Watkins v. Medeiros

36 F.4th 373

• Court: Court of Appeals for the First Circuit
• Decided: June 10, 2022
• Docket: 20-1108P
• Status: Published

Opinion

United States Court of Appeals For the First Circuit

Nos. 20-1108 20-1194

KYLE WATKINS,

Petitioner, Appellant,

v.

SEAN MEDEIROS, Superintendent,

Respondent, Appellee.

APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Allison D. Burroughs, U.S. District Judge]

Before

Barron, Chief Judge, Lynch and Gelpí, Circuit Judges.

Janet Hetherwick Pumphrey for appellant. Susanne Reardon, Assistant Attorney General, with whom Maura Healey, Attorney General, was on brief, for appellee.

June 10, 2022 LYNCH, Circuit Judge. Petitioner Kyle Watkins was

convicted in Massachusetts state court on June 2, 2005 after a

jury trial of first-degree murder for the shooting of Paul Coombs

on April 26, 2003. The Supreme Judicial Court ("SJC") affirmed

his conviction. Commonwealth v. Watkins, 41 N.E.3d 10, 28 (Mass.

2015). His federal habeas petition was denied by the U.S. District

Court. Watkins v. Medeiros, No. 16-cv-10891, 2020 WL 68245, at *1

(D. Mass. Jan. 7, 2020). Watkins timely appealed.

This case is unusual because the state courts made an

error of fact in their decisions. We hold that whether we are

bound by the deferential standard of review under the Antiterrorism

and Effective Death Penalty Act of 1996 ("AEDPA"), Pub. L. No.

104-132, 110 Stat. 1214, or whether we engage in de novo review,

the conclusion is the same. Watkins has not shown prejudice

arising from the error or with respect to any of the other claims

he makes. Nothing in the arguments presented in the habeas

petition undermines our confidence in the jury's verdict of guilt.

Accordingly, we affirm the denial of habeas relief.

I.

A. Procedural History

Paul Coombs, who knew Watkins, was shot and killed at

approximately 9:50 p.m. on April 26, 2003. Watkins, petitioner

here, was charged with the murder on September 25, 2003. A jury

trial was held in Bristol County Superior Court between May 24 and

- 2 - June 2, 2005. The Commonwealth presented many witnesses. Vern

Rudolph, a prosecution witness who identified Watkins as the

shooter, knew both Watkins and Coombs. After the conviction, the

state trial court sentenced Watkins to a term of life imprisonment.

On March 11, 2011, Watkins moved under Mass. R. Crim. P.

25(b)(2), as amended, 420 Mass. 1502 (1995), for the entry of a

not guilty verdict or, in the alternative, a new trial under Mass.

R. Crim. P. 30(b), as appearing in 435 Mass. 1501 (2001).1 Watkins

argued, among other things, that his trial counsel was ineffective

for failing to introduce evidence that allegedly would have

impeached Rudolph's credibility; and that the Commonwealth

violated Brady v. Maryland, 373 U.S. 83 (1963), for withholding

several other pieces of so-called impeachment evidence, the

nondisclosure of which allegedly deprived Watkins's counsel of the

opportunity to cross-examine Rudolph effectively. A four-day

evidentiary hearing on the motion for a new trial was held in

August 2012, after which the motion was denied. Watkins appealed

the denial, together with his conviction, to the SJC, and the SJC

1 Mass. R. Crim. P. 25(b)(2) provides that "[i]f a verdict of guilty is returned [by a jury], the judge may on motion [filed within five days of the verdict] set aside the verdict and order a new trial, or order the entry of a finding of not guilty" based on insufficiency of the evidence. Mass. R. Crim. P. 30(b) states that "[t]he trial judge upon motion in writing may grant a new trial at any time if it appears that justice may not have been done. Upon the motion the trial judge shall make such findings of fact as are necessary to resolve the defendant's allegations of error of law."

- 3 - affirmed both on November 24, 2015. Watkins, 41 N.E.3d at 15.

The SJC rejected the ineffective assistance of counsel claim,

observing that trial counsel's cross-examination of Rudolph was

"vigorous" and "effective." On the Brady issues, the SJC found

the undisclosed evidence cumulative and/or of little probative

value, so its nondisclosure caused Watkins no prejudice.

On May 16, 2016, Watkins filed in the U.S. District Court

for the District of Massachusetts a petition for a writ of habeas

corpus. He argued the SJC's decision, among other things, was

contrary to and an unreasonable application of Brady and was based

on an unreasonable determination of the facts.2 The district court

denied the petition on January 7, 2020, Watkins, 2020 WL 68245, at

*1, and granted a certificate of appealability as to only the Brady

claims on April 2, 2020. Before this court, Watkins has divided

the alleged Brady violations into four categories:

- withheld exculpatory evidence of the only identification witness's (Vern Rudolph) extensive police contacts, cooperation, and lies even after the Court ordered the evidence to be produced;

2 Watkins also brought before the district court claims of prosecutorial misconduct, ineffective assistance of counsel, and insufficiency of the evidence. Those claims are not now at issue, as the district court rejected them and both the district court and this court declined to extend the certificate of appealability ("COA") to them. See Miller-El v. Cockrell, 537 U.S. 322, 327 (2003) ("[A] prisoner seeking a COA need only demonstrate 'a substantial showing of the denial of a constitutional right.'" (quoting 28 U.S.C. § 2253(c)(2))).

- 4 - - the crime scene diagram created by police which discredited the testimony of the only eyewitness;

- a trooper's exculpatory notes of the witness's pre-interview with the police prior to its tape recording; and

- evidence of the extensive rewards and inducements requested by and given to the witness in exchange for his testimony.

Watkins's first claim centers on a withheld police

report from October 29, 2003 (the "finger-shot report") which was

not disclosed to Watkins. The state courts' rejection of this

Brady claim rested upon the factual error that the report did not

show the investigating officers were aware that Rudolph was a

witness against Watkins. Watkins, 41 N.E.3d at 22. We provide

the text of the finger-shot report later, but this factual

determination by the motion for a new trial judge (the "motion

judge") and the SJC was clearly incorrect.

We hold, as the parties here agree, that the state courts

made an error of fact. The parties disagree as to the effect of

this error on this habeas petition and on the issue of deference

to the SJC's Brady analysis.

B. Facts Presented at Trial

Save the state courts' erroneous conclusion that police

were unaware at the time Rudolph shot his finger that he was a

witness against Watkins, "[w]e describe the facts as they were

found by the SJC, supplemented with other record facts consistent

- 5 - with the SJC's findings." Healy v. Spencer, 453 F.3d 21, 22 (1st

Cir. 2006). However, because of that error, we provide, as is

necessary, the following lengthy description of the facts as

presented at trial. We describe Rudolph's testimony as to his

identification of Watkins and his cross-examination after

describing the testimony of the other witnesses.

i. Events Leading Up to the Shooting

Watkins owned a blue Lincoln Mark VIII and frequented

the Elks Lodge, a private club on Mill Street in New Bedford,

Massachusetts.3 Watkins, Coombs, and Rudolph were all at the Elks

Lodge on April 25, 2003. Watkins, who was inside the Lodge, was

heard loudly arguing on the phone with Coombs, who was seen outside

the club "frisking" people who were attempting to enter. Rudolph,

who was also inside the club at the time, suggested to Watkins

that he should go outside and fight Coombs. Watkins declined and

stayed inside the Elks Lodge until Coombs left for the night.

The jury heard the testimony of Coombs's then-

girlfriend, Jessica Bronson, that the next morning, April 26, 2003,

3 Officer Brian Safioleas of the New Bedford Police testified he had seen Watkins driving a blue Lincoln Mark VIII prior to the evening of April 26, 2003; Erin Depina testified that she had registered a blue Lincoln Mark VIII in her name for Watkins and that the car belonged to him; and Paul Tomasik, the landlord of Watkins's girlfriend, testified that he had taken a picture the morning of April 26, 2003 of a Lincoln Mark VIII parked in the girlfriends' driveway.

- 6 - Coombs told Bronson he wanted to "whoop [Watkins's] ass." That

afternoon, Watkins returned to the Elks Lodge. The then-bartender

testified that Watkins seemed upset and told the bartender he was

"tired of people F'ing with him." Watkins went back to the Elks

Lodge that evening, that time acting "tough" and saying to Rudolph

that "[t]hings are going to change around here." John Gilbert, a

doorman at the Elks Lodge in April 2003, testified that he saw

Watkins leave the club sometime after 9:30 p.m., and after that,

Gilbert saw police lights in the area. Gilbert stated that Watkins

was wearing dark clothing that night.

Bronson testified that Coombs had called her at

approximately 9:45 or 9:47 p.m. on April 26, to tell her he was on

his way home. At the end of the call, Bronson heard Coombs shout

to a third party, "Why don't you fight me now?" Bronson heard

nothing from Coombs after that, and learned fifteen to twenty

minutes later that Coombs had been shot.

The jury also heard the testimony of New Bedford Police

Officer Bryan Safioleas, who was on duty from 3:30 to 11:30 p.m.

on April 26, 2003. Officer Safioleas had been parked near the

intersection of Mill and Cedar Streets -- just one block west of

the Elks Lodge -- until approximately 9:40 p.m. that night.4 He

4 "Mill Street, on which the victim was standing at the time of the shooting, runs perpendicular to Cedar Street, which is a one-way street . . . . There is a stop sign on Cedar Street at

- 7 - testified that it was a "very rainy night." In the ten minutes

before he left the area, he had observed a blue Lincoln Mark VIII

drive past him "on a couple of occasions." Officer Safioleas

testified that he had seen that vehicle prior to April 26 in the

Elks Lodge parking lot with Watkins inside it. The jury would

later hear further testimony that Watkins drove a blue Lincoln

Mark VIII.

