Jerry Mark v. John Ault

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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Nos. 06-3476/3513
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Jerry Mark, *
*
Appellee/Cross-Appellant, *
*
v. *
* Appeal from the United States
John Ault, * District Court for the
* Northern District of Iowa.
Appellant/Cross-Appellee, *
*
Warden Herb Maschner; Warden *
Ken Burger, *
*
Defendants. *
________________
Submitted: June 11, 2007
Filed: August 16, 2007 (Corrected: 08/23/2007)
(Corrected: 09/18/2007)
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Before MELLOY, SMITH and GRUENDER, Circuit Judges.
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GRUENDER, Circuit Judge.
An Iowa jury convicted Jerry Mark (“Mark”) on four counts of first-degree
murder in 1976. Following unsuccessful state appeals and postconviction
proceedings, Mark filed a petition for writ of habeas corpus pursuant to 28 U.S.C.
§ 2254. After denying Mark’s motion to expand the record, the district court granted
his petition for writ of habeas corpus. Warden John Ault appeals the district court’s
grant of Mark’s petition, and Mark cross-appeals its denial of his motion to expand
the record. For the reasons that follow, we affirm the district court’s denial of Mark’s
motion to expand the record and reverse its grant of his petition for writ of habeas
corpus.
I. BACKGROUND
On November 1, 1975, between 1:00 a.m. and 3:00 a.m., four persons were shot
to death in their home at the Leslie Mark farm in Black Hawk County, Iowa. The four
victims, all of whom were related to Mark, were Leslie Mark, Mark’s brother, Leslie’s
wife Jorjean, their five-year-old daughter Julie and eighteen-month-old son Jeffery.
Mark was charged with four counts of first-degree murder and tried in Iowa District
Court for Woodbury County. After a jury trial in which Mark did not testify, he was
convicted on all four counts and subsequently received a sentence of life
imprisonment.
On direct appeal, the Iowa Supreme Court concluded that the jury could have
determined that the following events occurred:
On October 3, 1975, [Mark] purchased a white helmet and a used
450cc Honda motorcycle somewhere near his residence in Berkeley,
California. The motorcycle was dark brown in color, had a windshield
and leg protectors and a luggage box on the back.
[Mark] also owned an Iowa registered 100cc Honda motorcycle.
At sometime prior to November 1, 1975, he removed the Iowa license
plate from his 100cc Honda and put the plate on the 450cc Honda.
On October 20 [Mark] purchased one box of fifty .38 caliber
Winchester Western Long Colt bullets manufactured in 1975, using his
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Iowa driver’s license for identification, from Ken’s Sport Shop in Paso
Robles, California. He had access to a pistol capable of firing these
bullets.
On October 28 [Mark] bought a black Belstaff riding suit and a
pair of motorcycle gloves from a Honda dealership in Berkeley,
California.
Jerry Mark left his apartment in Berkeley on the morning of
October 29 on his 450cc motorcycle. He traveled through Lovelock,
Nevada, on Interstate 80. He proceeded on Interstate 80 through
Cheyenne, Wyoming, to Chappell, Nebraska, arriving there on the
morning of October 31. [Mark] continued east toward Iowa stopping at
a Stuckeys Pecan Shoppe in Brady, Nebraska. He left Brady and traveled
to Atlantic, Iowa, stopping at the Shamrock Cafe. Mark then proceeded
to Newton, where he was observed at another Stuckeys Pecan Shoppe.
After leaving Newton, [Mark] traveled north to Ackley, stopping at a
Holiday gas station at approximately 8:00 p.m. on October 31. Ackley
is only 36 miles from the Leslie Mark farm, which is located just west of
Cedar Falls, Iowa, on Union Road.
Jerry Mark left Ackley after getting gas and later was at the Leslie
Mark farm in the early morning hours of November 1. He cut the wires
in the telephone terminal box located across the road from the Leslie
Mark farmhouse. In the process he dropped two .38 caliber Long Colt
bullets on the ground. He then walked up the driveway to the Mark
residence. He walked past the house to a camper, in which Leslie
occasionally slept after unloading corn into his storage bin. He returned
to the house and using the key that normally hung by the back door,
entered the house. At sometime he went to the basement, turned off the
power and while there smoked two Marlboro cigarettes.
Jerry Mark proceeded to Leslie’s and Jorjean’s bedroom, located
on the main floor of the house. He shot each of them, Leslie five times,
four times in the head and once in the stomach, and Jorjean four times,
twice in the head and once in the back, with another shot simply grazing
her skin. The wounds were fatal to each.
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[Mark] also made his way upstairs to Julie Mark’s bedroom. He
fatally shot Julie twice, once through the heart and once through her right
eye. While in her room, he smoked another Marlboro cigarette.
[Mark] also went to Jeffery Mark’s bedroom and shot the infant
two times, once in the left chest and once above the right eye, killing him.
Jerry Mark left the farm and was next observed in Williams, Iowa,
sixty-six miles west of the Mark farmhouse, at approximately 5:00 a.m.
on November 1. At 7:30 a.m. he was seen in Stuart, Iowa, and between
3:00 and 4:00 p.m. he called his residence in California from Alda,
Nebraska.
State v. Mark, 286 N.W.2d 396, 401 (Iowa 1979).1 On direct appeal, Mark claimed
that the State suppressed numerous pieces of material exculpatory evidence in
violation of his due process rights. See Brady v. Maryland, 373 U.S. 83 (1963). The
Iowa Supreme Court affirmed Mark’s conviction and sentence. Mark, 286 N.W.2d
at 414.
