FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT August 15, 2018 _________________________________ Elisabeth A. Shumaker Clerk of Court KENT ERIC LEBERE,
Petitioner - Appellant,
v. No. 16-1499 (D.C. No. 1:03-CV-01424-MSK-MEH) TRAVIS TRANI, Warden; THE (D. Colo.) ATTORNEY GENERAL OF THE STATE OF COLORADO,
Respondents - Appellees. _________________________________
ORDER AND JUDGMENT* _________________________________
Before BRISCOE, LUCERO, and BACHARACH, Circuit Judges. _________________________________
Kent LeBere appeals the district court’s denial of his 28 U.S.C. § 2254 habeas
petition. We conclude that the district court took an improperly narrow view of the
evidence LeBere claims the government improperly withheld. See Brady v.
Maryland, 373 U.S. 83 (1963). Exercising jurisdiction under 28 U.S.C. § 1291, we
reverse and remand for further proceedings.
* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. I
A
Around 2 a.m. on the morning of October 16, 1998, witnesses reported a
burning van inside a self-serve carwash stall in Colorado Springs. Police and
firefighters arrived on the scene within minutes. After extinguishing the blaze, they
discovered a badly burned body between the front seats. A subsequent investigation
revealed that the fire was intentionally set, and that the victim, Linda Richards, had
been strangled before the fire began. Spermatozoa were discovered, but were not
sufficient to conduct DNA testing.
Detective J.D. Walker was the lead detective for the Richards investigation.
After identifying the body, investigators contacted her fiancé, Russell Herring.
Herring told police that he had last seen Richards at approximately 7 p.m. the prior
evening. The couple had an argument and Richards left “in a hysterical manner.”
Police learned that Richards spent much of the night at Crazy Mike’s Bar.
A bartender reported that Richards was drinking and playing pool with a man
later identified as LeBere at the bar for several hours. At one point, the bartender
asked him if he was going to “get lucky,” and LeBere responded that he and Richards
“were talking about a one night stand,” but “Richards did not believe in one night
stands.” When the two left together at about 12:30 a.m., LeBere told a bartender that
Richards was giving him a ride home. That bartender later assisted police in
preparing a composite sketch.
2 Police also obtained a surveillance video from a convenience store near the
crime scene. A bartender identified LeBere in the video at approximately 2:35 a.m.
An employee of the convenience store recalled that he saw a cab in the parking lot
shortly after LeBere left. Investigators learned from a cab company that LeBere had
been picked up at 2:45 a.m. and dropped off a short distance from his residence.
Officers canvassed that area with the composite sketch and eventually arrested
LeBere.
When interviewed by police, LeBere admitted that he was with Richards at
Crazy Mike’s Bar. He initially claimed that he left the bar alone, but later stated that
he left with Richards and that she gave him a ride home. LeBere was charged with
first degree murder after deliberation and felony murder.
At trial, two employees of Crazy Mike’s Bar identified LeBere. The
convenience store video of LeBere was played for the jury. A woman who lived near
the car wash testified that she saw LeBere walking past her house shortly after 2:00
a.m. A cab driver testified that he knew LeBere was the individual he picked up
from the convenience store after he saw a photo of LeBere on television news. The
government introduced testimony regarding LeBere’s inconsistent statements to
police, and LeBere’s aunt testified that he told her that Richards was driving him to
another bar when he felt sick and took a cab home. LeBere had his hair cut the day
after the murder.
The government also offered testimony from a jailhouse informant, Ronnie
Archuleta. Archuleta was housed with LeBere prior to trial. On October 26, 1998,
3 Archuleta reported to Deputy Brian Dey that LeBere had confessed to him. Dey
wrote a report indicating that LeBere told Archuleta he burned the van because he
had sex with Richards in the vehicle before she was killed. Detective Walker, who
knew Archuleta from previous encounters, met with Archuleta on October 28, 1998.
Walker relayed Archuleta’s account at trial, stating that LeBere confessed that he met
Richards in a bar, she gave him a ride home, he had sex with her, then panicked and
choked her before driving to the car wash and burning the vehicle to destroy any
evidence. According to Walker, some of the information Archuleta reported would
only be known to the killer. Archuleta’s testimony at trial was consistent with that
report. Archuleta also stated that Walker promised to talk to the district attorney
about one of Archuleta’s pending cases, and that he ultimately was given a deal,
receiving probation on that case.
