NOT RECOMMENDED FOR PUBLICATION File Name: 23a0155n.06
Case No. 22-1135
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED ) Apr 03, 2023 MARCUS KELLEY, ) DEBORAH S. HUNT, Clerk Plaintiff - Appellee, ) ) v. ON APPEAL FROM THE UNITED ) STATES DISTRICT COURT FOR THE ) DEWAYNE BURTON, Warden, EASTERN DISTRICT OF MICHIGAN ) Defendant - Appellant. ) OPINION ) )
Before: COLE, GIBBONS, and READLER, Circuit Judges.
GIBBONS, J., delivered the opinion of the court in which READLER, J., joined. COLE, J. (pp. 12–24), delivered a separate dissenting opinion.
JULIA SMITH GIBBONS, Circuit Judge. The warden appeals the district court’s grant of
Marcus Kelley’s amended habeas petition based on his Brady claim. Because Kelley’s Brady
claim was unexhausted before the Michigan courts and is thus procedurally defaulted, his claim
fails. Kelley’s Brady claim further fails on the merits because he was not prejudiced by the alleged
withholding of impeachment evidence. We reverse the district court’s grant of Kelley’s habeas
petition and remand for consideration of Kelley’s remaining claims for relief.
I.
Marcus Kelley was convicted by a Michigan state court jury of multiple drug offenses
related to the trafficking of crack cocaine. People v. Kelley, No. 310325, 2013 WL 5763056, at
*1 (Mich. Ct. App. Oct. 24, 2013) (per curiam). As summarized by the state court of appeals, two
relevant witnesses appeared for the prosecution: police informant Michael Zion and Oakland No. 22-1135, Kelley v. Burton
County Sheriff’s Office Detective Mark Ferguson. Zion testified that he purchased crack cocaine
from Kelley on four occasions. He identified Kelley as the seller by recognizing Kelley’s voice
on the phone each time a purchase was arranged and by personally witnessing Kelley hand him
bags of what was later verified as crack cocaine. Zion testified that he also observed Kelley
“cooking” cocaine in Kelley’s kitchen to convert it from powder to crystal and then weighing and
packaging the drugs.
Detective Ferguson also testified against Kelley. He identified Kelley as the driver and
sole occupant of the car in which the first drug purchase was made and claimed that he had listened
to every drug transaction via a recording device that Zion carried. Ferguson identified the voice
on the recording as Kelley’s and stated “that he heard nothing that sounded like ‘anything other
than a drug deal.’” Id. Kelley was found guilty, and his conviction was affirmed on direct appeal.
Id. at *8, appeal denied, 843 N.W.2d 516 (Mich. 2014), recons. denied, 852 N.W.2d 160 (Mich.
2014).
Kelley moved for post-conviction relief from the state trial court. His motion asserted that
he was entitled to a new trial under state law based on newly discovered evidence that Ferguson
had previously committed misconduct in other cases by submitting false evidence and committing
perjury.1 He alleged that Ferguson’s prior misconduct resulted in Ferguson’s termination and the
dismissal of many other cases. Kelley also argued that his due process rights were violated when
the prosecutor knowingly used perjured testimony at his trial by putting Ferguson on the stand—
although he did not identify any specific trial testimony that was false. In making this same
argument, Kelley also noted that the failure of Ferguson to admit on the record that a search warrant
1 The warden indicates that Ferguson’s misconduct was not known to the prosecutor at the time of Kelley’s trial. Kelley never specifically states otherwise but says that Ferguson’s “misconduct occurred during the period of Petitioner Kelley’s case.” CA6 R. 13, Appellee Br., at 12. -2- No. 22-1135, Kelley v. Burton
was obtained improperly prevented the jury from making a proper credibility determination of
Ferguson.2 Finally, he claimed that he received ineffective assistance of appellate counsel by
failing to raise concerns about Ferguson’s misconduct on direct appeal.
The state circuit court rejected Kelley’s motion for relief from judgment, addressing only
the issue of ineffective assistance of appellate counsel. The court concluded that it could not
excuse procedural default of the perjured-testimony claim because Kelley had not shown that he
was prejudiced by counsel’s errors in failing to raise it on direct appeal. Kelley sought
reconsideration and appealed, asserting his right to relief for the prosecutor’s alleged use of
perjured testimony to obtain his conviction. In these appeals, Kelley also stated that a new trial
was required for the jury to hear the newly discovered impeachment evidence against Ferguson.
The trial court denied reconsideration, and each state appeals court denied Kelley leave to appeal.
On April 11, 2018, Kelley petitioned the Eastern District of Michigan for federal habeas
relief pursuant to 28 U.S.C. § 2254. The district court granted the petition for Count Four—his
due process claim that his rights were violated by the prosecutor’s use of perjured testimony—
finding that the prosecutor or police had violated Brady v. Maryland, 373 U.S. 83, 87 (1962), and
Giglio v. United States, 405 U.S. 150, 153 (1972), by failing to disclose Ferguson’s misconduct in
other cases. On appeal, a panel of this court reversed, concluding that the district court erred by
recasting the perjured-testimony claim as a Brady claim that the prosecutor or police did not
disclose Ferguson’s credibility issues. Kelley v. Burton, 792 F. App’x 396, 397 (6th Cir. 2020).
On remand, the case was reopened and the district court ordered supplemental briefing.
Construing Kelley’s briefing as a motion to amend the habeas petition to add the Brady claim, the
court granted the motion. Although the warden objected that this amendment was not brought
2 The record contains no indication that the search warrant was in fact improperly obtained. -3- No. 22-1135, Kelley v. Burton
within the Antiterrorism and Effective Death Penalty Act’s (“AEDPA’s”) one-year statute of
limitations for habeas petitions, the court held that the Brady claim related back to the original
petition because the core facts were the same as Kelley’s perjured-testimony claim. Therefore, the
court concluded that the amended petition did not exceed AEDPA’s statute of limitations.
