Habeas Corpus Practice and Procedure § 26.3[b] n.28, LexisNexis (database
updated Dec. 2021) (collecting cases).
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540 U.S. 668, 691 (2004) (noting “the State’s suppression of the relevant
evidence” can be cause).
As to prejudice, the petitioner must show that the errors “worked to
his actual and substantial disadvantage, infecting his entire trial with error of
constitutional dimensions.” Smith v. Quarterman, 515 F.3d 392, 403 (5th Cir.
2008) (quoting Murray v. Carrier, 477 U.S. 478, 493 (1986)); see also Hertz
& Liebman, supra note 3, § 26.3[c]. Courts need not consider prejudice if
the petitioner fails to show cause, and vice versa. Matchett v. Dretke, 380 F.3d
844, 849 (5th Cir. 2004) (citing Rodriguez v. Johnson, 104 F.3d 694, 697 (5th
Cir. 1997)); see Murray, 477 U.S. at 494.
“A Brady violation can provide cause and prejudice to overcome a
procedural bar on a habeas claim” because “cause and prejudice parallel two
of the three components of the alleged Brady violation itself.” Guidry v.
Lumpkin, 2 F.4th 472, 486 (5th Cir. 2021) (first quoting Thompson v. Davis,
916 F.3d 444, 455 (5th Cir. 2019); then quoting Strickler v. Greene, 527 U.S.
263, 282 (1999)). The three components of a Brady violation are (1) “the ev-
idence at issue is favorable to the defense, either because it is exculpatory or
impeaching,” (2) “the prosecution suppressed the evidence” (cause), and
(3) “the evidence is material” (prejudice). Murphy v. Davis, 901 F.3d 578,
597 (5th Cir. 2018) (citing United States v. Brown, 650 F.3d 581, 587–88 (5th
Cir. 2011)). A “Brady claim fails if the suppressed evidence was discoverable
through reasonable due diligence.” Guidry, 2 F.4th at 487 (quoting Reed v.
Stephens, 739 F.3d 753, 781 (5th Cir. 2014)).
In reviewing habeas claims, we presume a state court’s findings of fact
are correct unless the petitioner rebuts this presumption with “clear and con-
vincing evidence.” 28 U.S.C. § 2254(e)(1). “This deference extends not
only to express findings of fact, but to the implicit findings of the state court.”
Ford, 910 F.3d at 234–35 (quoting Garcia v. Quarterman, 454 F.3d 441, 444
18
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(5th Cir. 2006)). A state trial court’s findings “survive an appellate court’s
review” if they were “adopted” or “incorporated into the appellate court’s
peremptory denial of relief.” Murphy, 901 F.3d at 595 (quoting Williams v.
Quarterman, 551 F.3d 352, 358 (5th Cir. 2008)).
B. Ring-of-Informants Brady Claims
We first consider Prible’s ring-of-informants Brady claims (claims
two, three, four, and five). 4 The district court held that these claims are
defaulted 5 but that Prible showed cause and prejudice to overcome the bar.
4
While Prible does not dispute that these claims are defaulted, he argues
Respondent waived the argument that he did not show cause for the default by addressing
claims two, three, four, and five together as if they “reduce to a single ring of informants
claim.” We disagree. The district court addressed the claims together because they “share
a common core of operative facts.” Prible, 2020 WL 2563544, at *21–23. Absent that
finding, claims three, four, and five could not relate back to the original federal petition
(claim two) and thus would have been time-barred. See id. at *21–23, *40 n.25. Prible
cannot have it both ways: he cannot rely on relation-back doctrine below to overcome
timeliness issues and now argue the claims are so factually distinguishable to require
separate cause analyses. See Mayle v. Felix, 545 U.S. 644, 657 (2005). We accordingly assess
the default of the four ring-of-informants Brady claims together.
5
We agree that these claims are defaulted. A federal habeas claim is defaulted when
either the state court denied a claim based on an adequate and independent state procedural
rule, Rocha v. Thaler, 626 F.3d 815, 820 (5th Cir. 2010) (quoting Nobles v. Johnson, 127 F.3d
409, 420 (5th Cir. 1997)), or the claim is unexhausted and the state court would now find it
procedurally barred, Finley v. Johnson, 243 F.3d 215, 220 (5th Cir. 2001) (citing Sones v.