LeBere’s primary defense theory was that law enforcement had prematurely
narrowed its investigation. He noted that police interviewed two homeless men
camping near the car wash on the night of the murder, but failed to investigate them
as potential suspects. A woman contacted police because she saw a van at the
carwash just before 2 a.m., with a man standing nearby who did not match LeBere’s
description. She did not identify LeBere in a photo lineup or in the convenience store
video.
LeBere argued that Richards’ fiancé, Herring, should have been treated as a
suspect. Herring admitted that police had been called to the home he and Richards
shared, that their fights became “physical,” that he slapped Richards on one occasion
4 hard enough that she went to the emergency room, and that he once pushed her van
out of the driveway with his vehicle after a fight. Herring told police that he had not
left home on the night of the murder. But a neighbor reported to police that he
thought he heard a pickup truck backing over a curb near Herring’s house that night.
Police never called back. Richards’ father testified that he saw condensation or dew
on Herring’s truck at about 6:30 a.m. the morning after the murder. But an expert
testified that meteorological conditions that morning could not have caused dew to
form, and thus the moisture was likely caused by someone having been inside the
vehicle.
The defense also sought to undermine Archuleta’s credibility. Walker
conceded that he previously described Archuleta as a chronic liar. The jury learned
of Archuleta’s three prior felony convictions. And Archuleta admitted that LeBere
had been warned by another inmate not to talk to him because he was a “snitch.”
A jury found LeBere not guilty of first degree murder, felony murder, and
manslaughter, but convicted him of second degree murder and arson. He was
sentenced to sixty years’ imprisonment.
B
While LeBere’s direct appeal was pending, Archuleta contacted LeBere’s
attorney and recanted his trial testimony. He claimed that Walker had given him
information about the murder and induced him to fabricate a confession. LeBere
moved for a new trial based on the recantation. Archuleta refused to appear at a
5 hearing on that motion because he believed he would be jailed on other charges. The
state court denied a new trial.
LeBere then filed a § 2254 petition in federal court, but subsequently moved to
stay the petition while he exhausted state court remedies. The state courts denied
relief. As to his Brady claim relating to Walker and Archuleta, the state court
concluded that it raised the same issue that was previously rejected in LeBere’s
motion for a new trial. LeBere then returned to federal district court, where the
Brady claim was denied as procedurally barred. However, we reversed that
determination on appeal, holding that if “a state court refuses to adjudicate a claim on
the ground that it has been previously determined, the court’s decision does not
indicate that the claim has been procedurally defaulted.” LeBere v. Abbott, 732 F.3d
1224, 1230 (10th Cir. 2013) (quotation omitted).
On remand, both Archuleta and Walker were deposed. Archuleta testified that
LeBere never made any confession. Instead, Archuleta claimed that Walker wanted
him to get information on LeBere’s case, and after he was unsuccessful in doing so,
Walker showed him LeBere’s case file. With information provided by Walker,
Archuleta concocted a false confession story in exchange for lenient treatment in his
own case. According to Archuleta, Walker knew that the information provided came
from police reports rather than LeBere, but Walker instructed him to testify that
LeBere was the source. Walker again testified that Archuleta reported LeBere’s
confession to him.
6 A magistrate judge recommended denying LeBere’s petition on the ground that
Walker’s testimony was more credible than Archuleta’s. The district court denied
relief on different grounds. It concluded that LeBere’s claim based on perjured
testimony failed because he had not shown that the prosecutor was aware of the
alleged perjury. As to his Brady claim, the district court asked two questions:
“1) was the verdict dependent upon Mr. Archuleta’s testimony, and 2) was the
impeachment evidence necessary to raise doubt as to the veracity of Mr. Archuleta’s
testimony?” Answering both questions in the negative, it concluded that the Brady
evidence was not material. LeBere timely appealed, and we granted a certificate of
appealability.
II
Because LeBere’s Brady claim was not decided on the merits in state court, the
government concedes that AEDPA deference does not apply. See Romano v. Gibson,
239 F.3d 1156, 1171 (10th Cir. 2001). “[W]e review the district court’s legal
conclusions de novo and its factual findings, if any, for clear error.” Mitchell v.
Gibson, 262 F.3d 1036, 1045 (10th Cir. 2001).
To prevail on a Brady claim, a petitioner must show: “(1) the government
suppressed evidence; (2) the evidence was favorable to the defendant; and (3) the
evidence was material.” United States v. Reese, 745 F.3d 1075, 1083 (10th Cir.
