Opinion
No. 99-CV-35-J.
April 20, 2001
ORDER GRANTING PETITION FOR WRIT OF HABEAS CORPUS AND ORDER DENYING DEFENDANT'S MOTION TO DISMISS
The Petition for Writ of Habeas Corpus filed by petitioner Paul Beintema, the Motion to Dismiss filed by the defendant in opposition to the petition, and the petitioner's further response to the defendant's motion to dismiss have come before the Court for consideration. The Court, having reviewed the parties' written submissions, all matters of record, the applicable law, and being fully advised, FINDS and ORDERS as follows:
Background
The above captioned proceeding was brought by petitioner Paul Beintema pursuant to 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Beintema challenges the state district court's "Order Denying Motion for New Trial," which was affirmed by the Wyoming Supreme Court on December 10, 1998.
Beintema was convicted on December 14, 1995 in state district court of delivering marijuana, in violation of Wyo. Stat. § 35-7-1031 (a)(ii). His conviction was upheld by the Wyoming Supreme Court on April 23, 1997, in an opinion published as Beintema v. State of Wyoming, 936 P.2d 1221 (Wyo. 1997).
Subsequently, on July 11, 1996, a second motion for new trial was filed by Beintema, immediately after he discovered the scope of the plea agreement between Brent Huskinson, the primary witness testifying against Beintema, and the State. It is the denial of this motion for new trial that is the subject of this proceeding.
The state district court held an evidentiary hearing on this motion for new trial September 11, 1996. The transcript of that evidentiary hearing is in the record before this Court in plaintiff's Appendix 10.
Beintema presented two issues to the Wyoming Supreme Court regarding his motion for a new trial. First, "did the trial court abuse its discretion when it denied the motion for a new trial on the grounds that the state's plea agreement with its key witness should have been discovered earlier?" Beintema, 969 P.2d at 1129. Second, "did the newly discovered evidence establish a Brady violation and, thereby, render improper the [trial] court's denial of the motion for a new trial?" Id. The Wyoming Supreme Court held that the trial court did not abuse its discretion by denying Beintema's motion for a new trial, and the newly discovered evidence did not constitute a Brady violation. Id. at 1129.
On the date of the submission of his petition for habeas relief, Beintema was paroled on February 3, 1998. This Court was subsequently advised by counsel for Beintema that Beintema had been arrested and incarcerated in Colorado on January 18, 2000 on an alleged parole violation. Counsel's February 1, 2000 letter stated that "[i]t is anticipated that Mr. Beintema will remain in custody until such time as the matter is finally resolved at a revocation hearing. In the event Mr. Beintema's parole is revoked, he will be returned to the Wyoming State Penitentiary in Rawlins." On February 24, 2000, counsel for petitioner Beintema filed a notice of his renewed non-custody status stating that Beintema had been released from custody once again.
In Beintema v. State, 969 P.2d 1124, 1125-26 (Wyo. 1998), [reh. denied Jan. 5, 1999], the Wyoming Supreme Court recounts salient facts of the underlying offense from its decision in Beintema's initial appeal (Beintema v. State, 936 P.2d 1221 (Wyo. 1997)):
On December 23, 1994, a Gillette police officer responded to a report involving a runaway. During his investigation, the police officer came into contact with a juvenile who possessed approximately fifty grams of marihuana. The juvenile had obtained the marihuana from Darrel Huskinson.
The police obtained a search warrant for the Huskinson home. During the search, the police recovered approximately two ounces of marihuana from the bedroom belonging to Darrel's parents, Brent and Tammy Huskinson. Mr. Huskinson told the police that he and his wife were heavy marihuana users and indicated that they purchased their marihuana from a Colorado man whose first name was Paul and whose last name began with the letter "B". He provided the police with a telephone number for "Paul B."
Further investigation revealed that Appellant was the man who had supplied the marihuana to the Huskinsons. Appellant was arrested and charged with one count of delivery of marihuana, a controlled substance, under Wyo. Stat. § 35-7-1031(a)(ii) (Supp. 1996). Appellant pleaded not guilty to the charge, and a jury trial was held. The jury returned a guilty verdict. Appellant filed two motions for a new trial, claiming that sufficient evidence did not exist to convict him and that he had not received effective assistance from his trial counsel. The trial court denied Appellant's motions, and he appealed to [the Wyoming Supreme Court]. [Beintema v. State,] 936 P.2d 1221 (Wyo. 1997). Beintema presented two issues in his initial appeal: (1) Whether reversal of his conviction was required because the prosecutor referred to Beintema's other bad acts; and (2) whether the trial counsel effectively assisted Beintema. Id. [The Wyoming Supreme Court] affirmed Beintema's conviction on April 23, 1997. 936 P.2d at 1229. [The Wyoming Supreme Court] concluded: "The evidence of [Beintema's] other bad acts was admissible, and [Beintema] received effective assistance of trial counsel." Id.
Subsequent to [the Wyoming Supreme Court's] affirmance of his conviction, Beintema filed a third motion for a new trial. The trial court held an evidentiary hearing on the motion and issued a decision letter and an order denying Beintema's motion. Beintema perfected his appeal to the Wyoming Supreme Court.Beintema v. State of Wyoming, 969 P.2d at 1124-1125. The Wyoming Supreme Court continued in that opinion, stating:
Beintema contends that the trial court abused its discretion when it denied his motion for a new trial. He claims that he was entitled to have a new trial because he discovered new evidence after his trial. We do not agree with Beintema and conclude that the trial court properly denied his motion.
A trial court has discretion in determining whether to grant or deny a defendant's motion for a new trial. . . . In determining whether the trial court abused its discretion, we must decide the ultimate issue of whether the court could have reasonably concluded as it did. . . . Unless the trial court acted in a manner that exceeded the bounds of reason under the circumstances, it did not abuse its discretion. . . . In the absence of an abuse of discretion, we will not disturb the trial court's determination. . . .
