OPINION OF THE COURT
BANKS V. DRETKE
540 U. S. ____ (2004)
SUPREME COURT OF THE UNITED STATES
NO. 02-8286
DELMA BANKS, Jr., PETITIONER
v. DOUG
DRETKE, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
CORRECTIONAL INSTITUTIONS DIVISION
on writ of certiorari to the united states court of
appeals for the fifth circuit
[February 24, 2004]
Justice Ginsburg delivered the
opinion of the Court.
Petitioner Delma Banks, Jr., was
convicted of capital murder and sentenced to death. Prior to trial,
the State advised Banks’s attorney there would be no need to
litigate discovery issues, representing: “[W]e will, without the
necessity of motions[,] provide you with all discovery to which you
are entitled.” App. 361, n. 1; App. to Pet. for Cert. A4 (both
sources’ internal quotation marks omitted). Despite that
undertaking, the State withheld evidence that would have allowed
Banks to discredit two essential prosecution witnesses. The State
did not disclose that one of those witnesses was a paid police
informant, nor did it disclose a pretrial transcript revealing that
the other witness’ trial testimony had been intensively coached by
prosecutors and law enforcement officers.
Furthermore, the prosecution raised no red
flag when the informant testified, untruthfully, that he never gave
the police any statement and, indeed, had not talked to any police
officer about the case until a few days before the trial. Instead
of correcting the informant’s false statements, the prosecutor told
the jury that the witness “ha[d] been open and honest with you in
every way,” App. 140, and that his testimony was of the “utmost
significance,”
id., at 146. Similarly, the prosecution
allowed the other key witness to convey, untruthfully, that his
testimony was entirely unrehearsed. Through direct appeal and state
collateral review proceedings, the State continued to hold secret
the key witnesses’ links to the police and allowed their false
statements to stand uncorrected.
Ultimately, through discovery and an
evidentiary hearing authorized in a federal habeas corpus
proceeding, the long-suppressed evidence came to light. The
District Court granted Banks relief from the death penalty, but the
Court of Appeals reversed. In the latter court’s judgment, Banks
had documented his claims of prosecutorial misconduct too late and
in the wrong forum; therefore he did not qualify for federal-court
relief. We reverse that judgment. When police or prosecutors
conceal significant exculpatory or impeaching material in the
State’s possession, it is ordinarily incumbent on the State to set
the record straight.
I
On April 14, 1980, police found
the corpse of 16-year-old Richard Whitehead in Pocket Park, east of
Nash, Texas, a town in the vicinity of Texarkana.
Id., at
8, 141.[
Footnote 1] A
preliminary autopsy revealed that Whitehead had been shot three
times.
Id., at 10. Bowie County Deputy Sheriff Willie
Huff, lead investigator of the death, learned from two witnesses
that Whitehead had been in the company of petitioner, 21-year-old
Delma Banks, Jr., late on the evening of April 11.
Id., at
11–15, 144;
Banks v.
State, 643
S. W. 2d 129, 131 (Tex. Crim. App. 1982) (en banc), cert.
denied,
464 U. S.
904 (1983). On April 23, Huff received a call from a
confidential informant reporting that “Banks was coming to Dallas
to meet an individual and get a weapon.” App. 15. That evening,
Huff and other officers followed Banks to South Dallas, where Banks
visited a residence.
Ibid.; Brief for Petitioner 3. Police
stopped Banks’s vehicle en route from Dallas, found a handgun in
the car, and arrested the car’s occupants. App. 16. Returning to
the Dallas residence Banks had visited, Huff encountered and
interviewed Charles Cook and recovered a second gun, a weapon Cook
said Banks had left with him several days earlier.
Ibid.
Tests later identified the second gun as the Whitehead murder
weapon.
Id., at 17.
In a May 21, 1980, pretrial
hearing, Banks’s counsel sought information from Huff concerning
the confidential informant who told Huff that Banks would be
driving to Dallas.
Id., at 21. Huff was unresponsive.
Ibid. Any information that might reveal the identity of
the informant, the prosecution urged, was privileged.
Id.,
at 23. The trial court sustained the State’s objection.
Id., at 24. Several weeks later, in a July 7, 1980,
letter, the prosecution advised Banks’s counsel that “[the State]
will, without necessity of motions provide you with all discovery
to which you are entitled.”
Id., at 361, n. 1; App.
to Pet. for Cert. A4 (both sources’ internal quotation marks
omitted).
The guilt phase of Banks’s trial spanned two
days in September 1980. See Brief for Petitioner 2; App. to Pet.
for Cert. C3. Witnesses testified to seeing Banks and Whitehead
together on April 11 in Whitehead’s green Mustang, and to hearing
gunshots in Pocket Park at 4 a.m. on April 12.
Banks v.
State, 643 S. W. 2d, at 131. Charles Cook testified that
Banks arrived in Dallas in a green Mustang at about 8:15 a.m. on
April 12, and stayed with Cook until April 14. App. 42–43, 47–53.
Cook gave the following account of Banks’s visit. On the morning of
his arrival, Banks had blood on his leg and told Cook “he [had] got
into it on the highway with a white boy.”
Id., at 44. That
night, Banks confessed to having “kill[ed] the white boy for the
hell of it and take[n] his car and come to Dallas.”
Id.,
at 48. During their ensuing conversation, Cook first noticed that
“[Banks] had a pistol.”
Id., at 49. Two days later, Banks
left Dallas by bus.
Id., at 52–53. The next day, Cook
abandoned the Mustang in West Dallas and sold Banks’s gun to a
neighbor.
Id., at 54. Cook further testified that, shortly
before the police arrived at his residence to question him, Banks
had revisited him and requested the gun.
Id., at 57.
On cross-examination, Cook three times
represented that he had not talked to anyone about his testimony.
Id., at 59. In fact, however, Cook had at least one
“pretrial practice sessio[n]” at which Huff and prosecutors
intensively coached Cook for his appearance on the stand at Banks’s
trial.
Id., at 325, ¶ ;10, 381–390; Joint Lodging Material
1–36 (transcript of pretrial preparatory session). The prosecution
allowed Cook’s misstatements to stand uncorrected. In its
guilt-phase summation, the prosecution told the jury “Cook brought
you absolute truth.” App. 84.
In addition to Cook, Robert Farr was a key
witness for the prosecution. Corroborating parts of Cook’s account,
Farr testified to traveling to Dallas with Banks to retrieve
Banks’s gun.
Id., at 34–35. On cross-examination, defense
counsel asked Farr whether he had “ever taken any money from some
police officers,” or “give[n] any police officers a statement.”
Id., at 37–38. Farr answered no to both questions; he
asserted emphatically that police officers had not promised him
anything and that he had “talked to no one about this [case]” until
a few days before trial.
Ibid. These answers were untrue,
but the State did not correct them. Farr was the paid informant who
told Deputy Sheriff Huff that Banks would travel to Dallas in
search of a gun.
Id., at 329; App. to Pet. for Cert. A4,
A9. In a 1999 affidavit, Farr explained:
“I assumed that if I did not help [Huff] with his
investigation of Delma that he would have me arrested for drug
charges. That’s why I agreed to help [Huff]. I was afraid that if I
didn’t help him, I would be arrested… .
“Willie Huff asked me to help him find Delma’s gun. I told
[Huff] that he would have to pay me money right away for my help on
the case. I think altogether he gave me about $200.00 for helping
him. He paid me some of the money before I set Delma up. He paid me
the rest after Delma was arrested and charged with
murder… .
“In order to help Willie Huff, I had to set Delma up. I told
Delma that I wanted to rob a pharmacy to get drugs and that I
needed his gun to do it. I did not really plan to commit a robbery
but I told Delma this so that he would give me his gun… . I
convinced Delma to drive to Dallas with me to get the gun.” App.
442–443, ¶ ;¶ ;6–8.
