Watkins v. Medeiros

United States Court of Appeals
For the First Circuit
Nos. 20-1108
20-1194
KYLE WATKINS,
Petitioner, Appellant,
v.
SEAN MEDEIROS, Superintendent,
Respondent, Appellee.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Allison D. Burroughs, U.S. District Judge]
Before
Barron, Chief Judge,
Lynch and Gelpí, Circuit Judges.
Janet Hetherwick Pumphrey for appellant.
Susanne Reardon, Assistant Attorney General, with whom Maura
Healey, Attorney General, was on brief, for appellee.
June 10, 2022
LYNCH, Circuit Judge. Petitioner Kyle Watkins was
convicted in Massachusetts state court on June 2, 2005 after a
jury trial of first-degree murder for the shooting of Paul Coombs
on April 26, 2003. The Supreme Judicial Court ("SJC") affirmed
his conviction. Commonwealth v. Watkins, 41 N.E.3d 10, 28 (Mass.
2015). His federal habeas petition was denied by the U.S. District
Court. Watkins v. Medeiros, No. 16-cv-10891, 2020 WL 68245, at *1
(D. Mass. Jan. 7, 2020). Watkins timely appealed.
This case is unusual because the state courts made an
error of fact in their decisions. We hold that whether we are
bound by the deferential standard of review under the Antiterrorism
and Effective Death Penalty Act of 1996 ("AEDPA"), Pub. L. No.
104-132, 110 Stat. 1214, or whether we engage in de novo review,
the conclusion is the same. Watkins has not shown prejudice
arising from the error or with respect to any of the other claims
he makes. Nothing in the arguments presented in the habeas
petition undermines our confidence in the jury's verdict of guilt.
Accordingly, we affirm the denial of habeas relief.
I.
A. Procedural History
Paul Coombs, who knew Watkins, was shot and killed at
approximately 9:50 p.m. on April 26, 2003. Watkins, petitioner
here, was charged with the murder on September 25, 2003. A jury
trial was held in Bristol County Superior Court between May 24 and
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June 2, 2005. The Commonwealth presented many witnesses. Vern
Rudolph, a prosecution witness who identified Watkins as the
shooter, knew both Watkins and Coombs. After the conviction, the
state trial court sentenced Watkins to a term of life imprisonment.
On March 11, 2011, Watkins moved under Mass. R. Crim. P.
25(b)(2), as amended, 420 Mass. 1502 (1995), for the entry of a
not guilty verdict or, in the alternative, a new trial under Mass.
R. Crim. P. 30(b), as appearing in 435 Mass. 1501 (2001).1 Watkins
argued, among other things, that his trial counsel was ineffective
for failing to introduce evidence that allegedly would have
impeached Rudolph's credibility; and that the Commonwealth
violated Brady v. Maryland, 373 U.S. 83 (1963), for withholding
several other pieces of so-called impeachment evidence, the
nondisclosure of which allegedly deprived Watkins's counsel of the
opportunity to cross-examine Rudolph effectively. A four-day
evidentiary hearing on the motion for a new trial was held in
August 2012, after which the motion was denied. Watkins appealed
the denial, together with his conviction, to the SJC, and the SJC
1 Mass. R. Crim. P. 25(b)(2) provides that "[i]f a verdict
of guilty is returned [by a jury], the judge may on motion [filed
within five days of the verdict] set aside the verdict and order
a new trial, or order the entry of a finding of not guilty" based
on insufficiency of the evidence. Mass. R. Crim. P. 30(b) states
that "[t]he trial judge upon motion in writing may grant a new
trial at any time if it appears that justice may not have been
done. Upon the motion the trial judge shall make such findings of
fact as are necessary to resolve the defendant's allegations of
error of law."
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affirmed both on November 24, 2015. Watkins, 41 N.E.3d at 15.
The SJC rejected the ineffective assistance of counsel claim,
observing that trial counsel's cross-examination of Rudolph was
"vigorous" and "effective." On the Brady issues, the SJC found
the undisclosed evidence cumulative and/or of little probative
value, so its nondisclosure caused Watkins no prejudice.
On May 16, 2016, Watkins filed in the U.S. District Court
for the District of Massachusetts a petition for a writ of habeas
corpus. He argued the SJC's decision, among other things, was
contrary to and an unreasonable application of Brady and was based
on an unreasonable determination of the facts.2 The district court
denied the petition on January 7, 2020, Watkins, 2020 WL 68245, at
*1, and granted a certificate of appealability as to only the Brady
claims on April 2, 2020. Before this court, Watkins has divided
the alleged Brady violations into four categories:
- withheld exculpatory evidence of the only
identification witness's (Vern Rudolph)
extensive police contacts, cooperation, and
lies even after the Court ordered the
evidence to be produced;
2 Watkins also brought before the district court claims of
prosecutorial misconduct, ineffective assistance of counsel, and
insufficiency of the evidence. Those claims are not now at issue,
as the district court rejected them and both the district court
and this court declined to extend the certificate of appealability
("COA") to them. See Miller-El v. Cockrell, 537 U.S. 322, 327
(2003) ("[A] prisoner seeking a COA need only demonstrate 'a
substantial showing of the denial of a constitutional right.'"
(quoting 28 U.S.C. § 2253(c)(2))).
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- the crime scene diagram created by police
which discredited the testimony of the only
eyewitness;
- a trooper's exculpatory notes of the
witness's pre-interview with the police
prior to its tape recording; and
- evidence of the extensive rewards and
inducements requested by and given to the
witness in exchange for his testimony.
Watkins's first claim centers on a withheld police
report from October 29, 2003 (the "finger-shot report") which was
not disclosed to Watkins. The state courts' rejection of this
Brady claim rested upon the factual error that the report did not
show the investigating officers were aware that Rudolph was a
witness against Watkins. Watkins, 41 N.E.3d at 22. We provide
the text of the finger-shot report later, but this factual
determination by the motion for a new trial judge (the "motion
judge") and the SJC was clearly incorrect.
We hold, as the parties here agree, that the state courts
made an error of fact. The parties disagree as to the effect of
this error on this habeas petition and on the issue of deference
to the SJC's Brady analysis.
B. Facts Presented at Trial
Save the state courts' erroneous conclusion that police
were unaware at the time Rudolph shot his finger that he was a
witness against Watkins, "[w]e describe the facts as they were
found by the SJC, supplemented with other record facts consistent
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with the SJC's findings." Healy v. Spencer, 453 F.3d 21, 22 (1st
Cir. 2006). However, because of that error, we provide, as is
necessary, the following lengthy description of the facts as
presented at trial. We describe Rudolph's testimony as to his
identification of Watkins and his cross-examination after
describing the testimony of the other witnesses.
i. Events Leading Up to the Shooting
Watkins owned a blue Lincoln Mark VIII and frequented
the Elks Lodge, a private club on Mill Street in New Bedford,
Massachusetts.3 Watkins, Coombs, and Rudolph were all at the Elks
Lodge on April 25, 2003. Watkins, who was inside the Lodge, was
heard loudly arguing on the phone with Coombs, who was seen outside
the club "frisking" people who were attempting to enter. Rudolph,
who was also inside the club at the time, suggested to Watkins
that he should go outside and fight Coombs. Watkins declined and
stayed inside the Elks Lodge until Coombs left for the night.
The jury heard the testimony of Coombs's then-
girlfriend, Jessica Bronson, that the next morning, April 26, 2003,
3 Officer Brian Safioleas of the New Bedford Police
testified he had seen Watkins driving a blue Lincoln Mark VIII
prior to the evening of April 26, 2003; Erin Depina testified that
she had registered a blue Lincoln Mark VIII in her name for Watkins
and that the car belonged to him; and Paul Tomasik, the landlord
of Watkins's girlfriend, testified that he had taken a picture the
morning of April 26, 2003 of a Lincoln Mark VIII parked in the
girlfriends' driveway.
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Coombs told Bronson he wanted to "whoop [Watkins's] ass." That
afternoon, Watkins returned to the Elks Lodge. The then-bartender
testified that Watkins seemed upset and told the bartender he was
"tired of people F'ing with him." Watkins went back to the Elks
Lodge that evening, that time acting "tough" and saying to Rudolph
that "[t]hings are going to change around here." John Gilbert, a
doorman at the Elks Lodge in April 2003, testified that he saw
Watkins leave the club sometime after 9:30 p.m., and after that,
Gilbert saw police lights in the area. Gilbert stated that Watkins
was wearing dark clothing that night.
Bronson testified that Coombs had called her at
approximately 9:45 or 9:47 p.m. on April 26, to tell her he was on
his way home. At the end of the call, Bronson heard Coombs shout
to a third party, "Why don't you fight me now?" Bronson heard
nothing from Coombs after that, and learned fifteen to twenty
minutes later that Coombs had been shot.
The jury also heard the testimony of New Bedford Police
Officer Bryan Safioleas, who was on duty from 3:30 to 11:30 p.m.
on April 26, 2003. Officer Safioleas had been parked near the
intersection of Mill and Cedar Streets -- just one block west of
the Elks Lodge -- until approximately 9:40 p.m. that night.4 He
4 "Mill Street, on which the victim was standing at the
time of the shooting, runs perpendicular to Cedar Street, which is
a one-way street . . . . There is a stop sign on Cedar Street at
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testified that it was a "very rainy night." In the ten minutes
before he left the area, he had observed a blue Lincoln Mark VIII
drive past him "on a couple of occasions." Officer Safioleas
testified that he had seen that vehicle prior to April 26 in the
Elks Lodge parking lot with Watkins inside it. The jury would
later hear further testimony that Watkins drove a blue Lincoln
Mark VIII.