2014). Evidence is material if “there is a reasonable probability that, had the
evidence been disclosed, the result of the proceeding would have been different.”
Cone v. Bell, 556 U.S. 449, 469 (2009). “[A] showing of materiality does not require
7 demonstration by a preponderance that disclosure of the suppressed evidence would
have resulted ultimately in the defendant’s acquittal.” Kyles v. Whitley, 514 U.S.
419, 434 (1995). Instead, material evidence is that which “could reasonably be taken
to put the whole case in such a different light as to undermine confidence in the
verdict.” Id. at 435. We evaluate materiality in the context of the entire record.
Moore v. Gibson, 195 F.3d 1152, 1182 (10th Cir. 1999).
LeBere frames his challenge as two distinct subclaims related to Archuleta’s
recantation. First, he contends that the government suppressed evidence that Walker
and Archuleta conspired to manufacture a false confession. Second, he argues that
Walker and Archuleta committed perjury by testifying to the contrary.
As to the latter subclaim, LeBere argues that the district court mischaracterized
his Brady argument as one arising under Napue v. Illinois, 360 U.S. 264 (1959). “A
Napue violation occurs when (1) a government witness committed perjury, (2) the
prosecution knew the testimony to be false, and (3) the testimony was material.”
United States v. Garcia, 793 F.3d 1194, 1207 (10th Cir. 2015).1 LeBere has not
advanced evidence suggesting that the prosecution was aware of the alleged perjury.
But he argues that such evidence was unnecessary because he is seeking relief under
Brady, not Napue. We have previously stated that “[a] defendant may have a Brady
claim if the . . . prosecution did not correct testimony that it should have known was
1 The standard for materiality under Napue differs from the standard under Brady. Perjured testimony is material under Napue “unless failure to disclose it would be harmless beyond a reasonable doubt.” United States v. Bagley, 473 U.S. 667, 680 (1985). 8 false.” Garcia, 793 F.3d at 1207. And because Walker was a police officer, LeBere
contends that Walker’s knowledge of the claimed perjury is imputed to the
prosecution under ordinary Brady principles. See Moore v. Gibson, 195 F.3d 1152,
1164 (10th Cir. 1999) (“Knowledge of police officers or investigators will be
imputed to the prosecution.”).
In this case, we do not need to resolve any tension between Napue and Brady,
or determine whether police knowledge of perjury is imputed. See Briscoe v. LaHue,
460 U.S. 325, 327 (1983) (noting that a “prosecutor’s knowing use of perjured
testimony violates due process,” but the Supreme Court “has not held that the false
testimony of a police officer in itself violates constitutional rights”). We conclude
that the evidence allegedly not disclosed—that Walker induced Archuleta to concoct
a false confession by providing him details about the crime—is material regardless of
the subsequent perjury. Accordingly, we have no need to address LeBere’s second
subclaim.2
As noted above, the district court analyzed LeBere’s claim by asking whether
the verdict was dependent on Archuleta’s testimony and whether the suppressed
evidence was necessary to impeach Archuleta. But the Supreme Court has explained
2 LeBere’s two subclaims are necessarily linked. He contends: (1) Walker fed Archuleta information to concoct a false confession, and then (2) they lied about having done so. The second contention cannot be true unless the first is also true. Accordingly, at this point in the litigation, LeBere cannot prevail on subclaim two without also prevailing on subclaim one. That is, as described in Part III, infra, the district court will either find that Archuleta’s testimony is not credible (in which case both subclaims fail), or it will find that Archuleta is credible (in which case it will grant habeas relief). In neither scenario would our resolution of the second subclaim effect the ultimate outcome. 9 that “[o]ne does not show a Brady violation by demonstrating that some of the
inculpatory evidence should have been excluded, but by showing that the favorable
evidence could reasonably be taken to put the whole case in such a different light as
to undermine confidence in the verdict.” Kyles, 514 U.S. at 434-35. We agree with
LeBere that the district court took an improperly narrow view of the impact the
suppressed evidence could have had.