Hargett, 61 F.3d 410, 416 (5th Cir. 1995)). The state court dismissed claim two under
Texas’s abuse-of-the-writ doctrine, “a valid state procedural bar foreclosing federal habeas
review.” Coleman v. Quarterman, 456 F.3d 537, 542 (5th Cir. 2006) (citing Kunkle v. Dretke,
352 F.3d 980, 988–89 (5th Cir. 2003)). Prible did not raise claims three, four, and five in
state court, so they are unexhausted. See O’Sullivan v. Boerckel, 526 U.S. 838, 842–48
(1999). But given the state court’s finding that the factual basis for Prible’s ring-of-
informants theory was available when Prible filed his first three state habeas applications,
the state court would now find these claims procedurally barred. See Finley, 243 F.3d at
220.
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Prible, 2020 WL 2563544, at *24–27. We disagree. Prible has not shown the
factual basis for these claims was unavailable and so cannot establish cause.
We begin with the findings made by the state trial court on remand
from the CCA. The court determined that the factual basis for the ring-of-
informant claims was “available when [Prible’s] initial habeas petition was
filed in November[] 2004” and “at the time of the filing of [Prible’s] second
subsequent application.” The court’s factual findings formed the basis of the
CCA’s denial of relief, Prible, 2011 WL 5221864, at *1, and thus survived
appellate review, see Murphy, 901 F.3d at 595. The findings are accordingly
presumed correct unless rebutted by clear and convincing evidence. See 28
U.S.C. § 2254(e)(1); Ford, 910 F.3d at 235; see also Romero v. Davis, 813 F.
App’x 930, 933 (5th Cir. 2020) (per curiam).
The district court held that Prible rebutted this finding. Specifically,
it found that the claims’ factual basis was unavailable when Prible filed his
state habeas applications because Siegler suppressed “notes memorializing
meetings with Foreman and Beckcom” and the “letters from several
inmates—including Walker—trying to inform on Prible.” Prible, 2020 WL
2563544, at *24 n.20, *25–27. The court concluded that Siegler’s
suppressing these items “left Prible with no concrete evidence to support
[his] claim[s] during [state] proceedings, despite Prible and [Moore’s]
diligent efforts to discover such evidence.” Id. at *26.
We disagree. The record confirms the state court’s finding that the
factual basis for the ring-of-informants claims was available before Moore
filed Prible’s initial state habeas application. In his November 2005 pro se
“supplemental writ,” Prible alleged a Brady violation based on Siegler’s
purportedly conspiring with several Beaumont informants to present false
testimony that Prible had confessed. Prible claimed that he had “told his
attorneys about all of these issues numerous times” and he “believe[d] that
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No. 20-70010
these issues should of [sic] been in his original writ.” In a July 2006 pro se
letter, Prible claimed information regarding Walker and the ring of
informants was brought to his attention “over 3 years ago,” meaning he was
aware of the factual basis for the claims sometime in 2003—a year before
Moore filed the initial application. And in his third state habeas application
filed pro se in August 2007, Prible claimed Moore knew about the ring of
informants “before he did my brief” but “never put it in my appeal.”
Moreover, Moore testified at the state evidentiary hearing that Prible had
advised him of the ring-of-informants allegation before he filed the initial
application.
In finding cause, the district court conflated availability of the factual
basis for Prible’s ring-of-informants claims with access to evidence
supporting them. See McCleskey, 499 U.S. at 498 (noting district court
erroneously conflated “[w]hether petitioner knew about or could have
discovered the 21–page document” and “whether he knew about or could
have discovered the evidence the document recounted”). In assessing the
availability of a claim’s factual basis, “the question is whether petitioner
possessed, or by reasonable means could have obtained, a sufficient basis to
allege a claim in the first petition and pursue the matter through the habeas
process.” Ibid. (citing Rules Governing Section 2254 Cases in the U.S. Dist.
Cts., Rules 6 (Discovery), 7 (Expanding the Record), and 8 (Evidentiary
Hearing)). “Omission of the claim will not be excused merely because
evidence discovered later might also have supported or strengthened the
claim.” Ibid.Our decision in Robison v. Johnson, 151 F.3d 256 (5th Cir. 1998), is
instructive. Robison defaulted on his claim that trial counsel was ineffective
for not following instructions Robison provided in a letter. Id. at 262. Robison
argued that he showed cause because his habeas attorney did not have the
letter when he filed his initial state habeas petition. Id. at 263. We rejected
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this argument, reasoning “[i]t was Robison’s instructions, however
communicated, and not the letter itself, that form[ed] the ‘factual basis of the
claim.’” Ibid. (quoting United States v. Guerra, 94 F.3d 989, 993 (5th Cir.