The officer testified that he began to head westbound
down Mill Street at around 9:40 p.m. but he was quickly called
back to his post at approximately 9:53 p.m. due to a call "for
units to respond to Kempton and Cedar Street for reported shots
fired."5 The dispatch instructed Officer Safioleas to look for a
"dark-colored Lincoln Mark VIII."6
ii. The Shooting
We describe first the testimony of several witnesses
other than Rudolph who were near the shooting when it happened.
Beatriz and Ernestina Soares each testified that they were driving
down Cedar Street towards Mill Street at about 9:48 p.m. on April
the intersection of the two streets." Watkins, 2020 WL 68245, at
*2.
5 Kempton Street runs parallel to Mill Street, just one
block south.
6 Officer Safioleas's police report noted that the subject
car was a blue Lincoln Mark VII, not VIII, but the officer
explained that he merely had made a typographical error.
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26, 2003. As they approached the stop sign at the intersection,
they saw a blue Lincoln Mark VIII parked on right side of Mill
Street. Although the Lincoln had the right of way, it flashed its
lights to tell the Soares sisters they could proceed. As the
sisters turned left onto Mill Street, they saw two men arguing
near a Honda Accord which was parked on the left side of Mill
Street. They stated that one man was inside the Honda Accord and
the other man was across the street on the sidewalk, closer to the
blue Lincoln. The sisters both described the man near the Lincoln
as approximately six feet tall, well-built and around 220 pounds,
black, bald or having a receding hair line, and wearing dark
clothing, including a hooded sweatshirt.
The sisters testified that they also overheard the man
inside the Honda yelling at the other man: "Don't fuck [with] me.
I'm not the one to be fucked with." Ernestina then saw the man by
the Lincoln cross the street towards the Honda "and put up his
arm." The sisters continued to drive, and when they were about a
half-block away from the two men, Beatriz testified she heard
between eight and twelve gunshots and Ernestina heard "[a]t least
five." Beatriz called 911 to report the shooting, and she gave a
description of the Lincoln Mark VIII she observed.
On cross-examination, defense counsel questioned Beatriz
about the misty weather (which Beatriz could not recall); Beatriz's
ambivalence as to whether the shooter was bald or had a receding
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hairline; the statement of the victim that Beatriz overheard: "I'm
not the one"; and a prior statement by Beatriz that the blue
vehicle opposite the Honda may have been a Marquis, rather than a
Mark VIII. The prosecutor on redirect played a portion of
Beatriz's 911 call, which confirmed that Beatriz contemporaneously
identified to the police that the blue car was a Mark VIII.7
Defense counsel asked Ernestina only whether she heard the man by
the Honda also yell "You don't know who I am." Ernestina could
not recall.
The jury heard the testimony of Michael Couture, a
resident of New Bedford who was driving through the intersection
of Cedar and Mill Streets near the time of the shooting. He, too,
had waited at the stop sign on Cedar Street because of the stopped
blue vehicle on Mill Street that had the right of way. Once a
white automobile started to swerve around the blue vehicle on Mill,
Couture drove through the intersection. As Couture did, he heard
a loud noise and saw a flash out of the corner of his eye. Couture
looked up and saw the firing of several shots into a Honda by a
man who "appeared . . . about six-foot to six-two, slim to medium
build. [Couture] would say he looked like a black man . . . . He
7 Beatriz had testified eight months after the shooting in
another proceeding that the car may have been a Marquis; she
clarified later in that proceeding that the car she observed was
a Lincoln Mark VIII.
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had dark clothes on." Couture proceeded to call 911 and wait for
police to arrive at the scene.
Defense counsel asked Couture several questions on
cross-examination. He first asked whether April 26 was a misty,
rainy night, to which Couture responded "[i]t may have been
overcast. I don't recollect." Couture explained that, despite
the weather and although the incident "happened very rapidly," he
still was able to see the shooter fire his gun with two hands and
then "run across the field after the shooting." When cross-
examined about his description of the shooter, Couture reiterated
that the man he saw was around six feet tall, slender (around 175
pounds), possibly black, and wearing dark clothing. Couture also
was questioned by the defense about where the white and blue
vehicles went after the shooting. Couture testified that he lost
sight of both after he crossed Mill Street because his attention
was focused on the shooting.
Officer Safioleas was the first officer to arrive at the
scene. He testified at trial that, there, he saw a green Honda
Accord parked on the side of Mill Street, about eighty feet west
of Cedar Street near where a memorial of the shooting now is
located, with its brake lights on. As he approached the vehicle,
he saw the operator slumped over at the wheel, bleeding and not
conscious. The man had no pulse and was not breathing. He had
holes in his jacket and five to seven wounds on his chest. The
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man was identified as Paul Coombs. Coombs was declared dead at a
local hospital.
iii. Watkins's Arrest
Watkins was identified as a suspect early on in the
police investigation into the shooting. Yet police were unable to
locate Watkins for more than three months after the shooting. Many
of Watkins's friends and acquaintances testified at trial that
they likewise did not see him after April 26, 2003. Law
enforcement officers testified that the Lincoln Mark VIII was found
unattended in May 2003, and had been "wiped clean" of all
fingerprints.
The trial testimony concerning Watkins's eventual arrest
is as follows. On August 5, 2003, Officer Michael Smith and other
law enforcement officers "observed a male matching the description
of Kyle Watkins walk out of the area of 19 Lafayette Park" in Lynn,
Massachusetts. The officers approached the male, identified
themselves as police officers, and asked him for his name. The
male responded that his name was Leland Brooks and produced a Texas
driver's license in that name. The officers then asked the male
for his date of birth, but the male could not remember the date.
After further questioning, the man admitted he actually was Kyle
Watkins. Watkins was placed under arrest at that time and taken
to the Lynn Police Station.
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Officer Leonard Baillargeon met Watkins at the police
station. The officer, who knew Watkins, testified that Watkins
"was unshaven. He was sweating. He was wearing a white tee shirt
. . . that was soiled. He was wearing a pair of baggy blue jeans
and white high top sneakers." Officer Baillargeon testified that
"[h]e appeared to . . . have lost a lot of weight." The officer
made a comment to Watkins about his weight loss, to which Watkins
responded he "was down to 180 pounds. He had lost weight because
he was under a lot of stress." When Officer Baillargeon
transported Watkins back to New Bedford, Watkins remarked he was
"enjoying the ride" because it was going to be "the last ride he
was going to have for a long time."
Defense counsel cross-examined Officer Baillargeon on
only one issue: Watkins's weight. The officer testified that
Watkins previously weighed "[b]etween 200 and 220, maybe 225," the
same weight estimated by the Soares sisters of the shooter on the
night of the murder.
iv. The Testimony of Vern Rudolph for the Prosecution
Vern Rudolph was the Commonwealth's primary
identification witness, although he was by no means the only
prosecution witness against Watkins, and the other witnesses
corroborated key parts of Rudolph's testimony. Before discussing
the shooting, the prosecution first questioned Rudolph about his
arrest on December 3, 2003 for selling cocaine in a school zone
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and unlawfully possessing a firearm, his guilty plea and three-
year prison sentence, and the benefit the prosecutor promised
Rudolph in exchange for his testimony. Rudolph testified that he
understood the prosecutor to promise in a letter that Rudolph would
not have to serve the second half of his three-year sentence
because he was testifying against Watkins. The letter, which was
disclosed to defense counsel prior to trial and admitted by the
prosecution as an exhibit, stated:
Mr. Rudolph has been incarcerated since
his arrest [on December 3, 2003]. On or about
July 30, 2004 Mr. Rudolph pled guilty to
offenses in the District Court [including
count 6, distribution of cocaine within 1000
feet of a school] and received sentences to
the house of correction totaling three years
and one day . . . .
As of June 2, 2005 Mr. Rudolph will have
served 18 months of his sentence.
I understand that you will file a motion
for a new trial and to dismiss count 6 and a
motion to re-sentence Mr. Rudolph . . . [and]
that the remaining un-served portion of this
sentence be suspended and he be placed on
probation for three years with appropriate
court imposed conditions of probation.
The net effect of these motions, should
they be allowed, will be to release Mr.
Rudolph from further incarceration and place
him under probation supervision for three
years.
Rudolph then testified to what he saw on the evening of
April 26. Rudolph stated, inter alia, that he was at the Elks
Lodge at around 8:30 p.m. that evening and he saw Watkins there
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wearing a black hoodie and black jeans,8 and acting "tough."
Rudolph told the jury that after Watkins had said to him that
"[t]hings are going to change," Rudolph responded, "I don't have
[a] disagreement with you. You have an agreement or disagreement
with Paul, take that up with him." Rudolph testified he did not
see Watkins at the Elks Lodge after that and did not know when
Watkins left, but stated he himself left the club sometime around
9:30 p.m. to pick up his daughter.
Rudolph testified that he was driving down Mill Street
in his white Nissan Maxima when he saw the Lincoln Mark VIII parked
on the side of the road by Cedar Street. Rudolph stated that he
slowly began to swerve around the Lincoln towards the intersection
when he saw Kyle Watkins shooting at a Honda Accord. Rudolph then
turned down Cedar Street and sped away. He admitted that "[i]t
was a foggy night. It wasn't too bad. It was, you know -- it
wasn't a good night. That's for sure."
Rudolph testified that, thereafter, he told his mother
what he had witnessed,9 and he spoke with police about the shooting
8 Rudolph later testified he was not "aware of the
description that [the Soares sisters and Couture] had given of the
person who fired the shots at the time [he] went to the police
station."