The defense presented no
evidence. App. to Pet. for Cert. A6. Banks was convicted of murder
committed in the course of a robbery, in violation of Tex. Penal
Code Ann. §19.03(a)(2) (1974). See App. to Pet. for Cert.
C3.[
Footnote 2]
The penalty phase ran its course the next day.
Ibid. Governed by the Texas statutory capital murder
scheme applicable in 1980, the jury decided Banks’s sentence by
answering three “special issues.” App. 142–143.[
Footnote 3] “If the jury unanimously answer[ed]
‘yes’ to each issue submitted, the trial court [would be obliged
to] sentence the defendant to death.”
Penry v.
Lynaugh, 492 U. S. 302, 310
(1989) (construing Texas’ sentencing scheme); Tex. Code Crim. Proc.
Ann., Arts. 37.071(c)–(e) (Vernon Supp. 1980). The critical
question at the penalty phase in Banks’s case was: “Do you find
from the evidence beyond a reasonable doubt that there is a
probability that the defendant, Delma Banks, Jr., would commit
criminal acts of violence that would constitute a continuing threat
to society?” App. 143 (internal quotation marks omitted).
On this question, the State offered two
witnesses, Vetrano Jefferson and Robert Farr.
Id., at
104–113. Jefferson testified that, in early April 1980, Banks had
struck him across the face with a gun and threatened to kill him.
Id., at 104–106. Farr’s testimony focused once more on the
trip to Dallas to fetch Banks’s gun. The gun was needed, Farr
asserted, because “[w]e [Farr and Banks] were going to pull some
robberies.”
Id., at 108. According to Farr, Banks “said he
would take care of it” if “there was any trouble during these
burglaries.”
Id., at 109. When the prosecution asked: “How
did [Banks] say he would take care of it?”, Farr responded:
“[Banks] didn’t go into any specifics, but he said it would be
taken care of.”
Ibid.
On cross-examination, defense counsel twice
asked whether Farr had told Deputy Sheriff Huff of the Dallas trip.
Ibid. The State remained silent as Farr twice perjuriously
testified: “No, I did not.”
Ibid. Banks’s counsel also
inquired whether Farr had previously attempted to obtain
prescription drugs by fraud, and, “up tight over that,” would
“testify to anything anybody want[ed] to hear.”
Id., at
110. Farr first responded: “Can you prove it?”
Ibid.
Instructed by the court to answer defense counsel’s questions, Farr
again said: “No, I did not … .”
Ibid.
Two defense witnesses impeached Farr, but
were, in turn, impeached themselves. James Kelley testified to
Farr’s attempts to obtain drugs by fraud; the prosecution impeached
Kelley by eliciting his close relationship to Banks’s girlfriend.
Id., at 124–129. Later, Kelley admitted to being drunk
while on the stand. App. to Pet. for Cert. A13. Former Arkansas
police officer Gary Owen testified that Farr, as a police informant
in Arkansas, had given false information; the prosecution impeached
Owen by bringing out his pending application for employment by
defense counsel’s private investigator. App. 129–131.
Banks’s parents and acquaintances testified
that Banks was a “respectful, churchgoing young man.” App. to Pet.
for Cert. A7; App. 137–139. Thereafter, Banks took the stand. He
affirmed that he “[h]ad never before been convicted of a felony.”
Id., at 134.[
Footnote
4] Banks admitted striking Vetrano Jefferson in April 1980, and
traveling to Dallas to obtain a gun in late April 1980.
Id., at 134–136. He denied, however, any intent to
participate in robberies, asserting that Farr alone had planned to
commit them.
Id., at 136–137. The prosecution suggested on
cross-examination that Banks had been willing “to supply [Farr] the
means and possible death weapon in an armed robbery case.”
Id., at 137. Banks conceded as much.
Ibid.
During summation, the prosecution intimated
that Banks had not been wholly truthful in this regard, suggesting
that “a man doesn’t travel two hundred miles, or whatever the
distance is from here [Texarkana] to Dallas, Texas, to supply a
person with a weapon.”
Id., at 143. The State homed in on
Farr’s testimony that Banks said he would “take care” of any
trouble arising during the robbery:
“[Farr] said, ‘Man, you know, what i[f] there’s
trouble?’ And [Banks] says, ‘Don’t worry about it. I’ll take care
of it.’ I think that speaks for itself, and I think you know what
that means… . I submit to you beyond a reasonable doubt that
the State has again met its burden of proof, and that the answer to
question number two [propensity to commit violent criminal acts]
should also be yes.”
Id., at 140, 144. See also
id., at 146–147.
Urging Farr’s credibility, the
prosecution called the jury’s attention to Farr’s admission, at
trial, that he used narcotics.
Id., at 36, 140. Just as
Farr had been truthful about his drug use, the prosecution
suggested, he was also “open and honest with [the jury] in every
way” in his penalty-phase testimony.
Id., at 140. Farr’s
testimony, the prosecution emphasized, was “of the utmost
significance” because it showed “[Banks] is a danger to friends and
strangers, alike.”
Id., at 146. Banks’s effort to impeach
Farr was ineffective, the prosecution further urged, because
defense witness “Kelley kn[ew] nothing about the murder,” and
defense witness Owen “wish[ed] to please his future employers.”
Id., at 148.
The jury answered yes to the three special
issues, and the judge sentenced Banks to death. The Texas Court of
Criminal Appeals denied Banks’s direct appeal. 643
S. W. 2d, at 135. Banks’s first two state postconviction
motions raised issues not implicated here; both were denied.
Ex parte Banks, No. 13568–01 (Tex. Crim. App.
1984);
Ex parte Banks, 769 S. W. 2d 539, 540
(Tex. Crim. App. 1989).
Banks’s third state postconviction motion,
filed January 13, 1992, presented questions later advanced in
federal court and reiterated in the petition now before us. App.
150. Banks alleged “upon information and belief” that “the
prosecution knowingly failed to turn over exculpatory evidence as
required by [
Brady v.
Maryland, 373 U. S. 83 (1963)]”;[
Footnote 5] the withheld evidence, Banks
asserted, “would have revealed Robert Farr as a police informant
and Mr. Banks’ arrest as a set-up.” App. 180, ¶ ;114 (internal
quotation marks omitted). In support of this third state-court
postconviction plea, Banks attached an unsigned affidavit from his
girlfriend, Farr’s sister-in-law Demetra Jefferson, which stated
that Farr “was well-connected to law enforcement people,” and
consequently managed to stay out of “trouble” for illegally
obtaining prescription drugs.
Id., at 195, ¶ ;7. Banks
alleged as well that during the guilt phase of his trial, the State
deliberately withheld information “critical to the jury’s
assessment of Cook’s credibility,” including the “generous ‘deal’
[Cook had] cut with the prosecutors.”
Id., at 152, ¶ ;2,
180, ¶ ;114.[
Footnote 6]
The State’s reply to Banks’s pleading, filed
October 6, 1992, “denie[d] each and every allegation of fact made
by [Banks] except those supported by official court records and
those specifically admitted.”
Id., at 234; Tr. of Oral
Arg. 32. “[N]othing was kept secret from the defense,” the State
represented. App. 234. While the reply specifically asserted that
the State had made “no deal with Cook,”
ibid., the State
said nothing specific about Farr. Affidavits from Deputy Sheriff
Huff and prosecutors accompanied the reply.
Id., at
241–243. The affiants denied any “deal, secret or otherwise, with
Charles Cook,” but they, too, like the State’s pleading they
supported, remained silent about Farr.
Ibid.
In February and July 1993 orders, the state
postconviction court rejected Banks’s claims. App. to Pet. for
Cert. E1–E10, G1–G7. The court found that “there was no agreement
between the State and the witness Charles Cook,” but made no
findings concerning Farr.
Id., at G2. In a January 10,
1996, one-page
per curiam order, the Texas Court of
Criminal Appeals upheld the lower court’s disposition of Banks’s
motion.
