Armstrong v. Morgan, 02-6374.

• Citation: 372 F.3d 778
• Decision Date: 18 June 2004
• Docket Number: No. 02-6374.,02-6374.
• Parties: Arthur L. ARMSTRONG, Petitioner-Appellant, v. Jack MORGAN, Warden, Respondent-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

372 F.3d 778

Arthur L. ARMSTRONG, Petitioner-Appellant, v. Jack MORGAN, Warden, Respondent-Appellee.

No. 02-6374.

United States Court of Appeals, Sixth Circuit.

Argued: December 4, 2003.

Decided and Filed: June 18, 2004.

C. Douglas Thoresen, (argued and briefed), Asst. Federal Public Defender, Federal Public Defender's Office, Nashville, TN, for Petitioner-Appellant.

David H. Findley (argued and briefed), Asst. Atty. General, office of the Attorney General, Criminal Justice Div., Nashville, TN, for Respondent-Appellee.

Before: KENNEDY, MARTIN, and MOORE, Circuit Judges.

OPINION

BOYCE F. MARTIN, JR., Circuit Judge.

Arthur Armstrong appeals the denial of his petition for a writ of habeas corpus following his state court convictions for robbery, rape, kidnaping and crimes against nature. For the reasons stated below, we AFFIRM.

I.

Armstrong's convictions arise from his participation in the abduction, rape and robbery of a young woman on the night of February 11, 1977. The victim testified that she was abducted by two men as she was exiting her vehicle. During much of the overnight ordeal, the victim's eyes were taped, but at times the tape loosened and she was able to see the identity of her abductors. The victim alleged that one of her abductors — later identified as Armstrong — had told her to call him "Nate." The testimony at trial indicated that "Nate" was one of Armstrong's nicknames. Upon her release the following morning, the victim reported the incident to the police. The victim identified Ronny Harris, Armstrong's co-defendant, as one of the perpetrators. Harris later pleaded guilty to abduction and robbery. The victim also made a photographic identification of Armstrong as the second abductor. Armstrong was indicted for armed robbery, rape, kidnaping and two counts of crimes against nature.

At Armstrong's jury trial, identification was a hotly contested issue. Specifically, Armstrong attempted to cast doubt on the victim's identification because her initial identification did not make reference to Armstrong's prominent gold teeth and because her eyes were taped during most of the ordeal. The trial testimony indicates that the defense attorney questioned the victim regarding the kind of adhesive that was used over her eyes and whether more than one strip of tape covered her eyes. Indeed, at one point the defense attorney referred to the tape covering the victim's eyes as a "mask."¹ Another factor used to cast doubt on the victim's identification of Armstrong was that Armstrong's co-defendant denied that Armstrong had any involvement in the crimes. Additionally, Earline Harris House, Harris's sister and Armstrong's girlfriend at the time, testified that Armstrong was with her on the night of the incident and that during this visit her brother, Harris, by himself, brought the victim to her house and took her into his bedroom. Harris essentially testified that Armstrong could have had no involvement in the crimes committed against the victim because Armstrong was never in the presence of the victim. The evidence at trial, however, also demonstrated that the victim's necklace and a tennis racket, which the perpetrators stole, were recovered from Armstrong's possession. The jury convicted Armstrong on every count contained in the indictment, and the conviction was affirmed on direct appeal.

In July 1989, Armstrong filed a petition for post-conviction relief with the state court, arguing that trial counsel was ineffective for not challenging the photographic lineup and for not filing any pretrial motions. This petition was denied and the Tennessee Court of Criminal Appeals affirmed. The Tennessee Supreme Court denied Armstrong's appeal. In June 1992, Armstrong filed a petition for habeas corpus relief in the district court, which held that Armstrong had failed to properly exhaust three out of his four claims for relief.

