In Re: Bader v.

United States Court of Appeals
For the First Circuit
No. 05-2587
SETH BADER,
Petitioner, Appellant,
v.
WARDEN, NEW HAMPSHIRE STATE PRISON,
Respondent, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Joseph A. DiClerico, U.S. District Judge]
Before
Boudin, Chief Judge,
Cyr and Stahl, Senior Circuit Judges.
B. Michael Cormier for petitioner.
N. William Delker, Senior Assistant Attorney General, Criminal
Justice Bureau, with whom Kelly A. Ayotte, Attorney General, was on
brief for respondent.
May 25, 2007
BOUDIN, Chief Judge. Vicki Bader--ex-wife of appellant
Seth Bader--was murdered on August 24, 1996, seemingly in Stratham,
New Hampshire, and her body was found in a grave in Waterboro,
Maine, on April 10, 1997. Police were led to the body by 14-year-
old Joseph Bader, who was Seth's adopted son and biological cousin.
In December 1997, Joseph agreed with the state to enter a plea of
"true" to a juvenile delinquency petition, confessing that he
assisted in helping Seth murder Vicki.
At Seth's trial in April and May 1998 in New Hampshire
state court, Joseph testified against Seth for four trial days.
The gist of the testimony was that Seth and his girlfriend Mary
Jean Martin had plotted to murder Vicki; that Seth had hired Sandro
Stuto to assist in the murder and to dispose of Vicki's car; that
Seth had traveled to Maine with Joseph a few days before the
murder, located a spot in the woods and dug a grave; and that
Joseph had kept Seth's younger son outside the house while the
murder was committed.
Joseph did not claim to have witnessed the murder, but,
according to his testimony, he had been called back into the house
by Stuto after the murder and witnessed his adoptive father
emerging from the basement with a rifle barrel and a spent casing;
Joseph had then helped clean up the blood. Joseph also testified
that Seth had told him earlier that he (Seth) would shoot Vicki.
Joseph further testified that he had then helped Seth transport and
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bury Vicki's body in Maine and that on the way home he and Seth had
gone shopping for new clothes.
The prosecution offered records of Seth's mobile phone to
show calls from Maine on the date of Vicki's death. Credit card
records showed Seth's card had been used that day to purchase pants
in two different sizes, one pair of shoes and other items. Seth
did not testify at his trial but the prosecution played a recording
of a police interview for the jury in which Seth, while denying
guilt, conceded that he might have driven with Joseph to Maine that
day because of the good weather.
Stuto testified that on the day of the murder, he,
Martin and Seth met together in the afternoon and agreed that Stuto
would dispose of Vicki's car after the murder, leaving it at a
bookstore. Seth and Stuto drove to the bookstore and then
proceeded to Seth's house where, according to Stuto, Seth shot
Vicki.1 At trial the defense sought to call Martin, who refused to
testify.
Although the state primarily relied on the testimony of
Joseph and Stuto, other evidence in addition to the mobile phone
and credit card records was offered. Vicki's lawyer testified as
to Seth's aggressive efforts to reduce his financial obligations to
1
While in prison Stuto apparently recanted, saying that Joseph
had murdered Vicki in exchange for sexual favors from Martin and
that Seth had nothing to do with the murder. The district court
decided that Bader's habeas claim based on this recantation had no
merit, and this issue is not before us.
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Vicki and to secure custody of their children. In tape recordings
of phone calls with Vicki, Seth expressed his obsession with
holding onto and pleasing Martin and stated that Martin had said
she would leave Seth unless he won the alimony and custody
litigation.
A woman who regularly cleaned Seth's house testified to
prior statements that Seth and his girlfriend wished Vicki were
dead. Vicki's doctor said that Vicki had told him that she
remained overweight so that her body would be difficult to move if
she were killed. The prosecution also sought to connect Seth with
a pipe bomb planted in Vicki's mailbox; one witness testified to
Seth having a bomb-making book in his home.