9 Just before Rudolph testified, the jury heard the
testimony of his mother, Patricia Rose. She testified that at
around 10:00 p.m. on April 26, Rudolph knocked on her door, walked
into her house, and stated that "on the way to the mall to pick up
his daughter, . . . he witnessed someone getting shot" and "he saw
who did it." Thereafter, Rose drove to the location identified by
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on April 30, 2003, testified before the grand jury on September 9,
2003, and testified at a deposition later in September 2003. His
trial testimony was consistent with those prior statements and
testimony.
v. Defense Strategy and Cross-Examination of
Rudolph
Watkins's primary defense strategy at trial was to
attack the veracity of Rudolph's testimony, impeach Rudolph's
credibility, and ultimately try to discredit Rudolph's
identification of Watkins as the shooter. Indeed, defense counsel
had highlighted during his closing argument that Rudolph had
incentives to lie -- Rudolph and his brother initially were
suspected of Coombs's murder and Rudolph was promised in exchange
for his testimony an "agreement to get out of jail" for an
unrelated offense. Defense counsel implied that Rudolph did in
fact lie. Defense counsel questioned Rudolph's timeline, the
visibility that night, and the location Rudolph placed the Honda
at the time of the shooting, i.e., near the intersection of Cedar
and Mill Streets rather than on Mill Street eighty-or-so feet west
of Cedar, which is where the memorial is and where the other
witnesses and physical evidence placed the Honda.10
Rudolph as the scene of the shooting and saw "[t]hey were still
working on the body." Rose was not cross-examined.
10 Trial counsel also was aware of and chose not to
introduce on cross-examination Rudolph's various pre-trial
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Defense counsel engaged in an extensive cross-
examination of Rudolph which covers more than twenty pages of the
trial transcript. Defense counsel had the following exchanges
with Rudolph, among others, in front of the jury:
Q: The first shot that goes off, is that
simultaneous with the person you identify as
Kyle Watkins and they happen to go off?
A: Just about, yes.
Q: Could you agree with me, all of what you
saw in terms of the shooting and the person
simultaneously firing the shots occurred in a
matter of two or three seconds?
A: Fair to say, yes.
. . . .
Q: And April 26th, at least until April 30th,
you hadn't told anybody that the person you
saw shooting was Kyle Watkins; is that fair to
say?
A: Yes.
. . . .
Q: And the police -- you actually make a call
to the police station [on April 30, 2003]?
A: Yeah.
Q: And that's because you had heard that they
may be looking for your brother?
"recantations" of his identification of Watkins to Watkins's
family and private investigator, discussed infra. The motion for
new trial judge found that trial counsel had made a reasonable
tactical decision "in order to prevent the Commonwealth from
introducing evidence of . . . threats" to Rudolph, which were made
by Watkins's family after Rudolph began cooperating. It is settled
law in this case that these strategic tactical decisions by trial
counsel did not constitute ineffective assistance of counsel.
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A: Yes.
Q: And your brother is what, a suspect in this
case?
A: Yes.
Q: When you get this call, you don't identify
yourself. This is April 30th, right?
A: I believe so.
. . . .
Q: When you make the call, it's because you
hear that the police may be looking for your
brother because he's a suspect in this
shooting of Paul Coombs[?] . . .
A: Yes.
Q: So when you make this call, you don't
identify yourself. The conversation goes back
and forth; is that correct?
A: Yes.
Q: And at some point in time your name comes
up as a result of the conversation that you're
having. It's by police personnel, as a result
of making that call, right?
A: Yes.
. . . .
Q: And it's at that point in time you then
identify yourself?
A: Only after they say my name.
Q: That's when you identify yourself?
A: Yes.
. . . .
Q: And [you go to the police station for an
interview and] at some point, the police say
to you, "Well, if it's not you and it's not
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your brother, then it must be Kyle Watkins,"
isn't that right?
. . . .
A: Somewhat, yeah.
Q: And words to the effect that if you don't
tell us that it's Kyle Watkins, you're going
to remain -- you and your brother are going to
remain the main suspects in this case. That
come up?
A: Yeah.
Defense counsel also questioned Rudolph about what
counsel characterized as inconsistencies in Rudolph's testimony.
He cross-examined Rudolph about the time he left the Elks Lodge,
as the shooting took place at around 9:50 p.m., just one block
from the club. Defense counsel implied that it would take minutes,
not a third of an hour, for Rudolph to drive from the Elks Lodge
to where the shooting took place.
Defense counsel asked Rudolph about where he placed the
shooting, and how far from it he placed himself. Rudolph stated
he was on Mill Street, just east of the intersection of Cedar and
Mill Streets, and the shooting took place by the Honda which was
just a few feet west of the intersection. Rudolph explained that,
at the time of the shooting, the Honda was not as far down Mill
Street as where the memorial is now. Defense counsel observed
that Rudolph's account "would lessen the distance of [Rudolph's]
view from where [he was] . . . as opposed to the Honda being up
near where the memorial is." Officer Safioleas and Michael Couture
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had testified that the memorial is located where the Honda was on
April 26.11
Defense counsel then briefly cross-examined Rudolph
about his "deal" with the Commonwealth, asking, "so now we're at
the period that you're testifying here and the district attorney
has made an agreement to let you out of jail; is that right?
. . . For your testimony?" Rudolph responded in the affirmative.
The court later instructed in its charge that the jury may "take
into consideration the Commonwealth's agreement regarding a
sentence currently being served by a witness in assessing his
credibility. The testimony of such a witness should be scrutinized
with particular care."
11Defense counsel highlighted other inconsistencies in
Rudolph's testimony, including which hand Watkins fired his gun
with:
Q: What hand [did Watkins fire with]?
A: Right hand.
Q: Last time you talked to somebody, you told
them it was the left hand, when you spoke to
the police. Remember that? Or you don't
remember that either?
. . . .
Q: You never told anybody that shooter was
holding the gun with two hands; is that right?
You never told anybody that?
A: No.
Couture had testified that the shooter was using two hands.
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After considering all of this evidence, the jury found
Watkins guilty of murder. Watkins argues the outcome could have
been different had the Commonwealth produced additional evidence
to impeach Rudolph, particularly the finger-shot report.
II.
A. Standard of Review
Our review of a district court's denial of a petition
for habeas corpus is de novo. Norton v. Spencer, 351 F.3d 1, 4
(1st Cir. 2003). Our review of the SJC's decision is governed by
AEDPA, and typically is "highly circumscribed" and must be "based
solely on the state-court record." Shinn v. Martinez Ramirez, No.
20-1009, 2022 U.S. LEXIS 2557, at *18–19 (S. Ct. May 23, 2022).
"The writ of habeas corpus is an extraordinary remedy
that guards only against extreme malfunctions in the state criminal
justice systems." Id. at *17–18 (quotation marks omitted) (quoting
Harrington v. Richter, 562 U.S. 86, 102 (2011)). Under AEDPA, a
federal court "shall not" grant habeas relief for a claim
adjudicated on the merits in state court, unless the final state
adjudication:
(1) resulted in a decision that was contrary
to, or involved an unreasonable application
of, clearly established Federal law, as
determined by the Supreme Court of the United
States; or (2) resulted in a decision that was
based on an unreasonable determination of the
facts in light of the evidence presented in
the State court proceeding.
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28 U.S.C. § 2254(d); see Brown v. Davenport, 142 S. Ct. 1510, 1520,
1523 (2022). When there is no final state adjudication of the
claim on the merits, our review of the SJC's decision is de novo.
Healy, 453 F.3d at 25.
A prisoner "is never entitled to habeas relief."
Shinn, 2022 U.S. LEXIS 2557, at *18. "[E]ven a petitioner who
prevails under AEDPA must still today persuade a federal habeas
court that 'law and justice require' relief." Brown, 142 S. Ct.
at 1524 (quoting 28 U.S.C. § 2243). Thus, even when a state court
"employ[s] faulty reasoning" in its decision, a petitioner cannot
obtain habeas relief unless he also demonstrates that he "is in
custody in violation of the Constitution or laws or treaties of
the United States." Aspen v. Bissonnette, 480 F.3d 571, 576 (1st
Cir. 2007) (second quoting 28 U.S.C. § 2254). Indeed, "habeas
relief is available only if the petitioner demonstrates that
'Supreme Court precedent requires an outcome contrary to that
reached by the relevant state court.'" Id. (quoting O'Brien v.
Dubois, 145 F.3d 16, 24-25 (1st Cir. 1998), abrogated on other
grounds by McCambridge v. Hall, 303 F.3d 24 (1st Cir. 2002) (en
banc)). Watkins has not made such a demonstration in this case.
The relevant federal law here is the rule announced in
Brady v. Maryland, where the Supreme Court stated: "[S]uppression
by the prosecution of evidence favorable to an accused upon request
violates due process where the evidence is material either to guilt
- 22 -
or to punishment, irrespective of the good faith or bad faith of
the prosecution." 373 U.S. at 87; see U.S. Const. amend. XIV.
This court has stated that a habeas petitioner seeking to establish
a Brady violation must demonstrate: "(1) the evidence at issue is
favorable to him because it is exculpatory or impeaching; (2) the
Government suppressed the evidence; and (3) prejudice ensued from
the suppression (i.e., the suppressed evidence was material to
guilt or punishment)." Conley v. United States, 415 F.3d 183, 188
(1st Cir. 2005). The nondisclosure of impeachment evidence is
prejudicial only if there is a reasonable probability "that the
result of the trial would have been different if the suppressed
documents had been disclosed to the defense." Id. (quoting
Strickler v. Greene, 527 U.S. 263, 281 (1999)). The undisclosed
evidence must "undermine[] confidence in the verdict." Id. (citing
Kyles v. Whitley, 514 U.S. 419, 434 (1995)).