Id., at D1.
On March 7, 1996, Banks filed the instant
petition for a writ of habeas corpus in the United States District
Court for the Eastern District of Texas. App. 248. He alleged
multiple violations of his federal constitutional rights. App. to
Pet. for Cert. C5–C7. Relevant here, Banks reasserted that the
State had withheld material exculpatory evidence “reveal[ing]
Robert Farr as a police informant and Mr. Banks’ arrest as a
set-up.”
App. 260, ¶ ;152 (internal
quotation marks omitted). Banks also asserted that
the State had concealed “Cook’s enormous incentive to testify in a
manner favorable to the [prosecution].” Id., at 260, ¶
;153; App. to Pet. for Cert. C6–C7.[Footnote 7] In June 1998, Banks moved for discovery and an
evidentiary hearing to gain information from the State on the roles
played and trial testimony provided by Farr and Cook. App. 262–266,
282–283, 286. The superintending Magistrate Judge allowed limited
discovery regarding Cook, but found insufficient justification for
inquiries concerning Farr. Id., at
294–295.
Banks renewed his discovery and evidentiary
hearing requests in February 1999. Id., at 2, 300–331.
This time, he proffered affidavits from both Farr and Cook to back
up his claims that, as to each of these two key witnesses, the
prosecution had wrongly withheld crucial exculpatory and impeaching
evidence. Id., at 322–331. Farr’s affidavit affirmed that
Farr had “set Delma up” by proposing the drive to Dallas and
informing Deputy Sheriff Huff of the trip. Id., at 329, ¶
;8, 442–443, ¶ ;8; supra, at 5. Accounting for his
unavailability earlier, Farr stated that less than a year after the
Banks trial, he had left Texarkana, first for Oklahoma, then for
California, because his police-informant work endangered his life.
App. 330–331, 444; Pet. for Cert. 27, n. 12. Cook recalled
that in preparation for his Banks trial testimony, he had
participated in “three or four … practice sessions” at which
prosecutors told him to testify “as they wanted [him] to, and that
[he] would spend the rest of [his] life in prison if [he] did not.”
App. 325, ¶ ;¶ ;10–11.
On March 4, 1999, the Magistrate Judge issued
an order establishing issues for an evidentiary hearing,
id., at 340, 346, at which she would consider Banks’s
claims that the State had withheld “crucial exculpatory and
impeaching evidence” concerning “two of the [S]tate’s essential
witnesses, Charles Cook and Robert Farr.” Id., at 340, 345
(internal quotation marks omitted). In anticipation of the hearing,
the Magistrate Judge ordered disclosure of the Bowie County
District Attorney’s files. Brief for Petitioner 37–38; Tr. of June
7–8, 1999, Federal Evidentiary Hearing (ED Tex.), p. 30
(hereinafter Federal Evidentiary Hearing).
One item lodged in the District Attorney’s
files, turned over to Banks pursuant to the Magistrate Judge’s
disclosure order, was a 74-page transcript of a Cook interrogation.
App. to Pet. for Cert. A10. The interrogation, conducted by Bowie
County law enforcement officials and prosecutors, occurred in
September 1980, shortly before the Banks trial. Ibid. The
transcript revealed that the State’s representatives had closely
rehearsed Cook’s testimony. In particular, the officials told Cook
how to reconcile his testimony with affidavits to which he had
earlier subscribed recounting Banks’s visits to Dallas. See,
e.g., Joint Lodging Material 24 (“Your [April 1980]
statement is obviously screwed up.”); id., at 26 (“[T]he
way this statement should read is that … .”); id., at
32 (“[L]et me tell you how this is going to work.”); id.,
at 36 (“That’s not in your [earlier] statement.”). Although the
transcript did not bear on Banks’s claim that the prosecution had a
deal with Cook, it provided compelling evidence that Cook’s
testimony had been tutored by Banks’s prosecutors. Without
objection at the hearing, the Magistrate Judge admitted the
September 1980 transcript into evidence. Brief for Petitioner 39;
Federal Evidentiary Hearing 75–76.
Testifying at the evidentiary hearing, Deputy
Sheriff Huff acknowledged, for the first time, that Farr was an
informant and that he had been paid $200 for his involvement in the
case. App. to Pet. for Cert. C43. As to Cook, a Banks trial
prosecutor testified, in line with the State’s consistent position,
that no deal had been offered to gain Cook’s trial testimony.
Id., at C45; Federal Evidentiary Hearing 52–53. Defense
counsel questioned the prosecutor about the September 1980
transcript, calling attention to discrepancies between the
transcript and Cook’s statements at trial. Id., at 65–68.
In a posthearing brief and again in proposed findings of fact and
conclusions of law, Banks emphasized the suppression of the
September 1980 transcript, noting the prosecution’s obligation to
disclose material, exculpatory evidence, and the assurance in this
case that Banks would receive “all [the] discovery to which [Banks
was] entitled.” App. 360–361, and n. 1, 378–379 (internal
quotation marks omitted); supra, at
3.
In a May 11, 2000, report and recommendation,
the Magistrate Judge recommended a writ of habeas corpus with
respect to Banks’s death sentence, but not his conviction. App. to
Pet. for Cert. C54. “[T]he State’s failure to disclose Farr’s
informant status, coupled with trial counsel’s dismal performance
during the punishment phase,” the Magistrate Judge concluded,
“undermined the reliability of the jury’s verdict regarding
punishment.” Id., at C44. Finding no convincing evidence
of a deal between the State and Cook, however, she recommended that
the guilt-phase verdict remain undisturbed. Id., at
C46.
Banks moved to alter or amend the Magistrate
Judge’s report on the ground that it left unresolved a fully aired
question, i.e., whether Banks’s rights were violated by
the State’s failure to disclose to the defense the prosecution’s
eve-of-trial interrogation of Cook. App. 398. That interrogation,
Banks observed, could not be reconciled with Cook’s insistence at
trial that he had talked to no one about his testimony.
Id., at 400, n. 17; see supra, at
4.
The District Court adopted the Magistrate
Judge’s report and denied Banks’s motion to amend the report. App.
to Pet. for Cert. B6; App. 421–424. Concerning the Cook
Brady transcript-suppression claim, the District Court
recognized that Banks had filed his federal petition in 1996, three
years before he became aware of the September 1980 transcript. App.
422–423. When the transcript surfaced in response to the Magistrate
Judge’s 1999 disclosure order, Banks raised that newly discovered,
long withheld document in his proposed findings of fact and
conclusions of law and, again, in his objections to the Magistrate
Judge’s report. Id., at 423. The District Court concluded,
however, that Banks had not properly pleaded a Brady claim
predicated on the withheld Cook rehearsal transcript. App. 422.
When that Brady claim came to light, the District Court
reasoned, Banks should have moved to amend or supplement his 1996
federal habeas petition specifically to include the 1999 discovery
as a basis for relief. App. 423. Banks urged that a Brady
claim based on the September 1980 transcript had been aired by
implied consent; under Federal Rule of Civil Procedure 15(b), he
contended, the claim should have been treated as if raised in the
pleadings. App. 433.[Footnote
8] Banks sought, and the District Court denied, a certificate
of appealability on this question. Id., at 433,
436.
In an August 20, 2003, unpublished per
curiam opinion, the Court of Appeals for the Fifth Circuit
reversed the judgment of the District Court to the extent that it
granted relief on the Farr Brady claim and denied a
certificate of appealability on the Cook Brady claim. App.
to Pet. for Cert. A2, Judgt. order reported at 48 Fed. Appx. 104
(2002).[Footnote 9] The Court
of Appeals observed that in his 1992 state-court postconviction
application, Banks had not endeavored to develop the facts
underpinning the Farr Brady claim. App to Pet. for Cert.
A19–A20. For that reason, the court held, the evidentiary
proceeding ordered by the Magistrate Judge was unwarranted.