The officer testified that he began to head westbound

down Mill Street at around 9:40 p.m. but he was quickly called

back to his post at approximately 9:53 p.m. due to a call "for

units to respond to Kempton and Cedar Street for reported shots

fired."5 The dispatch instructed Officer Safioleas to look for a

"dark-colored Lincoln Mark VIII."6

ii. The Shooting

We describe first the testimony of several witnesses

other than Rudolph who were near the shooting when it happened.

Beatriz and Ernestina Soares each testified that they were driving

down Cedar Street towards Mill Street at about 9:48 p.m. on April

the intersection of the two streets." Watkins, 2020 WL 68245, at *2. 5 Kempton Street runs parallel to Mill Street, just one block south. 6 Officer Safioleas's police report noted that the subject car was a blue Lincoln Mark VII, not VIII, but the officer explained that he merely had made a typographical error.

- 8 - 26, 2003. As they approached the stop sign at the intersection,

they saw a blue Lincoln Mark VIII parked on right side of Mill

Street. Although the Lincoln had the right of way, it flashed its

lights to tell the Soares sisters they could proceed. As the

sisters turned left onto Mill Street, they saw two men arguing

near a Honda Accord which was parked on the left side of Mill

Street. They stated that one man was inside the Honda Accord and

the other man was across the street on the sidewalk, closer to the

blue Lincoln. The sisters both described the man near the Lincoln

as approximately six feet tall, well-built and around 220 pounds,

black, bald or having a receding hair line, and wearing dark

clothing, including a hooded sweatshirt.

The sisters testified that they also overheard the man

inside the Honda yelling at the other man: "Don't fuck [with] me.

I'm not the one to be fucked with." Ernestina then saw the man by

the Lincoln cross the street towards the Honda "and put up his

arm." The sisters continued to drive, and when they were about a

half-block away from the two men, Beatriz testified she heard

between eight and twelve gunshots and Ernestina heard "[a]t least

five." Beatriz called 911 to report the shooting, and she gave a

description of the Lincoln Mark VIII she observed.

On cross-examination, defense counsel questioned Beatriz

about the misty weather (which Beatriz could not recall); Beatriz's

ambivalence as to whether the shooter was bald or had a receding

- 9 - hairline; the statement of the victim that Beatriz overheard: "I'm

not the one"; and a prior statement by Beatriz that the blue

vehicle opposite the Honda may have been a Marquis, rather than a

Mark VIII. The prosecutor on redirect played a portion of

Beatriz's 911 call, which confirmed that Beatriz contemporaneously

identified to the police that the blue car was a Mark VIII.7

Defense counsel asked Ernestina only whether she heard the man by

the Honda also yell "You don't know who I am." Ernestina could

not recall.

The jury heard the testimony of Michael Couture, a

resident of New Bedford who was driving through the intersection

of Cedar and Mill Streets near the time of the shooting. He, too,

had waited at the stop sign on Cedar Street because of the stopped

blue vehicle on Mill Street that had the right of way. Once a

white automobile started to swerve around the blue vehicle on Mill,

Couture drove through the intersection. As Couture did, he heard

a loud noise and saw a flash out of the corner of his eye. Couture

looked up and saw the firing of several shots into a Honda by a

man who "appeared . . . about six-foot to six-two, slim to medium

build. [Couture] would say he looked like a black man . . . . He

7 Beatriz had testified eight months after the shooting in another proceeding that the car may have been a Marquis; she clarified later in that proceeding that the car she observed was a Lincoln Mark VIII.

- 10 - had dark clothes on." Couture proceeded to call 911 and wait for

police to arrive at the scene.

Defense counsel asked Couture several questions on

cross-examination. He first asked whether April 26 was a misty,

rainy night, to which Couture responded "[i]t may have been

overcast. I don't recollect." Couture explained that, despite

the weather and although the incident "happened very rapidly," he

still was able to see the shooter fire his gun with two hands and

then "run across the field after the shooting." When cross-

examined about his description of the shooter, Couture reiterated

that the man he saw was around six feet tall, slender (around 175

pounds), possibly black, and wearing dark clothing. Couture also

was questioned by the defense about where the white and blue

vehicles went after the shooting. Couture testified that he lost

sight of both after he crossed Mill Street because his attention

was focused on the shooting.

Officer Safioleas was the first officer to arrive at the

scene. He testified at trial that, there, he saw a green Honda

Accord parked on the side of Mill Street, about eighty feet west

of Cedar Street near where a memorial of the shooting now is

located, with its brake lights on. As he approached the vehicle,

he saw the operator slumped over at the wheel, bleeding and not

conscious. The man had no pulse and was not breathing. He had

holes in his jacket and five to seven wounds on his chest. The

- 11 - man was identified as Paul Coombs. Coombs was declared dead at a

local hospital.

iii. Watkins's Arrest

Watkins was identified as a suspect early on in the

police investigation into the shooting. Yet police were unable to

locate Watkins for more than three months after the shooting. Many

of Watkins's friends and acquaintances testified at trial that

they likewise did not see him after April 26, 2003. Law

enforcement officers testified that the Lincoln Mark VIII was found

unattended in May 2003, and had been "wiped clean" of all

fingerprints.

The trial testimony concerning Watkins's eventual arrest

is as follows. On August 5, 2003, Officer Michael Smith and other

law enforcement officers "observed a male matching the description

of Kyle Watkins walk out of the area of 19 Lafayette Park" in Lynn,

Massachusetts. The officers approached the male, identified

themselves as police officers, and asked him for his name. The

male responded that his name was Leland Brooks and produced a Texas

driver's license in that name. The officers then asked the male

for his date of birth, but the male could not remember the date.

After further questioning, the man admitted he actually was Kyle

Watkins. Watkins was placed under arrest at that time and taken

to the Lynn Police Station.

- 12 - Officer Leonard Baillargeon met Watkins at the police

station. The officer, who knew Watkins, testified that Watkins

"was unshaven. He was sweating. He was wearing a white tee shirt

. . . that was soiled. He was wearing a pair of baggy blue jeans

and white high top sneakers." Officer Baillargeon testified that

"[h]e appeared to . . . have lost a lot of weight." The officer

made a comment to Watkins about his weight loss, to which Watkins

responded he "was down to 180 pounds. He had lost weight because

he was under a lot of stress." When Officer Baillargeon

transported Watkins back to New Bedford, Watkins remarked he was

"enjoying the ride" because it was going to be "the last ride he

was going to have for a long time."

Defense counsel cross-examined Officer Baillargeon on

only one issue: Watkins's weight. The officer testified that

Watkins previously weighed "[b]etween 200 and 220, maybe 225," the

same weight estimated by the Soares sisters of the shooter on the

night of the murder.

iv. The Testimony of Vern Rudolph for the Prosecution

Vern Rudolph was the Commonwealth's primary

identification witness, although he was by no means the only

prosecution witness against Watkins, and the other witnesses

corroborated key parts of Rudolph's testimony. Before discussing

the shooting, the prosecution first questioned Rudolph about his

arrest on December 3, 2003 for selling cocaine in a school zone

- 13 - and unlawfully possessing a firearm, his guilty plea and three-

year prison sentence, and the benefit the prosecutor promised

Rudolph in exchange for his testimony. Rudolph testified that he

understood the prosecutor to promise in a letter that Rudolph would

not have to serve the second half of his three-year sentence

because he was testifying against Watkins. The letter, which was

disclosed to defense counsel prior to trial and admitted by the

prosecution as an exhibit, stated:

Mr. Rudolph has been incarcerated since his arrest [on December 3, 2003]. On or about July 30, 2004 Mr. Rudolph pled guilty to offenses in the District Court [including count 6, distribution of cocaine within 1000 feet of a school] and received sentences to the house of correction totaling three years and one day . . . . As of June 2, 2005 Mr. Rudolph will have served 18 months of his sentence. I understand that you will file a motion for a new trial and to dismiss count 6 and a motion to re-sentence Mr. Rudolph . . . [and] that the remaining un-served portion of this sentence be suspended and he be placed on probation for three years with appropriate court imposed conditions of probation. The net effect of these motions, should they be allowed, will be to release Mr. Rudolph from further incarceration and place him under probation supervision for three years.

Rudolph then testified to what he saw on the evening of

April 26. Rudolph stated, inter alia, that he was at the Elks

Lodge at around 8:30 p.m. that evening and he saw Watkins there

- 14 - wearing a black hoodie and black jeans,8 and acting "tough."

Rudolph told the jury that after Watkins had said to him that

"[t]hings are going to change," Rudolph responded, "I don't have

[a] disagreement with you. You have an agreement or disagreement

with Paul, take that up with him." Rudolph testified he did not

see Watkins at the Elks Lodge after that and did not know when

Watkins left, but stated he himself left the club sometime around

9:30 p.m. to pick up his daughter.

Rudolph testified that he was driving down Mill Street

in his white Nissan Maxima when he saw the Lincoln Mark VIII parked

on the side of the road by Cedar Street. Rudolph stated that he

slowly began to swerve around the Lincoln towards the intersection

when he saw Kyle Watkins shooting at a Honda Accord. Rudolph then

turned down Cedar Street and sped away. He admitted that "[i]t

was a foggy night. It wasn't too bad. It was, you know -- it

wasn't a good night. That's for sure."