The strength of the impeachment evidence and the effect
of its nondisclosure must be evaluated in the context of the entire
record. Conley, 415 F.3d at 189 (citing United States v. Bagley,
473 U.S. 667, 683 (1985); United States v. Agurs, 427 U.S. 97, 112
(1976)). "Suppressed impeachment evidence, if cumulative of
similar impeachment evidence used at trial (or available to the
petitioner but not used) is superfluous and therefore has little,
if any, probative value." Id.; see also United States v. González-
González, 258 F.3d 16, 25 (1st Cir. 2001) (finding the
- 23 -
nondisclosure of impeachment evidence not prejudicial where the
evidence was cumulative of similar disclosed impeachment
evidence).
The SJC in this case determined that Watkins was not
prejudiced by the Commonwealth's failure to produce several pieces
of impeachment evidence. This determination was based, in part,
on a factual error. Following oral argument, we asked the parties
to address what standard of review applies in this habeas case to
the SJC's prejudice determination under such circumstances. The
government cited to Teti v. Bender, in which this court observed
that AEDPA sets forth two different standards "which [both] apply
to state court fact determinations" and "ha[ve] caused some
confusion." 507 F.3d 50, 57 (1st Cir. 2007). Under 28 U.S.C.
§ 2254(d)(2), factual determinations are reviewed for
reasonableness, and under § 2254(e)(1), factual findings are
presumed to be correct. Teti, 507 F.3d at 57. In Teti, this court
explained that "[t]he Supreme Court has suggested that § 2254(e)(1)
applies to 'determinations of factual issues, rather than
decisions,' while § 2254(d)(2) 'applies to the granting of habeas
relief' itself." Id. (emphasis added) (citing Miller-El v.
Cockrell, 537 U.S. 322, 341–42 (2003)). This court acknowledged,
however, that neither it nor the Supreme Court has definitively
resolved the question as to how these two provisions interact.
Id. at 58; see also Brumfield v. Cain, 576 U.S. 305, 323 (2015)
- 24 -
(comparing when the Court required federal habeas courts to defer
to state courts and when it reviewed habeas claims de novo).
Further, it is not clear whether the presumption of correctness
disappears only as to the precise factual error or whether it means
that no portion of the factual determination by the state court is
entitled to AEDPA deference. Out of an abundance of caution, we
take the approach favorable to the petitioner of applying de novo
review for all four categories of Watkins's Brady claim. We hold
that Watkins has not satisfied his burden under Brady of showing
the requisite prejudice.
B. Failure to Disclose Finger-Shot Report and Error in
the State Courts' Factual Determinations
We begin with Watkins's arguments concerning the failure
to disclose the October 29, 2003 finger-shot report. It is clear
the SJC made an erroneous factual determination when it stated
that the report does not show the police knew, at the time, that
Rudolph was a witness against Watkins. This error, on de novo
review, cannot carry the day for Watkins.12 The finger-shot was
cumulative of other impeachment evidence introduced at trial.
Further, the report -- a copy of which Watkins had at the state
court motion for new trial hearing -- objectively would have harmed
Watkins more than it helped him, and, in any event, Watkins put in
12 We disagree with the dissent's reliance on what it says
the SJC "did not dispute [or hold]." In addition, the dissent's
line of reasoning is irrelevant, as we engage in de novo review.
- 25 -
no evidence at the post-trial motion hearing that competent counsel
would, in fact, have used the information in the report, especially
when viewed in its entirety.13 See Shinn, 2022 U.S. LEXIS 2557,
at *17–19 (restricting federal habeas review to the state-court
record).
The finger-shot report states:
Sir,
The undersigned, while assigned to Unit
#13C with Off.[ ]D.[ ]Amaral, was sent to 101
Page St. (St.[ ]Lukes Hospital) on a male that
had been shot in the hand.
Upon arrival we were directed to the
victim identified as, [sic] VERNON RUDOLPH JR.
(1/23/67). RUDOLPH had the tip of the index
finger on his right hand wrapped in a gauze
bandage. He removed the bandage and showed
the undersigned what appeared to be a graze
from a bullet on the outer tip of his finger
near the fingernail.
RUDOLPH stated that he has been receiving
threats on his life since he became a witness
in the murder investigation of one PAUL
COOMBS. RUDOLPH witnessed the murder by
firearm and gave statements to the police
implicating one KYLE WATKINS. WATKINS was
later apprehended and incarcerated.
RUDOLPH originally stated that he parked
his vehicle outside of the Elks Club at
Cottage St. and Mill St. and was going to enter
the club. He claimed he saw a male wearing
dark clothing approach and he became nervous.
He tried to retreat to his car when this male
produced a gun and pointed it at him. A brief
struggle then ensued and the gun fired once
striking him in the finger. RUDOLPH stated he
then ran northerly on Cottage St. and the male
suspect ran in the other direction.
13 To the extent the dissent argues that we are holding
Watkins had to introduce expert testimony, that misreads our
analysis.
- 26 -
After several minutes and more specific
questioning he eventually admitted that he
fabricated the story. He indicated that he
had shot himself accidentally with a gun that
belonged to a friend. He stated that he does
not carry a gun and knows very little about
them. He said that he did not know that the
safety was off. RUDOLPH did not want to
elaborate on where this took place and did not
want to implicate his friend as it was not his
fault.
RUDOLPH stated that he had hoped to be
treated and released without the hospital
having to contact the police. He apologized
for creating the story and wasting our time,
but he felt he had no choice. He stated that
he has in fact been receiving threats from
WATKINS' friends, but did not want to name
anyone or document any of the incidents.
A nurse explained that stitches were not
required and that the wound would heal on its
own. RUDOLPH was then given Percocet for pain
and released from hospital care.
(emphasis added).
Watkins argues in his federal habeas case that the use
of the report would permit a jury to draw the inference that
Rudolph had received another, undisclosed benefit from the
Commonwealth because he was not prosecuted for unlawful possession
of a firearm or lying to a police officer. He also argues that
the report shows a pattern of Rudolph implicating Watkins and
seeking rewards for his testimony against Watkins, and that Watkins
was unable to show this pattern at trial. Neither argument
satisfies his burden to show prejudice under Brady.
The failure to produce the report was not prejudicial
because it was cumulative, even if the inference attempted to be
- 27 -
drawn was plausible. The record does not show such an inference
is plausible. Moreover, there was far stronger evidence produced
and introduced at trial of an actual, considerable benefit Rudolph
was promised to receive from the Commonwealth in exchange for his
testimony: a letter showing the prosecutor promised that he would
ask that Rudolph's term of imprisonment for the more serious
criminal law violation of drug distribution near a school zone (in
addition to unlawful possession) to be reduced in half and for
Rudolph to be released from prison. Defense counsel in fact
effectively used, and the jury had a copy of, this letter at trial,
which defense counsel called "an agreement to get out of jail."
Furthermore, the purported inference of an undisclosed
deal on which Watkins's argument rests is not supported by the
record. Watkins has provided no evidence that Rudolph and the
Commonwealth discussed any deal concerning the finger-shot
incident, nor that his testimony against Watkins had any bearing
on the Commonwealth's decision not to prosecute him. That police
wrote an incident report about a shooting for which they were
called, without more, is insufficient to permit the inference that
the Commonwealth would have charged Rudolph absent his testimony
in this case. As the report shows, Rudolph already had given his
statement to police about Coombs's murder before this incident.
Further, any inference of a deal was refuted, as Rudolph testified
at the motion for new trial hearing that he had no deal with the
- 28 -
Commonwealth regarding the finger-shot incident and the prosecutor
testified at that hearing that he had no recollection of any such
deal.
Watkins also argues, and the dissent adopts the
argument, that Watkins was deprived of an opportunity to cross-
examine Rudolph about a purported tendency to "fabricate[] stories
involving" Watkins to protect himself. But there was no such
deprivation of opportunity. At trial, defense counsel engaged in
the following cross-examination of Rudolph:
Q: And the police -- you actually make a call
to the police station [on April 30, 2003]?
A: Yeah.
Q: And that's because you had heard that they
may be looking for your brother?
A: Yes.
Q: And your brother is what, a suspect in this
case [for Coombs's murder]?
A: Yes.
Defense counsel also cross-examined Rudolph about the fact that
Rudolph did not go to the police station until after he learned
that he himself was named a suspect, and that, during that initial
police interview, he was asked: "Well, if it's not you and it's
not your brother, then it must be Kyle Watkins[?]" This and other
impeachment evidence amply, as argued by defense counsel
repeatedly, permitted the jury to draw the inference that Rudolph
- 29 -
implicated Watkins in order to exonerate himself and his brother
and, so, Rudolph was not credible.14
Watkins's argument to us of prejudice does not take into
account the risks to him of his opening the door to the
introduction of the finger-shot report. Further, Watkins failed
to introduce testimony at the motion for new trial hearing in the
state court that competent trial counsel, or indeed his own trial
counsel, would have chosen to use the report. In fact, as to his
habeas argument based on a theory of Rudolph recanting, the finger-
shot report objectively is weaker than other evidence which his
trial counsel had as a matter of trial strategy chosen not to
use.15 Defense counsel had evidence that Rudolph had earlier
"recanted" his identification of Watkins to Watkins's family,
friends, attorney, and private investigator, although Watkins does
14 The dissent argues that the nondisclosure of the finger-
shot report was prejudicial because the report shows Rudolph would
have been "especially" willing to implicate Watkins to protect
himself because that implication "would spare [Rudolph] from being
subjected to a new felony conviction and yet more time in prison
than he already knew that he might have to serve[.]" In addition
to being cumulative, this argument ignores the timing of the
relevant events. At the time of the finger-shot incident, Rudolph
did not know that he later would be incarcerated. In fact, no
charges were pending against him at the time; Rudolph was not
arrested on the drug distribution charge until December 3, 2003,
and he did not plead guilty to that charge until July 30, 2004.