A defendant must establish four factors in order to obtain a new trial on the basis of newly discovered evidence: (1) the defendant did not become aware of the new evidence until after the trial; (2) it was not because of a lack of due diligence that the new evidence did not come to light sooner; (3) the evidence is so material that it would probably produce a different verdict; and (4) the evidence is not cumulative. . . .
In this case, Beintema identifies several pieces of evidence that he contends are newly discovered: (1) the prosecution and Brent Huskinson, the key witness at Beintema's trial, entered into a plea agreement in which the prosecution agreed to recommend that Huskinson be placed on probation, and the prosecution did not reveal to Beintema that the agreement existed or that Huskinson was on probation; (2) the prosecutor misled the jury regarding the existence of the plea agreement; (3) Steve Rozier, a sergeant with the Gillette police department, promised Huskinson that, if he cooperated with the prosecution, "nothing would happen" to his wife or children. Beintema claims that a reasonable probability exists that, if this evidence had been disclosed to him prior to his trial, the verdict would have been different.
Beintema's trial attorney asked the prosecutor for information concerning any plea agreement that the prosecution may have negotiated with Huskinson, and the prosecutor declared that a plea agreement did not exist. Contrary to the prosecutor's declaration, the prosecution and Huskinson had entered into a plea agreement. The particulars of the plea agreement were disclosed in the transcript from Huskinson's arraignment hearing:
THE COURT: Are there any plea negotiations or agreements that need to be placed of record before the court proceeds? [THE PROSECUTOR]: Your Honor, the only agreement that the parties have at this point is that Mr. Huskinson pleads guilty [to a charge of possession with intent to deliver marijuana] today, that it's my understanding his criminal history is nonexistent in terms of prior felony convictions or significant misdemeanor convictions, and that given that the state will recommend probation be imposed by this court at the time of sentencing.
Although the prosecutor represented that a plea agreement did not exist between Huskinson and the prosecution, Beintema's trial attorney discovered the agreement prior to Beintema's trial. The attorney testified at the hearing on Beintema's motion for a new trial that, in preparing for Beintema's trial, he had taken it upon himself to examine the transcript from Huskinson's arraignment hearing. The trial attorney stated, however, that he did not perceive the agreement as being a "deal."
In his opening statement at Beintema's trial, the prosecutor told the jury: "Huskinson comes before you today having not cut a plea agreement, having not entered any sort of plea bargain for having promised to come and testify before you today." At the hearing on Beintema's motion for a new trial, the prosecutor explained that he considered his opening statement at the trial to be accurate and that he intended to tell the jury that Huskinson "was coming before the court having not previously agreed to disclose his [drugs] source."
The prosecutor also elicited the following testimony from Huskinson at Beintema's trial:
Q. Prior to your plea of guilty or prior to even today, did you enter into any sort of agreement with the county attorney's office or members of the Gillette police department where you agreed to identify your source and assist in the prosecution? A. A deal? No.
At the hearing on Beintema's motion for a new trial, Huskinson acknowledged that he had entered into the plea agreement. Throughout the hearing, however, Huskinson maintained that his trial testimony was consistent with the statements he was making at the hearing.Beintema v. State, 969 P.2d at 1126-27 (most citations omitted). The Wyoming Supreme Court's opinion, at 969 P.2d 1124, further addresses Beintema's second motion for a new trial:
The trial court observed, in its decision letter, that, although the prosecutor's opening statement was technically incorrect, the prosecutor did not intentionally misrepresent the facts.
Any misstatements that the prosecutor and/or Huskinson made were inadvertent and resulted from unartful expressions or misunderstandings of the questions. Furthermore, Beintema's trial attorney could have objected to the prosecutor's statements or questioned Huskinson about his plea agreement if he thought that the jury needed to know this information. We conclude, therefore, that the traditional four-factor analysis is appropriate in this case and that we do not need to determine whether Johnson requires us to abandon the four-factor test when false representations are made to a jury.
In denying Beintema's motion for a new trial, the trial court found in pertinent part:
The argument for a new trial is based largely on [Beintema's] allegations of newly discovered evidence. The argument falls because the facts do not support it. It was clear from [Beintema's trial attorney's] testimony at the September 11, 1997[,] hearing that he was aware of the "Huskinson deal," such as it was, well before the Beintema trial. As you recall [Beintema's trial attorney] testified that he read the transcript of the hearing wherein Huskinson's "deal" was announced and his guilty plea [was] entered and accepted by Judge Price. I found the testimony to be completely believable; moreover, the court files are entirely consistent with his testimony.
We agree with the trial court's analysis. Huskinson's plea agreement with the prosecution was not newly discovered evidence because the trial attorney knew about the plea agreement prior to Beintema's trial. Beintema was not, therefore, entitled to be granted a new trial on the basis of the plea agreement or the prosecutor's and Huskinson's statements regarding the plea agreement.
We turn now to Beintema's contention that he is entitled to have a new trial because he discovered after his trial that Officer Rozier had, in effect, threatened Huskinson by promising him that, if he cooperated with the prosecution, nothing would happen to his wife or his children. Beintema claims that he could have used this evidence at his trial to challenge Huskinson's credibility.
Huskinson testified at the hearing on Beintema's motion for a new trial about Officer Rozier's alleged threats. He disclosed the discussions he had with Officer Rozier while the police were searching his home:
Q Okay. While [Officer Rozier] was there he said some things to you about what the future might hold for you, true? A Yes. Q What did he say? A I can't remember everything, but the things that stick out in my mind [are] that as long as I cooperated — which I acted like I was going to at first; I just wanted him out of my house — but he said as long as you cooperate, no harm will come for you or your kids and that I could avoid — I could save my job and avoid jail and everything else, as long as I was willing to cooperate. Q Did he give some idea what cooperating meant? A He wanted me to set [Beintema] up. Q By set him up, you mean? A Have — make a deal and have him come to my house and [Officer Rozier] would be there ready to get him.
