Jimmy Baugh v. Noah Nagy

NOT RECOMMENDED FOR PUBLICATION
File Name: 22a0393n.06
No. 21-1844
UNITED STATES COURT OF APPEALS
FILED
Sep 30, 2022
FOR THE SIXTH CIRCUIT
DEBORAH S. HUNT, Clerk
)
JIMMY BAUGH,
)
Petitioner - Appellant, )
) ON APPEAL FROM THE
v. ) UNITED STATES DISTRICT
) COURT FOR THE EASTERN
NOAH NAGY, Warden, ) DISTRICT OF MICHIGAN
Respondent - Appellee. )
) OPINION
Before: GUY, MOORE, and CLAY, Circuit Judges.
CLAY, J., delivered the opinion of the court in which MOORE, J., joined. GUY, J.
(pp. 28–32), delivered a separate dissenting opinion.
CLAY, Circuit Judge. Petitioner Jimmy Baugh was convicted of first-degree felony
murder for the 2001 killing of Craig Landyczkowski (“Land”) and sentenced to life in prison. See
Mich. Comp. Laws § 750.316(1)(b). His conviction was based almost exclusively on the
testimony of his codefendant, Robert Kwasniewski. Michigan courts affirmed Baugh’s conviction
and sentence, and we denied Baugh habeas relief. After fourteen years in custody, Baugh
discovered a never-before-seen statement that contradicted the material allegations of
Kwasniewski’s testimony. Michigan courts again provided no relief, so Baugh petitioned this
court for leave to file a second or successive habeas petition, which we granted. The district court
conducted an evidentiary hearing, then dismissed Baugh’s petition. For the reasons set forth
below, we REVERSE the district court’s dismissal of Baugh’s petition and GRANT Baugh a
conditional writ of habeas corpus that will result in the vacation of his conviction and sentence
No. 21-1844, Baugh v. Nagy
unless the state of Michigan commences a new trial against him within 90 days after this judgment
becomes final.
BACKGROUND
Factual Background
On December 3, 2001, Land left his Detroit home to buy beer. After Land purchased beer
from a convenience store, he began riding his bike toward the intersection of Hayes and Novara
Streets. A stolen Jeep veered in front of Land. The person in the front passenger seat exited the
vehicle and told Land to hand over his money. When Land did not immediately comply, the thief
shot Land in the leg with a .22 caliber bullet. Land fell to the ground and threw $29 in the direction
of the shooter. (Id.) At this time, another vehicle started driving toward Land and the Jeep. The
driver of the Jeep panicked and pressured the shooter to get back in the vehicle. The shooter fired
one more bullet at Land, which struck his aorta. The shooter got back in the Jeep, which sped
from the scene. Land died a few minutes later.
The next day, law enforcement arrested Robert Kwasniewski, Jimmy Baugh, Ricky Sailes,
and Lafayette Dearing for an unrelated carjacking. Police found a .22 caliber shell casing in
Kwasniewski’s pocket. While they were detained, Kwasniewski and Baugh both made statements
to Detective JoAnn Miller of the Detroit Police Department regarding Land’s murder. According
to Kwasniewski, Kwasniewski stole the Jeep and picked up Baugh, who “was a hundred dollars
short on his rent and needed to hit a lick.” (First Prelim. Exam. Tr., R. 10-2, PageID #237.) After
finding a target, Kwasniewski stopped the Jeep, Baugh jumped out from the passenger seat, and
robbed that person with a handgun. After this first robbery, Kwasniewski alleged Baugh spotted
Land as a potential target and told Kwasniewski to follow him to “see what [he] got.” (Id., PageID
#239.) After following Land for a bit, Baugh allegedly told Kwasniewski to hit Land with the
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Jeep. Instead, Kwasniewski “pulled in front of him, sort of blocking him in.” (Id., PageID #240.)
According to Kwasniewski’s statement, Baugh then “rolled down the window” and directed Land
to hand over his money. (Id.) When Land hesitated, Baugh shot Land. Land “fell and threw his
money” toward the Jeep. (Id.) Baugh exited the Jeep “to get the money” and he “let off another
shot.” (Id.) A white van appeared, so Baugh “jumped in the Jeep and mashed off.” (Id.) As they
escaped, Baugh fired two shots at the van. In sum, Kwasniewski’s statement to the police indicated
he was the driver and that Baugh first shot Land from inside the Jeep and fired the second, fatal
shot, from outside the Jeep.
Baugh’s account of the murder was markedly different. According to Baugh, Kwasniewski
and Lafayette Dearing, an accomplice in the December 4 carjacking, stole the Jeep. Dearing was
the driver, Kwasniewski was in the front passenger seat, and Baugh was in the back seat. They
“stopped at [a] gas station on Seven Mile [Road] and Hayes [Street].” (Id., PageID #255.)
Kwasniewski went into the gas station and noticed that Land “got some loot on him.” (Id.) Against
Baugh’s protest, Kwasniewski and Dearing agreed to rob Land. Baugh recalled Land walking
from the gas station, not riding a bike. As Dearing drove the Jeep toward Land, Kwasniewski
rolled down the passenger window to initiate the robbery. Dearing cut off Land with the Jeep.
Kwasniewski exited the vehicle from the front passenger seat and attacked him. Land “swung the
bag he was carrying at [Kwasniewski].” (Id.) “That’s when [Kwasniewski] shot him.” (Id.) Land
“fell, [Kwasniewski] got back in the truck[,] and [Dearing] drove off.” (Id.) Dearing spotted a
van or truck following them, but he evaded it. In essence, Baugh’s account indicated Dearing was
the driver, Kwasniewski was the shooter, and Baugh was a backseat passenger who wanted no
involvement in the robbery.
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Procedural Background
With these two statements, Michigan prosecutors charged Kwasniewski and Baugh with
first-degree felony murder, being a felon in possession of a firearm, and possession of a firearm
during the commission of a felony. On April 24, 2002, the Thirty-Sixth District Court of Michigan
conducted a preliminary examination hearing for Baugh and Kwasniewski. Because they were
codefendants, the court permitted Kwasniewski’s statement to be used only against Kwasniewski,
and Baugh’s statement to be used only against Baugh. The state called Ricky Sailes, the
codefendant from the December 4, 2001, carjacking charge. The prosecutor asked Sailes if he
knew Baugh or Kwasniewski, to which Sailes replied “no.” Sailes was then dismissed. Based
only on Kwasniewski’s statement, the district court found probable cause to believe that
Kwasniewski had committed first-degree felony murder. However, considering only Baugh’s
statement, the district court held the state’s case lacked probable cause against Baugh and
dismissed the first-degree felony murder charge without prejudice.1
Shortly thereafter, on June 20, 2002, the state offered Kwasniewski a plea agreement in
which the state would dismiss Kwasniewski’s carjacking charges in another suit and reduce his
charge to second-degree murder instead of first-degree murder, leaving him subject to 18 to 40
years’ imprisonment instead of the possibility of a life sentence. The state conditioned
1
Michigan Court Rule 6.110(F) concerns discharge of defendants when the judge finds no probable cause
and provides that:
If, after considering the evidence, the court determines that probable cause does not exist
to believe either that an offense has been committed or that the defendant committed it, the
court must discharge the defendant without prejudice to the prosecutor initiating a
subsequent prosecution for the same offense or reduce the charge to an offense that is not
a felony.
M.C.R. 6.110(F).
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Kwasniewski’s plea offer on his willingness to testify against Baugh. Kwasniewski accepted the
deal.2
On July 18, 2002, the Thirty-Sixth District Court of Michigan conducted a second
preliminary examination for Baugh. Kwasniewski testified against Baugh this time, implicating
Baugh as the shooter. His testimony differed from his earlier written statement in that he testified
that Baugh exited the Jeep before directing Land to hand over his money. With the addition of
Kwasniewski’s testimony, the court found probable cause to believe Baugh had committed first-
degree felony murder and bound over his case for trial.