Receiving no relief on direct appeal, Mark filed a petition for postconviction
relief (“PCR”) in the Iowa District Court for Black Hawk County based on his claim
that the State suppressed material exculpatory evidence in violation of his due process
rights. The district court denied Mark’s PCR petition, holding that “[a]fter
considering the many claims that exculpatory evidence was wrongly withheld, both
individually and collectively, this court is satisfied that there is no reasonable
probability that the results of the trial would have been different had the material been
disclosed.” Mark v. State, No. PCCV069121, slip op. at 50 (Iowa D. Ct. Black Hawk
County, Feb. 3, 1995).
1
These facts were adopted by the Black Hawk County District Court in Mark’s
state postconviction proceedings, by the federal district court in these proceedings and
by Mark in his brief to this court.
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On appeal of the denial of Mark’s PCR petition, the Iowa Court of Appeals
addressed in detail each of Mark’s Brady claims, which it arranged into six categories.
The first category of evidence related to witness Jean Doyle. Doyle, who did not
testify at Mark’s trial, had made a tentative identification placing Mark at a truck stop
in North Platte, Nebraska, at noon on Saturday, November 1. Mark claimed that this
statement was not disclosed and was material because it is inconsistent with his guilt.
Specifically, since it had been established at trial that it would take a person
approximately eleven-and-a-half hours to drive from the Leslie Mark farm to North
Platte and because the murders occurred between 1:00 a.m. and 3:00 a.m., the
murderer could not have been at the truck stop in North Platte until between 12:30
p.m. and 2:30 p.m. According to Mark, since Doyle saw him at noon, the evidence
tended to show that he was not the murderer. The Iowa Court of Appeals held that
this evidence was not suppressed because investigators had informed Mark during his
interrogation that there was a “lady in North Platte” who could identify him and one
of the investigating agents testified in his deposition about the details of Doyle’s
statements. Thus, Mark “knew or should have known” of this evidence. Mark v.
State, 568 N.W.2d 820, 823 (Iowa Ct. App. 1997).
The second category of evidence analyzed by the Iowa Court of Appeals
concerned four cigarette butts that were found at the crime scene. Mark claimed the
State suppressed results of blood testing conducted on saliva from the cigarette butts
and the possibility that the cigarette butt in Julie Mark’s room was not a Marlboro
brand cigarette. The Iowa Court of Appeals summarized the blood-test evidence as
follows:
Criminalist Robert Harvey testified [at trial] that tests indicated all four
cigarettes [found at the crime scene] were smoked by a person with
type-O blood. Mark’s blood was type-O and he also smoked Marlboro
cigarettes. However, before trial it was discovered that the cigarette in
the upstairs room was smoked by Deputy James Weiser whose blood type
was type-A. In a March 1976 memorandum, prosecutor Harry W.
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Zanville acknowledged that Harvey informed him it was “not uncommon
for a small saliva sample taken from a type-A secretor to have a type-O
test result.” Harvey’s postconviction testimony confirms this assertion.
This document and other reports concerning the cigarette butts were not
produced by the State.
Id. The Iowa Court of Appeals held that this evidence was not material and would not
have affected the outcome of the trial because it was “cumulative of other testimony
informing the jury that the cigarette butt evidence had questionable probative value.”
Id. at 823-24. As for the cigarette butt found in Julie Mark’s room, the Iowa Court of
Appeals held that because it “was available for inspection by the defense” prior to
trial, “Mark was aware that it had been smoked down to the filter and may not have
been a Marlboro.” Id. at 824. The court also held that “Mark has not shown a
reasonable probability that the outcome of the trial would have been different had any
of these reports been disclosed.” Id.The third category of evidence concerned witness Leslie Warren. The Iowa
Court of Appeals explained the significance of the Warren evidence as follows:
Both the defense and the State agreed at trial that Leslie Warren, a
maintenance employee at an eastbound rest area in Chappell, Nebraska,
saw Mark at the rest area. However, the parties dispute whether Warren
saw Mark on October 31 or on November 1. The murders took place on
November 1 between 1:00 and 3:00 a.m. If Mark was seen in Chappell on
the morning of Friday, October 31, he could have traveled further east
and arrived at the Leslie Mark farm by the time of the murders. Thus, this
fact would be consistent with guilt. If Warren saw Mark the morning of
November 1, this information would have established an alibi for Mark
given the time of the murders and the distance, approximately 684 miles,
between the Leslie Mark farm and Chappell.
Id. at 824. At Mark’s trial, Warren testified that he knew he had seen Mark on Friday,
October 31, as opposed to Saturday, November 1, because he had a doctor’s
appointment on November 1 and was therefore not at work on that morning. Mark
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claimed that the State suppressed medical records from Warren’s doctor that were
stamped with the date of October 31, indicating that Warren was not at the doctor and
was instead at work on November 1. Mark argued there is a reasonable probability
that had the information been disclosed, the result of the trial would have been
different. Mark also claimed the State failed to obtain Warren’s work-related
documents and his diary establishing the date of Warren’s appointment even though
the State knew of their existence. The Iowa Court of Appeals rejected these
arguments, holding that “the defense knew or should have known about the existence
of the medical report. There is no indication that the defense could not have obtained
this information from [the doctor’s] office.” Id. Noting that the weight of the work-
record evidence supported the State’s theory that Warren visited the doctor on
Saturday, November 1, the court concluded that the evidence “would not have had an
impact on the outcome of the trial.” Id.Mark also claimed that the State suppressed a fourth category of material
evidence relating to shoe prints found at the crime scene. At trial, Officer Robert
Anton testified that the shoe prints found at the crime scene indicated that the
murderer had a shoe length of twelve inches. He also told the jury that the pattern of
the sole from the shoe prints indicated that the type of shoe worn by the murderer was
the Converse brand shoe called “Indy 500.” Officer Anton measured a pair of size
eleven Converse Indy 500 shoe; one shoe was eleven and seven-eighths inches long
and the other was twelve inches long. He also stated that of a pair of size eleven-and-
a-half Converse Indy 500 shoes, one of the shoes measured twelve inches and the
other measured twelve and one-eighth inches. Officer Anton relayed to the jury that
when he had Mark try on the size eleven and the size eleven-and-a-half shoes, Mark
complained of the former not “fitting properly” but that the latter fit “rather well.”