Rudolph testified that, thereafter, he told his mother

what he had witnessed,9 and he spoke with police about the shooting

8 Rudolph later testified he was not "aware of the description that [the Soares sisters and Couture] had given of the person who fired the shots at the time [he] went to the police station." 9 Just before Rudolph testified, the jury heard the testimony of his mother, Patricia Rose. She testified that at around 10:00 p.m. on April 26, Rudolph knocked on her door, walked into her house, and stated that "on the way to the mall to pick up his daughter, . . . he witnessed someone getting shot" and "he saw who did it." Thereafter, Rose drove to the location identified by

- 15 - on April 30, 2003, testified before the grand jury on September 9,

2003, and testified at a deposition later in September 2003. His

trial testimony was consistent with those prior statements and

testimony.

v. Defense Strategy and Cross-Examination of Rudolph

Watkins's primary defense strategy at trial was to

attack the veracity of Rudolph's testimony, impeach Rudolph's

credibility, and ultimately try to discredit Rudolph's

identification of Watkins as the shooter. Indeed, defense counsel

had highlighted during his closing argument that Rudolph had

incentives to lie -- Rudolph and his brother initially were

suspected of Coombs's murder and Rudolph was promised in exchange

for his testimony an "agreement to get out of jail" for an

unrelated offense. Defense counsel implied that Rudolph did in

fact lie. Defense counsel questioned Rudolph's timeline, the

visibility that night, and the location Rudolph placed the Honda

at the time of the shooting, i.e., near the intersection of Cedar

and Mill Streets rather than on Mill Street eighty-or-so feet west

of Cedar, which is where the memorial is and where the other

witnesses and physical evidence placed the Honda.10

Rudolph as the scene of the shooting and saw "[t]hey were still working on the body." Rose was not cross-examined.

10 Trial counsel also was aware of and chose not to introduce on cross-examination Rudolph's various pre-trial

- 16 - Defense counsel engaged in an extensive cross-

examination of Rudolph which covers more than twenty pages of the

trial transcript. Defense counsel had the following exchanges

with Rudolph, among others, in front of the jury:

Q: The first shot that goes off, is that simultaneous with the person you identify as Kyle Watkins and they happen to go off?

A: Just about, yes.

Q: Could you agree with me, all of what you saw in terms of the shooting and the person simultaneously firing the shots occurred in a matter of two or three seconds?

A: Fair to say, yes. . . . .

Q: And April 26th, at least until April 30th, you hadn't told anybody that the person you saw shooting was Kyle Watkins; is that fair to say?

A: Yes. . . . .

Q: And the police -- you actually make a call to the police station [on April 30, 2003]?

A: Yeah.

Q: And that's because you had heard that they may be looking for your brother?

"recantations" of his identification of Watkins to Watkins's family and private investigator, discussed infra. The motion for new trial judge found that trial counsel had made a reasonable tactical decision "in order to prevent the Commonwealth from introducing evidence of . . . threats" to Rudolph, which were made by Watkins's family after Rudolph began cooperating. It is settled law in this case that these strategic tactical decisions by trial counsel did not constitute ineffective assistance of counsel.

- 17 - A: Yes.

Q: And your brother is what, a suspect in this case?

A: Yes.

Q: When you get this call, you don't identify yourself. This is April 30th, right?

A: I believe so. . . . .

Q: When you make the call, it's because you hear that the police may be looking for your brother because he's a suspect in this shooting of Paul Coombs[?] . . .

Q: So when you make this call, you don't identify yourself. The conversation goes back and forth; is that correct?

Q: And at some point in time your name comes up as a result of the conversation that you're having. It's by police personnel, as a result of making that call, right?

Q: And it's at that point in time you then identify yourself?

A: Only after they say my name.

Q: That's when you identify yourself?

Q: And [you go to the police station for an interview and] at some point, the police say to you, "Well, if it's not you and it's not

- 18 - your brother, then it must be Kyle Watkins," isn't that right? . . . .

A: Somewhat, yeah.

Q: And words to the effect that if you don't tell us that it's Kyle Watkins, you're going to remain -- you and your brother are going to remain the main suspects in this case. That come up?

Defense counsel also questioned Rudolph about what

counsel characterized as inconsistencies in Rudolph's testimony.

He cross-examined Rudolph about the time he left the Elks Lodge,

as the shooting took place at around 9:50 p.m., just one block

from the club. Defense counsel implied that it would take minutes,

not a third of an hour, for Rudolph to drive from the Elks Lodge

to where the shooting took place.

Defense counsel asked Rudolph about where he placed the

shooting, and how far from it he placed himself. Rudolph stated

he was on Mill Street, just east of the intersection of Cedar and

Mill Streets, and the shooting took place by the Honda which was

just a few feet west of the intersection. Rudolph explained that,

at the time of the shooting, the Honda was not as far down Mill

Street as where the memorial is now. Defense counsel observed

that Rudolph's account "would lessen the distance of [Rudolph's]

view from where [he was] . . . as opposed to the Honda being up

near where the memorial is." Officer Safioleas and Michael Couture

- 19 - had testified that the memorial is located where the Honda was on

April 26.11

Defense counsel then briefly cross-examined Rudolph

about his "deal" with the Commonwealth, asking, "so now we're at

the period that you're testifying here and the district attorney

has made an agreement to let you out of jail; is that right?

. . . For your testimony?" Rudolph responded in the affirmative.

The court later instructed in its charge that the jury may "take

into consideration the Commonwealth's agreement regarding a

sentence currently being served by a witness in assessing his

credibility. The testimony of such a witness should be scrutinized

with particular care."

11Defense counsel highlighted other inconsistencies in Rudolph's testimony, including which hand Watkins fired his gun with: Q: What hand [did Watkins fire with]?

A: Right hand.

Q: Last time you talked to somebody, you told them it was the left hand, when you spoke to the police. Remember that? Or you don't remember that either? . . . .

Q: You never told anybody that shooter was holding the gun with two hands; is that right? You never told anybody that?

A: No.

Couture had testified that the shooter was using two hands.

- 20 - After considering all of this evidence, the jury found

Watkins guilty of murder. Watkins argues the outcome could have

been different had the Commonwealth produced additional evidence

to impeach Rudolph, particularly the finger-shot report.

II.

A. Standard of Review

Our review of a district court's denial of a petition

for habeas corpus is de novo. Norton v. Spencer, 351 F.3d 1, 4

(1st Cir. 2003). Our review of the SJC's decision is governed by

AEDPA, and typically is "highly circumscribed" and must be "based

solely on the state-court record." Shinn v. Martinez Ramirez, No.

20-1009, 2022 U.S. LEXIS 2557, at *18–19 (S. Ct. May 23, 2022).

"The writ of habeas corpus is an extraordinary remedy

that guards only against extreme malfunctions in the state criminal

justice systems." Id. at *17–18 (quotation marks omitted) (quoting

Harrington v. Richter, 562 U.S. 86, 102 (2011)). Under AEDPA, a

federal court "shall not" grant habeas relief for a claim

adjudicated on the merits in state court, unless the final state

adjudication:

(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; or (2) 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.

- 21 - 28 U.S.C. § 2254(d); see Brown v. Davenport, 142 S. Ct. 1510, 1520,

1523 (2022). When there is no final state adjudication of the

claim on the merits, our review of the SJC's decision is de novo.

Healy, 453 F.3d at 25.

A prisoner "is never entitled to habeas relief."

Shinn, 2022 U.S. LEXIS 2557, at *18. "[E]ven a petitioner who

prevails under AEDPA must still today persuade a federal habeas

court that 'law and justice require' relief." Brown, 142 S. Ct.

at 1524 (quoting 28 U.S.C. § 2243). Thus, even when a state court

"employ[s] faulty reasoning" in its decision, a petitioner cannot

obtain habeas relief unless he also demonstrates that he "is in

custody in violation of the Constitution or laws or treaties of

the United States." Aspen v. Bissonnette, 480 F.3d 571, 576 (1st

Cir. 2007) (second quoting 28 U.S.C. § 2254). Indeed, "habeas

relief is available only if the petitioner demonstrates that

'Supreme Court precedent requires an outcome contrary to that

reached by the relevant state court.'" Id. (quoting O'Brien v.

Dubois, 145 F.3d 16, 24-25 (1st Cir. 1998), abrogated on other

grounds by McCambridge v. Hall, 303 F.3d 24 (1st Cir. 2002) (en

banc)). Watkins has not made such a demonstration in this case.

The relevant federal law here is the rule announced in

Brady v. Maryland, where the Supreme Court stated: "[S]uppression

by the prosecution of evidence favorable to an accused upon request

violates due process where the evidence is material either to guilt

- 22 - or to punishment, irrespective of the good faith or bad faith of

the prosecution." 373 U.S. at 87; see U.S. Const. amend. XIV.

This court has stated that a habeas petitioner seeking to establish

a Brady violation must demonstrate: "(1) the evidence at issue is

favorable to him because it is exculpatory or impeaching; (2) the

Government suppressed the evidence; and (3) prejudice ensued from

the suppression (i.e., the suppressed evidence was material to

guilt or punishment)." Conley v. United States, 415 F.3d 183, 188

(1st Cir. 2005). The nondisclosure of impeachment evidence is

prejudicial only if there is a reasonable probability "that the

result of the trial would have been different if the suppressed

documents had been disclosed to the defense." Id. (quoting

Strickler v. Greene, 527 U.S. 263, 281 (1999)). The undisclosed

evidence must "undermine[] confidence in the verdict." Id. (citing

Kyles v. Whitley, 514 U.S. 419, 434 (1995)).