Baugh proceeded to a jury trial, which began on January 13, 2003. Just before the trial
began, the prosecutor submitted a surprise written statement from Kwasniewski’s mother. Her
statement said that the day after Land’s homicide she heard Baugh “bragging about shooting this
guy, and how he fell, and he robbed him of his chain.” (Jury Trial Tr., R. 10-7, PageID #376.)
The court asked the prosecutor why he was submitting the statement “so late,” and he replied,
“You know, Judge, because [Kwasniewski’s mother] didn’t really say much at the investigator
subpoena. And I guess I forgot about it.” (Id., PageID #382.) The court permitted the prosecution
to use the statement. Additionally, the court did not allow defense counsel to inform the jury of
the substantial nature of Kwasniewski’s plea bargain, which supplanted a mandatory life sentence
with a sentence of 18 to 40 years.
In a third blow to Baugh’s defense, his trial counsel, James O’Donnell, intended to
introduce into evidence a statement that an eyewitness to the murder, Gerves Crawford, made to
the police at the scene, which seemingly implicated Kwasniewski as the shooter. Shortly before
2
Kwasniewski served over 20 years in custody on his second-degree murder sentence and was discharged
on May 5, 2022. See https://mdocweb.state mi.us/OTIS2/otis2profile.aspx?mdocNumber=309136.
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trial, the prosecutor shared his witness list with O’Donnell, which indicated that the prosecution
intended to call Crawford to testify. Believing that he would have an opportunity to cross-examine
Crawford, O’Donnell never identified Crawford as a witness for the defense. During a recess in
the middle of opening statements, the prosecutor surprised O’Donnell by asking the court to
exclude Crawford’s statement because Crawford had recently passed away. No one had ever
notified O’Donnell that the only eyewitness besides Kwasniewski had died.3 The court excluded
Crawford’s statement.
During the trial, Detective JoAnn Miller took the witness stand. She read into evidence a
statement she prepared on March 15, 2002, following her interview with Baugh. As mentioned
above, Baugh told Detective Miller that Dearing drove the Jeep, Kwasniewski was the shooter,
and Baugh was the backseat passenger. After Detective Miller’s testimony, Kwasniewski took the
stand. He, too, testified in conformity with his previous testimony at Baugh’s second preliminary
examination that he was the driver and Baugh was the shooter. Kwasniewski further alleged that
Baugh used a .22 caliber pistol to shoot Land.
Ultimately, a jury found Baugh guilty of first-degree felony murder. At his sentencing,
Baugh maintained his innocence stating, “I am not the shooter. The shooter got away. The shooter
is the one who said I did the killing.” The trial court acknowledged that “[t]he jury elected to give
a lot of weight to the credibility of Mr. Kwasniewski’s testimony[.]” (Sent’g Tr., R. 10-11, PageID
#1054.) For his first-degree felony murder conviction, Baugh was sentenced to life in prison.4
3
Because Crawford’s statement is inadmissible, the content is not relevant to the following analysis.
Nevertheless, as explained below, the prosecution’s scrupulous tactic of withholding the fact that Crawford died is
relevant to whether Baugh has satisfied his burden of proving the prosecution suppressed evidence favorable to
Baugh’s defense.
4
Baugh was sentenced to two to five years’ imprisonment for his felon in possession conviction and a two-
year consecutive sentence for his felony firearm conviction.
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Baugh’s conviction and sentence were affirmed on direct appeal and the Michigan
Supreme Court declined to review his case. People v. Baugh, No. 247548, 2004 WL 2412692(Mich. Ct. App. Oct. 28, 2004) (per curiam) (unpublished); People v. Baugh, 705 N.W.2d 29(Mich. 2005). Baugh then sought relief from judgment, which was denied by the trial court, the
Michigan Court of Appeals, and the Michigan Supreme Court. See People v. Baugh, No. 280250
(Mich. Ct. App. November 16, 2007); People v. Baugh, 750 N.W.2d 188 (Mich. 2008). Baugh
next filed a habeas petition pursuant to 28 U.S.C. § 2254, which the district court denied and
declined to issue a certificate of appealability. Baugh v. Palmer, No. 2:08-CV-13033, 2010 WL
3623175, at *13 (E.D. Mich. Sep. 15, 2010).
Parallel to Baugh’s proceedings, Ricky Sailes was among the four individuals arrested for
carjacking on December 4, 2001 (i.e., the day after Land’s murder). Sailes pleaded guilty to
carjacking and served approximately 13 years in prison. In approximately 2013, Sailes was
released from prison, and was discharged from parole in 2015. In December 2015, Sailes allegedly
mailed Baugh a statement that Sailes had made to Detective Miller on March 16, 2002, the day
after Baugh made his statement to same detective. Sailes’s statement provides:
Q. What can you tell me about the shooting on Navara and Hayes?
A. . . . [Kwasniewski] told me he had shot a white guy on Navara and Hayes. He
told me Jimmy was driving and they pulled up on the white guy. He said he ask[ed]
him for his money[.] He said the white guy didn’t give him all of his money. The
white guy started to run and [Kwasniewski] shot him. After he fell to the ground
the white guy gave him all the money. Then Jimmie Baugh drove off.
Q. What kind of gun did [Kwasniewski] have?
A. A .22 he called Peggy Sue.
...
Q. Did [Kwasniewski] say how many times he shot the man?
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A. No.
Q. Who was with you when [Kwasniewski] told you this?
A. It was me, Jimmie Baugh and Lafayette Dearing.
Q. Where is the gun now?
A. I don’t know. The last time I saw it was the night of the carjacking.
Q. Did [Kwasniewski] say why he shot the man?
A. No.
Q. Did Jimmie say anything while [Kwasniewski] was telling you this?
A. Jimmie said [Kwasniewski] shot the guy and he drove off.
(Sailes’s Statement, R. 1, PageID ##18–19.) In short, Kwasniewski told Sailes that Baugh was
driving the Jeep and Kwasniewski shot and killed Land.
On January 28, 2018, Baugh contacted his trial attorney, O’Donnell, asking if he was aware
of Sailes’s statement. In his letter to O’Donnell, Baugh stated that he had
meticulously taken care of every piece of paperwork generated in relation to the
Felony Murder case. Yet, it has recently come to my attention that there was a
statement . . . which directly contradicts the statement and testimony given by the
prosecution’s sole eyewitness in this case[, Kwasniewski]. I have methodically,
over the past several days, went through every piece of paper that I have, and I do
not have nor do I remember ever having this statement. Neither does the transcripts
from either Preliminary Examination or the trial indicate that a statement by [Sailes]
was ever entered into evidence.
(Baugh Letter to O’Donnell, R. 10-13, PageID #1156.) O’Donnell immediately responded that he
no longer possessed Baugh’s case file, but he did not remember any statement from Sailes.
O’Donnell wrote that if he had known of Sailes’s statement, he certainly would have used it to
impeach Kwasniewski.
In a second attempt to verify whether he had previously received Sailes’s statement, Baugh
submitted a Freedom of Information Act request to the Wayne County Office of the Prosecuting
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Attorney. His request was denied “because [it] could not locate the prosecutor’s file.” (FOIA
Denial Letter, R. 10-13, PageID #1166.)
On February 3, 2016, Baugh telephoned his uncle. During the call, Baugh said, “I already
got [Sailes’s statement]. But the thing is I don’t know where I got it from.” (Evid. Hr’g Tr., R.