In addition to undermining Archuleta’s credibility, the suppressed evidence
would have strongly supported LeBere’s theory that police had conducted an
insufficient investigation. If Walker was willing to conspire with an inmate to
procure a false confession, the jury might well conclude that the investigation was
aimed at convicting LeBere rather than uncovering the truth. It may have questioned
what other evidence police ignored, or even whether investigators fabricated other
evidence. The government responds that Walker did not conduct the entire
investigation, so much of it remains untainted by his actions. But Walker testified
that as the lead detective, “all leads” and “information [that] comes in” was referred
to him. He described himself as the “pivot point” of the investigation. Showing that
Walker encouraged an informant to lie would have had an impact on the case as a
whole.
We similarly reject the government’s argument that the suppressed evidence is
immaterial because the jury likely disbelieved Archuleta anyway. The jury acquitted
LeBere of felony murder and murder after deliberation. Archuleta’s testimony was
the only evidence directly indicating that LeBere was guilty of those charges. But
10 even assuming that the jury did not believe Archuleta, the suppressed evidence would
have done far more than impeach him: it could have caused the jury to question the
entire investigation.
This is not to say that the undisputed evidence is insufficient to support the
verdict. There appears to be no dispute that LeBere left a bar with Richards before
the murder, was present in her van, and was near the scene of the crime shortly after
her death. LeBere’s story when interviewed by police was not entirely consistent.
And he had a haircut the day after the murder, which could indicate an attempt to
evade identification. But the materiality inquiry must not be confused with a test of
the sufficiency of the evidence. Kyles, 514 U.S. at 434.
Although there was substantial circumstantial evidence of guilt, other evidence
in the record raises doubts. Two homeless men were also near the scene of the crime
but were not investigated. An eyewitness saw a man standing near Richards’ van just
before the fire who did not match LeBere’s description. And Herring, who admitted
to abusing Richards, may have lied to police about staying home the night of the
murder. The suppressed evidence fits neatly with LeBere’s theory that law
enforcement prematurely concluded that he was guilty rather than investigating other
available leads. When coupled with the suppressed evidence, this information could
have prompted the jury to reasonably doubt LeBere’s guilt. We conclude that the
suppressed evidence is sufficient to undermine our confidence in the verdict. See id.
III
11 The government spends most of its brief arguing that we should affirm on the
alternative ground that Archuleta’s recantation was not credible. We decline to do
so. “The evaluation of credibility is not a function for the appellate court.” United
States v. Miller, 460 F.2d 582, 587 (10th Cir. 1972). Although the magistrate judge
recommended that the district court reject Archuleta’s recantation as not credible, the
district court denied relief on different grounds. We sit in review of the district
court’s decision, not the magistrate judge’s recommendation. See Colo. Bldg. &
Constr. Trades Council v. B.B. Andersen Constr. Co., 879 F.2d 809, 811 (10th Cir.
1989).
Accordingly, we leave it to the district court on remand to consider credibility
in the first instance. On remand, the district court may adopt a magistrate judge’s
credibility finding, or if it concludes that an evidentiary hearing is appropriate,
conduct a hearing and observe the witnesses independently. See Wildermuth v.
Furlong, 147 F.3d 1234, 1236 (10th Cir. 1998); United States v. Orrego-Fernandez,
78 F.3d 1497, 1501 (10th Cir. 1996).
IV
For the foregoing reasons, we REVERSE and REMAND for further
proceedings.
Entered for the Court
Carlos F. Lucero Circuit Judge
12 No. 16-1499, LeBere v. Trani BRISCOE, Circuit Judge, dissenting.
I respectfully dissent. In my view, the district court correctly denied LeBere’s
petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. I therefore vote to
affirm.
I
On October 20, 1998, LeBere was charged by information in the District Court of
El Paso County, Colorado, with three counts of murder in the first degree and one count
of second degree arson. Count One charged him with deliberately and intentionally
causing the death of Linda Richards, in violation of Colo. Rev. Stat. § 18-3-102(1)(a).
Counts Two and Three charged LeBere with killing Richards in the course of committing
arson and sexual assault, in violation of Colo. Rev. Stat. § 18-3-102(1)(b). Lastly, Count
Four charged LeBere with second-degree arson in connection with the burning of
Richard’s van.