1996)). Because “Robison was obviously aware of the letter and of the
instructions . . . therein,” he “knew of the factual basis of the claim before
his current counsel’s discovery of the letter.” Ibid. We explained Robison’s
inability “to produce the best evidence of this communication until later does
not constitute cause for the delay in bringing [the] claim.” Ibid.Similarly, here it was Siegler’s alleged efforts to conspire with
Beaumont informants to present false testimony, not her meeting notes or
the inmates’ letters, that formed the factual basis for Prible’s ring-of-
informants claims. Prible professed knowledge of these efforts long before he
obtained the notes and letters. His inability to produce these items—the
“best evidence” of the ring—is not cause for his delay in asserting the claims.
See McCleskey, 499 U.S. at 498; Robison, 151 F.3d at 263. Prible’s lack of
“concrete evidence to support [his] claim[s],” Prible, 2020 WL 2563544, at
*26, did not make their factual basis unavailable. Prible could have asserted
the claims in his initial application and then acquired supporting evidence
through state habeas proceedings. See McCleskey, 499 U.S. at 498; see also,
e.g., Hall v. Thaler, No. EP-10-CV-135-FM, 2011 WL 13185739, at *16, *31,
*33–34 (W.D. Tex. Dec. 20, 2011) (explaining petitioner filed a “skeletal
state habeas corpus application,” asserting grounds for relief in “rather
cryptic terms” that “did not allege any specific facts in support,” and then
developed claims at an evidentiary hearing).
But Prible’s cause argument would fail even if we assume his
preexisting knowledge did not provide a basis for asserting the ring-of-
informants claims initially. Prible still cannot show cause because “other
known or discoverable evidence could have supported the claim in any
event.” McCleskey, 499 U.S. at 497. Contrary to the district court’s view,
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Siegler’s failure to disclose her ties with Beaumont informants did not make
the factual basis for Prible’s informants claims “unavailable.” There is no
“suppression,” and thus no cause, where facts are “available from other
sources” or “can be discovered by exercising due diligence.” Rector v.
Johnson, 120 F.3d 551, 558–59 (5th Cir. 1997) (collecting cases). Here, factual
support for these claims was available from another source known to Prible—
Walker—but Prible did not diligently pursue it. 6
Prible knew Walker might have information about the alleged
conspiracy before he filed his initial state habeas application. Prible told
Moore that a black man named Walker “was privy to the activities of
[Siegler] with respect to this group of cooperating inmates” and to “what
efforts were being made to recruit witnesses against Mr. Prible in federal
prison.” Walker was willing to share information about, inter alia, the letters
to Siegler, the specific inmates involved, the alleged plot against Herrero, and
his belief Siegler was “feeding them the information.” As the district court
recognized, Prible’s claims “relied heavily” on information from Walker.
Prible, 2020 WL 2563544, at *10.
But Moore did not diligently pursue Walker or otherwise investigate
Prible’s ring-of-informants story. Moore tried to interview Foreman, who
declined to talk, but that was it. Moore did not look for Walker because he
considered it “a complete fool’s errand.” He did not call, visit, or send an
investigator to Beaumont because he “firmly believe[d]” “it would be a
complete waste of time” and the Bureau of Prisons “would not do anything
6
The district court emphasized that Siegler did not disclose her contacts with
Foreman in response to pretrial Brady motions. Prible, 2020 WL 2563544, at *26. That is
mistaken. The evidence Siegler did not disclose fell outside those motions, which related
to Beckcom and “any State witnesses.” Foreman and other Beaumont inmates with whom
Siegler allegedly conspired were not “witnesses” in Prible’s trial.
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No. 20-70010
for [him] without something more.” He did not issue a subpoena or seek
assistance from the state court for the same reasons. He also did not attempt
to speak with Beckcom because he thought Beckcom would not talk. 7
Moore’s lack of diligence in failing to purse the ring-of-informants Brady
claims is “chargeable” to Prible. Holland v. Jackson, 542 U.S. 649, 653
(2004) (per curiam). And it precludes finding cause to excuse Prible’s
default. See Coleman, 501 U.S. at 753 (explaining counsel’s negligence “is not
‘cause’ because the attorney is the petitioner’s agent . . . and the petitioner
must ‘bear the risk of attorney error’” (collecting cases)).