32, PageID #1698.) The next day, during a call to his nephew, Baugh reiterated, “I was going
through some of my paperwork, and I found a statement that [Sailes] made to homicide where he
told homicide that [Kwasniewski] told him that he did the shooting . . . .” (Id., PageID #1704.)
And again, Baugh stated, “I don’t know who gave it to me. I don’t know if it was in my armed
robbery/carjacking case or if it was in the murder case. But I don’t believe it was in the murder
case.” (Id., PageID #1703.)
In 2016, Baugh again moved the Michigan district court for relief from judgment arguing
that the newly discovered statement undermined confidence in his guilty verdict. The state court
analyzed his claim under People v. Cress, 664 N.W.2d 174 (Mich. 2003), and People v. Grissom,
821 N.W.2d 50 (Mich. 2012), Michigan’s analogues to Brady v. Maryland, 373 U.S. 83 (1963).
The court found that he was not entitled to relief. In reaching this conclusion, the state court held
that under either Kwasniewski’s theory of events or Sailes’s theory of events, Baugh could still be
guilty of first-degree felony murder either as a principal (Kwasniewski’s theory) or an aider and
abettor (Sailes’s theory). The Michigan Court of Appeals and the Michigan Supreme Court
declined to review his case. People v. Baugh, No. 02-8915 (Mich. 3d Cir. Ct. Wayne Cnty. Jan.
27, 2017), appeal dismissed, No. 337811 (Mich. Ct. App. Sept. 15, 2017), appeal denied,
911 N.W.2d 703 (Mich. 2018).
Baugh then sought leave from this Court to file a second or successive habeas petition,
which we granted. In re Baugh, No. 18-1848 (6th Cir. Dec. 17, 2018) (order). The district court
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No. 21-1844, Baugh v. Nagy
held an evidentiary hearing in which Baugh, Sailes, O’Donnell, and Miller testified. Baugh
testified that Sailes mailed him the statement sometime in December 2015. Corroborating Baugh,
Sailes testified that he obtained a copy of the statement and eventually sent a copy to Baugh
because he believed Baugh could benefit from it.
The district court dismissed Baugh’s petition. First, the court found that Baugh could not
have discovered Sailes’ statement earlier through due diligence. However, because there was not
clear and convincing evidence that no reasonable juror would find Baugh guilty if Sailes’s
statement had been introduced, his petition was dismissed under 28 U.S.C. § 2244(b)(2)(B)(ii).
Furthermore, the district court alternatively held that even if it reached the merits of Baugh’s claim,
it would have held the Michigan court’s adjudication of Baugh’s claim was entitled to deference
under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C. § 2254,
and the state courts did not unreasonably apply federal law. Baugh timely appealed.
DISCUSSION
I. § 2244(b)(2)(B) Second or Successive
A. Standard of Review
“In a habeas corpus appeal, we review the district court’s legal conclusions de novo, but
will not set aside its factual findings unless they are clearly erroneous. The standard for reviewing
state-court determinations on habeas, by contrast, is governed by [AEDPA].” Fleming v. Metrish,
556 F.3d 520, 524 (6th Cir. 2009) (quoting Ivory v. Jackson, 509 F.3d 284, 291 (6th Cir. 2007)).
B. Analysis
The first question we must address is what framework applies to our review of Baugh’s
petition. Baugh and the state agree that Baugh’s present petition constitutes a “second or
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successive” habeas petition subject to § 2244(b)’s gatekeeping requirements. We believe this
question requires a closer look.
“[N]ot all second-in-time petitions are ‘second or successive.’” In re Wogenstahl, 902 F.3d
621, 627 (6th Cir. 2018) (quoting In re Coley, 871 F.3d 455, 456 (6th Cir. 2017)). Instead, “[t]he
phrase ‘second or successive petition’ is a term of art,” Slack v. McDaniel, 529 U.S. 473, 486
(2000), and the Supreme Court “has declined to interpret ‘second or successive’ as referring to all
[] applications filed second or successively in time, even when the later filings address a state-
court judgment already challenged in a prior [] application.” Panetti v. Quarterman, 551 U.S. 930,
944 (2007).
To determine whether a second-in-time petition constitutes a “second or successive”
petition, we rely on the abuse-of-the-writ doctrine. See Stewart v. Martinez-Villareal, 523 U.S.
637, 645 (1998); In re Bowen, 436 F.3d 699, 704 (6th Cir. 2006). “The doctrine of abuse of the
writ defines the circumstances in which federal courts decline to entertain a claim presented for
the first time in a second or subsequent petition for a writ of habeas corpus.” McCleskey v. Zant,
499 U.S. 467, 470 (1991). A numerically second petition is “second” when it raises a claim that
could have been raised in the first petition but was not, due to abandonment or neglect. Id. at 489;
Bowen, 436 F.3d at 704. An application is not second or successive if it presents a claim that
would have been unripe if it had been presented in an earlier application. Panetti, 551 U.S. at 945.
Importantly, “a numerically second petition is not properly termed ‘second or successive’ to the
extent it asserts claims whose predicates arose after the filing of the original petition.” In re Jones,
652 F.3d 603, 605 (6th Cir. 2010). “In other words, if ‘the events giving rise to the claim had not
yet occurred’ when the petitioner filed his original habeas petition, his subsequent petition raising
this claim need not meet § 2244(b)’s requirements.” Wogenstahl, 902 F.3d at 627 (quoting Jones,
652 F.3d at 605).
In Wogenstahl we held that Brady claims are subject to § 2244(b)’s gatekeeping
requirements because the factual predicate of the claim—the unlawful withholding of evidence—
occurs before the petitioner files his first habeas petition. Id. at 627; see also In re Jackson, 12
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No. 21-1844, Baugh v. Nagy
F.4th 604, 608 (6th Cir. 2021). We reasoned that “[Wogenstahl’s] claims were not unripe at the
time he filed his initial petition because the purported Brady violations . . . had already occurred
when he filed his petition, although Wogenstahl was unaware of these facts.” Wogenstahl, 902
F.3d at 627–28. Other circuits have reached the same conclusion. In re Will, 970 F.3d 536, 540
(5th Cir. 2020) (per curiam) (“Brady claims raised in second-in-time habeas petitions are
successive regardless of whether the petitioner knew about the alleged suppression when he filed
his first habeas petition.”); Brown v. Muniz, 889 F.3d 661, 674 (9th Cir. 2018) (same); Tompkins
v. Sec’y, Dep’t of Corr., 557 F.3d 1257, 1260 (11th Cir. 2009) (per curiam) (same); but see Douglas
v. Workman, 560 F.3d 1156, 1193 (10th Cir. 2009) (holding that a prisoner’s Brady claim is not
subject to § 2244(b) when the prosecutor purposefully withholds exculpatory evidence.).
Upon further consideration, we respectfully believe that Wogenstahl was incorrectly
decided. Congress’s intention in enacting AEDPA was “to curb the abuse of the statutory writ of
habeas corpus.” H.R. Rep. No. 104-518, at 111 (1996) (Conf. Rep.); see also Panetti, 551 U.S. at
945 (noting the legislative purpose of promoting “finality”). But under Wogenstahl, we do not
further this purpose. Instead, Wogenstahl incentivizes prisoners to bring Brady claims without any
evidence or else risk having a potential Brady claim reviewed under the heightened “second or
successive” standards. This system “pit[s] the petitioner’s interest in vigorously presenting the
argument against counsel’s interest in preserving their professional reputation[.]” In re Hanna,
987 F.3d 605, 615 (6th Cir. 2021) (Moore, J., dissenting).
We find it “illogical” to hold that the abuse of the writ doctrine is abused when a petitioner
seeks vindication for a previously unknown Brady violation. Storey v. Lumpkin, 142 S. Ct. 2576,
2578 (2022) (Mem) (Sotomayor, J.). Rather, “[w]here a prisoner can show that the state
purposefully withheld exculpatory evidence, that prisoner should not be forced to bear the burden
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of section 2244, which is meant to protect against the prisoner himself withholding such
information or intentionally prolonging the litigation.” Workman v. Bell, 227 F.3d 331, 335 (6th
Cir. 2000) (en banc) (Merritt, J., dissenting). In fact, Brady claims seem to fall perfectly within
the realm of claims that should not be considered “second or successive.”