The case proceeded to trial in August 1999. The circumstantial evidence of
LeBere’s involvement in Richards’ death and the burning of her van was substantial, if
not overwhelming. Specifically, the circumstantial evidence established the following: · at approximately 9:00 p.m. on the evening of October 15, 1998, Richards
entered a bar named Crazy Mike’s, located on the east side of Colorado
Springs, and proceeded to sit and drink;
· LeBere, who had been playing pool in the bar, approached Richards at the
bar, sat down, and began talking to her;
· Richards and LeBere spent the next several hours drinking together at the
bar;
· a bartender asked LeBere if he was “gonna get lucky,” and LeBere
responded that he and Richards had talked about a “one night stand,” but
that Richards did not believe in one night stands;
· Richards and LeBere left the bar together at approximately 12:30 a.m. on
October 16, 1998;
· although LeBere had previously told the bartender that he was going to
walk home, he told the bartender as he was leaving that Richards was going
to give him a ride home;
· according to the pathologist who performed the autopsy, Richards was
manually strangled at some point between 12:30 a.m. and 2:00 a.m. on
2 · at approximately 2:15 a.m. on October 16, 1998, a woman who lived on
the west side of Colorado Springs heard a car horn steadily blaring from the
direction of a nearby car wash; the woman then observed LeBere walking
away from the car wash and towards a 7-Eleven convenience store;
· at approximately 2:30 a.m. on October 16, 1998, Richards’ van was
observed to be on fire at that same car wash;
· after firefighters extinguished the fire, they found Richards’ partially-
clothed body wedged between the two front seats of the van;
· at approximately 2:35 a.m. on October 16, 1998, LeBere was videotaped
on a surveillance camera inside of the 7-Eleven store;
· between 2:45 a.m. and 3:00 a.m. on October 16, 1998, a cab driver picked
LeBere up outside the 7-Eleven store;
· the cab driver described LeBere as “very nervous” and indecisive about
where he wanted to be dropped off at;
· the cab driver ultimately dropped LeBere off a short distance from
LeBere’s residence;
· LeBere’s aunt, with whom LeBere lived, observed LeBere arrive home
shortly after 3:00 a.m. on October 16, 1998;
3 · LeBere told his aunt that he had been at Crazy Mike’s with a woman, had
left with the woman in her van to go to another bar, but became sick,
decided he needed to go home, and then walked around until he found a 7-
Eleven store and called a taxi for a ride home;
· midday on October 16, 1998, LeBere visited a barber and had his hair cut
significantly shorter;
· when questioned by the police, LeBere first told them that he had walked
home from Crazy Mike’s alone; LeBere then changed his story and told the
police that he left the bar with Richards at approximately 1:30 a.m. and that
she drove him to his residence.
To prove that LeBere killed Richards intentionally or in the course of committing
another felony (sexual assault or arson), the prosecution also presented testimony from
Ronnie Archuleta, an inmate who had been housed with LeBere shortly after his arrest.
Archuleta testified that LeBere admitted to him that he had raped Richards, strangled her
to death, and burned her van to conceal the evidence. According to Archuleta, LeBere
said he killed Richards so she would not be able to identify him from a phoenix tattoo on
his arm.
LeBere’s defense strategy focused, in part, on challenging Archuleta’s credibility.
As the district court noted, “[t]he jury learned that . . . Archuleta had been convicted of
fraud, forgery, and criminal impersonation.” Aplt. App. at 129. “He admitted that he
4 was in danger of being prosecuted as a habitual offender, which would likely result in
him spending up to eighteen years in prison, and that he was testifying against . . . LeBere
to avoid it and to receive favorable treatment from prosecutors.” Id. “Witnesses testified
that . . . Archuleta [wa]s a chronic liar.” Id. In particular, “[a] former deputy police chief
testified that after . . . Archuleta had worked as a confidential informant, the Colorado
Springs vice and narcotics unit decided to stop using him because he made a false report,
was unreliable, and did not tell the truth.” Id. “LeBere also showed that . . . Archuleta
could have gleaned the information he testified to from local newspaper reports that
predated . . . LeBere’s alleged confession.” Id.
LeBere’s attacks on Archuleta’s credibility proved successful. The jury convicted
LeBere only of second-degree murder and second-degree arson, and acquitted him on the
various first-degree murder counts.
LeBere exhausted his state court remedies and now seeks federal habeas relief
from his convictions. At issue is LeBere’s claim that the prosecutors in his case “relied
on perjured testimony” from Archuleta “and withheld potentially exculpatory evidence
material to his defense,” i.e., evidence that lead detective J.D. Walker assisted Archuleta
in concocting a false confession story, “in violation of Brady v. Maryland, 373 U.S. 83
(1963).” LeBere v. Abbott, 732 F.3d 1224, 1225 (10th Cir. 2013). LeBere’s claim rests
entirely on Archuleta’s post-trial recantation of his trial testimony.