Huskinson also testified about a conversation he had with Officer Rozier prior to Beintema's preliminary hearing:
Q All right. What there anything that Mr. Rozier said to you regarding your wife? A Not at that time he didn't, not too much, other than he wanted to charge her, too, you know, but he kind of — he kind of got, I guess, not worried about her, because they had me, they didn't need to prosecute her, but later on when I had to testify for the first time, he said he would charge the same charges against her if I didn't cooperate. Q Let's talk about that. Was that after the formal charges were filed against you? A Yes. Q Okay. And at the time of the preliminary hearing in Paul Beintema's case? A Yes. Q All right. Tell us about that. What happened there? A That was when most [of] the threats c[a]me out, because I was going to — I wasn't going to say anything, and the Judge basically told me, you'll go to jail until you decide you are going to say something. But before the [preliminary hearing] started, [Officer Rozier] came in and sat down. . . . . Q Go ahead. A Well, he c[a]me in, because he thought I wasn't going to testify, and he told me how foolish I was and that I was just — you know, my life was getting in order then; that if I may not testify, I was going to be throwing everything away. Q Did he say anything about your wife? A That was the time he said we will prosecute your wife with possession with intent also if you don't cooperate. Q Don't cooperate by doing what? A By testifying against [Beintema]. . . . . Q Now, was that at the time of Paul Beintema's preliminary hearing? A Yes. . . . . Q Was it your understanding after that conversation with Mr. Rozier that if you did testify against Paul Beintema, your wife would not be charged? A That's correct. . . . . Q Did Mr. Rozier ever discuss the subject of your children with you? A Not at that time. It was — it wasn't direct, you know, we're going to take your kids or anything like that. He just said, ["]Nothing is going to happen to you or your kids if you cooperate.["] That was his words.
We are convinced that, even if Beintema had been informed at the time of his trial about Officer Rozier's threats against Huskinson, the information would not have had much impact as impeachment evidence because Beintema's attorney elicited similar testimony during the trial from Huskinson. Huskinson testified that Officer Rozier told him that, if he cooperated, he could possibly save his job but that, if he did not cooperate, Officer Rozier was going to make life "real miserable" for him. The jury was, consequently, aware that Huskinson was under some compulsion to cooperate with authorities. The jury had further reason to suspect Huskinson's credibility because Huskinson testified that he had spent only a short time in jail as a result of his role in the marijuana delivery. Beintema's attorney also argued to the jury that Huskinson may have been trying to protect his family when he identified Beintema as being his drug source and testified against him.
Taking all the evidence presented at Beintema's trial into consideration, we conclude that, even if the evidence of Officer Rozier's threats were presented to the jury, it probably would not produce a different verdict. Furthermore, the evidence of Officer Rozier's threats was cumulative to the other evidence that Beintema's attorney used in his attempt to challenge Huskinson's credibility. The trial court, therefore, did not abuse its discretion by denying Beintema's motion for a new trial.Beintema v. State, 969 P.2d at 1127-1129.
On January 5, 1999, the Wyoming Supreme Court denied Beintema's petition for a rehearing. Appendix 1, Order Denying Petition for Rehearing.
Beintema filed a Petition for a Writ of Habeas Corpus, under 28 U.S.C. § 2254, with the United States District Court for the District of Wyoming on February 24, 1999. He seeks a writ of habeas corpus ordering his full release from custody, citing the statutory language that a writ shall be granted where the conviction was contrary to, or involved an unreasonable application of, clearly established federal law. 28 U.S.C. § 2241 (c); 2254(d)(1). Beintema argues here, as he did to the Wyoming Supreme Court, that his conviction was contrary to clearly established federal law, as determined by the Supreme Court of the United States under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972); Kyles v. Whitley, 514 U.S. 419, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995); Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959); and United States v. Bagley, 473 U.S. 667, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985).
There are two due process challenges being made by Beintema in this case. He asserts that his Fourteenth Amendment due process rights were impermissibly violated by the prosecutor (1) by suppressing or concealing the state's plea agreement with Brent Huskinson and by concealing Rozier's threats against Huskinson and his family, in violation of due process principles enunciated in Brady, Giglio, and Kyles and (2) that by informing the Beintema jury falsely that Huskinson would testify without the benefit of any plea agreement and then eliciting such false testimony, the prosecutor knowingly used false and misleading testimony to convict Beintema, violating Beintema's due process rights as set forth in Kyles and United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 2397, 49 L.Ed.2d 342 (1976).
Beintema asserts that there are four conclusions or statements made by the Wyoming Supreme Court in their opinion at 969 P.2d 1124 (1998) that are entitled to no presumption of correctness. These statements are not supported by the record, Beintema argues, and should not be relied upon by this, Court. The statements are:
(1) "Huskinson's plea agreement with the prosecution was not newly discovered evidence because the trial attorney knew about the plea agreement prior to Beintema's trial." 969 P.2d at 1127.
(2) . . . "Even if Beintema had been informed at the time of his trial about Officer Rozier's threats against Huskinson, the information would not have had much impact as impeachment evidence because Beintema's attorney elicited similar testimony during the trial from Huskinson." 969 P.2d at 1128-1129.
(3) ". . . As we explained earlier in this opinion, the evidence of Officer Rozier's threats was cumulative to other evidence that Beintema used in challenging Huskinson's credibility." 969 P.2d at 1130.
(4) "Beintema contends that he is entitled to have a new trial because the prosecutor improperly suppressed Huskinson's plea agreement with the prosecution and Officer Rozier's threats against Huskinson. * * * * Regardless of the source of the [Brady] evidence, it was available to Beintema for use in his defense." 969 P.2d at 1129.