Two podiatrists also testified at trial, both concluding that Mark had the same unusual,
if not unique, combination of gait characteristics as those exhibited by the shoe prints
found at the crime scene. The actual shoes worn by the murderer were never
recovered.
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Mark claimed that the State suppressed police reports indicating the shoe prints
found at the crime scene “showed slight deformity to outside rear edge of both heels”
and a report indicating that a pair of shoes fitting Mark properly had a sole longer than
the crime scene prints. The Iowa Court of Appeals held that this evidence was not
suppressed because both were “known and addressed at trial.” Id. at 826. Mark also
claimed that other reports were suppressed that indicated several models of tennis
shoes could have matched the crime scene prints. The Iowa Court of Appeals held
that these reports “would not have had an impact on the outcome of the trial” because
it “did not demonstrate Mark was incapable of making the prints, rather only establish
several sizes and brands of shoes could have made the prints.” Id.Fifth, Mark claimed that the State suppressed material evidence that .38-caliber
Winchester Western Long Colt bullets, like the ones used in the murders, were
available for sale in northeast Iowa. At trial, the State had argued that this type of
bullet was not readily available in Iowa and that Mark had purchased this rare type of
bullet in California. Mark claimed that an undisclosed police report revealed that a
partial box of .38-caliber Winchester Western Long Colt ammunition was obtained
by police from Olson’s Boathouse in Waterloo, Iowa, within a week of the crime.
Although Mark admitted he knew about the box, he claimed he was not informed that
there were thirteen bullets missing from the box of fifty. The Iowa Court of Appeals
held that this evidence was known by Mark, not exculpatory because sixteen, not
thirteen, bullets were found at the crime scene, and did not create a reasonable
probability that it “would have influenced the verdict.” Id.The sixth and final category of evidence Mark claimed was suppressed in
violation of Brady concerned seven other witnesses. The first witness, Donald
Shearer, testified in his deposition and at Mark’s criminal trial that he saw Mark at a
Stuckey’s roadside store in Brady, Nebraska, around noon on Friday, October 31.
Shearer’s testimony was consistent with the prosecution’s theory of the route traveled
by Mark on his way to the murder scene. Also, both in his deposition and at trial,
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Shearer referred to a man named Larry Holmes, who was also at Stuckey’s and who
attended to Mark on that day. Mark argued that the State wrongfully suppressed the
report summarizing its interview with Holmes. The report stated that Holmes “did not
personally remember seeing anything or viewing anyone who appeared to him to be
out of the ordinary.” With respect to this claim, the Iowa Court of Appeals held that
“[t]he defense learned of Holmes’ identity during Shearer’s pretrial deposition. Mark
also has not shown a reasonable probability the omissions in Shearer’s initial
statements to police would have affected the outcome of the trial.” Id. at 825.
Mark next asserted that undisclosed police reports would have enabled him to
discredit the testimony of Karelyn Kemp and Mary Stinson, two employees at the
Shamrock Café in Atlantic, Iowa, who testified they saw Mark in the café around 6:00
p.m. on October 31. Another undisclosed report revealed Stinson, contrary to her trial
testimony, told police she saw Mark in the café between 7:00 and 8:00 p.m. The
reports also referred to a trucker, James Prosser, who was present in the café at the
same time and denied Mark was there. The Iowa Court of Appeals held that Mark
knew or should have known of Prosser’s existence because Stinson stated at her
deposition that two truckers were in the café at the same time Mark was present and
that “Mark has not shown the discrepancies in Stinson’s initial identification would
have changed the verdict.” Id.Barbara Ann Smith, the manager of a Stuckey’s roadside store in Newton, Iowa,
identified Mark in a lineup as being at her store on Friday, October 31 between 5:00
p.m. and 6:00 p.m. At trial, she testified that she saw him between 6:30 p.m. and 7:30
p.m. Mark argued that the State wrongfully suppressed a police report documenting
the time frame Smith provided at the lineup and her statements that the man at the
store had blond hair, as opposed to Mark’s red hair. The report also contained a
statement by Smith after her lineup identification that “the subject did not look the
same now as when he did when he was in the Stuckey’s Restaurant on October 31,
1975.” The Iowa Court of Appeals held that “[t]he imprecision of Smith’s
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identification was revealed during her deposition and referred to at trial. Mark was
aware Smith believed the motorcyclist had dishwater blond unkempt hair. Mark has
failed to demonstrate the State suppressed this evidence or that the police report would
have changed the verdict.” Id.The next witness at issue was Delbert Van Hauen, who testified at trial that he
saw Mark at the Holiday service station in Ackley, Iowa, on Friday, October 31.