15 We take an objective view of what competent counsel would
do, and this view happens to be the same realistic view as the one
trial counsel in fact took in weighing whether the benefits of
using so-called impeachment evidence, cumulative at best,
outweighed the considerable costs of using it.
- 30 -
not point to any instance in which Rudolph recanted his
identification to the police. The evidence that Watkins's counsel
had and chose not to use included Rudolph's statement to the
private investigator that he "couldn't really identify the
shooter," and his comment to Watkins's brother, basically, to
"[t]ell Kyle he has nothing to worry about. The [police] . . .
tripped me up, I didn't see anything, nobody could see anything.
Tell Kyle he has nothing to worry about."
Watkins's trial counsel testified at the motion for new
trial hearing as to why he chose not to use this evidence of
Rudolph "recanting" his identification of Watkins. Counsel stated
that "if the[ recantations] were brought in, then the government
could bring in evidence of any threats" made against Rudolph, which
are thought to have been made after Rudolph spoke with the police
and before he "recanted" privately to those associated with
Watkins. The motion for new trial judge held that trial counsel's
tactical decision was reasonable, and the SJC affirmed. Watkins,
41 N.E.3d at 26–27. The district court agreed, conclusively ruling
that "[t]he decision to forego [this] line of questioning in order
to prevent the Commonwealth from introducing potentially damaging
evidence was 'clearly a tactical decision that "falls within the
wide range of reasonable professional assistance[.]"'" Watkins,
2020 WL 68245, at *14 (quoting Cohen v. United States, 996 F. Supp.
110, 116 (D. Mass. 1998)). We do not revisit the ruling, as any
- 31 -
ineffective assistance of counsel claim is outside the scope of
the COA. See Blue v. Medeiros, 913 F.3d 1, 5 n.9 (1st Cir. 2019)
(stating the general rule that, in a habeas proceeding, this court
should not consider the merits of an issue unless a COA has been
obtained for that issue).
Rudolph had testified at his pre-trial deposition that
Watkins's cousin had threatened Rudolph after he spoke to the
police. According to Rudolph, Watkins's cousin threatened that if
Rudolph testified against Watkins, Rudolph would be
"assassinate[d]."
The undisclosed finger-shot report similarly shows that
Rudolph identified Watkins to the police and that he was afraid of
Watkins and felt threatened by Watkins's friends and family in the
aftermath. Objectively, competent defense counsel would not have
chosen to introduce the finger-shot report to the jury, just as
defense counsel chose not to introduce the private recantation
evidence, which the state courts have held was a permissible
tactical decision.
Further, Rudolph did not recant his identification of
Watkins to the police and, if anything, the October 29, 2003
finger-shot report cannot be prejudicial because it reinforced
Rudolph's identification. Rudolph told police during the finger-
shot incident that he was a witness against Watkins, and the
version of events Rudolph gave to law enforcement before and after
- 32 -
the incident was the same. On April 30, 2003, Rudolph called the
police and informed them that he had witnessed Watkins shoot
Coombs; on September 9, 2003, he testified before the grand jury
to what he saw; later in September, he testified at a deposition
to the same; as did he in 2005 at Watkins's trial. The finger-
shot incident took place weeks after Rudolph already essentially
had committed to being a witness against Watkins, and his testimony
did not change after that.
For all these reasons, the impeachment evidence in the
finger-shot report presents no new tool to attack Rudolph's
testimony. Cf. United States v. Flores-Rivera ("Flores I"), 787
F.3d 1, 19 (1st Cir. 2015), overruled by statute on other grounds
as stated in United States v. Smith, 954 F.3d 446, 448 (1st Cir.
2020).
The dissent's reliance on Flores I, 787 F.3d 1, and
Flores-Rivera v. United States ("Flores II"), 16 F.4th 963 (1st
Cir. 2021) is misplaced, as the facts and circumstances are
dissimilar to the instant appeal. In those cases, the defendants'
primary trial strategy was to impeach the three main witnesses
against them "by suggesting [the witnesses] engaged in a
coordinated effort to fabricate their testimony." Flores I, 787
F.3d at 10; Flores II, 16 F.4th at 965 ("Our opinion in Flores I
describes at length the relevant factual background for this
collateral appeal."). The witnesses' testimony had been "both
- 33 -
essential to the convictions and uncorroborated by any significant
independent evidence." Flores I, 787 F.3d at 18. All three
witnesses at trial "flatly and firmly denied discussing anything
involving the . . . case" prior to testifying. Id. at 10. In
Flores I, it was discovered after trial that the government had
failed to disclose, among other things, notes which showed that
the witnesses had, in fact, discussed their testimonies
beforehand. Id. at 18. This nondisclosure (when combined with
other undisclosed evidence) violated Brady because the prosecution
"pivoted entirely on the credibility of [the witnesses]" and "there
was no other document or recording tending to prove that the
witnesses were lying when they denied discussing their testimony
with one another." Id. at 19–20. This case, by contrast, is not
one of a sole witness to whom there was no impeachment evidence
introduced at trial. Rather, there was testimony and evidence
that corroborated key parts of Rudolph's testimony -- e.g., the
tension between Watkins and Coombs, the subsequent murder of
Coombs, the shooter's physical appearance and vehicle, the
victim's vehicle, the time of the shooting, and the general
location of the shooting.16 And, as just described, evidence of
Rudolph's potential bias was covered extensively at trial.
16 This corroboration of Rudolph's narrative of Coombs's
murder is much greater than the single video of alleged drug
trafficking transaction introduced in Flores II showing the
- 34 -
C. Rudolph's Dangerousness Hearing To Determine
Whether He Should Be Released
In December 2003, Rudolph was arrested for and charged
with distributing cocaine to a police informant in a school zone
and unlawfully possessing a firearm. Rudolph initially was held
without bail pursuant to Mass. Gen. Laws ch. 276, § 58A, which at
the time permitted the Commonwealth to move "for an order of
pretrial detention" based on dangerousness, for any felony "that,
by its nature, involves a substantial risk that physical force
against the person of another may result." Rudolph petitioned for
bail, and a dangerousness hearing was held before the Bristol
County Superior Court on December 10, 2003. Rudolph stated at the
hearing that his gun possession was for protection, in response to
threats he was receiving for his cooperation in Coombs's murder
investigation: "I'm not a dangerous person. I'm not. I'm just
worried about my well-being. You can't bring a rock to a gun
fight. . . . They're making threats against my life." The superior
court judge denied Rudolph's petition and ordered him detained.
In response, Rudolph stated: "So, now what happens when the murder
case comes up? Am I to come to court bright eyed and bushy tailed
and testify against somebody else after this? That's not fair,
your Honor. It's not fair."
defendant "hand something to someone and receive something in
return." 16 F.4th at 968–69.
- 35 -
Watkins argues the Commonwealth was required under Brady
to produce the statement Rudolph made at the end of his
dangerousness hearing, but this argument also falls short. On de
novo review, we conclude this statement does not support the
inference Watkins wants to draw from it, i.e., that "Watkins was
denied the opportunity to cross-examine Rudolph on bias." Further,
there was at trial extensive examination of bias, and the failure
to add onto any such evidence hardly would be prejudicial.
Rudolph's motivation for reaching out to the police and the
agreement that Rudolph later reached with the Commonwealth were
discussed at trial and clearly informed Watkins and the jury that
Rudolph sought an incentive in return for his cooperation and
testimony. Rudolph's statements at his dangerousness hearing, as
with his "recantations" and the finger-shot report, also show that
Rudolph was threatened for testifying by Watkins's family and
friends, and therefore would present substantial risks to Watkins
if introduced at trial.
D. The Crime Scene Diagram
Watkins's contention that the Commonwealth's failure to
produce a hand-drawn crime scene diagram detailing the distance
between the Honda Accord and shell casings found near the vehicle
violated Brady similarly is unpersuasive. The diagram depicts the
Honda Accord part-way down the block from the intersection of Mill
and Cedar Streets, which differs from Rudolph's testimony that the
- 36 -
shooting occurred near the intersection. The Commonwealth's
failure to produce this diagram was not prejudicial, as its
impeachment of Rudolph's testimony, at most, would have been
cumulative of the other evidence introduced at trial. Watkins
highlighted all the purported discrepancies in Rudolph's testimony
to the jury, including his placement of the Honda near the
intersection, and the jury found Watkins guilty nonetheless.
Officer Safioleas testified, contrary to Rudolph's
testimony, that the Honda was located near the memorial, which has
been placed approximately eighty feet west of the Cedar and Mill
Streets' intersection. This location corresponds generally to the
location of the Honda as shown in the diagram. Mr. Couture
similarly placed the Honda near the memorial. So, too, did
photographs taken of the scene the night of the shooting, which
were admitted as exhibits. Defense counsel argued this point to
the jury in closing. The crime scene diagram, which is a rough,
hand-written sketch that is not drawn to scale, would have a
nominal effect on impeaching Rudolph, if any at all.