5 The magistrate judge issued a report and recommendation recommending that
LeBere’s petition be denied. In doing so, the magistrate judge made extensive findings of
fact based on the evidence in the record, including videotaped depositions of Archuleta
and Walker that were taken during discovery in the federal habeas proceedings. The
magistrate judge noted “that the ultimate resolution of [LeBere’s] Brady claim turn[ed]
on the relative credibility of Archuleta and Walker” because “[i]t [wa]s readily apparent
based on their conflicting deposition testimony . . . that they [could not] both be telling
the truth about [LeBere’s] jailhouse confession and their own trial testimony.” Aplt.
App. at 86–87. The magistrate judge ultimately found “that the preponderance of the
evidence demonstrate[d] Walker’s testimony [wa]s credible and Archuleta’s recantation
[wa]s not.” Id. at 92. For that reason, the magistrate judge “[wa]s not persuaded that the
prosecution either relied on perjured testimony from Archuleta and Walker or that
Walker met with Archuleta and provided him information enabling Archuleta to give
false testimony.” Id.
LeBere filed written objections to the report and recommendation. After
considering his objections, the district court issued an order adopting the magistrate
judge’s recommendation to deny LeBere’s petition for federal habeas relief. The district
court did not resolve LeBere’s Brady claim on the basis of the respective credibility of
Walker and Archuleta. Aplt. App. at 122. Instead, the district court “assume[d] that
Colorado suppressed the impeachment evidence,” and in turn concluded that the jury’s
verdict was not dependent upon Archuleta’s testimony and that the impeachment
6 evidence was not necessary to raise doubt as to the veracity of Archuleta’s testimony. Id.
at 123. In other words, the district court concluded that “the verdict [wa]s sufficiently
supported by evidence other than . . . Archuleta’s testimony, and . . . that the jury
[apparently] did not find his testimony to be credible in significant respects.”1 Id. at 129.
Accordingly, the district court concluded “that the suppression of the impeachment
evidence did not result in a denial of due process to . . . LeBere.” Id.
LeBere argues on appeal that “the District Court erred when it found that [he]
could not maintain a Brady claim based on the State’s presentation of perjured testimony
and that any suppression of evidence by the State was not material to LeBere’s
conviction.” Aplt. Br. at 35. Because LeBere’s Brady claim was not decided on the
merits in state court, we review the district court’s legal conclusions de novo and its
factual findings, if any, for clear error. Underwood v. Royal, 894 F.3d 1154, 1162 (10th
Cir. 2018).
In Brady, the Supreme Court held “that the suppression by the prosecution of
evidence favorable to an accused upon request violates due process where the evidence is
material either to guilt or to punishment, irrespective of the good faith or bad faith of the
prosecution.” 373 U.S. at 87. Evidence qualifies as material and must be disclosed by
1 Ironically, both the state trial court and the Colorado Court of Appeals reached the same conclusion when LeBere moved for a new trial on the basis of Archuleta’s recantation. 7 the prosecution under Brady when there is “any reasonable likelihood” it could have
“affected the judgment of the jury.” Giglio v. United States, 405 U.S. 150, 154 (1972)
(quoting Napue v. Illinois, 360 U.S. 264, 271 (1959)). To prevail on a Brady claim, a
petitioner need not show that it is “more likely than not” that he would have been
acquitted had the new evidence been admitted. Smith v. Cain, 565 U.S. 73, 75 (2012)
(internal quotation marks omitted). Instead, the petitioner must show only that the new
evidence is sufficient to “undermine confidence” in the verdict. Id. (internal quotation
marks and brackets omitted).
The rule announced in Brady applies to evidence that undermines the credibility of
a witness. Giglio, 405 U.S. at 153–54. But, that said, “evidence impeaching an
eyewitness may not be material if the State’s other evidence is strong enough to sustain
confidence in the verdict.” Smith, 565 U.S. at 76.
Finally, the Supreme Court has emphasized that “[r]ecantation testimony is
properly viewed with great suspicion.” Dobbert v. Wainwright, 468 U.S. 1231, 1233
(1984). “It upsets society’s interest in the finality of convictions, is very often unreliable
and given for suspect motives, and most often serves merely to impeach the cumulative
evidence rather than to undermine confidence in the accuracy of the conviction.” Id. at
1233–34.