The strength of the impeachment evidence and the effect

of its nondisclosure must be evaluated in the context of the entire

record. Conley, 415 F.3d at 189 (citing United States v. Bagley,

473 U.S. 667, 683 (1985); United States v. Agurs, 427 U.S. 97, 112

(1976)). "Suppressed impeachment evidence, if cumulative of

similar impeachment evidence used at trial (or available to the

petitioner but not used) is superfluous and therefore has little,

if any, probative value." Id.; see also United States v. González-

González, 258 F.3d 16, 25 (1st Cir. 2001) (finding the

- 23 - nondisclosure of impeachment evidence not prejudicial where the

evidence was cumulative of similar disclosed impeachment

evidence).

The SJC in this case determined that Watkins was not

prejudiced by the Commonwealth's failure to produce several pieces

of impeachment evidence. This determination was based, in part,

on a factual error. Following oral argument, we asked the parties

to address what standard of review applies in this habeas case to

the SJC's prejudice determination under such circumstances. The

government cited to Teti v. Bender, in which this court observed

that AEDPA sets forth two different standards "which [both] apply

to state court fact determinations" and "ha[ve] caused some

confusion." 507 F.3d 50, 57 (1st Cir. 2007). Under 28 U.S.C.

§ 2254(d)(2), factual determinations are reviewed for

reasonableness, and under § 2254(e)(1), factual findings are

presumed to be correct. Teti, 507 F.3d at 57. In Teti, this court

explained that "[t]he Supreme Court has suggested that § 2254(e)(1)

applies to 'determinations of factual issues, rather than

decisions,' while § 2254(d)(2) 'applies to the granting of habeas

relief' itself." Id. (emphasis added) (citing Miller-El v.

Cockrell, 537 U.S. 322, 341–42 (2003)). This court acknowledged,

however, that neither it nor the Supreme Court has definitively

resolved the question as to how these two provisions interact.

Id. at 58; see also Brumfield v. Cain, 576 U.S. 305, 323 (2015)

- 24 - (comparing when the Court required federal habeas courts to defer

to state courts and when it reviewed habeas claims de novo).

Further, it is not clear whether the presumption of correctness

disappears only as to the precise factual error or whether it means

that no portion of the factual determination by the state court is

entitled to AEDPA deference. Out of an abundance of caution, we

take the approach favorable to the petitioner of applying de novo

review for all four categories of Watkins's Brady claim. We hold

that Watkins has not satisfied his burden under Brady of showing

the requisite prejudice.

B. Failure to Disclose Finger-Shot Report and Error in the State Courts' Factual Determinations

We begin with Watkins's arguments concerning the failure

to disclose the October 29, 2003 finger-shot report. It is clear

the SJC made an erroneous factual determination when it stated

that the report does not show the police knew, at the time, that

Rudolph was a witness against Watkins. This error, on de novo

review, cannot carry the day for Watkins.12 The finger-shot was

cumulative of other impeachment evidence introduced at trial.

Further, the report -- a copy of which Watkins had at the state

court motion for new trial hearing -- objectively would have harmed

Watkins more than it helped him, and, in any event, Watkins put in

12 We disagree with the dissent's reliance on what it says the SJC "did not dispute [or hold]." In addition, the dissent's line of reasoning is irrelevant, as we engage in de novo review.

- 25 - no evidence at the post-trial motion hearing that competent counsel

would, in fact, have used the information in the report, especially

when viewed in its entirety.13 See Shinn, 2022 U.S. LEXIS 2557,

at *17–19 (restricting federal habeas review to the state-court

record).

The finger-shot report states:

Sir, The undersigned, while assigned to Unit #13C with Off.[ ]D.[ ]Amaral, was sent to 101 Page St. (St.[ ]Lukes Hospital) on a male that had been shot in the hand. Upon arrival we were directed to the victim identified as, [sic] VERNON RUDOLPH JR. (1/23/67). RUDOLPH had the tip of the index finger on his right hand wrapped in a gauze bandage. He removed the bandage and showed the undersigned what appeared to be a graze from a bullet on the outer tip of his finger near the fingernail. RUDOLPH stated that he has been receiving threats on his life since he became a witness in the murder investigation of one PAUL COOMBS. RUDOLPH witnessed the murder by firearm and gave statements to the police implicating one KYLE WATKINS. WATKINS was later apprehended and incarcerated. RUDOLPH originally stated that he parked his vehicle outside of the Elks Club at Cottage St. and Mill St. and was going to enter the club. He claimed he saw a male wearing dark clothing approach and he became nervous. He tried to retreat to his car when this male produced a gun and pointed it at him. A brief struggle then ensued and the gun fired once striking him in the finger. RUDOLPH stated he then ran northerly on Cottage St. and the male suspect ran in the other direction.

13 To the extent the dissent argues that we are holding Watkins had to introduce expert testimony, that misreads our analysis.

- 26 - After several minutes and more specific questioning he eventually admitted that he fabricated the story. He indicated that he had shot himself accidentally with a gun that belonged to a friend. He stated that he does not carry a gun and knows very little about them. He said that he did not know that the safety was off. RUDOLPH did not want to elaborate on where this took place and did not want to implicate his friend as it was not his fault. RUDOLPH stated that he had hoped to be treated and released without the hospital having to contact the police. He apologized for creating the story and wasting our time, but he felt he had no choice. He stated that he has in fact been receiving threats from WATKINS' friends, but did not want to name anyone or document any of the incidents. A nurse explained that stitches were not required and that the wound would heal on its own. RUDOLPH was then given Percocet for pain and released from hospital care.

(emphasis added).

Watkins argues in his federal habeas case that the use

of the report would permit a jury to draw the inference that

Rudolph had received another, undisclosed benefit from the

Commonwealth because he was not prosecuted for unlawful possession

of a firearm or lying to a police officer. He also argues that

the report shows a pattern of Rudolph implicating Watkins and

seeking rewards for his testimony against Watkins, and that Watkins

was unable to show this pattern at trial. Neither argument

satisfies his burden to show prejudice under Brady.

The failure to produce the report was not prejudicial

because it was cumulative, even if the inference attempted to be

- 27 - drawn was plausible. The record does not show such an inference

is plausible. Moreover, there was far stronger evidence produced

and introduced at trial of an actual, considerable benefit Rudolph

was promised to receive from the Commonwealth in exchange for his

testimony: a letter showing the prosecutor promised that he would

ask that Rudolph's term of imprisonment for the more serious

criminal law violation of drug distribution near a school zone (in

addition to unlawful possession) to be reduced in half and for

Rudolph to be released from prison. Defense counsel in fact

effectively used, and the jury had a copy of, this letter at trial,

which defense counsel called "an agreement to get out of jail."

Furthermore, the purported inference of an undisclosed

deal on which Watkins's argument rests is not supported by the

record. Watkins has provided no evidence that Rudolph and the

Commonwealth discussed any deal concerning the finger-shot

incident, nor that his testimony against Watkins had any bearing

on the Commonwealth's decision not to prosecute him. That police

wrote an incident report about a shooting for which they were

called, without more, is insufficient to permit the inference that

the Commonwealth would have charged Rudolph absent his testimony

in this case. As the report shows, Rudolph already had given his

statement to police about Coombs's murder before this incident.

Further, any inference of a deal was refuted, as Rudolph testified

at the motion for new trial hearing that he had no deal with the

- 28 - Commonwealth regarding the finger-shot incident and the prosecutor

testified at that hearing that he had no recollection of any such

deal.

Watkins also argues, and the dissent adopts the

argument, that Watkins was deprived of an opportunity to cross-

examine Rudolph about a purported tendency to "fabricate[] stories

involving" Watkins to protect himself. But there was no such

deprivation of opportunity. At trial, defense counsel engaged in

the following cross-examination of Rudolph:

Q: And the police -- you actually make a call to the police station [on April 30, 2003]?

Q: And that's because you had heard that they may be looking for your brother?

Q: And your brother is what, a suspect in this case [for Coombs's murder]?

Defense counsel also cross-examined Rudolph about the fact that

Rudolph did not go to the police station until after he learned

that he himself was named a suspect, and that, during that initial

police interview, he was asked: "Well, if it's not you and it's

not your brother, then it must be Kyle Watkins[?]" This and other

impeachment evidence amply, as argued by defense counsel

repeatedly, permitted the jury to draw the inference that Rudolph

- 29 - implicated Watkins in order to exonerate himself and his brother

and, so, Rudolph was not credible.14

Watkins's argument to us of prejudice does not take into

account the risks to him of his opening the door to the

introduction of the finger-shot report. Further, Watkins failed

to introduce testimony at the motion for new trial hearing in the

state court that competent trial counsel, or indeed his own trial

counsel, would have chosen to use the report. In fact, as to his

habeas argument based on a theory of Rudolph recanting, the finger-

shot report objectively is weaker than other evidence which his

trial counsel had as a matter of trial strategy chosen not to

use.15 Defense counsel had evidence that Rudolph had earlier

"recanted" his identification of Watkins to Watkins's family,

friends, attorney, and private investigator, although Watkins does

14 The dissent argues that the nondisclosure of the finger- shot report was prejudicial because the report shows Rudolph would have been "especially" willing to implicate Watkins to protect himself because that implication "would spare [Rudolph] from being subjected to a new felony conviction and yet more time in prison than he already knew that he might have to serve[.]" In addition to being cumulative, this argument ignores the timing of the relevant events. At the time of the finger-shot incident, Rudolph did not know that he later would be incarcerated. In fact, no charges were pending against him at the time; Rudolph was not arrested on the drug distribution charge until December 3, 2003, and he did not plead guilty to that charge until July 30, 2004.