In April 1993, Armstrong filed a petition for state habeas corpus relief which was denied. According to Armstrong, on approximately August 27, 1993, his attorney discovered two reports prepared by Officer Donzaleigh Heard on different dates in February 1977,² both of which contain statements indicating that the victim never had the opportunity to see her attackers clearly. Thus, Armstrong included in his appeal of the denial of his state petition for habeas corpus relief an allegation that the prosecution violated the disclosure requirements under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). The Tennessee Court of Criminal Appeals affirmed the denial, but noted that Armstrong's Brady violation claim should be presented in a state post-conviction proceeding. Thus, Armstrong filed for post-conviction relief with the state court in September 1995. After an evidentiary hearing, the state court denied Armstrong relief, crediting the testimony of the prosecutor at the original trial, David Raybin, that he had turned over all exculpatory evidence before Armstrong's trial. The Tennessee Court of Criminal Appeals affirmed and the Tennessee Supreme Court declined review.

In March 1999, Armstrong, proceeding without the benefit of counsel, filed a petition for a writ of habeas corpus with the district court. Counsel was appointed in March 2000. In June 2002, Armstrong sought leave to file an amended petition for habeas corpus relief, which was granted. It is the June 2002 petition that is at issue in the instant case. In this petition, Armstrong argues that the state court erred in concluding that no Brady violation occurred and that if the district court found that the exculpatory materials were presented to Armstrong's original counsel, then his trial attorneys were constitutionally ineffective. The district court, on September 30, 2002, granted summary judgment in favor of Warden Morgan concluding that Armstrong had procedurally defaulted his ineffective assistance of counsel claim and that the state court's factual determination that Raybin disclosed the reports to Armstrong's counsel was entitled to the statutory presumption of correctness. See 28 U.S.C. § 2254(e)(1). This timely appeal followed.

II.

Because Armstrong's petition for habeas corpus review was filed after the effective date of the Antiterrorism and Effective Death Penalty Act of 1996, the Act governs this Court's review. Bowling v. Parker, 344 F.3d 487, 497 (6th Cir.2003). Under the Act, this Court reviews "de novo the legal conclusions of a district court denying habeas relief." Id. This Court, however, presumes that the state court's factual determinations are correct, "unless [they are] rebutted by clear and convincing evidence." Castleberry v. Brigano, 349 F.3d 286, 291 (6th Cir.2003); 28 U.S.C. § 2254(e)(1). Pursuant to the Act, we may not grant a writ of habeas corpus unless we find that the state court's decision: (1) "was contrary to, or involved an unreasonable application of, clearly established Federal law ..." or (2) "was based on an unreasonable determination of the facts...." 28 U.S.C. § 2254(d)(1).

On appeal, Armstrong repeats his argument that the prosecution failed to disclose Brady material — i.e, two police reports containing material, exculpatory evidence. The first report, taken by Officer Heard, contains seven pages, but Armstrong claims to have received at the time of his trial only one page of this report. This report contains statements that the victim was blindfolded and never got a good look at her abductors and that they stayed behind her during the ordeal. The second report, also taken by Officer Heard, noted that the victim "did not get a good look at her assailants," and that having the victim "look at mug shots would have been useless." As discussed, Armstrong claims that he had not received these reports until 1993, when he requested a copy of his police file. We now analyze the merits of these very serious allegations of Brady violations.

Brady 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, 83 S.Ct. 1194. The Supreme Court has since held that material, exculpatory evidence must be disclosed even absent the defendant's request. See United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976). Evidence is "material" if "there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985). On appeal, the parties appear to agree that Brady required the disclosure of these reports.

A Brady violation, however, only occurs if the prosecution failed to disclose the evidence to the defense. The state court, after conducting an evidentiary hearing on the issue, determined that the evidence was indeed disclosed to defense counsel before Armstrong's trial. This decision was based upon the testimony of David Raybin, the original prosecutor in the case, who testified that he had disclosed this information to the defense. Upon review of Armstrong's federal petition for habeas corpus relief, the district court afforded the state court's finding on this ground the statutory presumption of correctness. See Brown v. Davis, 752 F.2d 1142, 1147 (6th Cir.19...