The district court found that Moore made “diligent attempts” to
investigate the ring of informants. Prible, 2020 WL 2563544, at *26. We
disagree. The court overlooked the fact that Moore consciously failed to
pursue Walker despite knowing he might have key information. See
Henderson v. Cockrell, 333 F.3d 592, 606–07 (5th Cir. 2003) (finding
7
The record plainly shows Moore was skeptical of Prible’s theory from the
beginning. In a September 2005 e-mail to Prible’s sister, Moore wrote that “testimony
about a ‘conspiracy’ is not relevant” absent a recantation from Beckcom, who Moore
thought was “a reliable snitch.” In a July 2006 e-mail, Moore told her it was not worth
revisiting informant issues because “[n]o one would believe it” and “Beckhom [sic] is not
going to retract what he said.” In a July 2006 letter, Moore dissuaded Prible from pushing
the conspiracy theory because he thought “nobody would believe it.” And when Prible
filed pro se a second state habeas application asserting the ring-of-informants claims, Moore
refused to adopt it, believing “[n]one of it [wa]s useful.” At the state evidentiary hearing,
Moore testified he did not believe Prible and viewed him as the “typical inmate who says
things all the time.” Only once the State produced the inmates’ letters to Siegler did Moore
think “there’s some credence to be given to what [Prible was] saying.” But even assuming
Moore erred in failing to trust Prible, it would not create cause. See Coleman, 501 U.S. at
753 (explaining “[a]ttorney ignorance or inadvertence is not ‘cause’ because the attorney
is the petitioner’s agent when acting, or failing to act, in furtherance of the litigation”
(collecting cases)). And while the letters may have provided “some evidence”
corroborating Prible’s story, as explained above, the factual basis for Prible’s claims was
available long before Prible obtained the letters. See McCleskey, 499 U.S. at 498; Robison,
151 F.3d at 263.
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undebatable district court’s finding of no cause where “evidence showed a
lack of due diligence on the part of [petitioner’s] initial state habeas counsel,
who made no attempt to interview [a lead witness]”). 8
The district court credited Moore’s belief that finding Walker was “a
fool’s errand.” Prible, 2020 WL 2563544, at *26. And Prible maintains that
efforts to find Walker would have been in vain. But we cannot assume that to
be so. Diligence “depends upon whether the prisoner made a reasonable
attempt, in light of the information available at the time, to investigate and
pursue claims in state court; it does not depend . . . upon whether those
efforts could have been successful.” Williams v. Taylor, 529 U.S. 420, 433,
435 (2000) (applying diligence standard for “failing to properly assert a
federal claim in state court” to 28 U.S.C. § 2254(e)(2)); see Henderson, 333
F.3d at 607 (rejecting argument that witness would not have talked even if
counsel had tried to interview him). While locating Walker may have seemed
unlikely to Moore, it was incumbent on Moore to try.
Prible claims he was diligent because he personally raised the inform-
ant issues in his pro se filings. But he did so after filing the initial state habeas
application. In any event, Prible’s pro se efforts are irrelevant because they
8
See also Osborne v. Purkett, 411 F.3d 911, 916 (8th Cir. 2005) (finding no due
diligence where counsel learned rape victim had sex with her boyfriend before forensic
examination but did not interview the boyfriend or fully investigate their relationship);
Hutchison v. Bell, 303 F.3d 720, 748 (6th Cir. 2002) (finding no due diligence where
petitioner failed to investigate claims despite “aware[ness]” that an individual “possessed
relevant information”); Barnes v. Thompson, 58 F.3d 971, 976–77 (4th Cir. 1995) (deferring
to state court’s finding that claim was available prior to filing state habeas petition because
record showed reasonably diligent counsel could have obtained underlying facts by
interviewing witnesses); Sterling v. Cockrell, No. Civ.A. 3:01–CV–2280, 2003 WL
21488632, at *51–52 (N.D. Tex. Apr. 23, 2003) (Fitzwater, J.) (finding no cause for default
due to lack of diligence where, inter alia, petitioner “ha[d] not demonstrated that his habeas
counsel made any effort to interview Deputy Jones or to investigate further his
statements”).