15 We take an objective view of what competent counsel would do, and this view happens to be the same realistic view as the one trial counsel in fact took in weighing whether the benefits of using so-called impeachment evidence, cumulative at best, outweighed the considerable costs of using it.

- 30 - not point to any instance in which Rudolph recanted his

identification to the police. The evidence that Watkins's counsel

had and chose not to use included Rudolph's statement to the

private investigator that he "couldn't really identify the

shooter," and his comment to Watkins's brother, basically, to

"[t]ell Kyle he has nothing to worry about. The [police] . . .

tripped me up, I didn't see anything, nobody could see anything.

Tell Kyle he has nothing to worry about."

Watkins's trial counsel testified at the motion for new

trial hearing as to why he chose not to use this evidence of

Rudolph "recanting" his identification of Watkins. Counsel stated

that "if the[ recantations] were brought in, then the government

could bring in evidence of any threats" made against Rudolph, which

are thought to have been made after Rudolph spoke with the police

and before he "recanted" privately to those associated with

Watkins. The motion for new trial judge held that trial counsel's

tactical decision was reasonable, and the SJC affirmed. Watkins,

41 N.E.3d at 26–27. The district court agreed, conclusively ruling

that "[t]he decision to forego [this] line of questioning in order

to prevent the Commonwealth from introducing potentially damaging

evidence was 'clearly a tactical decision that "falls within the

wide range of reasonable professional assistance[.]"'" Watkins,

2020 WL 68245, at *14 (quoting Cohen v. United States, 996 F. Supp.

110, 116 (D. Mass. 1998)). We do not revisit the ruling, as any

- 31 - ineffective assistance of counsel claim is outside the scope of

the COA. See Blue v. Medeiros, 913 F.3d 1, 5 n.9 (1st Cir. 2019)

(stating the general rule that, in a habeas proceeding, this court

should not consider the merits of an issue unless a COA has been

obtained for that issue).

Rudolph had testified at his pre-trial deposition that

Watkins's cousin had threatened Rudolph after he spoke to the

police. According to Rudolph, Watkins's cousin threatened that if

Rudolph testified against Watkins, Rudolph would be

"assassinate[d]."

The undisclosed finger-shot report similarly shows that

Rudolph identified Watkins to the police and that he was afraid of

Watkins and felt threatened by Watkins's friends and family in the

aftermath. Objectively, competent defense counsel would not have

chosen to introduce the finger-shot report to the jury, just as

defense counsel chose not to introduce the private recantation

evidence, which the state courts have held was a permissible

tactical decision.

Further, Rudolph did not recant his identification of

Watkins to the police and, if anything, the October 29, 2003

finger-shot report cannot be prejudicial because it reinforced

Rudolph's identification. Rudolph told police during the finger-

shot incident that he was a witness against Watkins, and the

version of events Rudolph gave to law enforcement before and after

- 32 - the incident was the same. On April 30, 2003, Rudolph called the

police and informed them that he had witnessed Watkins shoot

Coombs; on September 9, 2003, he testified before the grand jury

to what he saw; later in September, he testified at a deposition

to the same; as did he in 2005 at Watkins's trial. The finger-

shot incident took place weeks after Rudolph already essentially

had committed to being a witness against Watkins, and his testimony

did not change after that.

For all these reasons, the impeachment evidence in the

finger-shot report presents no new tool to attack Rudolph's

testimony. Cf. United States v. Flores-Rivera ("Flores I"), 787

F.3d 1, 19 (1st Cir. 2015), overruled by statute on other grounds

as stated in United States v. Smith, 954 F.3d 446, 448 (1st Cir.

2020).

The dissent's reliance on Flores I, 787 F.3d 1, and

Flores-Rivera v. United States ("Flores II"), 16 F.4th 963 (1st

Cir. 2021) is misplaced, as the facts and circumstances are

dissimilar to the instant appeal. In those cases, the defendants'

primary trial strategy was to impeach the three main witnesses

against them "by suggesting [the witnesses] engaged in a

coordinated effort to fabricate their testimony." Flores I, 787

F.3d at 10; Flores II, 16 F.4th at 965 ("Our opinion in Flores I

describes at length the relevant factual background for this

collateral appeal."). The witnesses' testimony had been "both

- 33 - essential to the convictions and uncorroborated by any significant

independent evidence." Flores I, 787 F.3d at 18. All three

witnesses at trial "flatly and firmly denied discussing anything

involving the . . . case" prior to testifying. Id. at 10. In

Flores I, it was discovered after trial that the government had

failed to disclose, among other things, notes which showed that

the witnesses had, in fact, discussed their testimonies

beforehand. Id. at 18. This nondisclosure (when combined with

other undisclosed evidence) violated Brady because the prosecution

"pivoted entirely on the credibility of [the witnesses]" and "there

was no other document or recording tending to prove that the

witnesses were lying when they denied discussing their testimony

with one another." Id. at 19–20. This case, by contrast, is not

one of a sole witness to whom there was no impeachment evidence

introduced at trial. Rather, there was testimony and evidence

that corroborated key parts of Rudolph's testimony -- e.g., the

tension between Watkins and Coombs, the subsequent murder of

Coombs, the shooter's physical appearance and vehicle, the

victim's vehicle, the time of the shooting, and the general

location of the shooting.16 And, as just described, evidence of

Rudolph's potential bias was covered extensively at trial.

16 This corroboration of Rudolph's narrative of Coombs's murder is much greater than the single video of alleged drug trafficking transaction introduced in Flores II showing the

- 34 - C. Rudolph's Dangerousness Hearing To Determine Whether He Should Be Released

In December 2003, Rudolph was arrested for and charged

with distributing cocaine to a police informant in a school zone

and unlawfully possessing a firearm. Rudolph initially was held

without bail pursuant to Mass. Gen. Laws ch. 276, § 58A, which at

the time permitted the Commonwealth to move "for an order of

pretrial detention" based on dangerousness, for any felony "that,

by its nature, involves a substantial risk that physical force

against the person of another may result." Rudolph petitioned for

bail, and a dangerousness hearing was held before the Bristol

County Superior Court on December 10, 2003. Rudolph stated at the

hearing that his gun possession was for protection, in response to

threats he was receiving for his cooperation in Coombs's murder

investigation: "I'm not a dangerous person. I'm not. I'm just

worried about my well-being. You can't bring a rock to a gun

fight. . . . They're making threats against my life." The superior

court judge denied Rudolph's petition and ordered him detained.

In response, Rudolph stated: "So, now what happens when the murder

case comes up? Am I to come to court bright eyed and bushy tailed

and testify against somebody else after this? That's not fair,

your Honor. It's not fair."

defendant "hand something to someone and receive something in return." 16 F.4th at 968–69.

- 35 - Watkins argues the Commonwealth was required under Brady

to produce the statement Rudolph made at the end of his

dangerousness hearing, but this argument also falls short. On de

novo review, we conclude this statement does not support the

inference Watkins wants to draw from it, i.e., that "Watkins was

denied the opportunity to cross-examine Rudolph on bias." Further,

there was at trial extensive examination of bias, and the failure

to add onto any such evidence hardly would be prejudicial.

Rudolph's motivation for reaching out to the police and the

agreement that Rudolph later reached with the Commonwealth were

discussed at trial and clearly informed Watkins and the jury that

Rudolph sought an incentive in return for his cooperation and

testimony. Rudolph's statements at his dangerousness hearing, as

with his "recantations" and the finger-shot report, also show that

Rudolph was threatened for testifying by Watkins's family and

friends, and therefore would present substantial risks to Watkins

if introduced at trial.

D. The Crime Scene Diagram

Watkins's contention that the Commonwealth's failure to

produce a hand-drawn crime scene diagram detailing the distance

between the Honda Accord and shell casings found near the vehicle

violated Brady similarly is unpersuasive. The diagram depicts the

Honda Accord part-way down the block from the intersection of Mill

and Cedar Streets, which differs from Rudolph's testimony that the

- 36 - shooting occurred near the intersection. The Commonwealth's

failure to produce this diagram was not prejudicial, as its

impeachment of Rudolph's testimony, at most, would have been

cumulative of the other evidence introduced at trial. Watkins

highlighted all the purported discrepancies in Rudolph's testimony

to the jury, including his placement of the Honda near the

intersection, and the jury found Watkins guilty nonetheless.

Officer Safioleas testified, contrary to Rudolph's

testimony, that the Honda was located near the memorial, which has

been placed approximately eighty feet west of the Cedar and Mill

Streets' intersection. This location corresponds generally to the

location of the Honda as shown in the diagram. Mr. Couture

similarly placed the Honda near the memorial. So, too, did

photographs taken of the scene the night of the shooting, which

were admitted as exhibits. Defense counsel argued this point to

the jury in closing. The crime scene diagram, which is a rough,

hand-written sketch that is not drawn to scale, would have a

nominal effect on impeaching Rudolph, if any at all.

