201 F.3d 353 (5th Cir. 2000), 97-10990, Matthew v Johnson

Docket Nº:97-10990
Citation:201 F.3d 353
Case Date:January 11, 2000
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

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201 F.3d 353 (5th Cir. 2000)

GREG MARVIN MATTHEW Petitioner - Appellant



No. 97-10990


January 11, 2000

Rehearing and Rehearing En Banc Denied February 7, 2000

Revised February 14, 2000

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[Copyrighted Material Omitted]

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Appeal from the United States District Court for the Northern District of Texas.

Before KING, Chief Judge, and REAVLEY and BENAVIDES, Circuit Judges.

KING, Chief Judge:

Greg Marvin Matthew appeals the district court's denial of his petition for a writ of habeas corpus, arguing that the court erred in ruling that in pleading nolo contendere, he waived his claim that the State violated his constitutional rights when it failed to disclose allegedly material exculpatory information. We affirm.


On January 26, 1994, Greg Marvin Matthew, having been accused of raping his step-daughter, pleaded nolo contendere to the charge of aggravated sexual assault of a child. After the entry of the plea, the state trial court found Matthew guilty of aggravated sexual assault of a child and sentenced him to a sixteen-year term of imprisonment. Matthew subsequently filed a direct appeal, which was dismissed for lack of jurisdiction.

On February 28, 1995, Matthew filed an application for habeas relief in state court. He argued that his counsel had been ineffective and that the State had failed to disclose exculpatory evidence. The state trial court, in written reasons, found that Matthew's counsel was not ineffective but did not make any specific findings or conclusions regarding Matthew's claim that the prosecutor had withheld exculpatory evidence. The Texas Court of Criminal Appeals denied Matthew's habeas application without an evidentiary hearing and without written reasons.

In October, 1995, Matthew filed a petition for a writ of habeas corpus in federal district court.1 He averred that the prosecution "failed to disclose two or more exhibits of exculpatory evidence which would have established [his] innocence to the charge." Relying on Brady v. Maryland, 373 U.S. 83 (1963), Matthew argued that "[t]his overt violation rendered [him] incapable of making a voluntary decision on how to plea[d and] present a viable defense [and] forced [him] into an involuntary 'No-Contest' Plea[]." He further asserted that his counsel was ineffective. The respondent opposed the petition, arguing that Matthew's counsel was not ineffective and that Matthew, having pleaded nolo contendere, had waived his "Brady" challenge.

Noting that several circuits had rejected the respondent's waiver argument, the magistrate judge to whom the matter was preliminarily assigned concluded that Matthew's plea did not waive his "Brady claim." The magistrate judge reasoned that the allegation that the prosecution had withheld evidence, if true, would affect "the very integrity of the plea process." The magistrate judge then ordered that an evidentiary hearing be held.

Before receiving testimony at the evidentiary hearing, the magistrate judge admitted into evidence ten exhibits, consisting of documents that the assistant district attorney ("ADA") had received from Child Protective Services ("CPS"). Among these documents were affidavits and reports

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describing instances of the victim denying that she had been sexually abused and asserting that Matthew "did not do anything to [her] in the past." Those statements preceded the victim's "outcry" of abuse. One affidavit, completed by the victim's case worker, refers to a post-outcry statement by the victim indicating that an episode of sexual abuse had taken place on Christmas.2 The documents also include a letter from the victim's mother, case-worker notes and psychiatric assessments, and medical reports indicating that the victim showed physical signs of severe sexual abuse.

At the evidentiary hearing, the magistrate judge heard testimony from the petitioner, the attorney who represented him at his plea hearing, and the ADA who handled the case for the State. The magistrate judge also received proffers from five witnesses offered by the respondent to challenge the materiality of the undisclosed evidence. The ADA testified that he provided Matthew's attorney with a copy of the indictment, the probable cause affidavit, and a report of a medical examination revealing findings consistent with "multiple episodes of vaginal penetration." He was unable to recall providing Matthew with any other documents, but he indicated that he would not have turned over the CPS documents without a court order, which had not been issued.3 The ADA said he did not consider the withheld documents to be exculpatory because he viewed the victim's pre-outcry denials to be typical of a "delayed outcry" situation.