28 U.S.C. § 2254 (d)
28 U.S.C. § 22 54(d), entitled "State custody; remedies in Federal courts," provides:
(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim — (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.
(e)(1) In a proceeding instituted by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence. * * * *28 U.S.C. § 2254.
Standards of Review
The provisions of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) will govern habeas petitions filed after the effective date of that Act. See Williams v. Taylor, 529 U.S. 362, 402, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). Under the AEDPA, a petitioner will not be entitled to habeas relief unless he can establish that the state court determination of his claims was contrary to, or an unreasonable application of, clearly established Supreme Court precedent, see 28 U.S.C. § 2254 (d)(1), or was an unreasonable determination of the facts in light of the evidence, see 28 U.S.C. 2254(d)(2). The court must presume the correctness of any state court findings of fact, absent clear and convincing proof to the contrary. The petitioner has the burden of rebutting this presumption by clear and convincing evidence. 28 U.S.C. § 2254 (e)(1). Romano v. Gibson, 239 F.3d 1156, 1163 (10th Cir. 2001). See also McGregor v. Gibson, 219 F.3d 1245, 1249-1250 (10th Cir. 2000); Bailey v. Mahaffey, 229 F.3d 1162 (Table), Unpublished Disposition, Text at 2000 WL 1340191 (10th Cir. 2000); Plantz v. Massie, 216 F.3d 1088, Unpublished Disposition, Text at 2000 WL 743677, **2-**3 (10th Cir. 2000); Lafevers v. Gibson, 182 F.3d 705, 711 (10th Cir. 1999). The presumption of correctness is to be afforded to the state court's factual findings, but not to its determination on a question of law or an ultimate mixed question of law and fact. Herrera v. Lemaster, 225 F.3d 1176, 1178-1179 (10th Cir. 2000). See also Smith v. Secretary of New Mexico Department of Corrections, 50 F.3d 801, 827 (10th Cir. 1995).
Preliminary Issues
I. Is Petitioner's petition for a Writ of Habeas Corpus timely under 28 U.S.C. § 2244 (d)?
A one year period of limitations shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of the state court. The limitation period shall run from the date on which the judgment became final by conclusion of direct review. 28 U.S.C. § 2244 (d)(1)(A). Petitioner's last motion for a new trial was heard on the merits and denied by the Wyoming Supreme Court on December 10, 1998 in Beintema v. State, 969 P.2d 1124 (1998), and a rehearing was denied by the Wyoming Supreme Court on January 5, 1999. Appendix 1, Order Denying Petition for Rehearing. Petitioner then filed a writ of habeas corpus under 28 U.S.C. § 2254 with this Court on February 24, 1999. Respondent makes no objection to the timeliness of Petitioner's petition for writ of habeas corpus. The Court finds and concludes that the petition for writ of habeas corpus was filed within one year of the final judgment on direct review by the Wyoming Supreme Court, in compliance with 28 U.S.C. § 2244 (d)(1)(A).
II. Is Petitioner in custody for purposes of 28 U.S.C. § 2254?
In order to obtain a writ of habeas corpus under section 2254 the petitioner must be in custody pursuant to a judgment of a state court in violation of the Constitution, laws, or treaties of the United States. 28 U.S.C. § 2254 (a). Petitioner contends that he is on parole, and that parole satisfies the "in custody" requirement of section 2254. Petitioner's Memorandum in Support of Petition for Writ of Habeas Corpus, p. 5. Respondent claims a lack of information to admit or deny Petitioner's parole status, and therefore denies as much. Respondent's Answer, 2.
On February 3, 1998, Beintema was placed on parole by the Wyoming Board of Parole, with the Board failing to state how long the petitioner would be on parole. Appendix 7. On January 18, 2000, Beintema was arrested and incarcerated on the allegation that he violated his parole. Notice of Petitioner's Custody Status, Filed February 2, 2000. The Notice of Petitioner's Custody Status contained documents from the State of Colorado showing a finding of probable cause for parole violation. On February 24, 2000, Beintema filed with this Court a Notice of Petitioner's Renewed Non-Custody Status, stating that he had been released from custody once again.
Although a parolee is released from immediate physical imprisonment, parole imposes constraints on freedom significant enough that a parolee is in custody for purposes of the habeas corpus statute. Jones v. Cunningham, 371 U.S. 236, 243, 83 S.Ct. 373, 9.L.Ed 2d 285 (1963). InJones, the Supreme Court relied on a Virginia statute that provided that parolees are in the custody of the parole board, and therefore in custody for habeas purposes. Id. at 241. In an unpublished Tenth Circuit opinion the court found that a parolee was in custody for purposes of section 2254, because the state statute specified that a parolee remains in the legal custody of the state. Wright v. Davies, 78 F.3d 598 (Table), Unpublished Disposition, Text at 1996 WL 108477, **2 (10th Cir. 1996). According to Wyoming Statute 7-13-403, a parolee is in the legal custody and under the control of the Board.
The grant of parole to Beintema on February 3, 1998 by the Wyoming Board of Parole, and the information contained within the Petitioner's Notice of Custody Status establish that Petitioner was on parole. As such, under Jones, Beintema is "in custody" for purposes of 28 U.S.C. § 2254 (a).
III. Has the Petitioner exhausted his remedies available in state court, in compliance with 28 U.S.C. 2254 §(b)(1)(A)(B), (2)?