Some of the details provided by Van Hauen were contrary to other eyewitnesses and
were also contrary to the actual description of Mark’s motorcycle and attire. The Iowa
Court of Appeals held that this evidence was not suppressed because it was addressed
in Van Hauen’s deposition and at trial. Id. The court also concluded that it would not
have “influenced the verdict.” Id.Jayathan Hurd identified Mark, both in a lineup and at trial, as having
patronized his gas station in Williams, Iowa, between 3:30 a.m. and 5:00 a.m. on the
morning of Saturday, November 1. Mark contended that the State withheld police
reports that detailed inconsistencies in the identifications made by Hurd and also
revealed the existence of other witnesses in the station who did not recall seeing Mark.
For example, another employee informed police that Hurd told him he observed Mark
between 2:30 a.m. and 4:30 a.m. Because Hurd had indicated at his deposition that
other employees were present in the gas station’s café at the time he saw Mark, the
Iowa Court of Appeals held that this evidence was not suppressed because Mark
“knew or should have known the[] essential facts” necessary to pursue the matter. Id.Finally, Mark claimed that the State suppressed police reports revealing
discrepancies in the identification made by Rosalie McGinnis, who testified at trial
that she saw Mark at a Conoco gas station in Stuart, Iowa, between 7:00 a.m. and 8:00
a.m. on Saturday, November 1. In a disclosed report, it was revealed that McGinnis
was not sure if the motorcyclist she saw paid for his groceries with cash or by credit
card. The suppressed police reports indicated that McGinnis believed that the
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motorcyclist she saw purchased groceries with a credit card and also stated that she
believed her memory to be impaired by a brain tumor. The Iowa Court of Appeals
held that “[t]hese discrepancies were addressed at trial,” and that the suppressed
reports were of “minimal” impeachment value and “therefore would not have
influenced the verdict.” Id. at 826.
After addressing each of Mark’s Brady claims, the Iowa Court of Appeals
concluded its decision with the following statement: “We affirm the [Black Hawk
County] district court’s denial of Mark’s petition for postconviction relief in its
entirety.” Id. at 827. Mark sought discretionary review in the Iowa Supreme Court,
which was denied.
In 1997, Mark filed a timely pro-se petition for writ of habeas corpus in the
United States District Court for the Northern District of Iowa, raising the same Brady
claims he presented to the Iowa Court of Appeals.2 After having counsel appointed,
Mark filed a discovery motion requesting testing for DNA profiling on the four
cigarette butts found at the crime scene. Initially, the district court granted the motion
and also granted Mark’s motion to expand the record with the DNA-profile test
results. However, after the testing was completed, the district court reversed its ruling
and denied Mark’s motion to expand the record with the DNA test results.
Thereafter, the district court granted Mark’s petition, holding that the State’s
suppression of twenty-four pieces of evidence violated Mark’s due process rights.
Warden Ault appeals the district court’s grant of Mark’s petition for writ of habeas
corpus, and Mark cross-appeals its denial of his motion to expand the record with the
2
Mark also raised a claim that the State used unduly and impermissibly
suggestive photos to obtain out-of-court identifications in violation of his due process
rights. See Simmons v. United States, 390 U.S. 377 (1968). The district court denied
Mark’s petition for writ of habeas corpus on this basis, and Mark did not cross-appeal
this ruling.
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DNA results from the tests conducted on the four cigarette butts found at the crime
scene. For the reasons discussed below, we affirm the district court’s denial of Mark’s
motion to expand the record, but we reverse its grant of his petition for writ of habeas
corpus.
II. DISCUSSION
A. Warden Ault’s Appeal
We review the district court’s grant of habeas relief de novo. Colvin v. Taylor,
324 F.3d 583, 586 (8th Cir. 2003). “When de novo review is compelled, no form of
appellate deference is acceptable.” Salve Regina College v. Russell, 499 U.S. 225,
238 (1991). “Thus, we will look anew at the record which was before the district
court when it made its decision in this matter.” Colvin, 324 F.3d at 586.
Like the district court, we review the state-court decision under the standards
established by the Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”). “Pursuant to [AEDPA], when a state prisoner files a petition for writ of
habeas corpus in federal court we are directed to undertake only a limited and
deferential review of underlying state court decisions.” Collier v. Norris, 485 F.3d
415, 421 (8th Cir. 2007) (quotation omitted). As the Supreme Court has stated,
“[AEDPA] modified a federal habeas court’s role in reviewing state prisoner
applications in order to prevent federal habeas ‘retrials’ and to ensure that state-court
convictions are given effect to the extent possible under law.” Bell v. Cone, 535 U.S.
685, 692 (2002). As such, an application for habeas corpus:
shall not be granted with respect to any claim that was adjudicated on the
merits in State court proceedings unless the adjudication of the claim (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. . . .
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28 U.S.C. § 2254(d). Because the Iowa Supreme Court denied Mark review, we apply
the AEDPA standard to the decision of the Iowa Court of Appeals because it is the
“last reasoned decision” of the state courts. See Ylst v. Nunnemaker, 501 U.S. 797,
803-04 (1991); Oxford v. Delo, 59 F.3d 741, 745 (8th Cir. 1995).