The defense sought to discredit both Joseph and Stuto,
emphasizing that Stuto had reached a deal for only five years in
prison and that Joseph would do no time in prison. It offered
evidence of Martin's deceptive character, her links to Joseph, and
Joseph's hostility towards Vicki. It also attempted to raise
doubts about the state's theory.2 In closing, the defense offered
an alternative theory that, without Seth's involvement, Martin had
2
For example, the defense argued that Joseph's testimony about
the time of the murder could not be true because Joseph's testimony
that Seth and Stuto arrived at the Stratham, New Hampshire, house
around 3 p.m. seemed to conflict with the fact that Seth had been
cited for a traffic violation around 2:30 p.m. in Massachusetts.
The defense also noted that Joseph testified to several items that
should have been found buried with the body, but were not.
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convinced Joseph to do the killing and that both Joseph and Martin
stood to benefit from killing Vicki and framing Seth.
The jury convicted Seth of first-degree murder and
conspiracy to murder, and he was sentenced to life imprisonment on
the murder charge. The New Hampshire Supreme Court affirmed his
conviction. State v. Bader, 808 A.2d 12 (N.H. 2002). After Seth's
trial, juvenile court hearings were held to track Joseph's
progress; but Joseph never spent any time in a correctional
facility.
In October 2002, Seth filed the present habeas case in
federal district court. He claimed, inter alia, that in violation
of Brady v. Maryland, 373 U.S. 83 (1963), the prosecution had made
but did not disclose to the defense a leniency-for-testimony deal
for Joseph's testimony, which could have been used to impeach
Joseph at trial. Giglio v. United States, 405 U.S. 150, 154-55
(1972). Seth now conjectures that the agreement might have been
kept secret from Joseph himself.
The issue whether any agreement existed had been
elaborately explored in the state proceedings. In September 1997,
prior to Seth's trial, the defense filed a motion for discovery of
"all details of all agreements and understandings with" Joseph or
other co-defendants. When in December 1997 Joseph agreed to plead
guilty in the juvenile proceedings, the state got court permission
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and then disclosed to Seth's lawyers Joseph's juvenile court
records.
On March 26, 1998, after Seth's trial had begun, he filed
a second motion for discovery, this time asking for all records
relating to communication between the Attorney General's office and
Joseph's attorneys and documents relating to charging decisions
made by the Attorney General's office. Defense counsel also made
oral motions at trial. In response, the judge ordered that "all
documents in the file(s) relating to the juvenile filed in the
Family Court," including notes from therapists, be provided to the
court.
The trial judge then reviewed in camera the documents
that the state had provided. After this review, on April 9, 1998,
the state judge determined that the record did not contain any
material "which is exculpatory, essential to the defendant
receiving a fair trial, or which relate[s] to any understandings or
agreements relative to plea decisions or other information which
can be construed as Giglio materials."
The prosecutor reaffirmed on April 10, 1998, that the
state had disclosed all agreements with Joseph and his attorneys.
The judge nevertheless ordered expedited access to the transcript
of Joseph's plea hearing, which had occurred in December 1997.
Although defense counsel inferred from tapes of that hearing that
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a leniency-for-testimony agreement existed,3 the trial judge
listened himself and ruled that there was no evidence of a deal
requiring Joseph to testify at Seth's trial.
At Seth's trial, the judge let Seth's trial counsel
cross-examine Joseph about any such deal. Joseph admitted that his
plea agreement meant that he would not be incarcerated even for
"one second," that the disposition hearing in his case would not
occur until after Seth's trial, and that the juvenile court would
know of his testimony in Seth's trial. But Joseph said that he had
not made any agreement to testify.4
Nevertheless, on his state appeal, Seth argued to the New
Hampshire Supreme Court that Joseph's plea agreement was contingent
on his testifying against Seth and that the trial court had erred
in finding to the contrary. In rejecting the appeal, the court
said:
There is no evidence in the extensive record
in this case to support a conclusion that the
trial court erred either in its finding
following the in camera review or in its
3
Defense counsel noted that at the juvenile plea hearing a
state attorney stated that "Joseph will be testifying" in Seth's
trial. But this was not listed as a term of the plea agreement,
but rather as part of a time line relating to Joseph. When the
juvenile court judge explained the agreement to Joseph, he made no
mention of testifying.
4
Shown a transcript of the plea agreement, he backtracked
somewhat; but in fact, the transcript confirms that the prosecutor
told the juvenile court only that Joseph was expected to testify
against Seth--not that this was a term of the plea agreement or in
exchange for leniency.