Ibid. The Court of Appeals expressed no doubt that the
prosecution had suppressed, prior to the federal habeas proceeding,
Farr’s informant status and his part in the fateful trip to Dallas.
But Banks was not appropriately diligent in pursuing his
state-court application, the Court of Appeals maintained. In the
Fifth Circuit’s view, Banks should have at that time attempted to
locate Farr and question him; similarly, he should have asked to
interview Deputy Sheriff Huff and other officers involved in
investigating the crime. Id., at A19, A22. If such efforts
had proved unavailing, the Court of Appeals suggested, Banks might
have applied to the state court for assistance. Id., at
A19. Banks’s lack of diligence in pursuing his 1992 state-court
plea, the Court of Appeals concluded, rendered the evidence
uncovered in the federal habeas proceeding procedurally barred.
Id., at A22–A23.
In any event, the Fifth Circuit further
concluded, Farr’s status as an informant was not “materia[l]” for
Brady purposes. App. to Pet. for Cert. A32–A33. Banks had
impeached Farr at trial by bringing out that he had been a police
informant in Arkansas, and an unreliable one at that. Id.,
at A28, A32–A33; supra, at 7. Moreover, the Court of
Appeals said, other witnesses had corroborated much of Farr’s
testimony against Banks. App. to Pet. for Cert. A32. Notably, Banks
himself had acknowledged his willingness to get a gun for Farr’s
use in robberies. Ibid. In addition, the Fifth Circuit
observed, the Magistrate Judge had relied on the cumulative effect
of Brady error and the ineffectiveness of Banks’s counsel
at the penalty phase. App. to Pet. for Cert. A44. Banks himself,
however, had not urged that position; he had argued Brady
and ineffective assistance of counsel discretely, not cumulatively.
App. to Pet. for Cert. A46–A47. Finally, in accord with the
District Court, the Court of Appeals apparently regarded Rule 15(b)
as inapplicable in habeas proceedings. App. to Pet. for Cert.
A51–A52. The Fifth Circuit accordingly denied a certificate of
appealability on the Cook Brady transcript-suppression
claim. App. to Pet. for Cert. A52, A78.
With an execution date set for March 12,
2003, Banks applied to this Court for a writ of certiorari,
presenting four issues: the tenability of his Farr Brady
claim; a penalty-phase ineffective-assistance-of-counsel claim; the
question whether, as to the Cook Brady
transcript-suppression claim, a certificate of appealability was
wrongly denied; and a claim of improper exclusion of minority
jurors in violation of Swain v.
Alabama, 380 U. S. 202 (1965). Pet. for Cert.
23–24. We stayed Banks’s execution on March 12, 2003, and, on April
21, 2003, granted his petition on all questions other than his
Swain claim. 538 U. S. 977 (2003). We
now reverse the Court of Appeals’ judgment dismissing Banks’s Farr
Brady claim and that Court’s denial of a certificate of
appealability on his Cook Brady claim.[Footnote 10]
II
We note, initially, that Bank’s
Brady claims arose under the regime in place prior to the
Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 110
Stat. 1214. Turning to the tenability of those claims, we consider
first Banks’s Farr Brady claim as it trains on his death
sentence, see App. to Pet. for Cert. B6 (District Court granted
habeas solely with respect to the capital sentence), and next,
Banks’s Cook Brady claim.
A
To pursue habeas corpus relief in federal
court, Banks first had to exhaust “the remedies available in the
courts of the State.” 28 U. S. C. §2254(b) (1994 ed.); see
Rose v. Lundy, 455 U. S. 509, 520
(1982). Banks alleged in his January 1992 state-court application
for a writ of habeas corpus that the prosecution knowingly failed
to turn over exculpatory evidence involving Farr in violation of
Banks’s due process rights. App. 180. Banks thus satisfied the
exhaustion requirement as to the legal ground for his Farr
Brady claim.[Footnote
11]
In state postconviction court, however, Banks
failed to produce evidence establishing that Farr had served as a
police informant in this case. As support for his Farr
Brady claim, Banks appended to his state-court application
only Demetra Jefferson’s hardly probative statement that Farr “was
well-connected to law enforcement people.” App. 195, ¶ ;7; see
supra, at 9. In the federal habeas forum, therefore, it
was incumbent on Banks to show that he was not barred, by reason of
the anterior state proceedings, from producing evidence to
substantiate his Farr Brady claim. Banks “[would be]
entitled to an evidentiary hearing [in federal court] if he [could]
show cause for his failure to develop the facts in state-court
proceedings and actual prejudice resulting from that failure.”
Keeney v. Tamayo-Reyes, 504 U. S. 1, 11
(1992).
Brady, we reiterate, held that “the
suppression by the prosecution of evidence favorable to an accused
upon request violates due process where the evidence is material
either to guilt or to punishment, irrespective of the good faith or
bad faith of the prosecution.” 373 U. S., at 87. We set out in
Strickler v. Greene, 527 U. S. 263, 281–282 (1999), the
three components or essential elements of a Brady
prosecutorial misconduct claim: “The evidence at issue must be
favorable to the accused, either because it is exculpatory, or
because it is impeaching; that evidence must have been suppressed
by the State, either willfully or inadvertently; and prejudice must
have ensued.” 527 U. S., at 281–282. “[C]ause and prejudice” in
this case “parallel two of the three components of the alleged
Brady violation itself.” Id., at 282.
Corresponding to the second Brady component (evidence
suppressed by the State), a petitioner shows “cause” when the
reason for his failure to develop facts in state-court proceedings
was the State’s suppression of the relevant evidence; coincident
with the third Brady component (prejudice), prejudice
within the compass of the “cause and prejudice” requirement exists
when the suppressed evidence is “material” for Brady
purposes. 527 U. S., at 282. As to the first Brady
component (evidence favorable to the accused), beyond genuine
debate, the suppressed evidence relevant here, Farr’s paid
informant status, qualifies as evidence advantageous to Banks. See
App. to Pet. for Cert. A26 (Court of Appeals’ recognition that
“Farr’s being a paid informant would certainly be favorable to
Banks in attacking Farr’s testimony”). Thus, if Banks succeeds in
demonstrating “cause and prejudice,” he will at the same time
succeed in establishing the elements of his Farr Brady
death penalty due process claim.
B
Our determination as to “cause” for Banks’s
failure to develop the facts in state-court proceedings is informed
by Strickler.[Footnote
12] In that case, Virginia prosecutors told the petitioner,
prior to trial, that “the prosecutor’s files were open to the
petitioner’s counsel,” thus “there was no need for a formal
[Brady] motion.” 527 U. S., at 276, n. 14 (quoting
App. in Strickler v. Greene, O. T. 1998, No.
98–5864, pp. 212–213 (brackets in original)). The prosecution file
given to the Strickler petitioner, however, did not
include several documents prepared by an “importan[t]” prosecution
witness, recounting the witness’ initial difficulty recalling the
events to which she testified at the petitioner’s trial. 527 U. S.,
at 273–275, 290. Those absent-from-the-file documents could have
been used to impeach the witness. Id., at 273. In
state-court postconviction proceedings, the Strickler
petitioner had unsuccessfully urged ineffective assistance of trial
counsel based on counsel’s failure to move, pretrial, for
Brady material. Answering that plea, the State asserted
that a Brady motion would have been superfluous, for the
prosecution had maintained an open file policy pursuant to which it
had disclosed all Brady material. 527 U. S., at 276,
n. 14, 278.
This Court determined that in the federal
habeas proceedings, the Strickler petitioner had shown
cause for his failure to raise a Brady claim in state
court. 527 U. S., at 289. Three factors accounted for that
determination:
“(a)
the prosecution withheld exculpatory evidence; (b) petitioner
reasonably relied on the prosecution’s open file policy as
fulfilling the prosecution’s duty to disclose such evidence; and
(c) the [State] confirmed petitioner’s reliance on the open file
policy by asserting during state habeas proceedings that petitioner
had already received everything known to the government.”