Although several other circuits have reached the same conclusion that we did in
Wogenstahl, we likewise are not alone in second-guessing whether such holding was correct. See,
e.g., Scott v. United States, 890 F.3d 1239, 1243 (11th Cir. 2018) (“Though we have great respect
for our colleagues, we think Tompkins got it wrong: Tompkins’s rule eliminates the sole fair
opportunity for these petitioners to obtain relief.”); Gage v. Chappell, 793 F.3d 1159, 1165 (9th
Cir. 2015) (“We acknowledge that Gage’s argument for exempting his Brady claim from the
§ 2244(b)(2) requirements has some merit. . . . But as a three-judge panel, we are bound to follow
[circuit precedent].”); Long v. Hooks, 972 F.3d 442, 487 (4th Cir. 2020) (Wynn, J., concurring)
(expressing doubt that Brady claims should be subjected to § 2244(b)’s gatekeeping mechanism,
but ultimately following circuit precedent that held § 2244(b) applies).
Unfortunately, as ill-guided as Wogenstahl may be, it remains the law of our circuit, Salmi
v. Sec’y of Health & Human Servs., 774 F.2d 685, 689 (6th Cir. 1985), so we must hold that
Baugh’s petition alleging a Brady violation is “second or successive.”
Under § 2244(b)(2)(B), a second or successive claim for habeas relief based on new facts
must be dismissed unless:
(i) the factual predicate for the claim could not have been discovered previously
through the exercise of due diligence; and
(ii) the facts underlying the claim, if proven and viewed in light of the evidence as
a whole, would be sufficient to establish by clear and convincing evidence that, but
for constitutional error, no reasonable factfinder would have found the applicant
guilty of the underlying offense.
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Id. The district court held that Baugh could not have discovered Sailes’s statement through due
diligence, thereby satisfying the first prong, but that there was not clear and convincing evidence
that no reasonable factfinder would have found him guilty. Accordingly, the district court
dismissed Baugh’s current petition.
1. Factual Predicate was Previously Undiscoverable
As a threshold matter, the district court’s factual finding that Baugh could not have
previously discovered Sailes’s statement is reviewed for clear error. Leonard v. Warden, Ohio
State Penitentiary, 846 F.3d 832, 840 (6th Cir. 2017). A finding is clearly erroneous when
although there may be evidence to support it, “[the panel is] left with the definite and firm
conviction that a mistake has been committed.” Caver v. Straub, 349 F.3d 340, 351 (6th Cir. 2003)
(alteration in original) (citation omitted). “If there are two permissible views of the evidence, the
factfinder’s choice between them cannot be clearly erroneous.” Black v. Carpenter, 866 F.3d 734,
744 (6th Cir. 2017) (citation omitted). District courts are afforded “particular deference when its
factual findings are based on credibility determinations.” Satterlee v. Wolfenbarger, 453 F.3d 362,
367 (6th Cir. 2006).
The exact way in which Baugh came into possession of Sailes’s statement is murky. The
district court held an evidentiary hearing at which Baugh, Detective Miller, Sailes, and O’Donnell
each testified. According to Baugh, Sailes waited until December 2015 to send the withheld
statement because Sailes wanted to be out of prison and off probation before he got involved in
Baugh’s case. Baugh also testified that shortly after he received Sailes’s statement, he sent a letter
to O’Donnell asking if O’Donnell was ever aware of such statement. Baugh specifically
mentioned that he kept meticulous records from his criminal cases and that he was unable to locate
Sailes’s statement in his files. He explained at the evidentiary hearing that his purpose for
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contacting O’Donnell despite already obtaining the letter from Sailes was to verify that it was
never in his case file.
O’Donnell corroborated Baugh’s testimony, testifying himself that although he vividly
remembered Baugh’s case, he did not recall ever coming across Sailes’s statement while
representing Baugh. According to O’Donnell, his standard practice was to methodically review
all the evidence shared by the prosecution and “ma[k]e notes on every single document.” (Evid.
Hr’g Tr., R. 32, PageID ##1605–06.) O’Donnell stated that if he had seen Sailes’s statement in
the discovery, he would have used it to argue a different theory of the case or to impeach
Kwasniewski.
Next, Detective Miller testified that she could not remember any of the details of Baugh’s
case, but that her standard practice was to turn over all her interview notes to the prosecutor. She
also verified that Sailes’s statement was written in her handwriting.
Finally, Sailes testified that he corresponded with Baugh in prison as early as 2004. At one
point, Sailes testified that he sent the withheld statement to Baugh while Sailes was still
imprisoned. Later, Sailes testified that he never “ha[d] and opportunity to give [the statement] to
[Baugh]” before his release. (Evid. Hr’g Tr., R. 32, PageID #1574.) When pressed on exactly
when he sent the statement to Baugh, Sailes responded that “[i]t’s possible” that he first mailed it
after he was released from prison. (Id., PageID #1576.)
The state argues that Baugh could have discovered Sailes’s statement earlier if he had
exercised due diligence. To make this point, the state relies almost exclusively on two recorded
prison calls. In the first call from February 3, 2016, Baugh tells his nephew, “I already got [Sailes’s
statement]. But the thing is I don’t know where I got it from.” (Id., PageID #1698.) The next day,
in a second call, Baugh reiterated, “I was going through some of my paperwork, and I found a
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No. 21-1844, Baugh v. Nagy
statement that [Sailes] made to homicide where he told homicide that [Kwasniewski] told him that
he did the shooting . . . .” (Id., PageID #1704.) And again, Baugh stated, “I don’t know who gave
it to me.” (Id., PageID #1704.) Besides these two calls, the state attempts to attack Sailes’s
credibility. It argues that Sailes’s inconsistent testimony regarding when he shared the statement
undermined any notion that the withheld statement was actually mailed to Baugh in December
2015.
We do not find the state’s evidence compelling. First, nothing Baugh said during the two
phone calls is necessarily inconsistent with his testimony. Baugh’s testimony was that Sailes
mailed him the statement in December 2015, several months before he made the calls to his uncle
and nephew. Consistent with that timeline is the fact that Baugh contacted O’Donnell in January
2016 saying he could not find Sailes’s statement in his records. Then, several months later, during
the phone calls with his uncle and nephew, Baugh stated he did not remember where he obtained
Sailes’s statement; which is certainly different than saying he has had possession of Sailes’s
statement since 2004.
In any event, Baugh testified that he was lying to his uncle and nephew because he did not
want to get Sailes tied up in additional criminal proceedings. This explanation is consistent with
Baugh’s other testimony that Sailes waited to contact Baugh until after he was released from prison
and off probation. Surely, if Sailes waited to send the statement to avoid getting tied up with law
enforcement, it is reasonable to accept Baugh’s explanation that he was feigning ignorance as to
where he obtained Sailes’s statement in an attempt to keep Sailes removed from his habeas
proceedings. As further support that Sailes did not want to be involved with Baugh’s case, he
testified at the first preliminary hearing that the did not know Baugh or Kwasniewski, even though
he was a codefendant of theirs in the December 4 carjacking. Moreover, as the district court
16
No. 21-1844, Baugh v. Nagy
properly noted, Baugh had no reason to withhold this evidence until now. Sailes’s statement would
have been a valuable resource during his trial to impeach Kwasniewski or to argue a different
theory of the case.