In addition to its statute of limitations challenge, the warden also argued that Kelley never
presented his Brady claim to the state courts and therefore did not properly exhaust that claim,
barring the district court from granting relief on those grounds. However, the district court
concluded that Kelley adequately presented both the legal and factual bases for his Brady claim
by discussing the key facts pertinent to a Brady claim as well as adjacent caselaw, including
predecessor cases to Brady. It thus concluded that Kelley’s Brady claim was properly exhausted.
Finding the Brady claim properly pled and exhausted, the district court addressed the
standard of review for a merits determination. It reasoned that, even if the state trial court had
addressed the Brady/Giglio claim on the merits, thus entitling the decision to AEDPA deference,
its rejection of this claim was “contrary to, or an unreasonable application of, clearly established
law and an unreasonable determination of the facts.” DE 26, Op. and Order, Page ID 1449.
Next, the district court addressed the state court’s determination that Kelley had failed to
show prejudice in his ineffective assistance of appellate counsel claim to excuse his failure to raise
the Brady/Giglio issue on direct appeal. In contrast to the state court, the district court found that
Kelley’s appellate counsel was ineffective for failing to raise the claim on direct appeal and
concluded that Kelley had shown good cause for any procedural default and actual prejudice.
Finally, the district court turned to its review of Kelley’s Brady claim. It assessed the key
factors of a Brady claim and held that the information about Ferguson’s misconduct was
impeaching, that it was suppressed by the officer’s failure to disclose it, and that its suppression
-4- No. 22-1135, Kelley v. Burton
prejudiced Kelley by undermining confidence in the verdict. The court granted Kelley’s habeas
petition, and the warden timely appealed. The court further granted the warden’s motion to stay
pending appeal.
II.
“In a habeas corpus appeal, we review the district court’s legal conclusion’s de novo, but
will not set aside its factual findings unless they are clearly erroneous.” Ivory v. Jackson, 509 F.3d
284, 291 (6th Cir. 2007) (citing Dyer v. Bowlen, 465 F.3d 280, 283-84 (6th Cir. 2006)). Whether
a claim is barred by a statute of limitations is a question of law subject to de novo review. Sierra
Club v. Slater, 120 F.3d 623, 630 (6th Cir. 1997). We also review de novo the district court’s
determinations of cause and prejudice to excuse procedural default. Id.
By contrast, we review state court habeas determinations under the standard set out by
AEDPA. Id.; 28 U.S.C. § 2254(d). Under AEDPA, federal courts may only grant habeas relief to
a petitioner in state custody if either: (1) the state court’s decision “was contrary to, or involved an
unreasonable application of, clearly established Federal law, as determined by the Supreme
Court[,]” or (2) the state court’s decision “was based on an unreasonable determination of the facts
in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d).
When reviewing the district court’s grant of a motion to amend, we review for abuse of
discretion. Hill v. Mitchell, 842 F.3d 910, 922 (6th Cir. 2016).
III.
In its review of Kelley’s petition on remand, the district court committed several errors,
any one of which could be the basis for reversal. We hold that, regardless of whether Kelley’s
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amended habeas petition fell outside AEDPA’s statute of limitations,3 Kelley’s Brady claim was
unexhausted and procedurally defaulted. Furthermore, his claim does not meet Brady’s materiality
standard on the merits. On these grounds, we reverse.
A.
A state prisoner’s federal habeas petition cannot be granted unless he has exhausted his
claims before the state courts. 28 U.S.C. § 2254(b)(1); see also O’Sullivan v. Boerckel, 526 U.S.
838, 842 (1999) (“In other words, the state prisoner must give the state courts an opportunity to
act on his claims before he presents those claims to a federal court in a habeas petition.”). To
properly exhaust claims, a state prisoner is required to present “the same claim under the same
theory . . . to the state courts before raising it in a federal habeas petition.” See Wagner v. Smith,
581 F.3d 410, 417 (6th Cir. 2009).
Kelley’s motions for state post-conviction relief were centrally premised on the argument
that the prosecutor’s “knowing use of perjured testimony” violated his due process rights. DE 5-
9, Mot. for Relief from J., Page ID 891; see also DE 5-12, Mot. for Recons., Page ID 1037-38,
1044-46; DE 5-14, Mich. Ct. App. R., Page ID 1137. Kelley referenced the jury’s need to know
about a witness’s credibility, but only in the context of “the prosecution’s duty to prevent lies from
entering the evidence.” DE 5-9, Mot. for Relief from J., Page ID 891 (citing People v. Cassell,
234 N.W.2d 460, 462 (Mich. Ct. App. 1975)). Two assertions constitute Kelley’s closest argument
to a Brady claim: (1) “A Defendant should be entitled to a new trial when the Defendant’s
conviction is predicated on the testimony of a key witness linking the Defendant to the alleged
3 The statute of limitations does not present a jurisdictional bar to habeas review, and we decline to determine the issue because Kelley is not entitled to habeas relief for the reasons discussed below. See Smith v. Ohio Dep’t of Rehab. and Corr., 463 F.3d 426, 429, n.2 (6th Cir. 2006) (declining to address statute-of-limitations defense on appeal in part because AEDPA’s statute of limitations is not jurisdictional); see also Trussell v. Bowersox, 447 F.3d 588, 590 (8th Cir. 2006). -6- No. 22-1135, Kelley v. Burton
crime when the newly discovered impeachment evidence casts doubt on the credibility of that key
witness,” id. at Page ID 892, and that (2) “[t]his newly discovered evidence came to light only
when Mr. Kelley sent his court-appointed lawyer documentation that Det. Ferguson had been
investigated and fired . . . which revealed that he may have testified falsely against Mr. Kelley.”