The Respondent admits that the main issues raised by the Petitioner have been exhausted in state court as required by 28 U.S.C. § 2254 (b)(1)(A). Respondent's Answer, ¶ 7. However, Respondent contends that two statements or arguments in Petitioner's Memorandum were not made or exhausted below. Respondent's Answer, ¶ 7. The statements in question are as follows: first, at page 26, note 59, of Petitioner's Memorandum, Petitioner states that the prosecutor did not disclose, asBrady evidence concerning Detective Rozier's credibility, the ruling by Colorado Judge Vannoy that Rozier had provided a false statement of probable cause to Colorado law enforcement. Second, Petitioner stated that: "With all due respect, when the [Wyoming] same judge who had accepted Huskinson's plea agreement sat silent as he listened to the prosecutor assure Beintema's jury that Huskinson would testify without the benefit of any sort of plea agreement, the imprimatur of the State was laid across Beintema's trial like a flag on a coffin." Petitioner's Memorandum, p. 30.
Petitioner contends these statements were not offered as a federal rights claim, but merely as evidence in support of his federal rights claim. Petitioner argues that the first statement was offered in response to the trial court's, and the Wyoming Supreme Court's, "notion" that Prosecutor Edleman's non-disclosure of the plea agreement was but an oversight and merely an un-artful expression. Petitioner's Response To Respondent's Answers, p. 3. Petitioner also claims that he did in fact raise this argument in his brief and oral argument to the Wyoming Supreme Court. Petitioner then argues that the second statement was offered in an effort to help make his argument that he did not receive a fair trial. Petitioner's Response, p. 4
Prior to the amendment of 28 U.S.C. § 2254 by the AEDPA in 1996, the United States Supreme Court in Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198 (1982), held that "a district court must dismiss habeas petitions containing both exhausted and unexhausted claims." Id. at 522. The Court applied this rule to a federal district court's review of a state trial transcript in which the district court identified ten instances of prosecutorial misconduct, only five of which were raised before the state. Id. at 511. The Court went on to state that a person with mixed exhausted and unexhausted claims ". . . can always amend the petition to delete the unexhausted claims, rather than return to state court to exhaust all of his claims." Id. at 520.
In an unpublished opinion, the Tenth Circuit Court stated that the United States Supreme Court's decision in Rose had been superseded by the AEDPA. Rudolph v. Galetka, 208 F.3d 227 (Table), 2000 WL 293706 (10th Cir. 2000). The Tenth Circuit relied on 28 U.S.C. § 2254 (b)(2) which states "[a]n application for a writ of habeas corpus may be denied on the merits notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the state." The Tenth Circuit found that "this section allows federal district courts entertaining habeas petitions which contain unexhausted claims to address those claims if they can be decided on the merits against the petitioner." Rudolph, 2000 WL at 297306**1. The circuit court further noted that ". . . under section 2254(b)(2), where the district court is convinced the unexhausted claim is without merit, or that the issue is easily resolvable against the defendant, the court may reach the merits of the claim rather than dismiss the petition." Id.
In the present case, petitioner argues that these challenged statements were not meant as separate stand-alone federal claims for relief under the habeas statute, but merely as evidence in support of his stated claims. Under Rose, this concession may amount to an amendment deleting these unexhausted claims. Rose v. Lundy, 455 U.S. at 520. Alternatively, where these two claims are without merit, or resolvable against the defendant then section 2254(b)(2) will apply and allows this Court to hear the unexhausted and exhausted claims. Rudolph v. Galetka, 2000 WL at 293706**1.
The Court accepts the petitioner's assertion that these statements have been offered merely as evidence to support his other claims, and will proceed to determine the other issues raised by petitioner. From the information now before this Court, it appears that these statements are weak and were never intended to be raised as separate habeas claims under section 2254.
Brady Discussion
The issues before this Court require it to determine whether Beintema's right to a fair trial was denied because of the prosecution's alleged violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), which ultimately inhibited full cross-examination of the veracity of the state's single key prosecution witness, Brent Huskinson.
Here, the petitioner argues that each of the four statements set out above at pages 13 and 14 should be afforded no presumption of correctness in that they are not supported by the record. Beintema argues that the finding regarding the plea agreement between the prosecution and Huskinson is not entitled to a presumption of correctness.
Beintema challenges the Wyoming Supreme Court's statement that Beintema's trial attorney knew about the Huskinson plea agreement before trial as the record clearly discloses (1) the prosecutor did not disclose any plea agreement in response to a filed Brady request; (2) the transcript of Huskinson's change of plea hearing was not complete and included only a part of the agreement between Huskinson and the state, i.e., that Edelman would recommend probation, and concealed the further understanding that Huskinson's wife was not to be prosecuted; and (3) Edelman prior to trial assured defense counsel there were no deals with Huskinson. The prosecutor also represented to the jury at trial that no plea agreement existed.
The Wyoming Supreme Court's opinion acknowledges that the prosecutor's opening statement was "technically incorrect" when he represented to the jury that there was no plea agreement with Huskinson. The Wyoming Court characterized those "misstatements" as "inadvertent" and resulting from "unartful expressions or misunderstandings of the questions." However, under the Brady line of cases, the good or bad faith of the prosecutor is not a relevant consideration in determining whether the obligation to disclose exculpatory material has been satisfied. Brady v. Maryland, 83 S.Ct. at 1196-1197; Giglio v. United States, 92 S.Ct. at 766.