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No. 20-70010
were procedurally improper. See Ramirez, 2022 WL 1611786, at *7 (alteration
omitted) (noting doctrine of procedural default requires claims be “pre-
sented to the state courts ‘consistent with the State’s own procedural rules’”
(quoting Edwards v. Carpenter, 529 U.S. 446, 453 (2000))); Dupuy v. Butler,
837 F.2d 699, 702 (5th Cir. 1988) (noting, for exhaustion purposes, the ha-
beas applicant must “present his claims before the [state] courts in a proce-
durally proper manner according to the rules of the state courts” (quoting
Carter v. Estelle, 677 F.2d 427, 443 (5th Cir. 1982))). As it advised Prible, the
CCA does not recognize hybrid representation. See Landers v. State, 550
S.W.2d 272, 279–80 (Tex. Crim. App. 1977). 9
In short, Prible “possessed, or by reasonable means could have ob-
tained, a sufficient basis to allege [the ring-of-informants Brady] claim[s] in
the first petition and pursue the matter through the [state] habeas process.”
McCleskey, 499 U.S. at 498. Contrary to the district court’s view, Prible did
not rebut the state court’s findings on this point at all, much less by clear and
convincing evidence as required by the federal habeas statute. See 28 U.S.C.
§ 2254(e)(1). Prible therefore has not shown cause to excuse the default of
these claims. And because he has not shown cause, we need not consider
prejudice. See Murray, 477 U.S. at 494.
9
See also Robinson v. State, 240 S.W.3d 919, 922 (Tex. Crim. App. 2007) (noting
“a trial court is free to disregard any pro se motions presented by a defendant who is
represented by counsel”); Marshall v. State, 210 S.W.3d 618, 620 n.1 (Tex. Crim. App.
2006) (declining to address points in appellant’s pro se brief submitted after counsel filed a
brief because “appellant has no right to hybrid representation” (citing Scheanette v. State,
144 S.W.3d 503, 505 n.2 (Tex. Crim. App. 2004))); Rudd v. State, 616 S.W.2d 623, 625
(Tex. Crim. App. 1981) (finding pro se briefs “present[ed] nothing for review” where
appellant was “represented by counsel who filed a brief in the case”).
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No. 20-70010
C. Massiah Claim
We next consider Prible’s Massiah claim relating to Beckcom (claim
six). The district court determined this claim is defaulted 10 but Prible showed
cause and prejudice. Prible, 2020 WL 2563544, at *37. We disagree as to
cause and so need not reach prejudice.
The state court found that the factual basis for this claim was available
to Prible when he filed his first three state habeas applications. The district
court held that Prible rebutted this finding based on “Siegler’s suppression
of information regarding the extent of her relationship with Beckcom and
other inmates, and the nature of the arrangement between her and
Beckcom.” Ibid. We disagree.
As already discussed, Prible knew about the alleged ring of informants
before he filed his initial state habeas application. Prible eventually asserted
the Massiah claim himself in his first pro se application, alleging Siegler “en-
couraged Beckcom with the incentive of a letter to the prosecutor asking for
a time reduction to get close to Prible and find any information that would aid
her in making her case.” Like the Brady claims, the Massiah claim “relied
heavily” on information from Walker. Id. at *10; see id. at *37. Despite know-
ing about the alleged ring of informants, Beckcom’s allegedly acting as an
agent of Siegler, and Walker’s knowledge of pertinent information, Prible
and Moore did not diligently investigate and pursue Walker or the Massiah
issue.
Furthermore, and separate from the Brady claims, the factual basis for
the Massiah claim was available at trial. Beckcom testified to his arrangement
with Siegler that she would write a sentence-reduction letter to his
10
The state court dismissed this claim under Texas’s abuse-of-the-writ doctrine,
which makes it defaulted. See Coleman, 456 F.3d at 542; supra note 5.
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prosecutor in exchange for his testimony. He also chronologized their inter-
actions: he called Siegler in October 2001; at that time, he “didn’t really
[have] too much information” on Prible’s case; when they spoke, Siegler ex-
plained that she would only be interested if Beckcom knew “[s]pecifics about
the case, facts;” so, “in that regard” Beckcom “sought to find out as much
as [he] could” from Prible; then, after obtaining the alleged confession,
Beckcom met with Siegler in December 2001 and gave her a letter with the
information he had (Beckcom’s letter).