DE 5-14, Mich. Ct. App. R., Page ID 1137. However, Kelley still never asserted that the evidence
was withheld, stating rather that he is entitled to a new trial under state law and that the prosecutor
violated due process by presenting Ferguson’s false testimony in Kelley’s trial. DE 5-9, Mot. for
Relief from J., Page ID 890-93. The claims presented by Kelley to the Michigan state courts
simply do not contain a Brady claim that evidence was withheld.4
In Jalowiec v. Bradshaw, 657 F.3d 293 (6th Cir. 2011), the petitioner faced a similar
situation to Kelley: in state court, he claimed that the prosecutor suborned perjured testimony and
that he had received ineffective assistance of counsel for lack of pre-trial investigation into the
prosecution witnesses, but in his federal habeas petition, he sought to advance a Brady claim based
on the same prior statements of prosecution witnesses. Id. at 304. We held that the similarity of
4 The dissent, however, argues that Kelley presented both the factual and legal bases for his Brady claim to the Michigan courts and thus exhausted his claim. See Dissent at 18-20. The dissent emphasizes Kelley’s citations to United States v. Agurs, 427 U.S. 97 (1976) and other Brady precursors in his motions for relief. However, all of these cases were cited by Kelley in the context of a perjured-testimony claim. See Mot. for Relief from J., R. 5-9, Page ID 890-91. Although Kelley later quotes Agurs to reference “omitted evidence,” he never states that the evidence was withheld; indeed, this quote from Agurs comes in his discussion of whether the evidence is “newly discovered.” Id. at Page ID 893. Throughout hundreds of pages of filings before the Michigan courts, Kelley did not once claim that Ferguson’s misconduct evidence was withheld or suppressed; rather, Kelley claimed continuously that Ferguson lied on the stand. These two distinct claims—perjured-testimony and Brady-withholding—are not and cannot be treated the same for purposes of exhaustion, as we explained in Jalowiec and as we reiterate below. It is not our role, as it was not the role of the district court, to recast petitioners’ claims to clear procedural hurdles. -7- No. 22-1135, Kelley v. Burton
the claims was not enough to exhaust Jalowiec’s Brady claim. The theories of ineffective
assistance and perjured-testimony failed to
give the state courts the opportunity to apply the legal principles governing Jalowiec’s present Brady claim. It is not enough that these different claims implicated some of the same facts . . . . It is not enough that the claims actually presented to the state courts were somewhat similar to the Brady claim in some respects. Nor is it enough to say that the Brady ramifications of Jalowiec’s arguments were self-evident. The bottom line is that the state courts were not called upon to apply the legal principles governing the constitutional claim now presented to the federal courts.
Id. (internal citations and quotation marks omitted). Jalowiec’s reasoning applies in full to
Kelley’s petition. Therefore, we conclude that Kelley has not exhausted his Brady claim before
the Michigan courts.
As Michigan law permits only one post-conviction motion for relief from judgment, Kelley
can no longer present his Brady claim to the Michigan courts. See Mich. Ct. R. 6.502(B). While
there are exceptions to this rule—for a retroactive change in law, new evidence discovered after
the filing of the first motion, or a court order vacating the defendant’s convictions—none are
applicable in Kelley’s case. See Mich. Ct. R. 6.502(G). Because “is it clear that [the] claim[] [is]
now procedurally barred under [state] law,” the claim is procedurally defaulted. Gray v.
Netherland, 518 U.S. 152, 161-62 (1996) (citing Castille v. Peoples, 489 U.S. 346, 351 (1989)).
This default bars federal review of the claim unless Kelley can show cause and prejudice for the
default, see id. at 162, or that failure to consider the claim would result in a “fundamental
miscarriage of justice.” Coleman v. Thompson, 501 U.S. 722, 750-51 (1991).
Importantly, this case involves two layers of procedural default: Kelley’s failure to raise
his Brady claim on direct appeal and his failure to raise the Brady claim in his state post-conviction
motion for relief. The foregoing discussion has concerned both stages—whether Kelley raised the
Brady claim at all before the state courts. However, the district court, concluding that Kelley had
-8- No. 22-1135, Kelley v. Burton
exhausted his Brady claim in state court in his post-conviction process, addressed only the former.
For direct appeal, Michigan has the same “cause and prejudice” standard for excusing procedural
default. Mich. Ct. R. 6.508(D)(3). Therefore, the district court considered whether Kelley’s failure
to raise the Brady claim on direct appeal could be excused under that standard. The district court
concluded that Kelley had received ineffective assistance of counsel on direct appeal for failing to
raise the Brady claim.
“[A]ttorney error committed in the course of state postconviction proceedings—for which
the Constitution does not guarantee the right to counsel . . . –cannot supply cause to excuse a
procedural default that occurs in those proceedings.” Davila v. Davis, 137 S. Ct. 2058, 2065
(2017).5 Where a petitioner claims that counsel was ineffective for failing to raise a claim on direct
appeal but subsequently fails to raise that same claim in the state post-conviction proceedings,
procedural default is not excused. See Gerth v. Warden, Allen Oakwood Corr. Inst., 938 F.3d 821,
828-32 (6th Cir. 2019). Therefore, regardless of whether the district court properly excused
Kelley’s failure to raise his Brady claim on direct appeal, the failure of his post-conviction counsel
to raise the claim at that stage cannot be excused. See id.; Davila, 137 S. Ct. at 2065.