On balance, we agree with the district court’s finding that Bough could not have discovered
Sailes’s statement earlier through due diligence.5 Because the district court’s finding was not
clearly erroneous, we affirm the fact that Baugh could not have previously uncovered Sailes’s
statement.
2. Clear and Convincing Evidence that No Reasonable Factfinder Would
Find Baugh Guilty
In addition to proving that the evidence could not have been discovered earlier, Baugh must
also demonstrate that Sailes’s statement, “viewed in light of the evidence as a whole, would be
sufficient to establish by clear and convincing evidence that, but for constitutional error, no
reasonable factfinder would have found [Baugh] guilty” of first-degree felony murder. 28 U.S.C.
§ 2244(b)(2)(B)(ii). To be guilty of first-degree felony murder in Michigan, the state must prove:
(1) the killing of a human being, (2) with the intent to kill, to do great bodily harm,
or to create a very high risk of death or great bodily harm with knowledge that death
or great bodily harm was the probable result [i.e., malice], (3) while committing,
attempting to commit, or assisting in the commission of any of the felonies
specifically enumerated in [the statute, including armed robbery].
People v. Carines, 597 N.W.2d 130, 136 (Mich. 1999) (alterations in original). A defendant can
be guilty of felony murder under an aider or abettor theory “by participating in the underlying
offense, i.e., the robbery, and [] the killing was within the scope of the robbers’ common plan.”
5
As an extension of its argument that Baugh did, in fact, have Sailes’s statement earlier than 2015, the state
argues that Baugh’s Brady claim is barred by the statute of limitations and is procedurally defaulted. Essentially, the
state argues that because Baugh had Sailes’s statement in his possession for many years, he has missed the one-year
statute of limitation to file his habeas petition. Similarly, assuming Baugh has always possessed Sailes’s statement,
the state argues that Baugh procedurally defaulted his Brady claim by not raising it in his earlier appeal. Because we
hold Baugh could not have previously discovered Sailes’s statement, these arguments are inapplicable.
17
No. 21-1844, Baugh v. Nagy
Id. The district court helout at because Sailes’s statement still implicated Baugh in the murder of
Land as an aider or abettor—by driving the Jeep to intercept Land’s bike and helping Kwasniewski
flee—no reasonable juror could find Baugh not guilty. We disagree.
At Baugh’s trial, two theories of Land’s murder were advanced. According to
Kwasniewski, who the state court found to be the most important witness, Baugh was the shooter
and Kwasniewski was the driver. Under this theory, Baugh could be guilty of first-degree felony
murder as a principal. The second theory of Land’s murder advanced at trial was offered by
Detective Miller, who read into evidence Baugh’s statement. According to her testimony, Dearing
was the driver, Kwasniewski was the shooter, and Baugh was the unwitting backseat passenger.
In fact, according to Detective Miller’s testimony, Baugh repudiated the criminal conspiracy to
rob Land, saying, “No, man, f**k that.” (Trial Tr., R. 10-8, PageID #697.) Detective Miller even
testified that she did not think Baugh was being untruthful in his statement. Under this theory, a
jury could not find Baugh guilty of first-degree felony murder as a principal, nor could a jury find
Baugh guilty of first-degree murder as an aider or abettor as a backseat passenger with no intent
to join the conspiracy to rob Land. Brown v. Palmer, 441 F.3d 347, 351 (6th Cir. 2006) (citing
People v. Wilson, 493 N.W.2d 471, 476 (Mich. 1992)) (“[M]ere presence, or even knowledge, that
a crime is about to be committed is insufficient to prove guilt under an aiding-and-abetting
theory.”).
Sailes’s statement offers a third theory of the case. According to him, Kwasniewski stated
that Baugh was the driver and Kwasniewski was the shooter. Under this theory, Baugh could be
guilty of first-degree felony murder as an aider and abettor for his involvement cutting off Land
and helping Kwasniewski flee the scene. But of course, at Baugh’s trial, only Baugh’s statement
18
No. 21-1844, Baugh v. Nagy
and Kwasniewski’s testimony offered explanations for Land’s murder. The question before us
now is how Sailes’s statement affects the evidence.
As a threshold matter, Sailes’s statement undeniably is hearsay. In Michigan, hearsay is
defined as “a statement, other than the one made by the declarant while testifying at the trial or
hearing, offered in evidence to prove the truth of the matter asserted.” MRE 801(c). Sailes’s
statement contains an out-of-court statement from Kwasniewski to Sailes, so the statement is
inadmissible to prove the truth of the matter asserted (i.e., that Baugh was the driver and
Kwasniewski was the shooter). However, a statement is not considered inadmissible hearsay if
the statement is inconsistent with the sworn testimony of the declarant. MRE 801(d)(1). Instead,
“[w]hen a witness claims not to remember making a prior inconsistent statement, he may be
impeached by extrinsic evidence of that statement.” People v. Jenkins, 537 N.W.2d 828 (Mich.
1995). But “[t]he purpose of extrinsic impeachment evidence is to prove that a witness made a
prior inconsistent statement—not to prove the contents of the statement.” Id.; People v. Shaw, 892
N.W.2d 15, 26 (Mich. Ct. App. 2016) (“Testimony of the impeaching witness presenting extrinsic
proof should state the time, place, circumstances of the statement and the subject matter of the
statement but not its content.”).
Sailes’s statement alleges that Kwasniewski told Sailes a materially different account of
Land’s murder than what he testified at Baugh’s trial and second preliminary hearing. Because
his statement to Sailes is inconsistent with his in-court testimony, Baugh could introduce Sailes’s
statement for the limited purpose of impeaching Kwasniewski. At the same time, the prosecutor
cannot rely on Sailes’s statement to introduce a third theory of events because Sailes’s statement
is undeniably hearsay. Sailes’s statement would be limited to impeaching Kwasniewski.
19
No. 21-1844, Baugh v. Nagy
The district court held that Sailes’s statement still inculpated Baugh in the murder, which
would lead a factfinder to find Baugh guilty of first-degree felony murder anyway. This assumes
that the jury would hear and rely on the content of Sailes’s statement. However, Baugh’s use of
Sailes’s statement would be limited to attacking Kwasniewski’s credibility and proving that
Kwasniewski’s memory of the murder had changed. And even if the jury did hear the content of
Sailes’s statement, Baugh would be entitled to a limiting instruction providing that Sailes’s
statement should be considered only to assess Kwasniewski’s credibility. Shaw, 892 N.W.2d at
27. “Jurors are presumed to follow their instructions,” People v. Mahone, 816 N.W.2d 436, 439
(Mich. 2011), so we presume the jury would only consider Sailes’s statement for it impeaching
value.
The state had a threadbare case against Baugh with Kwasniewski’s testimony being the
only evidence that inculpated Baugh. Thus, we see no way a jury could find Baugh guilty beyond
a reasonable doubt if Kwasniewski had been properly impeached.
Even if the content of Sailes’s statement were admissible, we would still hold that no
factfinder could find Baugh guilty. Of the three competing theories of Land’s murder, none is
particularly reliable because Kwasniewski, Detective Miller, and Sailes each have serious
credibility problems. Considering Kwasniewski first, his most obvious credibility problem is that
his memory of the murder continues to change. He first told Detective Miller that Baugh fired the
first shot from inside the stolen Jeep. Later he testified that Baugh exited the vehicle then fired
the first shot. And of course, Sailes’s contradicts the material allegations of Kwasniewski’s
testimony. Additionally, Kwasniewski entered a plea agreement with the government in which he
agreed to testify against Baugh. Finally, Kwasniewski must overcome the suspicious fact that he
was arrested with a .22 caliber shell casing in his pocket: the same caliber bullet that was used to
20
No. 21-1844, Baugh v. Nagy
kill Land. Kwasniewski’s credibility problems are made all the worse given that at sentencing,
the trial court acknowledged that “[t]he jury elected to give a lot of weight to the credibility of Mr.