Ibid. (internal quotation marks and footnote
omitted).[Footnote
13]
This case is congruent with
Strickler in all three respects. First, the State knew of,
but kept back, Farr’s arrangement with Deputy Sheriff Huff. App. to
Pet. for Cert. C43; Tr. of Oral Arg. 33; cf. Kyles v.
Whitley, 514 U. S. 419, 437 (1995) (prosecutors
are responsible for “any favorable evidence known to the others
acting on the government’s behalf in the case, including the
police”). Second, the State asserted, on the eve of trial, that it
would disclose all Brady material. App. 361, n. 1;
see supra, at 3. As Strickler instructs, Banks
cannot be faulted for relying on that representation. See 527 U.
S., at 283–284 (an “open file policy” is one factor that
“explain[s] why trial counsel did not advance [a Brady]
claim”).
Third, in his January 1992 state habeas
application, Banks asserted that Farr was a police informant and
Banks’s arrest, “a set-up.” App. 180, ¶ ;114 (internal quotation
marks omitted). In its answer, the State denied Banks’s assertion.
Id., at 234; see supra, at 10. The State thereby
“confirmed” Banks’s reliance on the prosecution’s representation
that it had fully disclosed all relevant information its file
contained. 527 U. S., at 289; see id., at 284 (state
habeas counsel, as well as trial counsel, could reasonably rely on
the State’s representations). In short, because the State persisted
in hiding Farr’s informant status and misleadingly represented that
it had complied in full with its Brady disclosure
obligations, Banks had cause for failing to investigate, in state
postconviction proceedings, Farr’s connections to Deputy Sheriff
Huff.
On the question of “cause,” moreover, Banks’s
case is stronger than was the petitioner’s in Strickler in
a notable respect. As a prosecution witness in the guilt and
penalty phases of Banks’s trial, Farr repeatedly misrepresented his
dealings with police; each time Farr responded untruthfully, the
prosecution allowed his testimony to stand uncorrected. See
supra, at 4–7. Farr denied taking money from or being
promised anything by police officers, App. 37; he twice denied
speaking with police officers, id., at 38, and twice
denied informing Deputy Sheriff Huff about Banks’s trip to Dallas,
id., at 109. It has long been established that the
prosecution’s “deliberate deception of a court and jurors by the
presentation of known false evidence is incompatible with
rudimentary demands of justice.” Giglio v. United
States, 405 U. S. 150, 153 (1972) (quoting
Mooney v. Holohan, 294 U. S. 103, 112
(1935) (per curiam) ). If it was reasonable for Banks
to rely on the prosecution’s full disclosure representation, it was
also appropriate for Banks to assume that his prosecutors would not
stoop to improper litigation conduct to advance prospects for
gaining a conviction. See Berger v. United
States, 295
U. S. 78, 88 (1935); Strickler, 527 U. S., at
284.[Footnote
14]
The State presents three main arguments for
distinguishing Strickler on the issue of “cause,” two of
them endorsed by the Court of Appeals. Brief for Respondent 15–20;
App. to Pet. for Cert. A19, A22–A23; see supra, at 15. We
conclude that none of these arguments accounts adequately for the
State’s concealment and misrepresentation regarding Farr’s link to
Deputy Sheriff Huff. The State first suggests that Banks’s failure,
during state postconviction proceedings, to “attempt to locate Farr
and ascertain his true status,” or to “interview the investigating
officers, such as Deputy Huff, to ascertain Farr’s status,”
undermines a finding of cause; the Fifth Circuit agreed. App. to
Pet. for Cert. A22; Brief for Respondent 18–20. In the State’s
view, “[t]he question [of cause] revolves around Banks’s conduct,”
particularly his lack of appropriate diligence in pursuing the Farr
Brady claim before resorting to federal court. Brief for
Respondent 14.[Footnote
15]
We rejected a similar argument in
Strickler. There, the State contended that examination of
a witness’ trial testimony, alongside a letter the witness
published in a local newspaper, should have alerted the petitioner
to the existence of undisclosed interviews of the witness by the
police. 527 U. S., at 284, and n. 26. We found this contention
insubstantial. In light of the State’s open file policy, we noted,
“it is especially unlikely that counsel would have suspected that
additional impeaching evidence was being withheld.” Id.,
at 285. Our decisions lend no support to the notion that defendants
must scavenge for hints of undisclosed Brady material when
the prosecution represents that all such material has been
disclosed. As we observed in Strickler, defense counsel
has no “procedural obligation to assert constitutional error on the
basis of mere suspicion that some prosecutorial misstep may have
occurred.” 527 U. S., at 286–287. The “cause” inquiry, we have also
observed, turns on events or circumstances “external to the
defense.” Amadeo v. Zant, 486 U. S. 214, 222
(1988) (quoting Murray v. Carrier, 477 U. S. 478, 488
(1986)).
The State here nevertheless urges, in effect,
that “the prosecution can lie and conceal and the prisoner still
has the burden to … discover the evidence,” Tr. of Oral Arg. 35, so
long as the “potential existence” of a prosecutorial misconduct
claim might have been detected, id., at 36. A rule thus
declaring “prosecutor may hide, defendant must seek,” is not
tenable in a system constitutionally bound to accord defendants due
process. “Ordinarily, we presume that public officials have
properly discharged their official duties.” Bracy v.
Gramley, 520 U. S. 899, 909
(1997) (quoting United States v. Chemical Foundation,
Inc., 272 U.
S. 1, 14–15 (1926)). We have several times underscored the
“special role played by the American prosecutor in the search for
truth in criminal trials.” Strickler, 527 U. S., at 281;
accord, Kyles, 514 U. S., at 439–440; United
States v. Bagley, 473 U. S. 667, 675, n. 6 (1985);
Berger, 295 U. S., at 88. See also Olmstead v.
United States, 277 U. S. 438, 484
(1928) (Brandeis, J., dissenting). Courts, litigants, and juries
properly anticipate that “obligations [to refrain from improper
methods to secure a conviction] … plainly rest[ing] upon the
prosecuting attorney, will be faithfully observed.”
Berger, 295 U. S., at 88. Prosecutors’ dishonest conduct
or unwarranted concealment should attract no judicial approbation.
See Kyles, 514 U. S., at 440 (“The prudence of the careful
prosecutor should not … be discouraged.”).
The State’s second argument is a variant of
the first. Specifically, the State argues, and the Court of Appeals
accepted, that Banks cannot show cause because in the 1992
state-court postconviction proceedings, he failed to move for
investigative assistance enabling him to inquire into Farr’s police
connections, connections he then alleged, but failed to prove.
Brief for Respondent 15–16; App. to Pet. for Cert. A19; see 1977
Tex. Gen. Laws ch. 789, §2(d) (as amended) (instructing
postconviction court to “designat[e] the issues of fact to be
resolved,” and giving the court discretion to “order affidavits,
depositions, interrogatories, and hearings”). Armed in 1992 only
with Demetra Jefferson’s declaration that Farr was “well-connected
to law enforcement people,” App. 195, ¶ ;7; see supra, at
9, Banks had little to proffer in support of a request for
assistance from the state postconviction court. We assign no
overriding significance to Banks’s failure to invoke state-court
assistance to which he had no clear entitlement. Cf.
Strickler, 527 U. S., at 286 (“Proper respect for state
procedures counsels against a requirement that all possible claims
be raised in state collateral proceedings, even when no known facts
support them.”).[Footnote
16]
Finally, relying on Roviaro v.
United States, 353 U. S. 53 (1957), the
State asserts that “disclosure [of an informant’s identity] is not
automatic,” and, “[c]onsequently, it was Banks’s duty to move for
disclosure of otherwise privileged information.” Brief for
Respondent 17–18, n. 15. We need not linger over this
argument. The issue of evidentiary law in Roviaro was
whether (or when) the Government is obliged to reveal the identity
of an undercover informer the Government does not call as
a trial witness. 353 U. S., at 55–56. The Court there stated that
no privilege obtains “[w]here the disclosure of an informer’s
identify, or of the contents of his communication, is relevant and
helpful to the defense of an accused.” Id., at 60–61.