Prible effectively conceded that the trial record alone provided a fac-
tual basis to assert a Massiah claim. In his fourth amended federal petition, he
claimed trial counsel and Moore were ineffective for failing to raise a Massiah
objection. Prible argued “reasonably competent trial counsel would have re-
alized immediately from the answers to the State’s preliminary questions on
direct examination that he should have lodged an objection based on Mas-
siah.” Prible claimed the December 2001 letter Beckcom gave to Siegler
“shows that Beckcom was a State agent working quid pro quo to pry infor-
mation from Prible from the time he first conversed with Prible in late Octo-
ber or early November 2001.”
The district court nonetheless found that “Siegler’s suppression of
evidence . . . impeded the development of Prible’s Massiah claim[].” Id. at
*37. It reasoned that only after interviewing “Walker and other inmates [did]
Prible’s Massiah claim bec[o]me anything more than speculative.” Ibid. We
again disagree.
As with the Brady claims, the district court wrongly conflated
knowledge of the factual predicate for the Massiah claim with evidence sup-
porting the claim. See McCleskey, 499 U.S. at 498. In McCleskey, the Supreme
Court held that the factual basis for a Massiah claim was available when the
petitioner filed his first petition based on trial testimony that he confessed to
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a jail-house informant and the informant told the police about their conver-
sations. Id. at 498–99. Thus, a previously unavailable document with the in-
formant’s statement to police “d[id] not establish that [the petitioner] had
cause for failing to raise the Massiah claim at the outset.” Id. at 498.
So too here. Beckcom’s trial testimony, together with information
Prible later learned about the alleged informant ring, “put [Prible] on notice
to pursue the Massiah claim in his first [state] habeas petition.” Id. at 499.
Siegler’s concealing specifics about her relationship and arrangement with
Beckcom cannot establish cause because, given Prible’s “knowledge of the
information in the [concealed items], any initial concealment would not have
prevented him from raising the claim in the first [state] petition.” Id. at 502.
Accordingly, Prible has not shown cause to excuse the default of his
Massiah claim. Therefore, “we need not consider whether he would be prej-
udiced by his inability to raise the alleged Massiah violation at this late date.”
Ibid. (citing Murray, 477 U.S. at 494).
D. Semen-DNA Brady Claim
Finally, we consider Prible’s semen-DNA Brady claim (claim ten).
The district court found the claim defaulted 11 but concluded Prible showed
11
Prible never raised this claim in state court, so it is unexhausted. See O’Sullivan,
526 U.S. at 842–48. The district court accepted without explanation Respondent’s
argument that the claim is defaulted because the state court would dismiss it as an abuse of
the writ if Prible asserted it now. Prible, 2020 WL 2563544, at *23 n.19; see Coleman, 501
U.S. at 735 n.1; Finley, 243 F.3d at 220; see also Tex. Code Crim. Proc. Ann. art.
11.071 § 5. Prible does not dispute the district court’s decision that the claim is defaulted.
Because neither party contends otherwise, we accept that the claim is defaulted. See
Norman v. Stephens, 817 F.3d 226, 231 n.1 (5th Cir. 2016) (noting the State may waive the
argument that a claim is merely unexhausted but not procedurally defaulted); see also
Bledsue v. Johnson, 188 F.3d 250, 254 & n.8 (5th Cir. 1999); Jackson v. Johnson, 194 F.3d
641, 652 & n.35 (5th Cir. 1999).
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cause and prejudice. Prible, 2020 WL 2563544, at *25–27, *34–35. We
disagree as to prejudice and so need not reach cause.
Suppressed evidence is material and causes prejudice “only if there is
a reasonable probability that, had the evidence been disclosed to the defense,
the result of the proceeding would have been different.” United States v.
Bagley, 473 U.S. 667, 682 (1985). We consider “not whether the defendant
would more likely than not have received a different verdict with the
evidence, but whether in its absence he received a fair trial, understood as a
trial resulting in a verdict worthy of confidence.” Kyles v. Whitley, 514 U.S.
419, 434 (1995). “If the evidence provides only incremental impeachment
value, it does not rise to the level of Brady materiality.” Miller v. Dretke, 431
F.3d 241, 251 (5th Cir. 2005) (citing Drew v. Collins, 964 F.2d 411, 419–20
(5th Cir. 1992)).