Well-settled United States Supreme Court precedent teaches that due process
is violated where the state suppresses evidence that is favorable to the accused and is
material to the issue of guilt or punishment. Brady, 373 U.S. at 87. “[E]vidence is
material only if there is a reasonable probability that, had the evidence been disclosed
to the defense, the result of the proceeding would have been different.” United States
v. Bagley, 473 U.S. 667, 682 (1985). A “reasonable probability” is one sufficient to
undermine confidence in the outcome of the trial. Id. Finally, suppressed evidence
is to be considered collectively to determine if it is material—in other words, if the
“net effect of all such evidence” reaches “the point of ‘reasonable probability.’” Kyles
v. Whitley, 514 U.S. 419, 436-37 (1995).
The district court held that Mark is entitled to relief under § 2254(d)(1) because
the decision of the Iowa Court of Appeals is “contrary to” and an “unreasonable
application” of Supreme Court precedent, specifically Brady and its progeny, in that
it failed to consider the allegedly suppressed evidence collectively in order to
determine whether confidence in the outcome of the trial was thereby undermined.
We address each provision of § 2254(d)(1) in turn, beginning with the “contrary to”
analysis.
“[A] state-court decision is contrary to [Supreme Court] precedent if the state
court arrives at a conclusion opposite to that reached by [the Supreme] Court on a
question of law”—in other words, if it “applies a rule that contradicts the governing
law set forth in our cases.” Williams v. Taylor, 529 U.S. 362, 405-06 (2000) (stating
that a hypothetical state-court decision applying a “preponderance” burden instead of
a “reasonable probability” burden for demonstrating prejudice in an ineffective-
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assistance-of-counsel claim would be “contrary to” its precedent) (citing Strickland
v. Washington, 466 U.S. 668, 694 (1984)). The decision of the Iowa Court of Appeals
did not contain a statement of law directly contrary to the Supreme Court’s rule
announced in Kyles that suppressed evidence be considered collectively to determine
whether it is material. In the absence of such direct evidence that the Iowa Court of
Appeals applied “a rule that contradicts the governing law set forth in [Supreme
Court] cases,” Mark argued that the Iowa Court of Appeals “did not cite Kyles v.
Whitley, nor did it address Mark’s Brady claims collectively.” The district court
agreed.
Mark is correct that the Iowa Court of Appeals did not cite Kyles v. Whitley nor
did it expressly state the rule that suppressed evidence is to be considered collectively
to determine if its net effect is material.3 However, “[a]voiding the[] pitfalls [of the
“contrary to” provision of § 2254(d)(1)] does not require citation of our
cases—indeed, it does not even require awareness of our cases . . . .” Early v. Packer,
537 U.S. 3, 8 (2002) (per curiam) (emphasis in Early); see also Brown v. Luebbers,
371 F.3d 458, 467 (8th Cir. 2004) (en banc) (holding that “the absence of reasoning
is not a barrier to a denial of [habeas] relief”). Therefore, our focus is on Mark’s
claim that the Iowa Court of Appeals’ decision is contrary to Supreme Court precedent
because it failed to address his Brady claims collectively.
The decision of the Iowa Court of Appeals will be “contrary to” clearly
established federal law if the controlling Supreme Court cases require a “different
outcome” or a “particular result.” See Long v. Humphrey, 184 F.3d 758, 760 (8th Cir.
1999); see also McReynolds v. Kemna, 208 F.3d 721, 723 (8th Cir. 2000) (citing
Long); Atley v. Ault 191 F.3d 865, 871 (8th Cir. 1999) (citing Long). The result of the
3
We note that the Iowa Court of Appeals did cite to the Iowa Supreme Court’s
decision in State v. Romeo, 542 N.W.2d 543, 551 (Iowa 1996), which in turn cited to
Kyles.
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Iowa Court of Appeals’ decision was its holding that Mark’s due process rights were
not violated by the alleged suppression of exculpatory evidence. As we will
demonstrate, the governing law set forth by Supreme Court precedent—namely, the
rule that allegedly suppressed evidence be considered collectively in order to
determine if its net effect is material—does not require a different outcome in this
case.
Without indulging in a “federal habeas ‘retrial,’” Bell, 535 U.S. at 692, we must
review some of the additional facts that were presented to the jury in Mark’s trial and
contained in the record before the Iowa Court of Appeals in order to examine the net
effect of the allegedly suppressed evidence. See Kyles, 514 U.S. at 441-54 (examining
the evidence presented at trial in order to weigh the net effect of the suppressed
evidence). For example, the record contained evidence of Mark’s motive for the
murders. Mark did not have an amicable relationship with his brother, Leslie, and
they disagreed over the distribution of their father’s estate. Once his brother took over
the family farm, Mark was repeatedly heard saying that he “hated his little brother and
would never forgive him for screwing him out of the farm.” Additionally, nothing
was stolen from the house, eliminating the motive of theft.
The jury also heard evidence that Mark had access to a murder weapon. Mark
had obtained a .38-caliber Colt revolver from his girlfriend that used the same type of
rare bullets used to commit the murders. Originally, Mark lied to the police and stated
that he had never bought ammunition for this Colt revolver, but the jury heard
testimony from the co-owner of a sporting goods store in California who produced
records showing that Mark purchased a box of .38-caliber Winchester Western Long
Colt bullets—the same type of bullets used in the murders—from his store just eleven
days before the murders. On the same day he bought the bullets, Mark altered his
appearance by shaving off his beard and mustache.
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Evidence was presented that tended to show that the murderer was someone
familiar with the victims and the premises. The investigators learned that the
telephone wires which led to a neighboring farm had been cut on the night of the
murders. Prior to 1974, that set of wires actually led to the Mark farm, but they were
re-routed during the summer of 1974. Because Mark moved from Iowa, where he had
been living and working during and after college, to California in 1974, he would have
been familiar with the telephone wires only as they existed before they were re-routed.