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finding of no evidence of a "sine qua non"
[sic] on the part of the State in return for
Joseph Bader's testimony. . . . Accordingly
the defendant cannot prevail in his effort to
secure a new trial on this issue as he has
failed to "prove that the prosecution withheld
evidence that is favorable and material."
Bader, 808 A.2d at 22-23 (citations omitted).
In federal habeas proceedings directed to state
prisoners, the federal statute provides that findings by the state
court are conclusive unless overcome by clear and convincing
evidence. 28 U.S.C. § 2254(e)(1) (2000). The district court
initially dismissed Seth's Brady claim as one previously litigated
and resolved, adding that Joseph could not have been influenced in
his testimony if a deal had existed but been kept secret from him.
Seth then discovered that a social worker had kept notes
of a November 26, 1997, meeting attended by Joseph's public
defenders, his social workers and a state prosecutor. Shortly
after the district court dismissed Seth's habeas petition, Seth
sought reconsideration, accompanying the motion with affidavits
from one of his own trial lawyers saying that he had not known of
the November 26, 1997, meeting. The notes kept by one of the
social workers attending the meeting said
Joe will be charged with conspiracy to commit
murder. It would be appropriate to do
accomplice but that would mean being certified
as an adult and life in prison . . . Want a
plea of true [guilty] at the Dec. 8 arranmnet
[sic]. Do NOT want to do the dispositional
[sentencing] before the [petitioner's]
criminal trial. . . . Attys. for Joe
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advocating strongly for a change to a minor
charge . . . .
The district court reopened the habeas proceeding, and
Seth filed a proposed discovery plan seeking to depose the three
social workers who had attended the meeting and also various
lawyers, including the prosecutors. The district court found the
plan overbroad because it covered unrelated issues but approved a
second plan by Seth's counsel to depose the social workers.5
The depositions occurred, and the social workers recalled
that the prosecutor had said that he wanted Joseph to plead guilty
before Seth's trial and be sentenced afterwards and that they
understood that Joseph was expected to testify at Seth's trial.
However, they also recalled no agreements--either for leniency in
exchange for testimony or for anything else--being made at the
November 26, 1997, meeting.
Seth's counsel then sought to depose the lawyers who had
attended the meeting, including the prosecutor, but the district
court refused, saying that there was no good cause for further
discovery. The judge repeated that if there had been a deal
between prosecutor and defense counsel but this was unknown to
Joseph--as Seth now suggested--it could not have affected his
5
In Bader's revised discovery motion, he stated that "the
three social workers can claim no privilege of any sort, are not
committed to any prior statements, and presumably are unfamiliar
with any legal theories of this case. They are the most likely of
the meeting's participants to offer unvarnished recollections."
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testimony and so could not undermine the court's confidence in the
verdict.
The district court granted a certificate of appealability
limited to the supposed agreement. Seth argues to us (under
several headings) the same central claim: that the district court
erred in granting summary judgment against him because there
remained a genuine issue of fact requiring resolution in an
evidentiary hearing, namely, whether the prosecutors concealed a
leniency-for-testimony deal with Joseph or at least with his
lawyers. Seth relies in particular on Townsend v. Sain, 372 U.S.
293 (1963).
Townsend, 372 U.S. at 313, laid out a broad right of de
novo federal fact-finding for state prisoners. But it was
significantly qualified by later case law and congressional action
leaving the circuit courts in some uncertainty.6 In all events,
just this month the Supreme Court, glossing Townsend itself, has
made clear that the "decision to grant an evidentiary hearing [is]
generally left to the sound discretion of district courts."
Schriro v. Landrigan, No. 05-1575, 2007 WL 1387923, at *5-*6 (U.S.
May 14, 2007).
6
See Keeney v. Tamayo-Reyes, 504 U.S. 1 (1992); Antiterrorism
and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, §
104(4)(e), 110 Stat. 1214. Compare Campbell v. Vaughn, 209 F.3d
280, 287 (3d Cir. 2000), cert. denied, 531 U.S. 1084 (2001), with
Conaway v. Polk, 453 F.3d 567, 582 (4th Cir. 2006).
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In all events, Seth has no clear and convincing evidence
of an actual agreement, made between the prosecutors and defense
counsel, by which Joseph would testify in exchange for leniency.