E. Undisclosed Pre-Interview Notes

Watkins's challenge under Brady to the Commonwealth's

failure to disclose the handwritten notes taken by Trooper Kilnapp

fails. After calling the police on April 30, 2003 to report the

shooting, Rudolph drove himself and his brother to the station for

an in-person interview. At the station, Rudolph spoke with law

- 37 - enforcement for approximately two hours before the police began

recording his interview (the "pre-interview"). Trooper Kilnapp

apparently took handwritten notes of the pre-interview which were

not disclosed before trial because "they were not discovered until

after the trial."

Watkins argues these notes, if introduced at trial,

would have permitted the inference that the perpetrator was not

Watkins, but a third party: Barry Souto.17 The strands of the

argument are simply not supported by the record. Watkins first

contends that the notes show Rudolph did not implicate Watkins as

the shooter until the recorded interview, when police threatened

17 Watkins further argues the nondisclosure of these notes deprived him of the ability to cross-examine Rudolph on the discrepancies in his timeline, namely, when he left the Elks Lodge, because the notes indicate he left "at least after 9:15, could have been later. Maybe 9:30." This argument is belied by the record, which clearly shows defense counsel did cross-examine Rudolph about such discrepancies: Q: Now, can you tell us whether it was closer to 8:00 or 8:30 that you went into the [Lodge]? A: I would say about 8:30, 8:35 -- 8:30, yeah. Q: If you were in there for twenty minutes, then you're out of there about five past nine? A: Times, like I said, it's two years gone by. . . . . Q: And once you made -- if you came out of there at 9:30, is it fair to say that would be less than a minute for you to get to the point where the blue or black car was on Mill Street?

- 38 - to charge him instead. The record says otherwise. The record

shows that Rudolph named Watkins as the shooter when he first

called the police, before heading to the station for an interview.

The notes of this phone call, taken by Officer Oliveira,

specifically state that Rudolph told police: "he observed KYLE

WATKINS shooting a firearm into the Honda Accord parked on Mill

Street just west of Cedar Street."

Trooper Kilnapp's notes also do not implicate Barry

Souto as a third-party suspect. The notes first state: "Friday

4/25 @ Elks . . . Kyle Watkins in bathroom arguing w/ Paul Coombs

on cell phone." They then state: "Barry [Souto] told Vern it

was behind him re: Zach (few weeks ago) . . . Barry talked to Paul

-- to clear it up. Barry told Vern he didn't hire hitman. Barry

scared of Paul Coombs." Barry is the brother of Zachary Souto;

Zachary was killed by Coombs several years prior, and Coombs was

killed on Zachary's birthday. These notes do not support Watkins's

theory that Barry killed Coombs out of revenge. Quite the

opposite. The only plausible inference that can be drawn from the

notes is that Barry had no intention of killing Coombs. Watkins

has pointed to no evidence otherwise connecting Barry to the crime.

He suffered no prejudice from the Commonwealth's failure to

disclose.

- 39 - F. Rudolph's Promise From the Commonwealth

Watkins's argument concerning the alleged incompleteness

of the Commonwealth's disclosures of its promise to Rudolph lacks

merit.18 The record refutes Watkins's argument that the

Commonwealth concealed the true nature of this promise. The

prosecutor sent a copy of the letter setting forth the promise to

Watkins prior to the start of trial and entered the letter into

evidence. The letter clearly provided that Rudolph would be

released from prison if he testified against Watkins, which he

did. Contrary to Watkins's argument, the letter states, inter

alia, that Rudolph's attorney intended to move to dismiss the

distribution in a school zone charge and for resentencing and

Rudolph's immediate release, and the prosecutor in Watkins's case

intended to ask Rudolph's sentencing judge to allow the motions if

Rudolph testified truthfully against Watkins. In light of this

disclosed promise, the trial judge specifically instructed the

jury to "scrutinize[] [Rudolph's testimony] with particular care."

18 Watkins's additional argument that the Commonwealth failed to produce other requested evidence of Rudolph's cooperation is unsupported by the record. The trial court had ordered the government to file ex parte information concerning Rudolph's cooperation, and on March 31, 2005, the Commonwealth submitted a letter from Detective Lieutenant Scott Sylvia of the New Bedford Police Department listing the docket numbers of the cases in which Rudolph was involved. The letter also stated that Rudolph was a victim or witness in several prior cases, but he did not act as an informant. Watkins has pointed to no evidence to the contrary.

- 40 - That the letter did not state that Rudolph would be released the

same day of his testimony is immaterial.

III.

Even had Watkins overcome the obstacles to habeas relief

(he has not), he still has not persuaded us that "law and justice"

require the petition to be granted. Shinn, 2022 U.S. LEXIS 2557,

at *18 (quoting Brown, 142 S. Ct. at 1524). The judgment of the

district court denying habeas relief is affirmed.

- DISSENTING OPINION FOLLOWS -

- 41 - BARRON, Chief Judge, dissenting. Kyle Watkins seeks to

overturn his Massachusetts-law conviction for first-degree murder

pursuant to his federal constitutional right to due process under

Brady v. Maryland, 373 U.S. 83 (1963). He contends that he was

convicted in violation of this right because the prosecution failed

to provide his counsel with exculpatory evidence in advance of the

trial that would have been material to his defense. Among that

evidence is a police report that Watkins contends would have

significantly aided his efforts to impeach what turned out to be

the state's key witness against him. It is this aspect of

Watkins's Brady challenge that is my focus.

The majority does not dispute that the police report

constitutes exculpatory evidence. It nonetheless holds that

Watkins's federal habeas petition must be denied because Watkins

has not shown the prejudice under Brady that is required to

establish that the police report was "material." See Brady, 373

U.S. at 87 ("[T]he 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.");

Zuluaga v. Spencer, 585 F.3d 27, 30 (1st Cir. 2009) ("To prevail

on a federal Brady claim, 'a habeas petitioner must demonstrate:

. . . [that] prejudice ensued from the suppression (i.e., the

suppressed evidence was material to guilt or punishment).'"

- 42 - (quoting Conley v. United States, 415 F.3d 183, 188 (1st Cir.

2005))).

The Supreme Judicial Court of Massachusetts ("SJC")

reached the same result in rejecting Watkins's Brady challenge on

direct review. Commonwealth v. Watkins, 41 N.E.3d 10, 20-23 (Mass.

2015). But, although a federal court reviewing a habeas petition

ordinarily must defer to such a state court ruling, see, e.g.,

Teti v. Bender, 507 F.3d 50, 55 (1st Cir. 2007), we need not do so

here, because, as I will explain, the SJC's ruling rests on a clear

mistake of fact. See 28 U.S.C. § 2254(d)(2). Moreover, as I will

also explain, a de novo review of the record leads me to conclude

that Watkins has shown the prejudice from having been denied access

to the police report that Brady requires him to show. Accordingly,

I conclude that Watkins is entitled to federal habeas relief on

the ground that he was convicted of murder in violation of his

federal constitutional right to due process under Brady. See Brown

v. Davenport, 142 S. Ct. 1510, 1517 (2022) ("When a state court

has ruled on the merits of a state prisoner's claim, a federal

court cannot grant relief without first applying both the test

this Court outlined in Brecht [v. Abrahamson, 507 U.S. 619 (1993)]

and the one Congress prescribed in [the Antiterrorism and Effective

Death Penalty Act of 1996 (AEDPA)]."); Kyles v. Whitley, 514 U.S.

419, 436 (1995) (explaining that a showing of prejudice that

- 43 - satisfies Brady "cannot subsequently be found harmless

under Brecht").

The key question at trial concerned who pulled the

trigger in the murder of Paul Coombs in New Bedford, Massachusetts

on the night of April 26, 2003. Watkins, 41 N.E.3d at 15. Some

of the witnesses for the state who testified at the trial had

driven past the site of the shooting either as it happened or

immediately beforehand. Id. at 16. But, only one of them -- Vernon

Rudolph -- claimed both to have been able to see the person

shooting Coombs on the night in question and to have been able to

identify that person as Watkins. See id. at 16-17.

In other words, Rudolph was no ordinary witness for the

prosecution. He was the crucial one. He was also an acquaintance

of Watkins, which meant that Rudolph knew what Watkins looked like.

Id. That fact no doubt lent credibility to Rudolph's testimony

that he saw Watkins pull the trigger.

At the same time, Rudolph was vulnerable to impeachment.

The jury was informed both that he was incarcerated for unrelated

felonies at the time that he was testifying against Watkins and

that he had agreed to testify against Watkins in return for a

prosecutor's promise to ask the judge who had sentenced him to a

three-year-and-one-day term of imprisonment for his convictions to

grant his motions for release from prison 18 months early. Id. at

- 44 - 21. The record also shows that Watkins knew at the time of trial

both that Rudolph had gone to the police station for an interview

about the murder of Coombs only after having learned that Rudolph

and Rudolph's brother were themselves suspects in that murder and

that Rudolph had recanted to Watkins's private investigator prior

to the trial the account that Rudolph then gave against Watkins at

the trial.

But, as strong as Watkins's grounds for impeaching

Rudolph's trial testimony were, Watkins contends that they would

have been even stronger if he had known at the time of trial some

other things about Rudolph that he did not know but that the

prosecution did. Most especially, Watkins did not know -- as the

prosecution did -- about a police report that described an

encounter that Rudolph had with the police prior to Watkins's

trial.

The police report shows that on October 29, 2003,

officers from the New Bedford Police Department were dispatched to

a hospital to investigate a man who had been hospitalized for a

bullet wound. The officers were directed to the victim, whom they

identified as Rudolph and whose finger had been grazed by a bullet.