Near the location where the telephone wires had been cut, investigators found two of
the rare .38-caliber Winchester Western Long Colt bullets. The investigators also
found shoe prints near and around a small camper located on the farm. Because Mark
had previously worked on the farm with his father and brother, he would have been
aware of Leslie’s tendency to sleep in the camper. Each victim was murdered in or
near their own bed, indicating that the murderer was able to enter the house without
rousing anyone or the family dog. The jury heard evidence that Mark knew that the
key to the back door of the house hung from a nail on the back porch.
The jury also heard evidence that Mark lied to investigators regarding his route
of travel. Originally, Mark stated that he left California on October 29 and traveled
south to the Mojave Desert. He eventually admitted to traveling as far east as the
panhandle of Nebraska, but he denied traveling farther than fifty miles east of
Chappell, Nebraska, which was nearly 600 miles from the crime scene, despite the
many witnesses who placed him as far as Ackley, Iowa, just thirty-six miles from the
crime scene.
Finally, the jury was also presented with telephone records, revealing that a call
was made from a telephone booth in Alda, Nebraska, between 3:00 p.m. and 4:00 p.m.
on Saturday, November 1, to the residence of Mark’s girlfriend and her family. When
Mark’s girlfriend’s mother answered the phone, she heard Mark’s voice. She then
asked him, “Jerry, where are you?” to which he replied, “I can’t say.” All of this
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evidence, along with the evidence we previously recounted, was presented at trial and
contained in the record before the Iowa Court of Appeals.
Although the Iowa Court of Appeals held that some of the disputed evidence
was not suppressed because Mark “knew or should have known” of its existence, we
assume for our purposes that all of the disputed evidence was wrongfully suppressed.
In order to weigh the net effect of the suppression of this evidence, we must consider
its exculpatory value. We believe that some of the evidence was of very little, if any,
value to Mark. For example, Jean Doyle originally identified a man in a photograph
presented to her by investigators as having been at the truck stop in North Platte at
noon on Saturday, November 1. As previously explained, this statement was, to some
extent, exculpatory because it appeared to provide an alibi for Mark. However,
investigators subsequently realized that they accidentally had shown Doyle a picture
of Leslie Mark, Mark’s brother, that was approximately ten years old. When they re-
interviewed Doyle and presented her with a current picture of Mark, Doyle stated
“positively” that this was not the man she observed at the truck stop. In light of
Doyle’s second statement, this evidence is hardly exculpatory. Likewise, the evidence
that investigators had obtained a fifty-count box of Winchester Western Long Colt
bullets from Olson’s Boathouse in Waterloo, Iowa, of which thirteen had been sold
one week prior to the murder, was not exculpatory. Because sixteen, not thirteen,
bullets were recovered from the crime scene, Mark’s trial counsel conceded during
Mark’s state postconviction proceedings that this evidence was not exculpatory.
However, even assuming that all of disputed evidence was to some degree
exculpatory, in light of the strong circumstantial evidence connecting Mark to the
murders, the “net effect of” the minimally exculpatory evidence cannot “reasonably
be taken to put the whole case in such a different light as to undermine confidence in
the verdict.” See id. at 435-37. Accordingly, it is not contrary to Supreme Court
precedent to conclude that the allegedly suppressed evidence, when considered
collectively, does not create “a reasonable probability that, had the evidence been
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disclosed to the defense, the result of the proceeding would have been different,” and
that therefore it is not material. Kyles, 514 U.S. at 433. Under Supreme Court
precedent, the result of this conclusion is that Mark’s due process rights were not
violated. See id. This is the same result reached by the Iowa Court of Appeals.
Accordingly, we cannot say that Supreme Court precedent requires a result “contrary
to” that reached by the Iowa Court of Appeals. See Nelson v. Hvass, 392 F.3d 320,
322 (8th Cir. 2004) (“[W]e may grant habeas relief only if the state court’s resolution
of the claim cannot reasonably be justified under existing Supreme Court precedent.”).
Therefore, we hold that Mark is not entitled to relief under the “contrary to” provision
found in § 2254(d)(1).
Turning to the “unreasonable application” provision of § 2254(d)(1), relief is
warranted only where the state court decision “‘identifies the correct governing legal
principle from [the Supreme] Court’s decisions but unreasonably applies that principle
to the facts of the prisoner’s case.’” Collier, 485 F.3d at 421 (quoting Williams, 529
U.S. at 413). It is not enough for the federal habeas court to conclude that, in its
independent judgment, it would have applied federal law differently from the state
court; the state court’s application must have been objectively unreasonable. Id.(citing Williams, 529 U.S. at 411). In other words, “[a] federal court may not overrule
a state court for simply holding a view different from its own.” Mitchell v. Esparza,
540 U.S. 12, 17 (2003) (per curiam).
Mark did not present an argument on appeal concerning the unreasonable
application provision. Ordinarily, this “failure to raise or discuss an issue in his brief
[would] be deemed an abandonment of that issue.” Hacker v. Barnhart, 459 F.3d 934,
937 n.2 (8th Cir. 2006). However, even assuming Mark had properly presented this
claim, in light of the evidence set out above and our conclusion that the allegedly
suppressed evidence, when considered collectively, does not require the conclusion
that Mark’s due process rights were violated, we would not find the decision of the
Iowa Court of Appeals to be “objectively unreasonable.” See Collier, 485 F.3d at 421.