In this case the jury was told, falsely, by the prosecutor and the primary witness, Huskinson, that there was no plea agreement between the state and Brent Huskinson. The record discloses that Huskinson had been promised by the prosecuting attorney that he would receive a probation recommendation in exchange for his testimony against Beintema. There was, in fact, a plea agreement as defined in W.R.Cr.P. 11 which would have been relevant to the defense in that the jury could have been informed that the key witness supporting the state's case against Beintema might have had a possible interest in testifying falsely against Beintema at trial. It was not a mere mistake or misstatement from the prosecutor when he represented to Beintema's jury that no plea agreement existed between the state and Huskinson. Further, the record before this Court discloses that Beintema's trial attorney had read the transcript of Huskinson's change of plea hearing and did not regard it as "much of a deal." Counsel had this knowledge in his arsenal of trial materials and could have challenged the prosecutor's erroneous and false statement to the jury that Huskinson was testifying without having entered into any plea agreement. For whatever reason, trial counsel elected not to cross examine the witness and also chose not to object to or otherwise attempt to correct the prosecutor's misstatements regarding the State's plea agreement with Brent Huskinson. The prosecutor's improper representations to the jury at trial that there was no plea agreement, in the factual context of this case, raises serious questions of appropriate prosecutorial conduct, but in the view of this Court, when considered alone, does not raise a Brady issue as has been argued by Beintema in this case.
However, serious consideration must be given to Beintema's arguments regarding the asserted threats of Officer Rozier to Huskinson that members of Huskinson's family would not be prosecuted if he cooperated with the prosecution in bringing its case against Beintema, as that does raise Brady issues that must be given thoughtful consideration by this Court. The Court notes that the testimony of Huskinson at Beintema's new trial hearing regarding the threats made by Officer Rozier is undisputed; Officer Rozier did not testify at all at that hearing and Huskinson's statements stand undisputed in the record. For purposes of this analysis, the Court accepts as true Beintema's assertion that Huskinson testified against Beintema at Beintema's trial at least partially as a result of the threats made by Officer Rozier regarding prosecution of Huskinson's family members and that these threats had not been disclosed to defense counsel as required by a Brady analysis.
Brady and its progeny require disclosure of exculpatory evidence, including evidence which has impeachment value:
Due process mandates disclosure by the prosecution of all evidence that favors the defendant and is "`material either to guilt or to punishment.'" United States v. Bagley, 473 U.S. 667, 674, 105 S.Ct. 3375, 3379, 87 L.Ed.2d 481 (1985) (quoting Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1197, 10 L.Ed.2d 2154 (1963)). "[E]vidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A `reasonable probability' is a probability sufficient to undermine confidence in the outcome." Bagley, 473 U.S. at 682, 105 S.Ct. at 3383 (Blackman, J.); see also United States v. Johnson, 911 F.2d 1394, 1404-05 (10th Cir. 1990); Bowen v. Maynard, 799 F.2d 593, 602-03 (10th Cir. 1986). [footnote omitted] The potential of the undisclosed evidence should be weighed in light of the whole record. What might be considered insignificant evidence in a strong case might suffice to disturb an already questionable verdict. United States v. Agurs, 427 U.S. 97, 112-13, 96 S.Ct. 2392, 2401-02, 49 L.Ed.2d 342 (1976).United States v. Robinson, 39 F.3d 1115 (10th Cir. 1994) (footnote omitted).
With respect to the threats that Huskinson claims were made by Officer Rozier, the following observations are offered. The Wyoming Supreme Court stated:
The United States Supreme Court has ruled that the prosecution is required to disclose evidence to the defense that is favorable to the accused and material to either the defendant's guilt or his punishment. Brady,. . .; United States v. Bagley,. . .; see also Kerns v. State, 920 P.2d 632, 637 (Wyo. 1996). This rule is "intended to protect a defendant's right to a fair trial under the due process clause of the Constitution of the United States." Rodriguez v. State, 962 P.2d 141, 145 (Wyo. 1998). See also Brady, 373 U.S. at 86-87, 83 S.Ct. 1194. The prosecution has an affirmative duty to disclose impeachment and exculpatory evidence, and the defense is not required to specifically request such evidence in order to prompt the prosecution's disclosure duty. . . . If the prosecution does not disclose evidence that is favorable to the accused and such evidence is material, a reversal of the defendant's conviction is required. Kerns, 920 P.2d at 637. [E]vidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A `reasonable probability' is a probability sufficient to undermine confidence in the outcome." Bagley, 473 U.S. at 682, 105 S.Ct. 3375. See also Kerns, 920 P.2d at 637-38.
Beintema contends that he is entitled to have a new trial because the prosecutor improperly suppressed Huskinson's plea agreement with the prosecution and Officer Rozier's threats against Huskinson. Beintema claims that this evidence would have been valuable to him in challenging Huskinson's credibility. We do not need to determine whether the prosecution improperly suppressed the evidence in this case because Beintema has not shown that the evidence was material to his guilt or punishment. Beintema's attorney knew prior to Beintema's trial that the prosecution and Huskinson had entered into a formal plea agreement. The fact that this evidence became available to Beintema from his attorney rather than from the prosecution is irrelevant to our analysis of the materiality of the evidence. Regardless of the source of the evidence, it was available to Beintema for use in his defense.
Beintema's attorney did not choose to point out to the jury that the plea agreement existed. The fact that Beintema did not use the plea agreement evidence seems to be an acknowledgment on his part that the evidence was not material to his guilt or punishment. . . . Accordingly, the prosecution's failure to disclose the evidence to Beintema does not undermine our confidence in the guilty verdict against Beintema.
Beintema also asserts that the prosecution's failure to disclose the evidence of Officer Rozier's threats against Huskinson justified granting him a new trial under the rule set out in Brady[.] . . . As we explained earlier in this opinion, the evidence of Officer Rozier's threats was cumulative to other evidence that Beintema used in challenging Huskinson's credibility. Consequently, even if the evidence of Officer Rozier's threats against Huskinson had been disclosed to the defense, there is no reasonable probability that the result of Beintema's trial would have been different. . . .Beintema v. State of Wyoming, 969 P.2d at 1129-1130 (some citations omitted).
In the view of this Court, the Wyoming Supreme Court misapprehended the teachings of Brady and its subsequent progeny when it determined that the evidence at issue in this case was not material to Beintema's guilt or punishment and that the evidence of Rozier's threats was cumulative and even if disclosed, there was no reasonable probability that the result of Beintema's trial would have been different.