Kwasniewski’s testimony[.]”
Next, Detective Miller also has credibility problems of her own. She took the statements
from Baugh and Sailes on March 15 and 16, 2002, respectively. While she testified that it was her
usual practice to turn over all her investigation notes to the prosecutor, there is no reason to believe
that actually occurred when only one of two the statements made its way to the hands of defense
counsel.
Finally, Sailes also has credibility problems. Sailes faces similar problems as Kwasniewski
in that his prior testimony is largely inconsistent. For example, at times he suggested he mailed
Baugh the withheld statement in 2004 and later he said he mailed the statement in 2015. Moreover,
Sailes faces the additional problem of previously lying under oath when he testified at Baugh’s
first preliminary hearing that he did not know Kwasniewski or Baugh.
In sum, considering Sailes’s statement in light of the other evidence leaves a factfinder to
choose among three competing theories of how Land was murdered offered by three witnesses
who lack credibility. Because Baugh’s statement that he was a backseat passenger cannot support
a first-degree felony murder conviction, and his version of events is just as likely as Sailes’s
statement or Kwasniewski’s testimony, we see no way that no reasonable factfinder could find
beyond a reasonable doubt that Baugh is guilty of first-degree felony murder.
This conclusion is bolstered by the fact that during Baugh’s first preliminary hearing,
where only his statement to Detective Miller was read into evidence, the court dismissed the
charges against him for lacking probable cause. It was only with the addition of Kwasniewski’s
testimony against Baugh that the prosecution demonstrated probable cause. Assuming
21
No. 21-1844, Baugh v. Nagy
Kwasniewski’s testimony would be properly impeached, the case against Baugh again becomes
seriously deficient, especially under the more demanding beyond a reasonable doubt standard.
In conclusion, Sailes’s statement’s significantly attacks Kwasniewski’s credibility, with
Kwasniewski being the state’s only witness inculpating Baugh in Land’s murder. Sailes’s
statement is not admissible for its substantive value, but even if it were, it offers a third competing
theory of how Land was murdered. With the state’s only witness lacking credibility and so much
uncertainty about Baugh’s role, if any, in the murder of Land, no reasonable juror could find
beyond a reasonable doubt that Baugh is guilty of first-degree felony murder.
II. Brady Violation
A. Standard of Review
In habeas appeals, we review the district court’s legal conclusions de novo and its factual
findings for clear error. Fleming v. Metrish, 556 F.3d 520, 524 (6th Cir. 2009). When a state court
has adjudicated the merits of a petitioner’s claims, federal courts must review those claims under
AEDPA’s highly deferential standard. Hendrix v. Palmer, 893 F.3d 906, 917 (6th Cir. 2018).
When a state court does not adjudicate the petitioner’s claims on the merits, AEDPA deference
does not apply, and the claim is reviewed de novo. Stermer v. Warren, 959 F.3d 704, 721 (6th Cir.
2020).
Baugh argues the Michigan courts did not adjudicate his Brady claim on the merits. In
denying his renewed motion for relief from judgment, the Michigan courts only considered
whether withholding Sailes’s statement was a violation of Michigan law. Specifically, the
Michigan courts considered whether the failure to turn over Sailes’s statement was contrary to
People v. Cress, 664 N.W.2d 174 (Mich. 2003), and People v. Grissom, 821 N.W.2d 50 (Mich.
2012); it made no reference to federal law, much less Brady v. Maryland, 373 U.S. 83 (1963).
22
No. 21-1844, Baugh v. Nagy
Baugh argues that because the courts did not address his federal constitutional claim, AEDPA
deference should not apply. The district court rejected this argument and held that despite not
mentioning Brady, the state courts sufficiently adjudicated Baugh’s claim for AEDPA deference
to apply.
Baugh relies on Danner v. Motley, 448 F.3d 372, 376 (6th Cir. 2006), to argue that his
claim was not adjudicated on the merits. However, in Jackson v. Smith, 745 F.3d 206, 209 (6th
Cir. 2014), we explicitly held that the Supreme Court in Harrington v. Richter, 562 U.S. 86 (2011),
overruled Danner. Instead, “[w]hen a federal claim has been presented to a state court and the
state court has denied relief, it may be presumed that the state court adjudicated the claim on the
merits in the absence of any indication or state-law procedural principles to the contrary.” Richter,
562 U.S. at 99. Accordingly, even though Michigan courts did not mention Brady or any federal
law while dispensing of Baugh’s claim, his claim was adjudicated on the merits and the state court
decision is entitled to AEDPA deference.
Under AEDPA, habeas relief shall not be granted unless the state court’s adjudication
“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.” 28 U.S.C.
§ 2254(d)(1); Miller v. Stovall, 742 F.3d 642, 645 (6th Cir. 2014). A state-court decision is
“contrary to” clearly established federal law if it (1) applies a rule that contradicts governing
Supreme Court law; or (2) confronts a set of facts “materially indistinguishable” from a decision
of the Supreme Court and yet arrives at a different result. Williams v. Taylor, 529 U.S. 362, 405–
06 (2000). A state-court decision involves an “unreasonable application” of clearly established
federal law if it (1) correctly identifies the governing legal rule but unreasonably applies it to the
facts of the instant case; or (2) either unreasonably extends an established legal principle to a new
23
No. 21-1844, Baugh v. Nagy
context where it should not apply or unreasonably refuses to extend that principle to a new context
where it should apply. Id. at 407.
B. Analysis
“To establish that a Brady violation undermines a conviction, a convicted defendant must
make each of three showings: (1) the evidence at issue is ‘favorable to the accused, either because
it is exculpatory, or because it is impeaching’; (2) the State suppressed the evidence, ‘either
willfully or inadvertently’; and (3) ‘prejudice . . . ensued.’” Skinner v. Switzer, 562 U.S. 521, 536
(2011) (quoting Strickler v. Greene, 527 U.S. 263, 281–282 (1999)). The state does not dispute
that Sailes’s statement was favorable to Baugh, and we agree. Accordingly, we focus our analysis
on whether the state willfully or inadvertently suppressed Sailes’s statement and whether Baugh
was prejudiced.
1. State Suppression of Sailes’s Statement
The petitioner bears the burden of proving that the state willfully or inadvertently
suppressed exculpatory or impeaching evidence. United States v. Dado, 759 F.3d 550, 559 (6th
Cir. 2014). Evidence is “suppressed” if it was in the “exclusive control of the government” and
either (1) never disclosed to the defendant or (2) “disclosed during trial . . . [and] the defendant
can specifically demonstrate prejudice resulting from the delay[ed disclosure].” McNeill v. Bagley,
10 F.4th 588, 600 (6th Cir. 2021). Below, the district court found “[t]here is substantial reason to
believe that the prosecutor withheld [Sailes’s] statement.” (Op., R. 43, PageID ##1895–98.)
On appeal, the state argues that it did not suppress Sailes’s statement, but that Baugh made
a strategic litigation decision not to mention it until 2015. Under the state’s theory, Sailes’s counsel
opted not to mention the statement because it was additional evidence that implicated Baugh in
Land’s murder.
24
No. 21-1844, Baugh v. Nagy
The state willfully, or at least inadvertently, suppressed Sailes’s statement. As discussed
above, Baugh likely did not have access to Sailes’s statement before Sailes mailed the statement
to Baugh in 2015. Because Sailes’s statement was in the exclusive control of the government and
never handed over to Baugh or his attorney, Baugh has satisfied his burden of proving that the
prosecutor at least inadvertently withheld Sailes’s statement.