E. Undisclosed Pre-Interview Notes
Watkins's challenge under Brady to the Commonwealth's
failure to disclose the handwritten notes taken by Trooper Kilnapp
fails. After calling the police on April 30, 2003 to report the
shooting, Rudolph drove himself and his brother to the station for
an in-person interview. At the station, Rudolph spoke with law
- 37 -
enforcement for approximately two hours before the police began
recording his interview (the "pre-interview"). Trooper Kilnapp
apparently took handwritten notes of the pre-interview which were
not disclosed before trial because "they were not discovered until
after the trial."
Watkins argues these notes, if introduced at trial,
would have permitted the inference that the perpetrator was not
Watkins, but a third party: Barry Souto.17 The strands of the
argument are simply not supported by the record. Watkins first
contends that the notes show Rudolph did not implicate Watkins as
the shooter until the recorded interview, when police threatened
17 Watkins further argues the nondisclosure of these notes
deprived him of the ability to cross-examine Rudolph on the
discrepancies in his timeline, namely, when he left the Elks Lodge,
because the notes indicate he left "at least after 9:15, could
have been later. Maybe 9:30." This argument is belied by the
record, which clearly shows defense counsel did cross-examine
Rudolph about such discrepancies:
Q: Now, can you tell us whether it was closer
to 8:00 or 8:30 that you went into the [Lodge]?
A: I would say about 8:30, 8:35 -- 8:30, yeah.
Q: If you were in there for twenty minutes,
then you're out of there about five past nine?
A: Times, like I said, it's two years gone by.
. . . .
Q: And once you made -- if you came out of
there at 9:30, is it fair to say that would be
less than a minute for you to get to the point
where the blue or black car was on Mill Street?
- 38 -
to charge him instead. The record says otherwise. The record
shows that Rudolph named Watkins as the shooter when he first
called the police, before heading to the station for an interview.
The notes of this phone call, taken by Officer Oliveira,
specifically state that Rudolph told police: "he observed KYLE
WATKINS shooting a firearm into the Honda Accord parked on Mill
Street just west of Cedar Street."
Trooper Kilnapp's notes also do not implicate Barry
Souto as a third-party suspect. The notes first state: "Friday
4/25 @ Elks . . . Kyle Watkins in bathroom arguing w/ Paul Coombs
on cell phone." They then state: "Barry [Souto] told Vern it
was behind him re: Zach (few weeks ago) . . . Barry talked to Paul
-- to clear it up. Barry told Vern he didn't hire hitman. Barry
scared of Paul Coombs." Barry is the brother of Zachary Souto;
Zachary was killed by Coombs several years prior, and Coombs was
killed on Zachary's birthday. These notes do not support Watkins's
theory that Barry killed Coombs out of revenge. Quite the
opposite. The only plausible inference that can be drawn from the
notes is that Barry had no intention of killing Coombs. Watkins
has pointed to no evidence otherwise connecting Barry to the crime.
He suffered no prejudice from the Commonwealth's failure to
disclose.
- 39 -
F. Rudolph's Promise From the Commonwealth
Watkins's argument concerning the alleged incompleteness
of the Commonwealth's disclosures of its promise to Rudolph lacks
merit.18 The record refutes Watkins's argument that the
Commonwealth concealed the true nature of this promise. The
prosecutor sent a copy of the letter setting forth the promise to
Watkins prior to the start of trial and entered the letter into
evidence. The letter clearly provided that Rudolph would be
released from prison if he testified against Watkins, which he
did. Contrary to Watkins's argument, the letter states, inter
alia, that Rudolph's attorney intended to move to dismiss the
distribution in a school zone charge and for resentencing and
Rudolph's immediate release, and the prosecutor in Watkins's case
intended to ask Rudolph's sentencing judge to allow the motions if
Rudolph testified truthfully against Watkins. In light of this
disclosed promise, the trial judge specifically instructed the
jury to "scrutinize[] [Rudolph's testimony] with particular care."
18 Watkins's additional argument that the Commonwealth
failed to produce other requested evidence of Rudolph's
cooperation is unsupported by the record. The trial court had
ordered the government to file ex parte information concerning
Rudolph's cooperation, and on March 31, 2005, the Commonwealth
submitted a letter from Detective Lieutenant Scott Sylvia of the
New Bedford Police Department listing the docket numbers of the
cases in which Rudolph was involved. The letter also stated that
Rudolph was a victim or witness in several prior cases, but he did
not act as an informant. Watkins has pointed to no evidence to
the contrary.
- 40 -
That the letter did not state that Rudolph would be released the
same day of his testimony is immaterial.
III.
Even had Watkins overcome the obstacles to habeas relief
(he has not), he still has not persuaded us that "law and justice"
require the petition to be granted. Shinn, 2022 U.S. LEXIS 2557,
at *18 (quoting Brown, 142 S. Ct. at 1524). The judgment of the
district court denying habeas relief is affirmed.
- DISSENTING OPINION FOLLOWS -
- 41 -
BARRON, Chief Judge, dissenting. Kyle Watkins seeks to
overturn his Massachusetts-law conviction for first-degree murder
pursuant to his federal constitutional right to due process under
Brady v. Maryland, 373 U.S. 83 (1963). He contends that he was
convicted in violation of this right because the prosecution failed
to provide his counsel with exculpatory evidence in advance of the
trial that would have been material to his defense. Among that
evidence is a police report that Watkins contends would have
significantly aided his efforts to impeach what turned out to be
the state's key witness against him. It is this aspect of
Watkins's Brady challenge that is my focus.
The majority does not dispute that the police report
constitutes exculpatory evidence. It nonetheless holds that
Watkins's federal habeas petition must be denied because Watkins
has not shown the prejudice under Brady that is required to
establish that the police report was "material." See Brady, 373
U.S. at 87 ("[T]he 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.");
Zuluaga v. Spencer, 585 F.3d 27, 30 (1st Cir. 2009) ("To prevail
on a federal Brady claim, 'a habeas petitioner must demonstrate:
. . . [that] prejudice ensued from the suppression (i.e., the
suppressed evidence was material to guilt or punishment).'"
- 42 -
(quoting Conley v. United States, 415 F.3d 183, 188 (1st Cir.
2005))).
The Supreme Judicial Court of Massachusetts ("SJC")
reached the same result in rejecting Watkins's Brady challenge on
direct review. Commonwealth v. Watkins, 41 N.E.3d 10, 20-23 (Mass.
2015). But, although a federal court reviewing a habeas petition
ordinarily must defer to such a state court ruling, see, e.g.,
Teti v. Bender, 507 F.3d 50, 55 (1st Cir. 2007), we need not do so
here, because, as I will explain, the SJC's ruling rests on a clear
mistake of fact. See 28 U.S.C. § 2254(d)(2). Moreover, as I will
also explain, a de novo review of the record leads me to conclude
that Watkins has shown the prejudice from having been denied access
to the police report that Brady requires him to show. Accordingly,
I conclude that Watkins is entitled to federal habeas relief on
the ground that he was convicted of murder in violation of his
federal constitutional right to due process under Brady. See Brown
v. Davenport, 142 S. Ct. 1510, 1517 (2022) ("When a state court
has ruled on the merits of a state prisoner's claim, a federal
court cannot grant relief without first applying both the test
this Court outlined in Brecht [v. Abrahamson, 507 U.S. 619 (1993)]
and the one Congress prescribed in [the Antiterrorism and Effective
Death Penalty Act of 1996 (AEDPA)]."); Kyles v. Whitley, 514 U.S.
419, 436 (1995) (explaining that a showing of prejudice that
- 43 -
satisfies Brady "cannot subsequently be found harmless
under Brecht").
I.
The key question at trial concerned who pulled the
trigger in the murder of Paul Coombs in New Bedford, Massachusetts
on the night of April 26, 2003. Watkins, 41 N.E.3d at 15. Some
of the witnesses for the state who testified at the trial had
driven past the site of the shooting either as it happened or
immediately beforehand. Id. at 16. But, only one of them -- Vernon
Rudolph -- claimed both to have been able to see the person
shooting Coombs on the night in question and to have been able to
identify that person as Watkins. See id. at 16-17.
In other words, Rudolph was no ordinary witness for the
prosecution. He was the crucial one. He was also an acquaintance
of Watkins, which meant that Rudolph knew what Watkins looked like.
Id. That fact no doubt lent credibility to Rudolph's testimony
that he saw Watkins pull the trigger.
At the same time, Rudolph was vulnerable to impeachment.
The jury was informed both that he was incarcerated for unrelated
felonies at the time that he was testifying against Watkins and
that he had agreed to testify against Watkins in return for a
prosecutor's promise to ask the judge who had sentenced him to a
three-year-and-one-day term of imprisonment for his convictions to
grant his motions for release from prison 18 months early. Id. at
- 44 -
21. The record also shows that Watkins knew at the time of trial
both that Rudolph had gone to the police station for an interview
about the murder of Coombs only after having learned that Rudolph
and Rudolph's brother were themselves suspects in that murder and
that Rudolph had recanted to Watkins's private investigator prior
to the trial the account that Rudolph then gave against Watkins at
the trial.
But, as strong as Watkins's grounds for impeaching
Rudolph's trial testimony were, Watkins contends that they would
have been even stronger if he had known at the time of trial some
other things about Rudolph that he did not know but that the
prosecution did. Most especially, Watkins did not know -- as the
prosecution did -- about a police report that described an
encounter that Rudolph had with the police prior to Watkins's
trial.
The police report shows that on October 29, 2003,
officers from the New Bedford Police Department were dispatched to
a hospital to investigate a man who had been hospitalized for a
bullet wound. The officers were directed to the victim, whom they
identified as Rudolph and whose finger had been grazed by a bullet.