According to the report, "RUDOLPH stated that he has

been receiving threats on his life since he became a witness in

the murder investigation of one PAUL COOMBS. RUDOLPH witnessed

the murder by firearm and gave statements to the police implicating

- 45 - one KYLE WATKINS." The report next explains that "RUDOLPH

originally stated that," while he was outside of the Elks Club,

he saw a male wearing dark clothing approach and he became nervous. He tried to retreat to his car when this male produced a gun and pointed it at him. A brief struggle ensued and the gun fired once striking him in the finger. RUDOLPH stated he then ran northerly . . . and the male suspect ran in the other direction.

But, according to the report, the story Rudolph told the officers

quickly changed:

After several minutes and more specific questioning he eventually admitted that he fabricated the story. He indicated that he had shot himself accidentally with a gun that belonged to a friend. He stated that he does not carry a gun and knows very little about them. He said that he did not know that the safety was off. RUDOLPH did not want to elaborate on where this took place and did not want to implicate his friend as it was not his fault.

RUDOLPH stated that he had hoped to be treated and released without the hospital having to contact the police. He apologized for creating the story and wasting our time, but he felt he had no choice. He stated that he has in fact been receiving threats from WATKINS' friends, but did not want to name anyone or document any of the incidents.

Watkins relied in part on the prosecution's failure to

turn over the police report to him prior to trial in pressing his

Brady challenge to his murder conviction to the SJC. But, the SJC

determined that the police report did not itself show that "Rudolph

- 46 - avoided any charges because he told police that he was the key

witness in the Commonwealth's case against [Watkins]," and, on

that basis, it ruled that Watkins's Brady challenge was without

merit insofar as that challenge was premised on the withholding of

the police report because Watkins had failed to show that the

withholding of that report prejudiced him. Watkins, 41 N.E.3d at

22.

As I have noted, in reviewing a federal habeas petition

that seeks to overturn a state law conviction, we ordinarily must

give substantial deference to the state court ruling that affirms

the conviction. But, that is not so when the state court ruling

is "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)(2) (emphasis added); see Harris v. Sharp, 941

F.3d 962, 978 & n.12, 987 (10th Cir. 2019) (determining that a

state court's decision on the prejudice prong of an ineffective

assistance of counsel argument "was based on an unreasonable

factual determination," reviewing the claim de novo, and remanding

for an evidentiary hearing on disputed facts). And, here, the

SJC's ruling is "based on" a factual error of that kind.

Indeed, the state does not dispute that the SJC made an

"unreasonable determination of the facts" in addressing the

portion of Watkins's Brady claim that concerns the withholding of

the police report. The SJC stated in that regard that the judge

- 47 - at Watkins's motion-for-a-new-trial hearing found that "there was

no evidence that investigating officers" to whom Rudolph confessed

to having shot himself in the finger "were aware that Rudolph was

a Commonwealth witness," and the SJC concluded that "[t]he record

supports the judge's findings." Watkins, 41 N.E.3d at 22. But,

the third paragraph of the police report's one-page narrative

recounts that, after the police encountered Rudolph at the

hospital, "RUDOLPH stated that he has been receiving threats on

his life since he became a witness in the murder investigation of

one PAUL COOMBS. RUDOLPH witnessed the murder by firearm and gave

statements to the police implicating one KYLE WATKINS." (emphasis

added). Thus, the state -- admirably -- concedes that the record

"directly contradict[s]" the SJC's statement about what the record

shows regarding whether the police officers who investigated

Rudolph's injury "were aware that [he] was a Commonwealth witness,"

Watkins, 41 N.E.3d at 22.

To be sure, things are not quite so straightforward when

it comes to the question of whether the SJC's ruling rejecting

Watkins's Brady challenge is "based on" this unreasonable factual

determination about what the police report shows. As to that

question, the state asserts that the SJC's ruling is not so "based"

because "the incorrect fact was just one of three reasons on which

the SJC relied" in finding that no prejudice flowed from the

prosecution's failure to disclose the police report.

- 48 - The SJC's opinion, however, refutes any such notion.

The opinion states in relevant part:

The judge [presiding over the hearing concerning Watkins's motion for a new trial] found, however, that there was no evidence that investigating officers were aware that Rudolph was a Commonwealth witness, no evidence that he either sought or received favorable treatment in that matter, and that his anticipated testimony had no bearing on the decision not to prosecute Rudolph for "shooting himself." The record supports the judge's findings. The defendant therefore suffered no prejudice as a result of the Commonwealth's failure to disclose this police report. Id.

In using the words "therefore suffered no prejudice"

only after having listed three distinct features of the police

report, id. (emphasis added), the SJC in no way suggested that its

no-prejudice ruling depended on the police report having fewer

than all three of those features. So, taking the SJC at its word,

I conclude that the SJC necessarily rested its no-prejudice ruling

on a feature of the police report that, as we have seen, the SJC

unreasonably determined existed even though it does not.

The majority does not, in the end, disagree with me on

this point. It rests its judgment that the portion of Watkins's

Brady claim that concerns the withholding of the police report

provides no basis for granting his habeas petition solely on the

way that it resolves the next question that I will take up, which

concerns whether the record, on de novo review, supports Watkins's

- 49 - contention that he met his burden to show that the withholding of

the police report caused him the prejudice that Brady requires him

to show.19

To make the required showing of prejudice under Brady,

Watkins must demonstrate that "a reasonable probability exists

'that the result of the trial would have been different if the

suppressed [evidence] had been disclosed to the defense.'" Conley,

415 F.3d at 188 (quoting Strickler v. Greene, 527 U.S. 263, 289

(1999)). That does not mean that Watkins must prove that the trial

certainly would have come out in his favor if he had been given

access to the exculpatory evidence that was withheld from him. It

means that he must show only that "the Government's evidentiary

suppression undermines confidence in the verdict." Id. (citing

Kyles, 514 U.S. at 434). The majority concludes, however, that

Watkins has failed to make even that showing.

19I note, additionally, that undertaking de novo review under these circumstances is not inconsistent with this Court's past application of § 2254(d)(1) deference to a mixed question of law and fact. See Teti, 507 F.3d at 57; cf. also Conley, 415 F.3d at 188 n.3. While Teti's analysis focused on whether the state court had "unreasonabl[y] appl[ied] . . . clearly established [f]ederal law," 507 F.3d at 57 (citation omitted), the petitioner in that case had not refuted the state court's factual findings and so the question on appeal was whether the legal conclusion that flowed from those facts was unreasonable, id. at 60–63. By contrast, in Watkins's case, the SJC has not in fact made a determination concerning prejudice that is not based on the clear factual error that it made about the police report.

- 50 - The majority rests that conclusion in part on the fact

that the record shows that Watkins knew before trial that Rudolph

had received a benefit in exchange for his testimony through

Rudolph's deal with the Commonwealth, in which the Commonwealth

had promised to advocate for Rudolph's early release from the

prison sentence that he was then serving for having been convicted

of dealing drugs in a school zone and unlawfully possessing a

firearm. Relatedly, the majority points out that the record shows

that Watkins also had other evidence available to him before trial

from which a juror could draw the possible "inference that Rudolph

implicated Watkins" in Coombs's murder "in order to exonerate

himself and his brother" from suspicion for that same crime. Maj.

Op. at 29–30.

In my view, however, the majority fails in highlighting

those features of the record to grapple adequately with two ways

in which the police report would have materially augmented

Watkins's effort to impeach Rudolph, the crucial witness against

him, notwithstanding the impeachment evidence that Watkins already

had in hand by the time of the trial. See United States v. Flores-

Rivera (Flores I), 787 F.3d 1, 19 (1st Cir. 2015) ("[T]he fact

that the defense had some tools to attack [a star witness's]

testimony hardly dismisses the potential of different tools as

merely cumulative."), superseded by statute on other grounds as

stated in United States v. Smith, 954 F.3d 446, 448 (1st Cir.

- 51 - 2020). I thus cannot subscribe to the majority's conclusion that,

because of the aspects of the record that the majority emphasizes,

Watkins has failed to show the requisite prejudice.

First, the police report is material to Watkins's effort

to impeach Rudolph, notwithstanding the evidence that Watkins did

have on hand at the time of trial, because that report provides a

basis for inferring the existence of a tacit "deal" between Rudolph

and law enforcement regarding Rudolph's testimony against Watkins

at trial that pertained to the confession that Rudolph made

regarding the finger-shooting incident that was not otherwise

known to Watkins. For, while the majority is right that Watkins

knew before trial about the actual deal between Rudolph and law

enforcement regarding Rudolph's testimony against Watkins at trial

that could help spare Rudolph from having to serve some prison

time for the crimes for which he had already been convicted and

sentenced, this unknown tacit deal would have helped Rudolph in a

very different way, by ensuring that he would not have to go back

to prison after he had served his time for those prior crimes.

Notably, the SJC did not dispute that the police report

showed that Rudolph confessed to law enforcement to having engaged

in criminal conduct in connection with the finger-shooting

incident that potentially gave rise to serious new charges --

unlawful possession of a firearm and intentionally making a false

report of a crime to the investigating officers, see, e.g.,

- 52 - Commonwealth v. Fortuna, 951 N.E.2d 687, 693 (Mass. App. Ct. 2011)

(affirming conviction of making false report of a crime for

defendant who, after being hospitalized for a close-range and

possibly self-inflicted gunshot wound, told responding officers

that he had been shot from afar by an unknown assailant) -- and

thus potentially to additional prison time beyond that which he

already had been sentenced to serve. Nor did the SJC hold that

the police report provided merely cumulative impeachment evidence

insofar as it supported the reasonable inference that Rudolph was

motivated to testify against Watkins out of a concern that he

otherwise might face such serious new charges due to the confession

that he had made to law enforcement in relation to the finger

shooting. Instead, the SJC held only that the police report

provided no support for such an inference, because nothing in the

police report indicated that the law enforcement officers to whom

Rudolph confessed to having shot himself even knew that Rudolph

(to use the police report's phrasing) "became a witness" against

Watkins.