The state’s theory that Baugh made a strategic decision not to impeach Kwasniewski with
Sailes’s statement because the statement was so damaging to his defense makes little sense. On
appeal, the state mentions several times that the prosecutor sought to convict Baugh as a principal
or as an aider and abettor. But surely, if Sailes’s statement that Baugh was the driver and
Kwasniewski was the shooter was such strong evidence that Baugh was guilty of felony murder,
the state would have called Sailes to testify and further implicate Baugh in the murder. Instead,
the prosecutor made no mention of Sailes’s statement. In fact, the state had an interest in shoring
up the credibility of Kwasniewski because at Baugh’s first preliminary hearing—at which the state
presented its case against Baugh without Kwasniewski’s testimony—the court found the charges
against Baugh lacked probable cause. It was only by including Kwasniewski’s unimpeached
testimony against Baugh that the state was able to bind over its charges against Baugh. It follows,
then, that if Kwasniewski’s testimony was essential to satisfy the probable cause standard, the state
had an interest in suppressing impeachment evidence that would hamper its ability to meet the
even more demanding beyond a reasonable doubt standard.
Furthermore, the prosecutor in this case had a proclivity to withhold information that would
be helpful to Baugh’s defense. Specifically, Baugh intended to question Crawford, the only
eyewitness to the murder besides Kwasniewski, but the prosecution did not inform Baugh that
Crawford had died until after the trial commenced. In a similar fashion, the prosecutor “forgot”
25
No. 21-1844, Baugh v. Nagy
to mention that he intended to introduce into evidence a statement from Kwasniewski’s mother
alleging Baugh bragged about killing someone.
For all these reasons, we find that the state willfully, or at least inadvertently, suppressed
Sailes’s statement in violation of Brady.
2. Prejudice
“The prejudice analysis under Brady evaluates the materiality of the evidence.” Jefferson
v. United States, 730 F.3d 537, 550 (6th Cir. 2013). “Evidence is material under Brady if a
reasonable probability exists that, had the evidence been disclosed to the defense, the result of the
proceeding would have been different.” Jells v. Mitchell, 538 F.3d 478, 501 (6th Cir. 2008). “The
question is not whether the defendant would more likely than not have received a different verdict
with the evidence, but whether in its absence he received a fair trial, understood as a trial resulting
in a verdict worthy of confidence.” Kyles v. Whitley, 514 U.S. 419, 434 (1995).
The requirement to prove prejudice under Brady is less demanding than the requirements
of § 2244(b)(2)(B). In fact, we have held that satisfying the requirement of § 2244(b)(2)(B)(ii)—
that no reasonable factfinder would find the petitioner guilty in light of the new evidence—is
sufficient to prove the prejudice prong of Brady. In re Jackson, 12 F.4th 604, 610 (6th Cir. 2021)
(“Jackson has also shown that ‘but for the constitutional error, no reasonable factfinder would have
found [him] guilty of the underlying offense,’ which would suffice to demonstrate prejudice under
Brady.” (quoting 28 U.S.C. § 2244(b)(2)(B)(ii))). As mentioned above, when considering Sailes’s
statement in light of all the evidence, no reasonable factfinder could find beyond a reasonable
doubt that Baugh is guilty of first-degree felony murder. Accordingly, because Baugh can satisfy
the requirements of § 2244(b)(2)(B)(ii), he has satisfied the prejudice prong of Brady.
26
No. 21-1844, Baugh v. Nagy
Accepting that the suppression of Sailes’s statement constitutes a Brady violation, the final
issue is whether the state court “unreasonable appli[ed] clearly established Federal law.” 28 U.S.C.
§ 2254(d)(1). The crux of the state court’s holding was that under Kwasniewski’s account of the
murder or Sailes’s account, Baugh could still be guilty of first-degree felony murder; and therefore,
“the evidence supplied in this witness statement would not produce a different result on retrial.”
(Op. & Order Denying Second Mot. for Relied from J., R. 10-14, PageID ##1171–72.) The state
court never mentioned that Kwasniewski and Sailes both had serious credibility problems, which
could lead a jury to reject both of their theories. Worse still, the state court never considered
Detective Miller’s testimony that Baugh was a backseat passenger, which could not support a
guilty verdict.
“The question is not whether the defendant would more likely than not have received a
different verdict with the evidence, but whether in its absence he received . . . a trial resulting in a
verdict worthy of confidence.” Kyles, 514 U.S. at 434. Without any consideration given to Sailes’s
statement at his trial, Baugh cannot be said to have received a fair trial. Without the ability to
properly impeach the state’s star witness, his current conviction is not worthy of confidence.
Accordingly, because the state court held Baugh to a higher standard than what is required for
relief under Brady, the state court unreasonably applied clearly established federal law.
CONCLUSION
For the reasons set forth above, we REVERSE the district court’s dismissal of Baugh’s
petition and GRANT Baugh a conditional writ of habeas corpus that will result in the vacation of
his conviction and sentence unless the state of Michigan commences a new trial against him within
90 days after this judgment becomes final.
27
No. 21-1844, Baugh v. Nagy
RALPH B. GUY, JR., Circuit Judge, dissenting. I must dissent from the grant of a
conditional writ vacating the conviction and sentence of Jimmy Baugh for first-degree felony
murder of Craig Landyczkowski (“Land”) in a December 2001 robbery gone bad. I would affirm
the district court’s dismissal of Baugh’s second or successive petition because, at a minimum, the
newly asserted Brady claim cannot satisfy the gatekeeping requirements of 28 U.S.C.
§ 2244(b)(2)(B)(ii). The district court was right to conclude that the facts, “if proven and viewed
in light of the evidence as a whole,” would not establish “by clear and convincing evidence that,
but for the [alleged Brady violation], no reasonable factfinder would have found [Baugh] guilty
of the underlying offense.” Id. (emphasis added).1
For the sake of brevity and in the interest of ensuring that the heart of this matter does not
get lost in the weeds, I skip over the Warden’s not insubstantial argument that Baugh had or
reasonably could have discovered Ricky Sailes’s March 2002 statement well before December
2015. This argument presents a hurdle for Baugh as to the timeliness of his petition, id. at
§ 2244(d), as well as the requirement that “the factual predicate for the claim could not have been
discovered previously through the exercise of due diligence,” id. at § 2244(b)(2)(B)(i).2 But in my
view, the heart of the matter is the majority opinion’s conclusion that, but for the alleged
1
I agree that Wogenstahl dictates that Baugh’s Brady claim is subject to § 2244(b)’s gatekeeping
requirements. In re Wogenstahl, 902 F.3d 621, 627 (6th Cir. 2018); see also In re Jackson, 12 F.4th 604, 608 (6th
Cir. 2021); Brown v. Muniz, 889 F.3d 661, 674 (9th Cir. 2018); but see, e.g., Storey v. Lumpkin, 142 S. Ct. 2576, 2578
(2022) (Mem.) (Sotomayor, J., statement respecting the denial of certiorari).
2
Sailes and Baugh had known each other and Kwasniewski for years and had committed armed robberies
together. But when called as a witness at the first preliminary examination, Sailes denied knowing either of them—
testimony that everyone knew to be false—and was excused without further questioning by anyone. (PageID 1563,
1577-78, 1686-87.) Sailes explained during the hearing before the district court that he refused to testify at the
preliminary exam because the prosecutors were not offering him anything on the carjacking case for his help in the
felony-murder case. (PageID 1590-91.) Also, although Sailes also testified that he mailed a copy of his statement to
Baugh, Sailes was unable to say either when that occurred or whose idea it was to do so. (PageID 1587 (“You just
asked me did I send it when I was in prison or did I send it when I was out of prison, and I just answered you and told
you I can’t remember.”)).