The United States Supreme Court has spoken to these issues in Kyles v. Whitley, 514 U.S. 419, 115 S.Ct. 1555 (1995). The Kyles v. Whitley opinion discusses the evolution of Brady and will be excerpted at length:
The prosecution's affirmative duty to disclose evidence favorable to a defendant can trace its origins to early 20th-century strictures against misrepresentation and is of course most prominently associated with this Court's decision in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). . . 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.". . . In United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976), however, it became clear that a defendant's failure to request favorable evidence did not leave the Government free of all obligation. There, the Court distinguished three situations in which a Brady claim might arise: first, where previously undisclosed evidence revealed that the prosecution introduced trial testimony that it knew or should have known was perjured[;] . . . second, where the Government failed to accede to a defense request for disclosure of some specific kind of exculpatory evidence; . . . and, third, where the Government failed to volunteer exculpatory evidence never requested, or requested only in a general way. The Court found a duty on the part of the Government even in this last situation, though only when suppression of the evidence would be "of sufficient significance to result in the denial of the defendant's right to a fair trial." . . .
In the third prominent case on the way to current Brady law, United States v. Bagley, 473 U.S. 667, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985), the Court disavowed any difference between exculpatory and impeachment evidence for Brady purposes, and it abandoned the distinction between the second and third Agurs circumstances, i.e., the "specific request" and "general — or no-request" situations. Bagley held that regardless of request, favorable evidence is material, and constitutional error results from its suppression by the government "if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.". . . Four aspects of materiality under Bagley bear emphasis. Although the constitutional duty is triggered by the potential impact of favorable but undisclosed evidence, a showing of materiality does not require demonstration by a preponderance that disclosure of the suppressed evidence would have resulted ultimately in the defendant's acquittal (whether based on the presence of reasonable doubt or acceptance of an explanation for the crime that does not inculpate the defendant). . . . Bagley's touchstone of materiality is a "reasonable probability" of a different result, and the adjective is important. 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. A "reasonable probability" of a different result is accordingly shown when the government's evidentiary suppression "undermines confidence in the outcome of the trial.". . .
The second aspect of Bagley materiality bearing emphasis here is that it is not a sufficiency of evidence test. 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. The possibility of an acquittal on a criminal charge does not imply an insufficient evidentiary basis to convict. One does not show a Brady violation by demonstrating that some of the inculpatory evidence should have been excluded, but by showing that the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict. [footnote omitted].
Third, we note that, contrary to the assumption made by the Court of Appeals, . . . once a reviewing court applying Bagley has found constitutional error there is no need for further harmless error review. Assuming, arguendo, that a harmless-error enquiry were to apply, a Bagley error could not be treated as harmless, since "a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different[.]". . . This is amply confirmed by the development of the respective governing standards. Although Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967), held that a conviction tainted by constitutional error must be set aside unless the error complained of "was harmless beyond a reasonable doubt," we held in Brecht that the standard of harmlessness generally to be applied in habeas cases is the Kotteakos formulation[.] . . . Under Kotteakos a conviction may be set aside only if the error "had substantial and injurious effect or influence in determining the jury's verdict." . . . Agurs, however, had previously rejected Kotteakos as the standard governing constitutional disclosure claims, reasoning that "the constitutional standard of materiality must impose a higher burden on the defendant." . . . Agurs thus opted for its formulation of materiality, later adopted as the test for prejudice in Strickland, only after expressly noting that this standard would recognize reversible constitutional error only when the harm to the defendant was greater than the harm sufficient for reversal under Kotteakos. In sum, once there has been Bagley error as claimed in this case, it cannot subsequently be found harmless under Brecht. [footnote omitted]
The fourth and final aspect of Bagley materiality to be stressed here is its definition in terms of suppressed evidence considered collectively, not item by item. [footnote omitted] As Justice Blackmun emphasized in the portion of his opinion written for the Court, the Constitution is not violated every time the government fails or chooses not to disclose evidence that might prove helpful to the defense. . . . We have never held that the Constitution demands an open file policy (however such a policy might work out in practice), and the rule in Bagley (and, hence, in Brady) requires less of the prosecution than the ABA Standards for Criminal Justice, which call generally for prosecutorial disclosures of any evidence tending to exculpate or mitigate. . . .
While the definition of Bagley materiality in terms of the cumulative effect of suppression must accordingly be seen as leaving the government with a degree of discretion, it must also be understood as imposing a corresponding burden. On the one side, showing that the prosecution knew of an item of favorable evidence unknown to the defense does not amount to a Brady violation, without more. But the prosecution, which alone can know what is undisclosed, must be assigned the consequent responsibility to gauge the likely net effect of all such evidence and make disclosure when the point of "reasonable probability" is reached. This in turn means that the individual prosecutor has a duty to learn of any favorable evidence known to the others acting on the government's behalf in the case, including the police. But whether the prosecutor succeeds or fails in meeting this obligation (whether, that is, a failure to disclose is in good faith or bad faith, see Brady ,. . . the prosecution's responsibility for failing to disclose known, favorable evidence rising to a material level of importance is inescapable.
The State of Louisiana would prefer an even more lenient rule. It pleads that some of the favorable evidence in issue here was not disclosed even to the prosecutor, until after trial,. . . and it suggested below that it should not be held accountable under Bagley and Brady for evidence known only to the police investigators and not to the prosecutor. [footnote omitted] To accommodate the State in this manner would, however, amount to a serious charge of course from the Brady line of cases. In the State's favor it may be said that no one doubts that police investigators sometimes fail to inform a prosecutor of all they know. But neither is there any serious doubt that "procedures and regulations can be established to carry [the prosecutor's] burden and to insure communication of all relevant information in each case to every lawyer who deals with it." Giglio v. United states, 405 U.S. 150, 154, 92 S.Ct. 763, 766, 31 L.Ed.2d 104 (1972). Since, then, the prosecutor has the means to discharge the government's Brady responsibility if he will, any argument for excusing a prosecutor from disclosing what he does not happen to know about boils down to a plea to substitute the police for the prosecutor, and even for the courts themselves, as the final arbiters of the government's obligation to ensure fair trials.