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We hold that Mark is not entitled to relief under the “unreasonable application”
provision of § 2254(d)(1).
The Supreme Court has instructed us to give decisions of state courts “the
benefit of the doubt.” Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (per curiam).
The Court has cautioned us that “readiness to attribute error is inconsistent with the
presumption that state courts know and follow the law.” Id. With these principles in
mind, and granting substantial deference to the Iowa Court of Appeals as mandated
by AEDPA, we conclude that, despite its failure to cite Kyles v. Whitely directly, its
decision denying Mark relief is not “contrary to” nor an “unreasonable application”
of clearly established federal law as determined by the Supreme Court. See 28 U.S.C.
§ 2254(d)(1). Accordingly, we reject Mark’s claim for writ of habeas corpus and
reverse the district court’s grant of his petition.4
4
The district court considered many other issues in its order. For example, it
addressed: (1) “the trial judge’s failure to correctly apply ‘Brady law’ that defendant
have the right to see and consider prior to trial all exculpatory evidence at the earliest
opportunity”; (2) the issue that “none of the conclusions by the Iowa courts that
denied any Brady violations because of the ‘knew or should have known’ doctrine
was in accordance with prevailing law”; (3) the issue that “neither the trial judge nor
the post-conviction relief judge followed the mandate of . . . State v. Peterson (citing
Brady), 219 N.W.2d 665 (Iowa 1974)”; and (4) the issue that the trial court’s in-
camera inspection of the State’s file to determine what evidence was to be disclosed
to Mark under Brady did not “comply with federal law.” Mark v. Burger, No. 97-
4059, 2006 WL 2556577, at *12, 22, 77 (N.D. Iowa Aug. 31, 2006). These issues
were not raised by Mark below and are not urged upon us as grounds for affirmance
on appeal. Hacker, 459 F.3d at 937 n.2 (“A party’s failure to raise or discuss an issue
in his brief is to be deemed an abandonment of that issue.”). Therefore, we need not
address these claims in detail. Suffice it to say that we find the additional issues raised
by the district court to be without merit. See e.g., Kyles, 514 U.S. at 436 (rejecting the
notion that Brady requires disclosure all evidence or information known to the
prosecutor that tends to negate the guilt of the accused or mitigates the offense); see
id. (addressing only evidence “unknown to the defense” as a basis for a potential
Brady violation) (emphasis added); Estelle v. McGuire, 502 U.S. 62, 67-68 (1991)
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B. Mark’s Cross-Appeal
Mark cross-appeals the district court’s denial of his motion to expand the record
with the DNA-profile results collected from testing of four cigarette butts found at the
crime scene. Warden Ault resisted the motion, arguing that Mark was asserting a
claim based on newly discovered evidence, a claim that must first be exhausted in
state court. After originally granting Mark’s motion, the district court reversed its
ruling, stating that it did not want “the appellate process . . . complicated by the
reviewing court concluding that there is an exhaustion problem.” We affirm the
district court’s denial of Mark’s motion.
“An application for a writ of habeas corpus on behalf of a person in custody
pursuant to the judgment of a State court shall not be granted unless it appears that (A)
the applicant has exhausted the remedies available in the courts of the State.” 28
U.S.C. § 2254(b)(1). While Mark does not contest the fact that he did not present the
new DNA evidence to the state courts, he argues that there is no exhaustion issue
because this evidence does not support a new claim but rather is offered as relevant
evidence to bolster his Brady claim. In other words, he argues that the new DNA
evidence is relevant “to show that Mark was prejudice [sic] by the state’s suppression
of exculpatory evidence relating to pretrial blood-type testing of the cigarette butts.”
Alhough we are inclined to view this argument as an attempt to inappropriately boot-
strap the new evidence to Mark’s properly exhausted claim, for the purposes of this
appeal we will assume without deciding that the new evidence serves only to bolster
(“[F]ederal habeas corpus relief does not lie for errors of state law . . . [and] it is not
the province of a federal habeas court to reexamine state-court determinations on
state-law questions.”); United States v. Boykin, 986 F.2d 270, 276 n.2 (8th Cir. 1993)
(“We note that it is common practice for the court to view in camera information
which the prosecutor possesses to determine whether it is Brady material which must
be disclosed . . . .”).
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Mark’s claim of constitutional error under Brady and does not present a new,
unexhausted claim.
Mark’s motion to expand the record is governed by Rule 7 of the Rules
Governing Habeas Corpus Cases under Section 2254, which provides that “[i]f the
petition is not dismissed, the judge may direct the parties to expand the record by
submitting additional materials relating to the petition.” See also Brown v. Johnson,
224 F.3d 461, 468-69 (5th Cir. 2000). When a petitioner seeks to introduce evidence
pursuant to this rule, the conditions prescribed by § 2254(e)(2) must still be met. See
Holland v. Jackson, 542 U.S. 649, 652-53 (2004) (per curiam); Cooper-Smith v.
Palmateer, 397 F.3d 1236, 1241 (9th Cir. 2005) (stating that a petitioner “must
comply with § 2254(e)(2) in order to expand the record under Rule 7”); Boyko v.
Parke, 259 F.3d 781, 790 (7th Cir. 2001) (“When expansion of the record is used to
achieve the same end as an evidentiary hearing, the petitioner ought to be subject to
the same constraints that would be imposed if he had sought an evidentiary hearing.”).