Accordingly, even though the informer in Roviaro did not
testify, we held that disclosure of his identity was necessary
because he could have “amplif[ied] or contradict[ed] the testimony
of government witnesses.” Id., at
64.
Here, the State elected to call Farr as a
witness. Indeed, he was a key witness at both guilt and punishment
phases of Banks’s capital trial. Farr’s status as a paid informant
was unquestionably “relevant”; similarly beyond doubt, disclosure
of Farr’s status would have been “helpful to [Banks’s] defense.”
Id., at 60–61. Nothing in Roviaro, or any other
decision of this Court, suggests that the State can examine an
informant at trial, withholding acknowledgment of his informant
status in the hope that defendant will not catch on, so will make
no disclosure motion.
In summary, Banks’s prosecutors represented
at trial and in state postconviction proceedings that the State had
held nothing back. Moreover, in state postconviction court, the
State’s pleading denied that Farr was an informant. App. 234;
supra, at 10. It was not incumbent on Banks to prove these
representations false; rather, Banks was entitled to treat the
prosecutor’s submissions as truthful. Accordingly, Banks has shown
cause for failing to present evidence in state court capable of
substantiating his Farr Brady
claim.
C
Unless suppressed evidence is “material for
Brady purposes, [its] suppression [does] not give rise to
sufficient prejudice to overcome [a] procedural default.”
Strickler, 527 U. S., at 282. Our touchstone on
materiality is Kyles v. Whitley, 514 U. S. 419 (1995). Kyles
instructed that the materiality standard for Brady claims
is met when “the favorable evidence could reasonably be taken to
put the whole case in such a different light as to undermine
confidence in the verdict.” 514 U. S., at 435. See also
id., at 434–435 (“A defendant need not demonstrate that
after discounting the inculpatory evidence in light of the
undisclosed evidence, there would not have been enough left to
convict.”); accord, Strickler, 527 U. S., at 290. In
short, Banks must show a “reasonable probability of a different
result.” Kyles, 514 U. S., at 434 (internal quotation
marks omitted) (citing Bagley, 473 U. S., at
678).
As the State acknowledged at oral argument,
Farr was “paid for a critical role in the scenario that led to the
indictment.” Tr. of Oral Arg. 34. Farr’s declaration, presented to
the federal habeas court, asserts that Farr, not Banks, initiated
the proposal to obtain a gun to facilitate the commission of
robberies. See App. 442–443, ¶ ;¶ ;7–8; supra, at 5. Had
Farr not instigated, upon Deputy Sheriff Huff’s request, the Dallas
excursion to fetch Banks’s gun, the prosecution would have had
slim, if any, evidence that Banks planned to “continue” committing
violent acts. App. 147.[Footnote
17] Farr’s admission of his instigating role, moreover, would
have dampened the prosecution’s zeal in urging the jury to bear in
mind Banks’s “planning and acquisition of a gun to commit robbery,”
or Banks’s “planned violence.” Ibid.; see Tr. of Oral Arg.
50.[Footnote
18]
Because Banks had no criminal record, Farr’s
testimony about Banks’s propensity to commit violent acts was
crucial to the prosecution. Without that testimony, the State could
not have underscored, as it did three times in the penalty phase,
that Banks would use the gun fetched in Dallas to “take care” of
trouble arising during the robberies. App. 140, 144, 146–147; see
supra, at 8. The stress placed by the prosecution on this
part of Farr’s testimony, uncorroborated by any other witness,
belies the State’s suggestion that “Farr’s testimony was adequately
corroborated.” Brief for Respondent 22–25. The prosecution’s
penalty-phase summation, moreover, left no doubt about the
importance the State attached to Farr’s testimony. What Farr told
the jury, the prosecution urged, was “of the utmost significance”
to show “[Banks] is a danger to friends and strangers, alike.” App.
146.
In Strickler, 527 U. S., at 289,
although the Court found “cause” for the petitioner’s procedural
default of a Brady claim, it found the requisite
“prejudice” absent, 527 U. S., at 292–296. Regarding “prejudice,”
the contrast between Strickler and Banks’s case is marked.
The witness whose impeachment was at issue in Strickler
gave testimony that was in the main cumulative, id., at
292, and hardly significant to one of the “two predicates for
capital murder: [armed] robbery,” id., at 294. Other
evidence in the record, the Court found, provided strong support
for the conviction even if the witness’ testimony had been excluded
entirely: Unlike the Banks prosecution, in Strickler,
“considerable forensic and other physical evidence link[ed] [the
defendant] to the crime” and supported the capital murder
conviction. Id., at 293. Most tellingly, the witness’
testimony in Strickler “did not relate to [the
petitioner’s] eligibility for the death sentence”; it “was not
relied upon by the prosecution at all during its closing argument
at the penalty phase.” Id., at 295. In contrast, Farr’s
testimony was the centerpiece of Banks’s prosecution’s
penalty-phase case.
Farr’s trial testimony, critical at the
penalty phase, was cast in large doubt by the declaration Banks
ultimately obtained from Farr and introduced in the federal habeas
proceeding. See supra, at 5, 11. In the guilt phase of
Banks’s trial, Farr had acknowledged his narcotics use. App. 36. In
the penalty phase, Banks’s counsel asked Farr if, “drawn up tight
over” previous drug-related activity, he would “testify to anything
anybody want[ed] to hear”; Farr denied this. Id., at 110;
supra, at 7. Farr’s declaration supporting Banks’s federal
habeas petition, however, vividly contradicts that denial: “I
assumed that if I did not help [Huff] … he would have me arrested
for drug charges.” App. 442, ¶ ;6. Had jurors known of Farr’s
continuing interest in obtaining Deputy Sheriff Huff’s favor, in
addition to his receipt of funds to “set [Banks] up,” id.,
at 442, ¶ ;7, they might well have distrusted Farr’s testimony,
and, insofar as it was uncorroborated, disregarded
it.
The jury, moreover, did not benefit from
customary, truth-promoting precautions that generally accompany the
testimony of informants. This Court has long recognized the
“serious questions of credibility” informers pose. On Lee
v. United States, 343 U. S. 747, 757
(1952). See also Trott, Words of Warning for Prosecutors Using
Criminals as Witnesses, 47 Hastings L. J. 1381, 1385 (1996)
(“Jurors suspect [informants’] motives from the moment they hear
about them in a case, and they frequently disregard their testimony
altogether as highly untrustworthy and unreliable … .”). We
have therefore allowed defendants “broad latitude to probe
[informants’] credibility by cross-examination” and have counseled
submission of the credibility issue to the jury “with careful
instructions.” On Lee, 343 U. S., at 757; accord,
Hoffa v. United States, 385 U. S. 293, 311–312
(1966). See also 1A K. O’Malley, J. Grenig, & W. Lee, Federal
Jury Practice and Instructions, Criminal §15.02 (5th ed. 2000)
(jury instructions from the First, Fifth, Sixth, Seventh, Eighth,
Ninth, and Eleventh Circuits on special caution appropriate in
assessing informant testimony).
The State argues that “Farr was heavily
impeached [at trial],” rendering his informant status “merely
cumulative.” Tr. of Oral Arg. 49; see Brief for Respondent 26–28;
post, at 4, n. 3. The record suggests otherwise. Neither
witness called to impeach Farr gave evidence directly relevant to
Farr’s part in Banks’s trial. App. 124–133; id., at 129
(prosecutor noted that Kelley lacked “personal knowledge with
regard to this case on trial”). The impeaching witnesses, Kelley
and Owen, moreover, were themselves impeached, as the prosecution
stressed on summation. See id., at 141, 148;
supra, at 7–8. Further, the prosecution turned to its
advantage remaining impeachment evidence concerning Farr’s drug
use. On summation, the prosecution suggested that Farr’s admission
“that he used dope, that he shot,” demonstrated that Farr had been
“open and honest with [the jury] in every way.” App. 140;
supra, at 8.