8 B
In addressing LeBere’s Brady claim, the majority takes the same approach as the
district court and assumes both that Archuleta’s recantation is truthful, and that the
prosecution in LeBere’s case suppressed impeaching evidence. But the majority
disagrees with the district court regarding the merits of Archuleta’s Brady claim and
“conclude[s] that the suppressed evidence is sufficient to undermine [its] confidence in
the verdict.” O&J at 11. Although the majority concedes that “there was substantial
circumstantial evidence of guilt,” it concludes that “[t]he suppressed evidence fits neatly
with LeBere’s theory that law enforcement prematurely concluded that he was guilty
rather than investigating other available leads.” Id. On that point, the majority
emphasizes that Walker was the lead detective and served as the self-described “‘pivot
point’ of the investigation.” Id. at 10. The majority further concludes that, “[w]hen
coupled with the suppressed evidence,” information presented by LeBere at trial
regarding other possible suspects “could have prompted the jury to reasonably doubt
LeBere’s guilt.” Id. at 11.
I strongly disagree. In my view, the majority’s analysis overemphasizes both
Walker’s importance to the prosecution’s case against LeBere and the strength of the
“other possible suspect” information that LeBere presented. It is undisputed that Walker
was the lead detective in the case. But Walker played a very minor role at trial. He
testified about responding to the scene of the burning van, described the condition of
Richards’ body in the van, and explained how he learned about LeBere’s confession to
9 Archuleta. The majority makes much of the fact that Walker was the self-described
“pivot point” in the investigation and all information supposedly “referred to” Walker.
But there is no evidence—nor even a suggestion—that Walker tampered with or altered
the mountain of circumstantial evidence that the prosecution presented at trial. Indeed,
much of that circumstantial evidence came from eyewitness testimony and was
essentially undisputed.
Even if we assume that Walker persuaded Archuleta to testify falsely at trial
regarding LeBere’s purported confession, had that information been presented to the jury,
it would not have altered the above-described circumstantial evidence. Moreover, even
without the purported Brady evidence, it is apparent from the verdict that the jury
rejected Archuleta’s testimony regarding LeBere’s alleged confession. Had the jury
heard testimony from Archuleta that Walker persuaded him to lie about LeBere’s alleged
confession, the jury almost certainly would have also rejected that testimony as lacking
credibility. In other words, there is no reasonable basis to conclude that the jury would
have believed anything that Archuleta said, having heard all of the evidence undermining
his credibility.
The majority asserts that “even assuming that the jury did not believe Archuleta,
the suppressed evidence would have done far more than impeach him: it could have
caused the jury to question the entire investigation.” Id. at 10. There are two problems
with that assertion. First, it assumes that the jury would have believed Archuleta’s
recantation testimony and his story about how Walker persuaded him to lie. As noted,
10 that is a doubtful proposition. Second, the majority fails to identify which, if any, of the
multiple items of circumstantial evidence it believes would reasonably have been called
into question by the purported impeachment evidence. As I have explained, none of that
evidence would have reasonably been called into question.
The only other rationale offered by the majority for its conclusion is that the
suppressed impeachment evidence might “have prompted the jury to reasonably doubt
LeBere’s guilt” when considered in light of LeBere’s attempts to cast blame on other
individuals. Id. at 11. But a review of the record reveals that, despite the best efforts of
LeBere’s trial counsel, there was scant evidence suggesting that anyone other than
LeBere was involved in Richards’ murder. Although LeBere’s counsel attempted to cast
blame on Richards’ fiancé, Russell Herring, there was no direct or circumstantial
evidence linking Herring to the murder or otherwise calling into question LeBere’s
involvement in the murder. Curiously, the majority states that Herring “may have lied to
police about staying home the night of the murder.” Id. Even if that dubious proposition
were true, there was no other evidence even remotely linking him to Richards’ murder.
Likewise, the majority notes that “[t]wo homeless men were . . . near the scene of the
crime but were not investigated,” and “[a]n eyewitness saw a man standing near
Richards’ van just before the fire who did not match LeBere’s description.” Id. Again,
these minor pieces of evidence do little or nothing to undermine the overwhelming
circumstantial evidence of LeBere’s guilt.
11 For these reasons, I agree with the district court that LeBere’s Brady claim—
which is based exclusively on the post-trial recantation of a witness whose trial testimony
the jury rejected as lacking credibility—is meritless and does not justify the grant of
federal habeas relief.