Absent evidence that, if accepted, could overcome the powerful
presumption in favor of the state-court finding, there is nothing
to be tried in an evidentiary hearing. Thus, the real issue is not
the right to an evidentiary hearing but whether Seth is entitled to
more discovery than he got. See Blackledge v. Allison, 431 U.S.
63, 81 (1977).
In civil matters including habeas, evidentiary
proceedings are appropriate only where the party bearing the burden
of proof on an element starts with enough evidence to create a
genuine issue of fact; otherwise summary judgment is proper.
Anderson v. Attorney Gen. of Kan., 425 F.3d 853, 860 (10th Cir.
2005). Seth recognizes the distinction, arguing in his brief that
the question is not whether he now has enough evidence but whether
he should be entitled to depose more witnesses in order to get it.
Rule 6 of the Rules Governing Section 2254 Cases provides
that in habeas proceedings "[a] judge may, for good cause,
authorize a party to conduct discovery under the Federal Rules of
Civil Procedure and may limit the extent of discovery." Bracy v.
Gramley, 520 U.S. 899, 904 (1997), stated that "[a] habeas
petitioner, unlike the usual civil litigant in federal court, is
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not entitled to discovery as a matter of ordinary course." Quoting
Harris v. Nelson, 394 U.S. 286, 300 (1969), the Court explained:
[W]here specific allegations before the court
show reason to believe that the petitioner
may, if the facts are fully developed, be able
to demonstrate that he is . . . entitled to
relief, it is the duty of the court to provide
the necessary facilities and procedures for an
adequate inquiry.
Bracy, 520 U.S. at 908-09.
However, Bracy also said that "the scope and extent of
such discovery is a matter confided to the discretion of the
District Court." Id. at 909. Since the 1996 statutory changes,
circuit courts have continued to apply Bracy. E.g., Newton v.
Kemna, 354 F.3d 776, 783 (8th Cir.), cert. denied, 543 U.S. 979(2004) (denial of discovery reviewed "for an abuse of discretion");
Pham v. Terhune, 400 F.3d 740, 741 (9th Cir. 2005) (same).
In this case the context for the district judge's
decision on discovery is that the state court had found there was
no evidence of an agreement. What Seth's habeas counsel recently
found was evidence of a specific meeting between Joseph's lawyers
and the prosecutors. But all this shows is an occasion on which a
leniency-for-testimony agreement might have been made or disclosed.
And, when the three social workers were deposed, they said there
was no agreement made or disclosed at the meeting. This was hardly
clear and convincing evidence that the state finding had been
wrong.
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Just as the district judge had latitude to allow initial
discovery as to the previously unknown meeting, he also had
latitude to call a halt when three disinterested witnesses said
that no such agreement had been made. As Seth stated in his
discovery plan: "The prosecutor is unlikely to change his story
unless confronted with detailed accounts of the meeting by other
participants." The detailed accounts turned out to support the
prosecutors' prior consistent denials.
Seth also attacks the district judge's alternative ground
for bringing matters to a close, namely, that Joseph could not have
been influenced in his testimony by a deal of which he was unaware.
This inference may go too far: a promise to Joseph of leniency in
exchange for testimony would be the best basis for discrediting
Joseph. But, even if Joseph were unaware of a commitment only to
his lawyers, they might have encouraged him to help the government.
Yet this qualification is dwarfed by the reality that
regardless of any "agreement," secret or otherwise, Joseph already
had ample reason to tailor his testimony to please the prosecutor:
his plea was before Seth's trial, disposition came afterwards, and
Joseph had reason to please prosecutors who might have a persuasive
voice as to his sentence. But all this was known at the time of
Seth's trial and Joseph was subject to full cross-examination as to
the details of his testimony and his own motives in helping the
prosecution. See Kyles v. Whitley, 514 U.S. 419, 435 (1995)
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(noting that the government's non-disclosure of evidence must have
had a "substantial and injurious effect or influence in determining
the jury's verdict").
Faced with conflicting stories, the jury chose to believe
Joseph. Whether a secret leniency agreement, unknown to Joseph,
would have added much to available impeachment, may be open to
doubt. But in any event, the district judge did not abuse his
discretion in limiting discovery.
Affirmed.
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