Were Kelley’s claim independently valid on the merits, see infra Part III.B, it might be
proper to remand the case for the district court to order briefing and determine in the first instance
whether Kelley wishes to plead some other grounds that caused his failure to raise the Brady claim.
5 Although in Martinez v. Ryan, 566 U.S. 1 (2012), the Supreme Court recognized an exception where ineffective assistance of post-conviction counsel could constitute cause to excuse procedural default, that exception is irrelevant here. See Davila, 137 S. Ct. at 2065-67 (clarifying that Martinez only allowed ineffective assistance of post-conviction counsel to excuse procedural default for claims of ineffective assistance of trial counsel, not counsel on direct appeal). Because Kelley does not claim that ineffective assistance of trial counsel contributed to his Brady withholding claim, this narrow exception is irrelevant to his case. -9- No. 22-1135, Kelley v. Burton
However, given the meritless nature of Kelley’s Brady claim, as discussed below, remand is
unnecessary.
B.
A Brady claim arises when (1) there is evidence favorable to the accused, “either because
it is exculpatory or because it is impeaching; (2) that evidence was “suppressed by the State, either
willfully or inadvertently”; and (3) “prejudice must have ensued.” Strickler v. Greene, 527 U.S.
263, 281-82 (1999).
Prejudice is the subject of the warden’s second assignment of error by the district court.
The warden argues that Kelley was not prejudiced because the impeaching evidence was not
material. Materiality “do[es] not require a defendant to show that disclosure of the evidence would
have ultimately led to an acquittal.” Gumm v. Mitchell, 775 F.3d 345, 363 (6th Cir. 2014). Rather,
evidence is material “when 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, 469-70 (2009).
“A reasonable probability does not mean that the defendant ‘would more likely than not have
received a different verdict with the evidence,’ only that the likelihood of a different result is great
enough to ‘undermine[ ] confidence in the outcome of the trial.’” Smith v. Cain, 565 U.S. 73, 75-
76 (2012) (quoting Kyles v. Whitley, 514 U.S. 419, 434 (1995)) (alteration in original).
A review of Kelley’s one-day jury trial reveals that the failure to obtain impeachment
evidence for Ferguson is not material because it would not undermine confidence in the guilty
verdict. The key testimony in Kelley’s case came not from Ferguson, but from Ferguson’s
confidential informant, Zion. Zion testified that he performed the drug transactions personally and
on multiple occasions with Kelley. He made an eyewitness identification of the man with whom
he transacted and identified that man in the courtroom as the defendant, Kelley. Zion made a voice
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identification of Kelley as the caller who arranged another drug buy. He further described how he
went to Kelley’s home to buy crack cocaine and watched Kelley weigh and bag the drugs before
selling them to Zion. Zion also identified various pieces of the prosecution’s evidence—baggies
of crack cocaine from the drug buys—which the state’s forensic chemist confirmed was crack
cocaine.
By contrast, Ferguson’s testimony provided primarily background information and
corroboration of Zion’s testimony from what he heard over the recordings. For example, Ferguson
explained the definition of a controlled buy. DE 5-4, Jury Trial Tr., Page ID 320-23. While
Ferguson also provided additional eyewitness identification of Kelley at one transaction, Zion
provided the only eyewitness identification of Kelley as the source of drugs for the remaining three
transactions. Following its review of the evidence and its credibility determinations in a case
where Zion and the lab confirmation of the drug product provided the bulk of the evidence, the
jury delivered a guilty verdict. While there is a “reasonable possibility that either a total, or just a
substantial discount of [Ferguson’s] testimony might have produced a different result, . . .
petitioner’s burden is to establish a reasonable probability of a different result.” Strickler, 527
U.S. at 291 (emphasis in original). Because Kelley has not met that burden, his Brady claim fails.
IV.
For the foregoing reasons, we reverse the district court’s grant of Kelley’s habeas corpus
petition and remand for consideration of Kelley’s remaining claims for relief.
- 11 - No. 22-1135, Kelley v. Burton
COLE, Circuit Judge. Because (1) Kelley’s amended petition relates back to the original
petition, (2) he exhausted his Brady claim in the state post-conviction process and can overcome
procedural default stemming from his failure to raise this claim on direct appeal, and (3) the claim
succeeds on the merits, I would affirm the district court’s grant of Kelley’s habeas petition. For
these reasons, I respectfully dissent.
I. ANALYSIS A. Statute of Limitations
The majority opinion does not reach the warden’s statute-of-limitations argument as it
reverses on other grounds. But because I would affirm, I begin by addressing the timeliness issue.
The warden argues that the district court’s decision to grant Kelley’s motion to amend was in error
because the amended petition was untimely. The Antiterrorism and Effective Death Penalty Act
(“AEDPA”) imposes a one-year statute of limitations on federal habeas petitions. 28 U.S.C.
§ 2244(d)(1). But a court may still consider a habeas petition filed outside of this period under
certain circumstances. Relevant here, a court may still review an otherwise untimely amended
petition if the amended petition’s claims “relate back” to the claims raised in the original, timely
petition. Id. § 2242; Fed. R. Civ. P. 15(c).1 “So long as the original and amended petitions state
claims that are tied to a common core of operative facts, relation back will be in order.” Mayle v.
Felix, 545 U.S. 644, 664 (2005) (emphasis added) (footnote omitted). We review a district court’s
relation-back conclusion de novo, Innovation Ventures, LLC v. Custom Nutrition Labs., LLC, 912
F.3d 316, 333 (6th Cir. 2018), and review a district court’s decision to grant a motion to amend
for an abuse of discretion, Hill v. Mitchell, 842 F.3d 910, 922 (6th Cir. 2016).