But, of course, the SJC's factual determination about

what the law enforcement authorities to whom Rudolph confessed

knew about Rudolph's relation to the case against Watkins was

plainly wrong. And, thus, the SJC, in finding the police report

to be merely cumulative of the evidence that Watkins already had

at the time of trial, did so only based on a misapprehension about

- 53 - what that report shows. Moreover, it is clear to me that, once

this misapprehension is corrected, the police report could support

a reasonable inference that Rudolph was testifying against Watkins

in part to stave off additional prison time that his formal deal

did not encompass, given that the police report shows that Rudolph

knew that he had confessed to additional crimes to law enforcement

authorities who he knew were aware that he had become a witness

against Watkins. For, in the face of evidence showing as much, it

would certainly be reasonable for a juror to infer that Rudolph

was of the view that his decision to go forward with his testimony

against Watkins would help him avoid being charged for those new

crimes.

Second, the police report is material to Watkins's

effort to impeach Rudolph by revealing an instance in which Rudolph

made false accusations that implicated Watkins (as they implied

that Watkins's associates had gone after Rudolph violently because

Rudolph was a potential witness against Watkins) to deflect the

police's attention from Rudolph's own, possibly criminal, conduct

-- namely, unlawfully possessing a firearm during the finger-

shooting incident. The police report further reveals that, when

pressed, Rudolph conceded that those accusations were false. The

police report thus raises the following new question that no other

evidence that Watkins had before trial did: if Rudolph was willing

to protect himself by lying once about who committed a shooting by

- 54 - implicating Watkins in that offense, wouldn't he be willing to do

it again? And, the police report also raises one additional new

question that is closely related: wouldn't Rudolph be especially

willing to do just that if doing so would spare him from being

subjected to a new felony conviction and yet more time in prison

than he already knew that he might have to serve for the crimes

for which he already had been convicted?

Perhaps aware of these difficulties with deeming the

police report to be merely "cumulative" of the impeachment evidence

that Watkins did have access to before trial, the majority does

also assert that his Brady challenge to the report's non-disclosure

fails for an independent reason. Here, the majority contends that,

even if the police report were not merely cumulative of the other

evidence that Watkins had in hand prior to trial, "competent

defense counsel would not have chosen to introduce the finger-shot

report to the jury" due to that report's potential to prejudice

Watkins's own case by "opening the door" to the uncorroborated

allegations that Rudolph had made about Watkins's associates

having threatened him for agreeing to testify against Watkins.

Maj. Op. at 30, 32.

This contention, however, is not one that the SJC itself

advanced, the District Court relied on, or the Commonwealth thought

sufficiently strong to be worth pressing to us in this appeal.

- 55 - And, it is easy to see why those closest to the case have not

thought much of this ground for denying Watkins's Brady claim.

The police report does state that Rudolph maintained to

the police that he had been receiving threats, and the record does

also show that Rudolph, in his deposition testimony, had referenced

threats having been made against him by someone connected to

Watkins. So, it is true that the use of the police report did

present some risks. But, at the same time, the police report

reveals an instance in which Rudolph sought to protect himself by

lying about the nature and extent of threats connected to Watkins

by inventing a story about a gun-wielding attacker to explain his

gunshot wound. Thus, the majority arguably has it backwards in

reasoning that, because Watkins's trial counsel acted competently

in deciding not to use the evidence of Rudolph's prior recantation

for fear that using it would open the door to Rudolph's allegations

of threats by Watkins's associates, "competent defense counsel

would not have chosen to introduce the finger-shot report to the

jury." Maj. Op. at 32. And that is because the police report

provides a hitherto unavailable means by which the prejudicial

impact of introducing Rudolph's prior recantation could be

mitigated, given that the police report contains evidence that

tends to undermine the credibility of Rudolph's allegations about

the threatening behavior of Watkins's associates in a way that no

other evidence in the record does.

- 56 - In making this observation, I am not suggesting that we

may weigh the potential for the police report to bring Rudolph's

private, pre-trial recantation back into play in assessing the

prejudicial impact of the police report's non-disclosure. I am

suggesting that the very fact that the police report might have

that effect illustrates the problem with speculating that because

Watkins's counsel made the permissible strategic choice not to use

the evidence of the prior recantation, a reasonably effective

defense counsel necessarily would not use the withheld police

report. After all, the question that we are trying to answer is

whether Watkins can show that "disclosure of the suppressed

evidence to competent counsel would have made a different result

reasonably probable." Kyles, 514 U.S. at 441 (emphases added).

And, although the majority purports to "take an objective view of

what competent counsel would do" in reaching the apparent

conclusion that no competent counsel would have introduced the

withheld police report, Maj. Op. at 30 n.15, the fact that

Watkins's counsel was deemed competent in choosing not to introduce

entirely different evidence hardly shows, objectively, any such

thing. See Strickland v. Washington, 466 U.S. 668, 689 (1984)

("There are countless ways to provide effective assistance in any

given case. Even the best criminal defense attorneys would not

defend a particular client in the same way."). Thus, while it is

true that no direct evidence definitively establishes that

- 57 - Watkins's trial counsel would have used the police report, what

matters is that -- as I have explained -- there is good reason to

think that a competent defense counsel would have done so.20

IV.

In sum, after reviewing Watkins's Brady challenge de

novo, I am convinced that the fact that the police report was

withheld does undermine confidence in the guilty verdict that the

jury rendered.21 Rudolph's testimony identifying Watkins as the

shooter was the key evidence for the state at trial and that

testimony was hardly rock solid. Thus, it does not stretch the

imagination to think that the police report would have been the

straw that would have broken the camel's back, when that withheld

evidence would have enabled Watkins to develop a plausible and

20To the extent that the majority is suggesting that to show prejudice Watkins was required to introduce expert testimony showing that competent counsel would have used the withheld police report at his trial, it offers no authority to support such a requirement, nor does the state itself advance any such argument. Maj. Op. at 25–26. 21Although my analysis has focused on the prejudicial impact of the prosecution's withholding of the police report, I note that this conclusion is only reinforced by the evidence contained in the transcript of Rudolph's dangerousness hearing -- also the subject of a Brady claim by Watkins. That transcript shows that at that hearing, Rudolph had, in his telling, unsuccessfully "s[ought] not to be held" without bail by claiming that "the only reason why" he had a firearm was that he was "involved in a murder case" and was "being threatened" as a result. Upon being denied bail, Rudolph remarked to the judge, "[s]o, now what happens when the murder case comes up? Am I to come to court bright eyed and bushy tailed and testify against somebody else after this? That's not fair, your Honor. It's not fair."

- 58 - coherent account of why Rudolph was not to be believed that Watkins

otherwise could not make.22

That is not to say that we may lightly find that a

failure to disclose evidence in a timely manner is prejudicial for

Brady purposes. It is to say that we must not construe Brady's

prejudice prong so strictly that it becomes, in effect, an

automatic means of excusing concerning law enforcement practices

that remain too frequent. See, e.g., United States v. Nejad, 487

F. Supp. 3d 206, 213-14, 225–26 (S.D.N.Y. 2020).

We recently recognized the need to be attentive in

applying Brady's prejudice prong to the ways that impeachment

evidence can shift a jury's thinking in a case that heavily depends

on the testimony of a cooperating witness. See Flores-Rivera v.

United States (Flores II), 16 F.4th 963, 965, 967–69 (1st Cir.

2021); Flores I, 787 F.3d at 18.23 If we are just as attentive to

22 I note that the state makes no contention that the other evidence on the record against Watkins was in and of itself so overwhelming that he cannot show the requisite prejudice for that reason alone. See Smith v. Cain, 565 U.S. 73, 76 (2012) ("[E]vidence impeaching an eyewitness may not be material if the State's other evidence is strong enough to sustain confidence in the verdict."); Wood v. Bartholomew, 516 U.S. 1, 8 (1995); United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990) (observing that arguments not developed on appeal are deemed waived). 23The majority suggests that Flores II and Watkins's case are worlds apart due to the evidence in the record here that corroborated a key witness's account against Watkins. Maj. Op. at 33–35. But, even though the record in Flores II contained video evidence that could have inculpated the defendant there, we still found that the defendant had shown the requisite prejudice from being denied access to evidence she was entitled to see because of

- 59 - the possible power of impeachment evidence to undermine confidence

in a verdict here, then I am convinced that -- given that in this

case, too, a single cooperating witness's testimony looms

large -- we must conclude that Watkins has proved the prejudice

that Brady requires. For that reason, I am convinced that "law

and justice" require that we grant his federal habeas petition.

Shinn v. Martinez Ramirez, No. 20-1009, 2022 U.S. LEXIS 2557, at

*18 (U.S. May 23, 2022) (quoting Brown, 142 S. Ct. at 1524).

I therefore respectfully dissent.

how much the case hinged on the testimony of cooperating witnesses. 16 F.4th at 968-69.

- 60 -