Matthew's counsel at the plea hearing testified that he recalled reviewing the prosecutor's report, the police report, the indictment, and a medical report. He also testified that he had not conducted any additional discovery or investigation. He stated that Matthew had denied the abuse and had focused on obtaining the shortest possible sentence.

Matthew testified that his lawyer had shown him only a medical report and the capias warrant. He said that he had maintained his innocence to his attorney and, as the record reflects, throughout the nolo contendere plea colloquy. He claimed that, after being sentenced, he wrote to CPS and requested records related to the investigation. He initially received a medical report, the case worker's affidavit noting the accusation of abuse on Christmas, and the affidavit in which the victim denied that Matthew had "do[ne] anything to [her] in the past." Matthew asserted that he was unaware that the victim had alleged abuse on Christmas and that, had he known of this information, he would have supplied an alibi placing him elsewhere at the time. He also indicated that he thought that CPS had brainwashed his step-daughter, and he insisted that he would have gone to trial if he had known about the undisclosed documents.

The parties filed post-evidentiary hearing briefs. The magistrate judge again rejected the respondent's argument that Matthew waived his "Brady claim" by pleading nolo contendere. Despite characterizing the case against Matthew as strong, he found that the withheld evidence was material, concluding that had the evidence been disclosed, Matthew would have refused to plead nolo contendere and insisted on having a trial. The magistrate judge also found Matthew's ineffective-assistance-of-counsel claim to be without merit.

Matthew filed untimely objections to the magistrate's report, arguing that the magistrate judge had erred in finding that his ineffective-assistance-of-counsel claim was without merit. The respondent filed an untimely motion for an extension of time within which to file objections to the magistrate's

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report. The district court granted the motion, and the respondent subsequently filed objections, arguing that the magistrate judge had applied the wrong standard to determine the materiality of undisclosed evidence in a guilty or nolo contendere plea situation and had erred in finding that the undisclosed evidence was material. The respondent further averred that the magistrate judge had erred in finding that Matthew's nolo contendere plea did not waive his "Brady claim." Finally, the respondent argued that the magistrate judge should not have considered Matthew's ineffective-assistance-of-counsel claim and should have held instead that the claim was waived by his plea.

The district court adopted the magistrate judge's findings with regard to the claim of ineffective assistance of counsel but declined to accept his recommendation with regard to the claim that the State failed to disclose exculpatory evidence. It characterized as an understatement the magistrate judge's description of the case against Matthew as being strong, and noted that efforts of Matthew's lawyers were directed at all times at obtaining plea offers of a sentence acceptable to Matthew. Based on its reading of the law in this circuit, the district court held that Matthew's nolo contendere plea waived his "Brady claim." Accordingly, the district court did not resolve the question whether the undisclosed evidence was material.

Matthew filed an application for a certificate of probable cause ("CPC"), arguing only that the district court erred in finding that his nolo contendere plea waived his "Brady claim." He also filed a notice of appeal. The district court denied the request for a CPC. This court granted a CPC4 to address the question whether a plea of nolo contendere waives any Brady-based challenge to the plea.


This court has not yet resolved whether a nolo contendere or guilty plea waives a subsequent Brady-based challenge. See Barnes v. Lynaugh, 817 F.2d 336, 338 (1987).5 As Matthew points out, a number of our sister circuits have had occasion to address the issue he raises, and have generally held that a defendant pleading guilty may challenge his conviction on the ground that the State failed to disclose material exculpatory evidence prior to entry of the plea. See Sanchez v. United States, 50 F.3d 1448 (9th Cir. 1995); United States v. Wright, 43 F.3d 491 (10th Cir. 1994); Tate v. Wood, 963 F.2d 20 (2d Cir. 1992); White v. United States, 858 F.2d 416 (8th Cir. 1988), cert. denied, 489 U.S. 1029 (1989); Campbell v. Marshall, 769 F.2d 314 (6th Cir. 1985), cert. denied sub nom., Campbell v. Morris, 475 U.S. 1048 (1986). But see Smith v. United States, ...

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