1 The doctrine of equitable tolling also permits courts to review a petition filed outside of AEDPA’s one-year statute of limitations, Holland v. Florida, 560 U.S. 631, 649 (2010), but as the relation-back theory permits review of Kelley’s amended petition, I do not address this alternative.
- 12 - No. 22-1135, Kelley v. Burton
Here, Kelley’s original and amended petition “are tied to a common core of operative
facts[.]” Mayle, 545 U.S. at 664. The original petition directly addressed Ferguson’s professional
misconduct and explained that “[t]he crux of Petitioner’s newly discovered evidence are
documents which demonstrate that an investigation of Det. Ferguson in 2012–2013 led to Det.
Ferguson being fired[.]” (Pet. for Writ of Habeas Corpus, R. 1, PageID 39.) The motion to amend
the petition generally notes Ferguson’s lack of credibility and corruption and specifically asserts
that “the prosecutor’s failure to disclose the fact that Detective Ferguson was being investigated
for corruption violated Due Process.” (Pet.’s Suppl. Br., R. 24, PageID 1367.) So, both the original
petition and the amended petition “are tied to a common core of operative facts” related to the
investigation into Ferguson’s misconduct. Mayle, 545 U.S. at 664.
It is true that Kelley’s motion to amend provides more direct legal authority related to a
Brady-withholding claim than his original petition did. But, in Mayle, the Supreme Court
emphasized that it was the difference in facts—not the difference in legal theories—necessary to
resolve the claims that ultimately failed to support relation back in that instance. Id. at 657, 660–
61. There, the Court was much less concerned that the amended petition raised a Fifth Amendment
issue while the original petition raised a Sixth Amendment issue. Indeed, Mayle approvingly cited
Moore’s Federal Practice Guide, which acknowledges that “relation back [is] ordinarily allowed
‘when the new claim is based on the same facts as the original pleading and only changes the legal
theory[.]’” Id. at 664 n.7 (emphasis added) (citing 3 James Moore, et al., Moore’s Federal Practice
§ 15.19[2], p. 15–18 (3d ed. 2004)). Here, though the case law underlying the two petitions may
differ to an extent, the facts underlying the claims are the same, so relation back is appropriate.
Further, this court’s reasoning in Hill v. Mitchell, 842 F.3d 910, 925 (6th Cir. 2016), does
not preclude relation back in the present case. The Hill court determined relation back did not
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apply, explaining that the original petition “was completely bereft of specific fact allegations or
evidentiary support” and “merely speculated that the State had Brady material, nothing more.” Id.
at 924. The court was concerned that if relation back were permitted, “habeas petitioners could
routinely circumvent AEDPA’s statute of limitations on Brady claims” by including a “catch-all
Brady claim in his original petition . . . and hope that evidence eventually turns up.” Id. at 925.
But Kelley’s case is distinguishable. Kelley’s original petition did not present a “catch-all Brady
claim[.]” Id. Rather, it pointed to specific information regarding the investigation into Ferguson’s
misconduct and the impact of this information on Kelley’s conviction. Unlike the petitioner in
Hill, Kelley described what the prosecution withheld: information on the investigation into
Ferguson’s misconduct. Thus, the Hill court’s concerns are not present here.
Given that “the original and amended petitions state claims that are tied to a common core
of operative facts, relation back [is] in order.” Mayle, 545 U.S. at 664. Further, it was not an abuse
of discretion for the district court to grant Kelley’s motion to amend and proceed with its analysis
of Kelley’s amended habeas petition.
B. Exhaustion and Procedural Default
I now move to habeas’s next set of hurdles: exhaustion and procedural default. For a
federal court to hear a petitioner’s habeas claim, “a state prisoner is required to present the state
courts with the same claim, or a claim ‘substantially equivalent’ to the claim, urged upon the
federal courts.” Jalowiec v. Bradshaw, 657 F.3d 293, 304 (6th Cir. 2011) (quoting Picard v.
Connor, 404 U.S. 270, 275–78 (1971)). If a petitioner fails to present his claims to the state court—
in other words, fails to “exhaust” these claims—or if the state court does not review these claims
due to “an independent and adequate state procedural rule,” the claims are procedurally defaulted.
Coleman v. Thompson, 501 U.S. 722, 731–32, 750–51 (1991); Seymour v. Walker, 224 F.3d 542,
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550 (6th Cir. 2000). Even if a claim is procedurally defaulted, a federal court can still review the
claim if the petitioner establishes “cause for the default and actual prejudice as a result of the
alleged violation of federal law[.]” Coleman, 501 U.S. at 750.
The majority addresses two layers of procedural default: one on direct appeal and one
during state post-conviction review. Because Kelley establishes cause and prejudice for the default
on direct appeal and Kelley presented the Brady claim in the post-conviction process, review on
the merits is appropriate.
1. Direct Appeal
Kelley does not argue that he raised the Brady-withholding claim on direct appeal. This
much is clear from the Michigan state court order denying Kelley relief from the judgment. In this
order, the Michigan state court determined that Kelley failed to raise a claim related to Ferguson’s
misconduct on direct review and none of the available exceptions to excuse this state procedural
bar applied. Thus, the state court declined to address the claim based on an “independent and
adequate state procedural rule,” making the claim procedurally defaulted for the purposes of
federal habeas review. Coleman, 501 U.S. at 750. Given this, a federal court may only hear this
procedurally defaulted claim if Kelley establishes “cause for the default and actual prejudice as a
result of the alleged violation of federal law[.]” Id.