At least as to the penalty phase, in sum, one
can hardly be confident that Banks received a fair trial, given the
jury’s ignorance of Farr’s true role in the investigation and trial
of the case. See Kyles, 514 U. S., at 434 (“The question
is not whether the defendant would more likely than not have
received a different verdict with the evidence, but whether in its
absence he received a fair trial, understood as a trial resulting
in a verdict worthy of confidence.”). On the record before us, one
could not plausibly deny the existence of the requisite “reasonable
probability of a different result” had the suppressed information
been disclosed to the defense. Ibid. (internal quotation
marks omitted) (citing Bagley, 473 U. S., at 678);
Strickler, 527 U. S., at 290. Accordingly, as to the
suppression of Farr’s informant status and its bearing on “the
reliability of the jury’s verdict regarding punishment,” App. to
Pet. for Cert. C44; supra, at 13, all three elements of a
Brady claim are satisfied.
III
Both the District Court and the Court of
Appeals denied Banks a certificate of appealability with regard to
his Cook Brady claim, which rested on the prosecution’s
suppression of the September 1980 Cook interrogation transcript.
App. 422–423; App. to Pet. for Cert. A52, A78; supra, at
13–14, 16. See also Joint Lodging Material 1–36. The District Court
and the Fifth Circuit concluded that Banks had not properly pleaded
this claim because he had not sought leave to amend his petition,
but had stated the claim only in other submissions, i.e.,
in his proposed findings of fact and conclusions of law, and,
again, in his objections to the Magistrate Judge’s report. App.
422–423, 432–433; App. to Pet. for Cert. A51–A52; supra,
at 13–14, 16. Banks contended, unsuccessfully, that evidence
substantiating the Cook Brady claim had been aired before
the Magistrate Judge; therefore the claim should have been treated
as if raised in the pleadings, as Federal Rule of Civil Procedure
15(b) instructs. See App. to Pet. for Cert. A51–A52;
supra, at 14, n. 8 (setting out text of Rule 15(b)).
The Fifth Circuit stated its position on this point somewhat
obliquely, but appears to have viewed Rule 15(b) as inapplicable in
habeas proceedings; the State now concedes, however, that the
question whether Rule 15(b) extends to habeas proceedings is one
“jurists of reason would find … debatable.” Compare App. to Pet.
for Cert. A52 (quoting Slack v. McDaniel,
529 U. S. 473,
484 (2000)), with Tr. of Oral Arg. 45–46. We conclude that a
certificate of appealability should have
issued.
We have twice before referenced Rule 15(b)’s
application in federal habeas proceedings. In Harris v.
Nelson, 394 U. S. 286, 294, n. 5
(1969), we noted that Rule 15(b)’s use in habeas proceedings is
“noncontroversial.” In Withrow v.
Williams, 507 U. S. 680, 696, and
n. 7 (1993), we similarly assumed Rule 15(b)’s application to
habeas petitions. There, however, the District Court had granted a
writ of habeas corpus on a claim neither pleaded, considered at “an
evidentiary hearing,” nor “even argu[ed]” by the parties.
Id., at 695. Given those circumstances, we held that there
had been no trial of the claim by implied consent; the respondent
warden, we observed, “was manifestly prejudiced by the District
Court’s failure to afford her an opportunity to present evidence
bearing on th[e] claim’s resolution.” Id., at 696. Here,
in contrast, the issue of the undisclosed Cook interrogation
transcript was indeed aired before the Magistrate Judge and the
transcript itself was admitted into evidence without objection. See
supra, at 12–13.[Footnote 19]
The Court of Appeals found no authority for
equating “an evidentiary hearing … with a trial” for Rule 15(b)
purposes. App. to Pet. for Cert. A52. We see no reason why an
evidentiary hearing should not qualify so long as the respondent
gave “any sort of consent” and had a full and fair “opportunity to
present evidence bearing on th[e] claim’s resolution.”
Withrow, 507 U. S., at 696. Nor do we find convincing the
Fifth Circuit’s view that applying Rule 15(b) in habeas proceedings
would undermine the State’s exhaustion and procedural default
defenses. Ibid. Under pre-AEDPA law, there was no
inconsistency between Rule 15(b) and those defenses. That is
doubtless why this Court’s pre-AEDPA cases assumed Rule 15(b)’s
application in habeas proceedings. See ibid.;
Harris, 394 U. S., at 294, n. 5.[Footnote 20] We note in this regard that, while
AEDPA forbids a finding that exhaustion has been waived unless the
State expressly waives the requirement, 28 U. S. C.
§2254(b)(3), under pre-AEDPA law, exhaustion and procedural default
defenses could be waived based on the State’s litigation conduct.
See Gray v. Netherland, 518 U. S. 152, 166
(1996) (failure to raise procedural default in federal habeas court
means the defense is lost); Granberry v.
Greer, 481 U. S. 129, 135
(1987) (“if a full trial has been held in the district court and it
is evident that a miscarriage of justice has occurred, it may … be
appropriate for the court of appeals to hold that the nonexhaustion
defense has been waived”).
To obtain a certificate of appealability, a
prisoner must “demonstrat[e] that jurists of reason could disagree
with the district court’s resolution of his constitutional claims
or that jurists could conclude the issues presented are adequate to
deserve encouragement to proceed further.” Miller-El v.
Cockrell, 537 U. S. 322, 327
(2003). At least as to the application of Rule 15(b), this case
surely fits that description. A certificate of appealability,
therefore, should have issued.
* *
*
For the reasons stated, the judgment of the
United States Court of Appeals for the Fifth Circuit is reversed,
and the case is remanded for further proceedings consistent with
this opinion.
It is
so ordered.
Footnote 1
Although a police officer testified Whitehead’s body was
found on April 14, App. 8, the Texas Court of Criminal Appeals
stated the body was discovered on April 15. Banks v.
State, 643
S.W.2d 129, 131 (1982) (en banc).
Footnote 2
“A person commits an offense if he commits murder … and …
the person intentionally commits the murder in the course of
committing or attempting to commit kidnapping, burglary, robbery,
aggravated rape, or arson.” Tex. Penal Code Ann. §19.03(a)(2)
(1974).
Footnote 3
As set forth in Texas law, the three special issues
were:
“(1) whether the
conduct of the defendant that caused the death of the deceased was
committed deliberately and with the reasonable expectation that the
death of the deceased or another would
result;
“(2) whether there
is a probability that the defendant would commit criminal acts of
violence that would constitute a continuing threat to society;
and
“(3) if raised by
the evidence, whether the conduct of the defendant in killing the
deceased was unreasonable in response to the provocation, if any,
by the deceased.” Tex. Code Crim. Proc. Ann., Arts.
37.071(b)(1)–(3) (Vernon Supp. 1980).
Footnote 4
Banks, in fact, had no criminal record at all. App. 255,
¶ ;115; App. to Pet. for Cert. C23. He also “had no history of
violence or alcohol abuse and seemed to possess a self-control that
would suggest no particular risk of future violence.”
Ibid.
Footnote 5
Brady v. Maryland, 373 U. S. 83, 87 (1963), held that “the
suppression by the prosecution of evidence favorable to an accused
upon request violates due process where the evidence is material
either to guilt or to punishment, irrespective of the good faith or
bad faith of the prosecution.”