Prible’s semen-DNA Brady claim is premised on the State’s failure to
disclose a note suggesting that McInnis, head of the Harris County crime lab,
advised Siegler about the lifespan of sperm cells. 12 The note states: “Pam
McInnis – semen lives up to 72 hrs.” Prible claims this note “supports his
defense that he had consensual sexual contact with [Tirado] earlier in the
night” and “impeaches the State’s argument that semen deposited in the
mouth disappears in ‘moments, if not seconds.’” We disagree.
Trial testimony disputed how long semen, and in turn sperm cells, can
be found in an oral cavity after being deposited, not how long the cells remain
alive there. For instance, Dr. Carter testified sperm could “stay in the
12
Respondent argues that while the State did not disclose the McInnis note, there
was no “suppression” for Brady purposes because other sources of evidence regarding the
lifespan of sperm cells were available at the time of trial and introduced at trial. Because we
conclude Prible has not shown prejudice, we assume suppression and express no view on
this argument.
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mouth” or “remain present” for “several hours” before normal “bodily
processes” eliminated it. These processes, however, “would be immediately
curtailed” by “a sudden death, such as from one of these assassin [gun]shots
to the neck,” leaving detectable sperm present for a longer period. She
admitted, however, that she “couldn’t say with medical certainty the exact
time of the semen.” Watson testified that a DNA profile “[a]bsolutely” can
be obtained from dead sperm cells, adding that the cells “don’t have to be
alive . . . for them to be useful in [his] analysis.” Like Carter, Watson testified
that the usual “active elimination” of sperm from the mouth “end[s] if the
victim dies.” This led Watson to opine that the DNA profile he obtained
“certainly would be consistent” with Prible “depositing the semen in
[Tirado]’s mouth moments, if not seconds, before she was killed.” Dr.
Benjamin contradicted Watson on this point, however. He opined that sperm
deposited as a result of sexual assault would usually be eliminated more
quickly than sperm deposited from consensual oral sex.
As the record shows, then, the experts disputed how long Prible’s
sperm could have been present in Tirado’s mouth before she was shot, not
how long the cells might have remained alive there. We therefore fail to see
how a note merely suggesting sperm cells “live[] up to 72 hours” is pertinent
to Prible’s defense. 13
Furthermore, testimony of two of the three experts, including one of
the State’s witnesses (Dr. Carter), actually supported Prible’s theory that
Tirado consensually performed oral sex on him earlier that night. Moreover,
Prible did not claim that Tirado performed oral sex on him “up to 72 hours”
before the murders. He only claimed she did so “after [h]e came back from
13
Furthermore, the district court appears to have mistakenly read the note to
suggest that sperm cells can live up to seventy-two hours in an oral cavity. See Prible, 2020
WL 2563544, at *32 & n.23. The note says nothing of the sort.
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the club,” within a few hours of her death. So the McInnis note’s specifying
“72 hours” is not even material to confirming Prible’s own theory. We thus
fail to see how the absence of the that note could have undermined
confidence in the verdict. 14 At most, the note was cumulative of other
evidence already in the record that supported Prible’s theory but that was
evidently rejected by the jury. See United States v. Sipe, 388 F.3d 471, 478 (5th
Cir. 2004) (alteration omitted) (noting “when the undisclosed evidence is
merely cumulative of other evidence in the record, no Brady violation
occurs” (quoting Spence v. Johnson, 80 F.3d 989, 995 (5th Cir. 1996))).
Accordingly, Prible has not shown prejudice to excuse the default of
his semen-DNA Brady claim. We thus need not consider cause. See Murray,
477 U.S. at 494.
* * *
Because Prible has failed to show cause and prejudice to overcome his
procedural default, we need not decide whether 28 U.S.C. § 2254(e)(2)
barred new evidence nor need we reach the merits of Prible’s claims.
IV.
We VACATE the judgment granting Prible a writ of habeas corpus
and RENDER JUDGMENT denying the writ.
14
See Reed, 739 F.3d at 775–76 (finding no prejudice on ineffective assistance claim
for failing to challenge DNA evidence where expert’s testimony about survival time of
sperm cells supported petitioner’s argument that he had consensual sex with victim);
Jackson v. Day, 121 F.3d 705, 1997 WL 450202, at *2 (5th Cir. 1997) (finding “no
reasonable probability that a ‘battle of the experts’ would have been sufficient to raise a
reasonable doubt”).
32