One way Kelley can demonstrate cause for the default is by showing that his counsel’s
failure to raise the issue of Ferguson’s misconduct on direct appeal amounted to a Sixth
Amendment violation. Edwards v. Carpenter, 529 U.S. 446, 451 (2000); see also Joseph v. Coyle,
469 F.3d 441, 459 (6th Cir. 2006). To determine whether cause and prejudice exist to excuse a
procedural default, a federal court independently evaluates whether a petitioner’s counsel was
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constitutionally ineffective, rather than applying AEDPA’s deferential standard of review. Coyle,
469 F.3d at 459 ; see also Coleman, 501 U.S. at 753–54.
Kelley establishes that his appellate counsel was constitutionally ineffective for failing to
raise issues related to Ferguson’s misconduct and that the failure to do so resulted in prejudice to
Kelley. See Strickland v. Washington, 466 U.S. 668, 687 (1984). A full analysis of the issue
requires reviewing the elements of the Brady-withholding claim, which is undertaken in more
detail in Part I.C below and is not duplicated here. See Banks v. Dretke, 540 U.S. 668, 691 (2004)
(explaining the overlap between a cause-and-prejudice analysis and a Brady analysis). In short,
because Kelley’s Brady claim is meritorious, his appellate counsel’s failure to raise the claim on
direct appeal was constitutionally ineffective and resulted in prejudice to Kelley. See McFarland
v. Yukins, 356 F.3d 688, 712 (6th Cir. 2004) (concluding that appellate counsel’s failure to raise a
meritorious claim provided cause and prejudice to excuse a procedural default).
2. State Post-Conviction Appeal
As for the state post-conviction appeal, it is true that certain cases involve multiple layers
of procedural default and require multiple cause-and-prejudice analyses before federal review is
permitted. See Edwards, 529 U.S. at 453 (“[A]n ineffective-assistance-of-counsel claim asserted
as cause for the procedural default of another claim can itself be procedurally defaulted” but “that
procedural default may . . . itself be excused if the prisoner can satisfy the cause-and-prejudice
standard with respect to that claim.”). But we only need to conduct a cause-and-prejudice analysis
to excuse a second procedural default if a second procedural default actually occurred. Because
Kelley presented both the ineffective-assistance-of-appellate-counsel claim and the Brady-
withholding claim in his state post-conviction motions, the claim was exhausted, and no second
layer of default occurred at the state post-conviction stage.
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For a federal court to hear a habeas claim, “a state prisoner is required to present the state
courts with the same claim, or a claim ‘substantially equivalent’ to the claim, urged upon the
federal courts.” Jalowiec, 657 F.3d at 304 (quoting Picard, 404 U.S. at 275–78). Relying on
Supreme Court precedent, we have held that it is “sufficient if the substance of the claim was
presented to the state courts, such that the ultimate question would have been the same despite
variations in the legal theory or factual allegations urged in its support.” Jells v. Mitchell, 538 F.3d
478, 504 (6th Cir. 2008) (first citing Picard, 404 U.S. at 277–78; and then citing Whiting v. Burt,
395 F.3d 602, 612–13 (6th Cir. 2005)). To determine whether a petitioner presented a claim to the
state courts,
we ask whether the petitioner: (1) relied upon federal cases employing constitutional analysis; (2) relied upon state cases employing federal constitutional analysis; (3) phrased the claim in terms of constitutional law or in terms sufficiently particular to allege a denial of a specific constitutional right; or (4) alleged facts well within the mainstream of constitutional law.
Hand v. Houk, 871 F.3d 390, 418 (6th Cir. 2017) (citing McMeans v. Brigano, 228 F.3d 674, 681
(6th Cir. 2000)). Here, to avoid procedural default at the post-conviction stage, Kelley must have
presented the state courts with the ineffective-assistance-of-appellate-counsel claim and the Brady-
withholding claim. See Edwards, 529 U.S. at 452–53. He presented both.
First, Kelley raised the ineffective-assistance-of-counsel claim in his motion for state post-
conviction review. Kelley began by identifying the relevant legal standards for constitutionally
ineffective assistance of counsel. He then explained that “he detailed all issues that he felt had
merit that should be addressed in the Appeal surrounding misconduct on the part of Detective
Ferguson[,]” but that his attorney failed to include this issue in the appeal. (Mot. for Relief from
J., R. 5-9, PageID 889–90.) He argued that “[t]his information is of such an importance to make
known to the Court of Appeals that the conscious decision not to include it amounts to deficient
- 17 - No. 22-1135, Kelley v. Burton
performance which prejudiced him in his quest for an Appeal.” (Id. at PageID 890.) Kelley’s
motion presented both the factual and legal basis for the ineffective-assistance-of-counsel claim
based on counsel’s failure to raise a claim related to Ferguson’s misconduct, so it was exhausted.
As to the Brady-withholding claim, Kelley presented the factual basis for this claim and
cited to relevant case law applying federal constitutional analysis. See Hand, 871 F.3d at 418.
First, in his motion for state post-conviction relief, Kelley asserted that “newly discovered
evidence as to Detective Ferguson[’]s character and propensity to lie and distort the actual facts
rises to the level of impeachment evidence making a different result in the trial probable.” (Mot.
for Relief from J., R. 5-9, PageID 882.) In his supporting brief, Kelley argued that “[a] Defendant
should be entitled to a new trial when the Defendant’s conviction is predicated on the testimony
of a key witness linking the Defendant to the alleged crime when the newly discovered
impeachment evidence casts doubt on the credibility of that key witness.” (Id. at PageID 892.)