According to the report, "RUDOLPH stated that he has
been receiving threats on his life since he became a witness in
the murder investigation of one PAUL COOMBS. RUDOLPH witnessed
the murder by firearm and gave statements to the police implicating
- 45 -
one KYLE WATKINS." The report next explains that "RUDOLPH
originally stated that," while he was outside of the Elks Club,
he saw a male wearing dark clothing approach
and he became nervous. He tried to retreat to
his car when this male produced a gun and
pointed it at him. A brief struggle ensued
and the gun fired once striking him in the
finger. RUDOLPH stated he then ran
northerly . . . and the male suspect ran in
the other direction.
But, according to the report, the story Rudolph told the officers
quickly changed:
After several minutes and more specific
questioning he eventually admitted that he
fabricated the story. He indicated that he
had shot himself accidentally with a gun that
belonged to a friend. He stated that he does
not carry a gun and knows very little about
them. He said that he did not know that the
safety was off. RUDOLPH did not want to
elaborate on where this took place and did not
want to implicate his friend as it was not his
fault.
RUDOLPH stated that he had hoped to be treated
and released without the hospital having to
contact the police. He apologized for
creating the story and wasting our time, but
he felt he had no choice. He stated that he
has in fact been receiving threats from
WATKINS' friends, but did not want to name
anyone or document any of the incidents.
II.
Watkins relied in part on the prosecution's failure to
turn over the police report to him prior to trial in pressing his
Brady challenge to his murder conviction to the SJC. But, the SJC
determined that the police report did not itself show that "Rudolph
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avoided any charges because he told police that he was the key
witness in the Commonwealth's case against [Watkins]," and, on
that basis, it ruled that Watkins's Brady challenge was without
merit insofar as that challenge was premised on the withholding of
the police report because Watkins had failed to show that the
withholding of that report prejudiced him. Watkins, 41 N.E.3d at
22.
As I have noted, in reviewing a federal habeas petition
that seeks to overturn a state law conviction, we ordinarily must
give substantial deference to the state court ruling that affirms
the conviction. But, that is not so when the state court ruling
is "based on an unreasonable determination of the facts in light
of the evidence presented in the State court proceeding." 28
U.S.C. § 2254(d)(2) (emphasis added); see Harris v. Sharp, 941
F.3d 962, 978 & n.12, 987 (10th Cir. 2019) (determining that a
state court's decision on the prejudice prong of an ineffective
assistance of counsel argument "was based on an unreasonable
factual determination," reviewing the claim de novo, and remanding
for an evidentiary hearing on disputed facts). And, here, the
SJC's ruling is "based on" a factual error of that kind.
Indeed, the state does not dispute that the SJC made an
"unreasonable determination of the facts" in addressing the
portion of Watkins's Brady claim that concerns the withholding of
the police report. The SJC stated in that regard that the judge
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at Watkins's motion-for-a-new-trial hearing found that "there was
no evidence that investigating officers" to whom Rudolph confessed
to having shot himself in the finger "were aware that Rudolph was
a Commonwealth witness," and the SJC concluded that "[t]he record
supports the judge's findings." Watkins, 41 N.E.3d at 22. But,
the third paragraph of the police report's one-page narrative
recounts that, after the police encountered Rudolph at the
hospital, "RUDOLPH stated that he has been receiving threats on
his life since he became a witness in the murder investigation of
one PAUL COOMBS. RUDOLPH witnessed the murder by firearm and gave
statements to the police implicating one KYLE WATKINS." (emphasis
added). Thus, the state -- admirably -- concedes that the record
"directly contradict[s]" the SJC's statement about what the record
shows regarding whether the police officers who investigated
Rudolph's injury "were aware that [he] was a Commonwealth witness,"
Watkins, 41 N.E.3d at 22.
To be sure, things are not quite so straightforward when
it comes to the question of whether the SJC's ruling rejecting
Watkins's Brady challenge is "based on" this unreasonable factual
determination about what the police report shows. As to that
question, the state asserts that the SJC's ruling is not so "based"
because "the incorrect fact was just one of three reasons on which
the SJC relied" in finding that no prejudice flowed from the
prosecution's failure to disclose the police report.
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The SJC's opinion, however, refutes any such notion.
The opinion states in relevant part:
The judge [presiding over the hearing
concerning Watkins's motion for a new trial]
found, however, that there was no evidence
that investigating officers were aware that
Rudolph was a Commonwealth witness, no
evidence that he either sought or received
favorable treatment in that matter, and that
his anticipated testimony had no bearing on
the decision not to prosecute Rudolph for
"shooting himself." The record supports the
judge's findings. The defendant therefore
suffered no prejudice as a result of the
Commonwealth's failure to disclose this police
report.
Id.
In using the words "therefore suffered no prejudice"
only after having listed three distinct features of the police
report, id. (emphasis added), the SJC in no way suggested that its
no-prejudice ruling depended on the police report having fewer
than all three of those features. So, taking the SJC at its word,
I conclude that the SJC necessarily rested its no-prejudice ruling
on a feature of the police report that, as we have seen, the SJC
unreasonably determined existed even though it does not.
The majority does not, in the end, disagree with me on
this point. It rests its judgment that the portion of Watkins's
Brady claim that concerns the withholding of the police report
provides no basis for granting his habeas petition solely on the
way that it resolves the next question that I will take up, which
concerns whether the record, on de novo review, supports Watkins's
- 49 -
contention that he met his burden to show that the withholding of
the police report caused him the prejudice that Brady requires him
to show.19
III.
To make the required showing of prejudice under Brady,
Watkins must demonstrate that "a reasonable probability exists
'that the result of the trial would have been different if the
suppressed [evidence] had been disclosed to the defense.'" Conley,
415 F.3d at 188 (quoting Strickler v. Greene, 527 U.S. 263, 289
(1999)). That does not mean that Watkins must prove that the trial
certainly would have come out in his favor if he had been given
access to the exculpatory evidence that was withheld from him. It
means that he must show only that "the Government's evidentiary
suppression undermines confidence in the verdict." Id. (citing
Kyles, 514 U.S. at 434). The majority concludes, however, that
Watkins has failed to make even that showing.
19I note, additionally, that undertaking de novo review under
these circumstances is not inconsistent with this Court's past
application of § 2254(d)(1) deference to a mixed question of law
and fact. See Teti, 507 F.3d at 57; cf. also Conley, 415 F.3d at188 n.3. While Teti's analysis focused on whether the state court
had "unreasonabl[y] appl[ied] . . . clearly established [f]ederal
law," 507 F.3d at 57 (citation omitted), the petitioner in that
case had not refuted the state court's factual findings and so the
question on appeal was whether the legal conclusion that flowed
from those facts was unreasonable, id. at 60–63. By contrast, in
Watkins's case, the SJC has not in fact made a determination
concerning prejudice that is not based on the clear factual error
that it made about the police report.
- 50 -
The majority rests that conclusion in part on the fact
that the record shows that Watkins knew before trial that Rudolph
had received a benefit in exchange for his testimony through
Rudolph's deal with the Commonwealth, in which the Commonwealth
had promised to advocate for Rudolph's early release from the
prison sentence that he was then serving for having been convicted
of dealing drugs in a school zone and unlawfully possessing a
firearm. Relatedly, the majority points out that the record shows
that Watkins also had other evidence available to him before trial
from which a juror could draw the possible "inference that Rudolph
implicated Watkins" in Coombs's murder "in order to exonerate
himself and his brother" from suspicion for that same crime. Maj.
Op. at 29–30.
In my view, however, the majority fails in highlighting
those features of the record to grapple adequately with two ways
in which the police report would have materially augmented
Watkins's effort to impeach Rudolph, the crucial witness against
him, notwithstanding the impeachment evidence that Watkins already
had in hand by the time of the trial. See United States v. Flores-
Rivera (Flores I), 787 F.3d 1, 19 (1st Cir. 2015) ("[T]he fact
that the defense had some tools to attack [a star witness's]
testimony hardly dismisses the potential of different tools as
merely cumulative."), superseded by statute on other grounds as
stated in United States v. Smith, 954 F.3d 446, 448 (1st Cir.
- 51 -
2020). I thus cannot subscribe to the majority's conclusion that,
because of the aspects of the record that the majority emphasizes,
Watkins has failed to show the requisite prejudice.
First, the police report is material to Watkins's effort
to impeach Rudolph, notwithstanding the evidence that Watkins did
have on hand at the time of trial, because that report provides a
basis for inferring the existence of a tacit "deal" between Rudolph
and law enforcement regarding Rudolph's testimony against Watkins
at trial that pertained to the confession that Rudolph made
regarding the finger-shooting incident that was not otherwise
known to Watkins. For, while the majority is right that Watkins
knew before trial about the actual deal between Rudolph and law
enforcement regarding Rudolph's testimony against Watkins at trial
that could help spare Rudolph from having to serve some prison
time for the crimes for which he had already been convicted and
sentenced, this unknown tacit deal would have helped Rudolph in a
very different way, by ensuring that he would not have to go back
to prison after he had served his time for those prior crimes.