A district court’s decision regarding whether to expand the record under Rule 7 is
reviewed for an abuse of discretion. See, e.g., Hoi Man Yung v. Walker, 468 F.3d 169,
177 (2d Cir. 2006); Apanovitch v. Houk, 466 F.3d 460, 478-79 (6th Cir. 2006);
Eckstein v. Kingston, 460 F.3d 844, 852 (7th Cir. 2006); Landrigan v. Stewart, 272
F. 3d 1221, 1229 n.7 (9th Cir. 2001).
Under 28 U.S.C. § 2254(e)(2), “[a] habeas petitioner must develop the factual
basis of his claim in the state court proceedings rather than in a federal evidentiary
hearing unless he shows that his claim relies upon a new, retroactive law, or due
diligence could not have previously discovered the facts.” Cox v. Burger, 398 F.3d
1025, 1030 (8th Cir. 2005) (citing 28 U.S.C. § 2254(e)(2)). It is undisputed that the
DNA testing yielding the results now at issue was not available at the time of Mark’s
state court proceedings and therefore could not have been discovered previously by
due diligence.
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Additionally, under § 2254(e)(2) “a petitioner must show that the facts
underlying the claim 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.” Perry v. Kemna, 356 F.3d 880, 889 (8th
Cir. 2004) (internal quotation omitted). Again, assuming without deciding that the
“constitutional error” is that alleged in Mark’s exhausted Brady claim, we hold that
Mark has failed to show that the new DNA evidence clearly and convincingly
establishes that no reasonable factfinder would have found him guilty.
Four cigarette butts were found at the crime scene, tested for blood type and
discussed at Mark’s criminal trial. The first, designated “AJ,” was discovered on the
floor of Julie Mark’s upstairs bedroom. The second butt, designated “CO,” was
discovered in an unused upstairs bedroom. The third and fourth butts were discovered
in the basement near an electrical box, designated “DM-1” and “DM-2.” At trial, the
State presented evidence that all four cigarette butts were smoked by a person with
“type-O secretor blood,” the same type of blood as Mark. Mark cross-examined the
State’s expert witness, establishing the error rate of the blood-type testing and
establishing that Mark’s blood type was common among the general population. Also
on cross-examination, Mark established that the “CO” cigarette butt contained “type-
A secretor blood” traces and was actually smoked by Deputy Weiser, who was a state
investigator present at the crime scene. Presumably because of the damaging cross-
examination of its expert witness, the State did not once mention the blood-type test
results from the cigarette butts to the jury in either its closing or rebuttal arguments.
During his state PCR proceedings, Mark initiated DNA testing on the four
cigarette butts. No results were yielded, however, due to an insufficient sample size.
In the federal habeas proceedings, and with the advent of “short tandem repeat” DNA
testing which requires a smaller sample size, Mark initiated further testing of the four
cigarette butts. The results, the accuracy of which is not disputed by Warden Ault,
revealed the following: (1) the DNA profile obtained from the “CO” cigarette butt
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eliminated Mark’s profile; (2) the DNA profile obtained from the “DM-2” cigarette
butt eliminated Mark’s and Deputy Weiser’s profiles; and (3) there was still an
insufficient sample size to create a DNA profile with respect to “AJ” and “DM-1.”
Mark utterly failed to explain in his briefing to this court how this new evidence
clearly and convincingly demonstrates that, if presented with it, no reasonable
factfinder would have found him guilty, and we are unable to reach such a conclusion.
Regarding samples “AJ” and “DM-1,” the testing yielded no results and therefore
establishes nothing. With respect to the “CO” sample, we already noted that it was
established at trial that Deputy Weiser smoked this cigarette. Therefore, the results
from the “CO” sample simply confirm what was already known at trial and cannot
establish that no reasonable factfinder would have found Mark guilty had it been
presented. Finally, the new test results from the “DM-2” sample eliminate Mark’s
DNA profile, whereas at trial the jury was led to believe that Mark could have smoked
this cigarette since his blood type was the same as the type found on it. Although the
jury heard testimony that Mark’s blood type matched that found on the “DM-2”
sample, the impact of this evidence was somewhat neutralized by Mark establishing
on cross-examination that his blood type was very common among the general
population and the expert’s admission that blood-type testing is subject to error.
Furthermore, the jury also heard testimony that of the many people on the
investigation team who were present at the crime scene, several of them were smokers
and smoked while at the crime scene. Finally, the fact that the State did not once
mention the cigarette butt evidence to the jury in its closing and rebuttal arguments
serves to illustrate the minimal impact of this evidence on the outcome of the trial.
In sum, the majority of the new DNA evidence with which Mark seeks to
expand the record only confirms what the jury could have reasonably concluded from
the evidence presented to them at trial. With respect to the results from the “DM-2”
sample indicating that Mark did not smoke that particular cigarette, we conclude that
its probative value is slight when compared to the overall evidence implicating Mark.
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As such, the new DNA evidence Mark presents is not clear and convincing evidence
in the face of which no reasonable factfinder would have found Mark guilty.
Therefore, the district court did not abuse its discretion in denying Mark’s motion to
expand the record because Mark has failed to satisfy the clear and convincing
evidence standard under § 2254(e)(2) that must be met in order to comply with Rule
7. See Holland, 542 U.S. at 652-53.
III. CONCLUSION
For the foregoing reasons, we reverse the district court’s grant of Mark’s
petition for writ of habeas corpus and affirm its denial of his motion to expand the
record. On remand, we instruct the district court to enter an order denying Mark’s
petition with prejudice.
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