These statements identify both the importance of the impeachment evidence withheld from
the defense and the facts relevant to the Brady-withholding claim. What is more, throughout the
brief, Kelley cited to cases that rely on and apply Brady. For example, as the warden acknowledges
and the district court highlighted, Kelley cited United States v. Agurs, 427 U.S. 97 (1976), to
support his claims detailing the misconduct-related impeachment evidence and its impact on
Kelley’s conviction.2 Kelley’s motion for post-conviction relief quoted Agurs to explain that “[i]f
omitted evidence creates a reasonable doubt that did not otherwise exist, constitutional error has
been committed.” (Mot. for Relief from J., R. 5-9, PageID 893 (emphasis added) (quoting Agurs,
427 U.S. at 112).) The analysis in Agurs relied heavily on Brady to evaluate the withheld evidence
and its impact on the trial. 427 U.S. at 102–113. Given that Kelley presented the facts relevant to
2 Notably, the warden cites to United States v. Agurs to support his arguments against the merits of the Brady claim. See Appellant Br. 53.
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the withholding claim and “relied on federal cases employing constitutional analysis,” he
sufficiently presented the Brady-withholding claim to the state courts. See Hand, 871 F.3d at 418.
Further, on appeal from the state trial court’s denial of his post-conviction motion for relief
from judgment, Kelley cited Mathis v. Berghuis, 90 F. App’x 101 (6th Cir. 2004), to support his
argument for a new trial. (Mot. for Relief from J. Appeal, R. 5-14, PageID 1140.) In Mathis, the
court observed that “[t]here is no question that the Supreme Court precedent governing Mathis’s
petition is Brady v. Maryland and its progeny[,]” and went on to analyze Mathis’s claims under
this line of cases. Mathis, 90 F. App’x at 105–06. Again, Kelley relied on “federal cases
employing constitutional analysis” in making his claims, thereby exhausting the Brady-
withholding claim in the state courts.
Granted, Kelley’s citations and statements appear in portions of his brief that frame the
argument as one for a new trial, a particular form of relief under Michigan state law. But this does
not change the fact that both the factual basis and the legal theory for the Brady-withholding claim
appeared in his motions to the state courts. See Whiting, 395 F.3d at 612–13 (quoting Picard, 404
U.S. at 277–78) (“It is sufficient if ‘the substance of a federal habeas corpus claim’ be presented
to the state courts, and there are instances in which ‘the ultimate question for disposition’ will be
the same despite variations in the legal theory or factual allegations urged in its support.”).
Nor does Jalowiec alter this determination. In Jalowiec, the court concluded that the
petitioner did not exhaust his Brady claim because he did not present the same claim or a
substantially similar claim to the state courts. 657 F.3d at 304. The Jalowiec court was not
convinced that the habeas petitioner “gave the state courts the opportunity to apply the legal
principles governing Jalowiec’s present Brady claim.” Id. But in its reasoning, the court did not
evaluate the substance of Jaloweic’s state court briefings. Rather, the court only noted Jaloweic’s
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asserted theories for relief—“that the prosecution violated his due process right to a fair trial by
suborning perjury, and that his trial counsel’s failure to conduct a more thorough pre-trial
investigation amounted to ineffective assistance of counsel”—did not permit the court the
opportunity to decide the constitutional issue. Id.
An examination of Kelley’s state court briefings shows more than assertions of sweeping
theories of relief as was the case in Jaloweic. Kelley presented the state court with the material
facts underlying his Brady claim and cited to case law employing a constitutional Brady analysis.
Thus, the substance of Kelley’s arguments gave the Michigan courts the opportunity to consider
the constitutional claim, distinguishing this case from Jalowiec. See also Bray v. Andrews, 640
F.3d 731, 735 (6th Cir. 2011) (quoting Wagner v. Smith, 581 F.3d 410, 414–15 (6th Cir. 2009))
(“[T]he petitioner need only give the state courts ‘the opportunity to see both the factual and legal
basis for [the] claim.’”).
Because Kelley presented both his Brady-withholding and ineffective-assistance-of-
appellate-counsel claims to the state court in his state post-conviction proceedings, the claims were
exhausted, and no additional layer of procedural default occurred that would require the additional
cause-and-prejudice analysis undertaken by the majority. Given that Kelley’s claim is timely and
clears AEDPA’s threshold hurdles, I proceed to the merits of the claim.
C. Merits
1. Standard of Review
In its opinion, the district court did not decide which standard of review to apply to its
merits determination, explaining that even under AEDPA’s deferential standard, Kelley was
entitled to relief. Under AEDPA, if a state court issued a decision on the merits, a federal court
may only grant relief if the state court’s decision “was contrary to, or involved an unreasonable
- 20 - No. 22-1135, Kelley v. Burton
application of, clearly established Federal law” or “resulted in a decision that was based on an
unreasonable determination of the facts in light of the evidence presented in the State court
proceeding.” 28 U.S.C. § 2254(d). In contrast, if there is no state court decision on the merits,
then de novo review is appropriate. See Rompilla v. Beard, 545 U.S. 374, 390 (2005) (citing
Wiggins v. Smith, 539 U.S. 510, 534 (2003)).
Though the state court did not fully address the merits of a Brady-withholding claim, the
state court arguably addressed elements of the Brady analysis while assessing whether cause
existed to excuse Kelley’s failure to raise the issue on direct appeal. The district court applied
AEDPA’s deferential standard out of caution because there is case law that indicates AEDPA
deference is appropriate when state courts address elements of a petitioner’s claim while resolving
other issues. See Hodge v. Haberlin, 579 F.3d 627, 643 (6th Cir. 2009); Flint v. Carr, 10 F.4th
786, 796–97 (7th Cir. 2021). Because Kelley’s Brady claim is meritorious even under AEDPA’s
deferential standard, I similarly do not delve further into the appropriate standard were this not the
case. Cf. Knowles v. Mirzaynce, 556 U.S. 111, 123–24 (2009) (applying both standards of review).
2. Brady Elements
To succeed on his Brady claim, Kelley must prove that (1) the state “either willfully or
inadvertently” suppressed (2) favorable exculpatory or impeaching evidence, and (3) prejudice
ensued. Strickler v. Greene, 527 U.S. 263, 281–82 (1999).