Notably, the SJC did not dispute that the police report
showed that Rudolph confessed to law enforcement to having engaged
in criminal conduct in connection with the finger-shooting
incident that potentially gave rise to serious new charges --
unlawful possession of a firearm and intentionally making a false
report of a crime to the investigating officers, see, e.g.,
- 52 -
Commonwealth v. Fortuna, 951 N.E.2d 687, 693 (Mass. App. Ct. 2011)
(affirming conviction of making false report of a crime for
defendant who, after being hospitalized for a close-range and
possibly self-inflicted gunshot wound, told responding officers
that he had been shot from afar by an unknown assailant) -- and
thus potentially to additional prison time beyond that which he
already had been sentenced to serve. Nor did the SJC hold that
the police report provided merely cumulative impeachment evidence
insofar as it supported the reasonable inference that Rudolph was
motivated to testify against Watkins out of a concern that he
otherwise might face such serious new charges due to the confession
that he had made to law enforcement in relation to the finger
shooting. Instead, the SJC held only that the police report
provided no support for such an inference, because nothing in the
police report indicated that the law enforcement officers to whom
Rudolph confessed to having shot himself even knew that Rudolph
(to use the police report's phrasing) "became a witness" against
Watkins.
But, of course, the SJC's factual determination about
what the law enforcement authorities to whom Rudolph confessed
knew about Rudolph's relation to the case against Watkins was
plainly wrong. And, thus, the SJC, in finding the police report
to be merely cumulative of the evidence that Watkins already had
at the time of trial, did so only based on a misapprehension about
- 53 -
what that report shows. Moreover, it is clear to me that, once
this misapprehension is corrected, the police report could support
a reasonable inference that Rudolph was testifying against Watkins
in part to stave off additional prison time that his formal deal
did not encompass, given that the police report shows that Rudolph
knew that he had confessed to additional crimes to law enforcement
authorities who he knew were aware that he had become a witness
against Watkins. For, in the face of evidence showing as much, it
would certainly be reasonable for a juror to infer that Rudolph
was of the view that his decision to go forward with his testimony
against Watkins would help him avoid being charged for those new
crimes.
Second, the police report is material to Watkins's
effort to impeach Rudolph by revealing an instance in which Rudolph
made false accusations that implicated Watkins (as they implied
that Watkins's associates had gone after Rudolph violently because
Rudolph was a potential witness against Watkins) to deflect the
police's attention from Rudolph's own, possibly criminal, conduct
-- namely, unlawfully possessing a firearm during the finger-
shooting incident. The police report further reveals that, when
pressed, Rudolph conceded that those accusations were false. The
police report thus raises the following new question that no other
evidence that Watkins had before trial did: if Rudolph was willing
to protect himself by lying once about who committed a shooting by
- 54 -
implicating Watkins in that offense, wouldn't he be willing to do
it again? And, the police report also raises one additional new
question that is closely related: wouldn't Rudolph be especially
willing to do just that if doing so would spare him from being
subjected to a new felony conviction and yet more time in prison
than he already knew that he might have to serve for the crimes
for which he already had been convicted?
Perhaps aware of these difficulties with deeming the
police report to be merely "cumulative" of the impeachment evidence
that Watkins did have access to before trial, the majority does
also assert that his Brady challenge to the report's non-disclosure
fails for an independent reason. Here, the majority contends that,
even if the police report were not merely cumulative of the other
evidence that Watkins had in hand prior to trial, "competent
defense counsel would not have chosen to introduce the finger-shot
report to the jury" due to that report's potential to prejudice
Watkins's own case by "opening the door" to the uncorroborated
allegations that Rudolph had made about Watkins's associates
having threatened him for agreeing to testify against Watkins.
Maj. Op. at 30, 32.
This contention, however, is not one that the SJC itself
advanced, the District Court relied on, or the Commonwealth thought
sufficiently strong to be worth pressing to us in this appeal.
- 55 -
And, it is easy to see why those closest to the case have not
thought much of this ground for denying Watkins's Brady claim.
The police report does state that Rudolph maintained to
the police that he had been receiving threats, and the record does
also show that Rudolph, in his deposition testimony, had referenced
threats having been made against him by someone connected to
Watkins. So, it is true that the use of the police report did
present some risks. But, at the same time, the police report
reveals an instance in which Rudolph sought to protect himself by
lying about the nature and extent of threats connected to Watkins
by inventing a story about a gun-wielding attacker to explain his
gunshot wound. Thus, the majority arguably has it backwards in
reasoning that, because Watkins's trial counsel acted competently
in deciding not to use the evidence of Rudolph's prior recantation
for fear that using it would open the door to Rudolph's allegations
of threats by Watkins's associates, "competent defense counsel
would not have chosen to introduce the finger-shot report to the
jury." Maj. Op. at 32. And that is because the police report
provides a hitherto unavailable means by which the prejudicial
impact of introducing Rudolph's prior recantation could be
mitigated, given that the police report contains evidence that
tends to undermine the credibility of Rudolph's allegations about
the threatening behavior of Watkins's associates in a way that no
other evidence in the record does.
- 56 -
In making this observation, I am not suggesting that we
may weigh the potential for the police report to bring Rudolph's
private, pre-trial recantation back into play in assessing the
prejudicial impact of the police report's non-disclosure. I am
suggesting that the very fact that the police report might have
that effect illustrates the problem with speculating that because
Watkins's counsel made the permissible strategic choice not to use
the evidence of the prior recantation, a reasonably effective
defense counsel necessarily would not use the withheld police
report. After all, the question that we are trying to answer is
whether Watkins can show that "disclosure of the suppressed
evidence to competent counsel would have made a different result
reasonably probable." Kyles, 514 U.S. at 441 (emphases added).
And, although the majority purports to "take an objective view of
what competent counsel would do" in reaching the apparent
conclusion that no competent counsel would have introduced the
withheld police report, Maj. Op. at 30 n.15, the fact that
Watkins's counsel was deemed competent in choosing not to introduce
entirely different evidence hardly shows, objectively, any such
thing. See Strickland v. Washington, 466 U.S. 668, 689 (1984)
("There are countless ways to provide effective assistance in any
given case. Even the best criminal defense attorneys would not
defend a particular client in the same way."). Thus, while it is
true that no direct evidence definitively establishes that
- 57 -
Watkins's trial counsel would have used the police report, what
matters is that -- as I have explained -- there is good reason to
think that a competent defense counsel would have done so.20
IV.
In sum, after reviewing Watkins's Brady challenge de
novo, I am convinced that the fact that the police report was
withheld does undermine confidence in the guilty verdict that the
jury rendered.21 Rudolph's testimony identifying Watkins as the
shooter was the key evidence for the state at trial and that
testimony was hardly rock solid. Thus, it does not stretch the
imagination to think that the police report would have been the
straw that would have broken the camel's back, when that withheld
evidence would have enabled Watkins to develop a plausible and
20To the extent that the majority is suggesting that to show
prejudice Watkins was required to introduce expert testimony
showing that competent counsel would have used the withheld police
report at his trial, it offers no authority to support such a
requirement, nor does the state itself advance any such argument.
Maj. Op. at 25–26.
21Although my analysis has focused on the prejudicial impact
of the prosecution's withholding of the police report, I note that
this conclusion is only reinforced by the evidence contained in
the transcript of Rudolph's dangerousness hearing -- also the
subject of a Brady claim by Watkins. That transcript shows that
at that hearing, Rudolph had, in his telling, unsuccessfully
"s[ought] not to be held" without bail by claiming that "the only
reason why" he had a firearm was that he was "involved in a murder
case" and was "being threatened" as a result. Upon being denied
bail, Rudolph remarked to the judge, "[s]o, now what happens when
the murder case comes up? Am I to come to court bright eyed and
bushy tailed and testify against somebody else after this? That's
not fair, your Honor. It's not fair."
- 58 -
coherent account of why Rudolph was not to be believed that Watkins
otherwise could not make.22
That is not to say that we may lightly find that a
failure to disclose evidence in a timely manner is prejudicial for
Brady purposes. It is to say that we must not construe Brady's
prejudice prong so strictly that it becomes, in effect, an
automatic means of excusing concerning law enforcement practices
that remain too frequent. See, e.g., United States v. Nejad, 487
F. Supp. 3d 206, 213-14, 225–26 (S.D.N.Y. 2020).
We recently recognized the need to be attentive in
applying Brady's prejudice prong to the ways that impeachment
evidence can shift a jury's thinking in a case that heavily depends
on the testimony of a cooperating witness. See Flores-Rivera v.
United States (Flores II), 16 F.4th 963, 965, 967–69 (1st Cir.
2021); Flores I, 787 F.3d at 18.23 If we are just as attentive to
22 I note that the state makes no contention that the other
evidence on the record against Watkins was in and of itself so
overwhelming that he cannot show the requisite prejudice for that
reason alone. See Smith v. Cain, 565 U.S. 73, 76 (2012)
("[E]vidence impeaching an eyewitness may not be material if the
State's other evidence is strong enough to sustain confidence in
the verdict."); Wood v. Bartholomew, 516 U.S. 1, 8 (1995); United
States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990) (observing that
arguments not developed on appeal are deemed waived).
23The majority suggests that Flores II and Watkins's case are
worlds apart due to the evidence in the record here that
corroborated a key witness's account against Watkins. Maj. Op. at
33–35. But, even though the record in Flores II contained video
evidence that could have inculpated the defendant there, we still
found that the defendant had shown the requisite prejudice from
being denied access to evidence she was entitled to see because of
- 59 -
the possible power of impeachment evidence to undermine confidence
in a verdict here, then I am convinced that -- given that in this
case, too, a single cooperating witness's testimony looms
large -- we must conclude that Watkins has proved the prejudice
that Brady requires. For that reason, I am convinced that "law
and justice" require that we grant his federal habeas petition.
Shinn v. Martinez Ramirez, No. 20-1009, 2022 U.S. LEXIS 2557, at
*18 (U.S. May 23, 2022) (quoting Brown, 142 S. Ct. at 1524).
I therefore respectfully dissent.
how much the case hinged on the testimony of cooperating witnesses.
16 F.4th at 968-69.
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