28
No. 21-1844, Baugh v. Nagy
suppression of Sailes’s statement, no reasonable factfinder would have found Baugh guilty of first-
degree felony murder. (Maj. Op. 18-23.) That conclusion rests heavily on the mistaken view that
Sailes’s statement may only be considered for the limited purpose of impeaching Kwasniewski’s
testimony. Nothing could be farther from the truth.
First, § 2244(b)(2)(B)(ii) directs that the assessment must be made “in light of the evidence
as a whole,” meaning all the evidence, “old and new, incriminating and exculpatory, without
regard to whether it would necessarily be admitted under [evidentiary rules].” United States
v. MacDonald, 641 F.3d 596, 612 (4th Cir. 2011) (emphasis added) (alteration in original) (quoting
House v. Bell, 547 U.S. 518, 538 (2006)). Thus our assessment of Sailes’s statement cannot be
limited to its value as impeachment of Kwasniewski’s version of the shooting—i.e., that Baugh
was the shooter and he (Kwasniewski) was the driver (i.e., the first theory of the case). (But see
Maj. Op. 19-20.)
Second, and more importantly, regardless of whether Kwasniewski’s out-of-court
statements to Sailes would have been admissible, Baugh’s own inculpatory statement to Sailes
would be admissible because it is not hearsay. People v. Lundy, 650 N.W.2d 332, 333-34 (Mich.
2002) (“Admissions by a party are specifically excluded from hearsay and, thus, are admissible as
both impeachment and substantive evidence under MRE 801(d)(2).”); see also Mich. R. Evid.
801(d)(2)(A).
Specifically, after Sailes described what Kwasniewski told him about the shooting the night
before—in Baugh’s presence no less—Sailes relayed Baugh’s own admission:
Q. Did Jimmie say anything while [Kwasniewski] was telling you this?
A. Jimmie said [Kwasniewski] shot the guy and he [Baugh] drove off.
(PageID 18-19 (emphasis added); see also Maj. Op. 8.) Make no mistake, this is substantive
29
No. 21-1844, Baugh v. Nagy
evidence of Sailes’s third theory of the case—that Baugh was the driver and Kwasniewski was the
shooter.
Why does this matter? It matters because the jury could have convicted Baugh either as a
principal or as an aider and abettor. The Michigan Court of Appeals rejected Baugh’s challenge
to the aiding and abetting instruction, emphasizing that the prosecutor told the jury in his opening
statement that “it’s the People’s position in this case that both defendant and Kwasniewski are
equally liable . . . equally guilty of what we call first-degree felony murder” because they “aided
and abetted and helped one another out in this crime.” People v. Baugh, No. 247548, 2004 WL
2412692, at *4 (Mich. Ct. App. Oct. 28, 2004) (cleaned up), app. denied, 705 N.W.2d 29 (Mich.
2005). So, for Baugh to win acquittal, the jury would have had to find that Baugh was neither the
shooter nor the driver.
Third, that was precisely the defense theory at trial (i.e., the second theory). (Maj. Op. 18.)
Baugh did not testify; but Baugh’s written statement was admitted into evidence through Detective
Miller. (PageID 152-55.) According to that statement, Baugh, Kwasniewski, and Dearing were
“out stealing cars” and were riding in a stolen Jeep when Kwasniewski and Dearing decided to rob
Land. (PageID 152.) In Baugh’s version of the shooting, Kwasniewski had the gun and was in
the front passenger seat; Dearing was driving; and Baugh was merely “an unwitting backseat
passenger” when Kwasniewski attempted to rob and then shot Land. (Maj. Op. 18.) This
“backseat Baugh” story, if believed, would have allowed the jury to acquit Baugh.
Defense counsel also suggested in his opening statement that Baugh was not even there;
but that Baugh had only heard about the shooting and was talked into the “backseat Baugh” story
by Detective Miller. (PageID 609-10.) Miller specifically denied that scenario when pressed on
cross-examination and testified that Baugh told her he was in the backseat. (PageID 693-94.) In
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No. 21-1844, Baugh v. Nagy
closing, the prosecutor argued that Baugh had given the statement to deflected blame and cleverly
inject inconsistencies so he could later deny being there at all. (PageID 993-94.)
So, in my view, use of Sailes’s statement introducing the “third theory of the case” (Maj.
Op. 18) would have made it easier—not harder—for the jury to convict Baugh of first-degree
felony murder. As the trial court explained, “MCL 767.39 allows a defendant who directly or
indirectly commits an offense to be considered an aider and abettor.” (PageID 30.) Under
Kwasniewski’s version of the events, where he was the driver and Baugh “fired the gun that killed
the victim,” “[t]hey worked as a team and [Baugh] would be guilty of first-degree felony murder.”
(PageID 30.) “Alternatively, if [as Sailes’s statement described,] . . . [Baugh] drove the stolen
Jeep and [Kwasniewski] fired the gun that killed the victim, again they worked as a team and
[Baugh] would still be guilty of first-degree felony murder.” (PageID 31.) That is, with the
addition of Sailes’s statement, a reasonable factfinder could convict Baugh even if they did not
believe he was the shooter (as Kwasniewski testified), as long as they believed Baugh was the
driver (as Sailes said both Kwasniewski and Baugh told him).
Instead of two theories—one of which would support an acquittal—Sailes’s statement
injected a third theory that contradicted Baugh’s theory that he was not guilty because he was
neither the driver nor the shooter. (PageID 970.) That was Baugh’s best chance: defense counsel
told the jury in closing, “the only story you have that implicates Mr. Baugh is Mr. Kwa[s]niewski’s
story.” (PageID 966.) And, from the get go, the defense attacked Kwasniewski’s credibility.
Defense counsel began opening statement with Kwasniewski’s agreement to plead guilty to
second-degree murder—thereby avoiding a “non-parolable life” sentence and getting three other
felony charges dismissed—on the condition that he “testify against Jimmy Baugh.” (PageID 601-
02.) The prosecutor tried to soften the blow by eliciting the details of that agreement from
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No. 21-1844, Baugh v. Nagy
Kwasniewski even before asking Kwasniewski about Land’s murder. (PageID 746-47, 752-62.) 3
Kwasniewski also admitted “that he used three aliases to avoid criminal responsibility,”
that he had pleaded guilty to second-degree murder,” and that he “had no qualms in ‘riding out’ to
commit an armed robbery or ‘stick up’ with defendant.” Baugh, 2004 WL 2412692, at *2. On
cross-examination, Kwasniewski acknowledged being “an armed robber”; admitted that he was
“willing to lie to the police to avoid criminal consequences”; and said that his lawyer told him that
he “had to say” Baugh was the shooter to get the sentencing deal. (PageID 766-67, 769, 771.)
That lawyer even testified regarding the details of Kwasniewski’s sentencing agreement. (PageID
866-75.) The jury knew Kwasniewski was a liar and a robber who would benefit substantially by
fingering Baugh as the shooter. Apart from Sailes’s statement, there was already ample basis to
disbelieve Kwasniewski’s testimony concerning which one of them was the shooter and which one
of them was the driver.
In the end, it is clear to me that Sailes’s statement would not only directly inculpate Baugh
in the crime as an aider and abettor, but also substantially weaken Baugh’s only viable defense
that he was an “unwitting backseat passenger” (i.e., neither the shooter nor the driver). Thus, the
evidence as a whole is not sufficient to establish that, but for the alleged suppression of Sailes’s
statement, no reasonable factfinder would have found Baugh guilty of first-degree felony
murder—and certainly not by clear and convincing evidence.
I respectfully dissent.
3
Despite Baugh’s suggestion to the contrary, the trial court’s only limitation on this impeachment was to
with respect to Kwasniewski’s separate plea agreement in the carjacking case. (PageID 387 (“You can refer to any
agreement he has regarding this case.”)).
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