Under clearly established Supreme Court precedent, Kelley establishes that the state
suppressed favorable evidence by failing to disclose information about Ferguson’s misconduct.
First, the Supreme Court has made clear that the prosecution’s Brady responsibilities “encompass[]
evidence ‘known only to police investigators and not to the prosecutor.’” Id. at 280–81 (citing
Kyles v. Whitley, 514 U.S. 419, 438 (1995)); see also Harris v. Lafler, 553 F.3d 1028, 1033 (6th
- 21 - No. 22-1135, Kelley v. Burton
Cir. 2009) (internal citations omitted) (first citing Strickler, 527 U.S. at 280–81; and then citing
Agurs, 427 U.S. at 107) (“Brady thus applies to relevant evidence in the hands of the police,
whether the prosecutors knew about it or not, whether they suppressed it intentionally or not, and
whether the accused asked for it or not[.]”). Second, favorable evidence includes both exculpatory
and impeachment evidence. See United States v. Bagley, 473 U.S. 667, 676 (1985). Here, the
police investigators had impeachment material (information about the investigation into
Ferguson’s misconduct) about a witness (Ferguson), albeit unknown to the prosecutor, that was
not provided to the defense. Given the Supreme Court’s clear direction as to these elements,
withholding this information satisfies Brady.
This leaves Brady’s final element: prejudice. To succeed here, Kelley must establish that
the withheld impeachment evidence was material. Strickler, 527 U.S. at 280. Evidence is material
if it leads to the “reasonable probability that, had the evidence been disclosed, the result of the
proceeding would have been different.” Cone v. Bell, 556 U.S. 449, 469–70 (2009). But “[a]
reasonable probability does not mean that the defendant ‘would more likely than not have received
a different verdict with the evidence,’ only that the likelihood of a different result is great enough
to ‘undermine[] confidence in the outcome of the trial.’” Smith v. Cain, 565 U.S. 73, 75–76 (2012)
(emphasis added) (quoting Kyles, 514 U.S. at 434). The Brady standard requires a court to examine
“whether ‘the favorable evidence could reasonably be taken to put the whole case in such a
different light as to undermine confidence in the verdict.’” Strickler, 527 U.S. at 290 (quoting
Kyles, 514 U.S. at 435).
In its analysis, the state post-conviction court explained that “[b]ecause there was sufficient
evidence to convict defendant even without Officer Ferguson’s testimony and defendant has not
shown any false testimony by Officer Ferguson, defendant has not shown that he was prejudiced
- 22 - No. 22-1135, Kelley v. Burton
by appellate counsel’s failure to raise the credibility issues on appeal.” (Mich. Post-Conviction Op.
& Order, R. 5-11, PageID 1034.) But the state court failed to address or acknowledge how
information regarding Ferguson’s credibility would have impacted the credibility of the
investigation as a whole, including the credibility of another testifying witness in the case.
Had the evidence about Ferguson’s misconduct been disclosed, it would have been enough
to undermine confidence in Kelley’s conviction. See Cain, 565 U.S. at 75–76. Kelley was
convicted following a two-day trial during which only three witnesses were called: Ferguson,
Ferguson’s informant Michael Zion, and a forensic chemist Rachel Topacio. The credibility of
each witness was paramount, and as the lead detective who also sat at the prosecution’s table
throughout trial, the impact of Ferguson’s misconduct on the proceedings cannot be limited to only
his testimony.
First, Zion offered to act as a confidential informant in hopes of receiving leniency in a
pending matter—leniency which he indeed received. Additionally, testimony repeatedly
highlighted the control Ferguson had over Zion’s involvement in the investigation and the
circumstances of the controlled buys that formed the basis of the charges against Kelley. While
Zion provided eyewitness identifications of Kelley during trial, Ferguson also provided an
identification. In fact, Ferguson identified Kelley at the first buy—the buy that initiated the entire
investigation.
Further, in closing arguments, the prosecution emphasized Ferguson’s experience with
narcotic investigations and his ability to corroborate Zion’s testimony. Additionally, both sides
highlighted credibility. As lead detective and primary coordinator of the controlled buys,
Ferguson’s credibility implicated the credibility of his informant, albeit to no fault of Zion. So, to
the extent that the withheld evidence adversely impacts both Ferguson’s and Zion’s credibility—
- 23 - No. 22-1135, Kelley v. Burton
the two relevant witnesses according to the majority—any confidence in Kelley’s conviction rests
primarily on the forensic chemist’s limited testimony.
Thus, the impact of the withheld evidence here is a far cry from that of the “several isolated
pieces of suppressed evidence” found to be immaterial to the defendant’s guilt in Cone. 556 U.S.
at 462, 474; see also Harris, 553 F.3d at 1034 (collecting cases) (“Considerable authority from the
Supreme Court and our court indicates that a defendant suffers prejudice from the withholding of
favorable impeachment evidence when the prosecution’s case hinges on the testimony of one
witness.”). Given circuit and Supreme Court precedent, had evidence of Ferguson’s misconduct
been disclosed, Kelley’s case could be viewed “in such a different light as to undermine confidence
in the verdict.” Kyles, 514 U.S. at 435. And a decision to the contrary cannot be upheld even
under AEDPA’s deferential review. Thus, Kelley establishes prejudice resulting from the state’s
failure to disclose evidence relating to Ferguson’s misconduct, and in doing so, establishes a
meritorious Brady claim. See Strickler, 527 U.S. at 280–81.
II. CONCLUSION
For the foregoing reasons, I would affirm the district court’s grant of habeas corpus to
Kelley, and I respectfully dissent.
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