Footnote 6
Banks also alleged ineffective assistance of counsel at
both the guilt and penalty phases; insufficient evidence on the
second penalty-phase special issue (Banks’s propensity to commit
violent criminal acts); and the exclusion of minority jurors in
violation of Swain v. Alabama, 380 U. S. 202 (1965). App. to Pet. for
Cert. C5–C7. Banks filed two further state postconviction motions;
both were denied. Brief for Respondent 6–7, nn. 6 and 7 (citing
Ex parte Banks, No. 13568–03 (Tex. Crim. App. 1993)
(per curiam), and Ex parte Banks, No. 13568–06
(Tex. Crim. App.), cert. denied, 538 U. S. 990
(2003)).
Footnote 7
We hereinafter refer to these claims as the Farr
Brady and Cook Brady claims respectively. See
supra, at 9, n. 5.
Footnote 8
Federal Rule of Civil Procedure 15(b) provides: “When
issues not raised by the pleadings are tried by express or implied
consent of the parties, they shall be treated in all respects as if
they had been raised in the pleadings. Such amendment of the
pleadings as may be necessary to cause them to conform to the
evidence and to raise these issues may be made upon motion of any
party at any time … .” Rule 11 of the Rules Governing Section
2254 Cases in the United States District Courts provides that the
Federal Rules of Civil Procedure apply “to the extent that they are
not inconsistent with [habeas] rules.”
Footnote 9
The Fifth Circuit noted correctly that under
Lindh v. Murphy, 521 U. S. 320, 336–337
(1997), the standards of the Antiterrorism and Effective Death
Penalty Act of 1996 (AEDPA), 110 Stat. 1214, do not apply to
Banks’s petition. See App. to Pet. for Cert.
A14–A15.
Footnote 10
Our disposition of the Farr Brady claim, and our
conclusion that a writ of habeas corpus should issue with respect
to the death sentence, render it unnecessary to address Banks’s
claim of ineffective assistance of counsel at the penalty phase;
any relief he could obtain on that claim would be
cumulative.
Footnote 11
Banks’s federal habeas petition, the Court of Appeals
said, stated a claim, only under Brady, that material
exculpatory or impeachment evidence had been suppressed, not a
claim under Napue v. Illinois, 360 U. S. 264 (1959),
and Giglio v. United States, 405 U. S. 150 (1972), that the
prosecution had failed to correct Farr’s false testimony. App. to
Pet. for Cert. A29–A32; App. 259–260. In its view, the Court of
Appeals explained, a Brady claim is distinct from a
Giglio claim, App. to Pet. for Cert. A30; thus the two did
not fit under one umbrella. But cf. United States v.
Bagley, 473 U. S. 667, 679–680, n. 8 (1985);
United States v. Agurs, 427 U. S. 97, 103–104
(1976). On brief, the parties debate the issue. Brief for
Petitioner 23–25; Brief for Respondent 21–22, n. 21. Because we
conclude that Banks qualifies for relief under Brady, we
need not decide whether a Giglio claim, to warrant
adjudication, must be separately pleaded.
Footnote 12
Surprisingly, the Court of Appeals’ per curiam
opinion did not refer to Strickler v. Greene,
527 U. S. 263 (1999), the controlling
precedent on the issue of “cause.” App. to Pet. for Cert.
A15–A33.
Footnote 13
We left open the question “whether any one or two of
these factors would be sufficient to constitute cause.”
Strickler, 527 U. S., at 289. We need not decide that
question today.
Footnote 14
In addition, Banks could have expected disclosure of
Farr’s informant status as a matter of state law if Farr in fact
acted in that capacity. Under Texas law applicable at the time of
Banks’s trial, the State had an obligation to disclose the identity
of an informant when “the informant … was present at the time of
the offense or arrest … [or] was otherwise shown to be a material
witness to the transaction … .” Kemner v.
State, 589 S. W. 2d 403, 408 (Tex. Crim. App. 1979)
(quoting Carmouche v. State, 540 S. W. 2d
701, 703 (Tex. Crim. App. 1976)); cf. Tex. Rule Evid. 508(c)(1)
(2003) (“No privilege exists [for the identity of an informer] … if
the informer appears as a witness for the public entity.”). Farr
was present when Banks was arrested. App. 443, ¶ ;10. Further, as
the prosecution noted in its penalty-phase summation, Farr’s
testimony was not only material, but “of the utmost significance.”
Id., at 146.
Footnote 15
The Court of Appeals also stated that, because “the State
did not respond” to Banks’s “Farr-was-an-informant contention” in
its answer to the January 1992 state habeas application, Banks
should have “further investigate[d].” App. to Pet. for Cert. A22.
The Fifth Circuit’s error in this regard is apparent. As earlier
recounted, see supra, at 10, the State’s answer indeed did
deny Banks’s allegation.
Footnote 16
Furthermore, rather than conceding the need for factual
development of the Farr Brady claim in state
postconviction court, the State asserted that Banks’s prosecutorial
misconduct claims were meritless and procedurally barred in that
tribunal. App. 234, 240. Having taken that position in 1992, the
State can hardly fault Banks now for failing earlier to request
assistance the State certainly would have
opposed.
Footnote 17
It bears reiteration here that Banks had no criminal
record, App. 255, ¶ ;115, “no history of violence or alcohol
abuse,” nothing indicative of “[any] particular risk of future
violence.” App. to Pet. for Cert. C23.
It also appears that the remaining
prosecution witness in the penalty phase, Vetrano Jefferson, had
omitted crucial details from his 1980 testimony. In his September
1980 testimony, Vetrano Jefferson said that Banks had struck him
with a pistol in early April 1980. App. 104–105; supra, at
6. In the federal habeas proceeding, Vetrano Jefferson elaborated
that he, not Banks, had initiated that incident by making
“disrespectful comments” about Demetra Jefferson, Banks’s
girlfriend. App. 337, ¶ ;4. Vetrano Jefferson recounted that he
“grew angry” when Banks objected to the comments, and only then did
a fight ensue, in the course of which Banks struck Vetrano
Jefferson. Ibid.
Footnote 18
On brief and at oral argument, the State suggests that
“the damaging evidence was Banks’s willing abetment of Farr’s
commission of a violent crime, not Banks’s own intent to
commit such an act.” Brief for Respondent 25 (emphasis in
original); Tr. of Oral Arg. 50. See also post, at 2–3
(Thomas, J., concurring in part and dissenting in part). In the
penalty-phase summation, however, the prosecution highlighted
Banks’s propensity to commit violent criminal acts, see App. 140,
144, 146–147, not his facilitation of others’ criminal acts, see
id., at 141 (“[Banks] says, ‘I thought I would give [the
gun] to them so they could do the robberies.’ I don’t believe you
[the jury] believe that.”); id., at 143 (“a man doesn’t
travel two hundred miles … to supply [another] person with a
weapon”). The special issue the prosecution addressed focused on
what acts Banks would commit, not what harms he might facilitate:
“Do you find from the evidence beyond a reasonable doubt that there
is a probability that the defendant, Delma Banks, Jr., would
commit criminal acts of violence that would constitute a
continuing threat to society?” Ibid. (internal quotation
marks omitted and emphasis added). It is therefore unsurprising
that the prosecution did not rest on Banks’s facilitation of
others’ criminal acts in urging the jury to answer the second
special issue (propensity to commit violent criminal acts) in the
affirmative.
Footnote 19
See Federal Evidentiary Hearing 56–73. Examining one of
Banks’s prosecutors, counsel for Banks twice asked if Cook had been
“instructed … on how to testify.” Id., at 56. See also
id., at 63–64 (“Texarkana law enforcement did not instruct
Mr. Cook how to testify in this case. Is that your testimony
today?”). To show that Cook had been coached, Banks’s counsel
called attention to discrepancies between portions of the September
1980 transcript and Cook’s trial testimony. Id., at
65–68. Concluding his examination, Banks’s counsel
emphasized the prosecution’s duty to disclose the September 1980
transcript once Cook, while on the stand, stated that he had not
been coached. Id., at 73–74; App. 59; supra, at
4.
Footnote 20
Banks’s case provides no occasion to consider Rule
15(b)’s application under the AEDPA
regime.
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