Short of doing that, we were asked at oral argument to raise the threshold of materiality because the Bagley standard "makes it difficult . . . to know" from the "perspective [of the prosecutor at] trial . . . exactly what might become important later on." . . . The State asks for "a certain amount of leeway in making a judgment call" as to the disclosure of any given piece of evidence. . . .
Uncertainty about the degree of further "leeway" that might satisfy the State's request for a "certain amount" of it is the least of the reasons to deny the request. At bottom, what the State fails to recognize is that, with or without more leeway, the prosecution cannot be subject to any disclosure obligation without at some point having the responsibility to determine when it must act. Indeed, even if due process were thought to be violated by every failure to disclose an item of exculpatory or impeachment evidence (leaving harmless error as the government's only fallback), the prosecutor would still be forced to make judgment calls about what would count as favorable evidence, owing to the very fact that the character of a piece of evidence as favorable will often turn on the context of the existing or potential evidentiary record. Since the prosecutor would have to exercise some judgment even if the State were subject to this most stringent disclosure obligation, it is hard to find merit in the State's complaint over the responsibility for judgment under the existing system, which does not tax the prosecutor with error for any failure to disclose, absent a further showing of materiality. Unless, indeed, the adversary system of prosecution is to descend to a gladiatorial level unmitigated by any prosecutorial obligation for the sake of truth, the government simply cannot avoid responsibility for knowing when the suppression of evidence has come to portend such an effect on a trial's outcome as to destroy confidence in its result.
This means, naturally, that a prosecutor anxious about tacking too close to the wind will disclose a favorable piece of evidence. . . . This is as it should be. Such disclosure will serve to justify trust in the prosecutor as "the representative . . . of a sovereignty . . . whose interest . . . in a criminal prosecution is not that it shall win a case, but that justice shall be done.". . . And it will tend to preserve the criminal trial, as distinct from the prosecutor's private deliberations, as the chosen forum for ascertaining the truth about criminal accusations. . . .
There is room to debate whether the two judges in the majority of the Court of Appeals made an assessment of the cumulative effect of the evidence. Although the majority's Brady discussion concludes with the statement that the court was not persuaded of the reasonable probability that Kyles would have obtained a favorable verdict if the jury had been "exposed to any or all of the undisclosed materials,". . . the opinion also contains repeated references dismissing particular items of evidence as immaterial and so suggesting that cumulative materiality was not the touchstone. . . . The result reached by the Fifth Circuit majority is compatible with a series of independent materiality evaluations, rather than the cumulative evaluation required by Bagley, as the ensuing discussion will show.
IV
In this case, disclosure of the suppressed evidence to competent counsel would have made a different result more probable.
As the District Court put it, "the essence of the State's case" was the testimony of eyewitnesses, who identified Kyles as Dye's killer. . . . Disclosure of their statements would have resulted in a markedly weaker case for the prosecution and a markedly stronger one for the defense. To begin with, the value of two of those witnesses would have been substantially reduced or destroyed
* * * * [The Court discusses thoroughly the evidence at issue.]
The inconclusiveness of the physical evidence does not, to be sure, prove Kyles's innocence, and the jury might have found the eyewitness testimony of Territo and Kersh sufficient to convict, even though less damning to Kyles than that of Smallwood and Williams. [footnote omitted] But the question is not whether the State would have had a case to go to the jury if it had disclosed the favorable evidence, but whether we can be confident that the jury's verdict would have been the same. Confidence that it would have been cannot survive a recap of the suppressed evidence and its significance for the prosecution. The jury would have been entitled to find
(a) that the investigation was limited by the police's uncritical readiness to accept the story and suggestions of an informant whose accounts were inconsistent to the point, for example, of including four different versions of the discovery of the victim's purse, and whose own behavior was enough to raise suspicions of guilt; (b) that the lead police detective who testified was either less than wholly candid or less than fully informed; (c) that the informant's behavior raised suspicions that he had planted both the murder weapon and the victim's purse in the places they were found; (d) that one of the four eyewitnesses crucial to the State's case had given a description that did not match the defendant and better described the informant; (e) that another eyewitness had been coached, since he had first stated that he had not seen the killer outside the getaway car, or the killing itself, whereas at trial he claimed to have seen the shooting, described the murder weapon exactly, and omitted portions of his initial description that would have been troublesome for the case; (f) that there was no consistency to eyewitness descriptions of the killer's height, build, age, facial hair, or hair length.
Since all of these possible findings were precluded by the prosecution's failure to disclose the evidence that would have supported them, "fairness" cannot be stretched to the point of calling this a fair trial. Perhaps, confidence that the verdict would have been the same could survive the evidence impeaching even two eyewitnesses if the discoveries of gun and purse were above suspicion. Perhaps those suspicious circumstances would not defeat confidence in the verdict if the eyewitnesses had generally agreed on a description and were free of impeachment. But confidence that the verdict would have been unaffected cannot survive when suppressed evidence would have entitled a jury to find that the eyewitnesses were not consistent in describing the killer, that two out of the four eyewitnesses testifying were unreliable, that the most damning physical evidence was subject to suspicion, that the investigation that produced it was insufficiently probing, and that the principal police witness was insufficiently informed or candid. This is not the "massive" case envisioned by the dissent . . .; it is a significantly weaker case than the one heard by the first jury, which could not even reach a verdict.Kyles v. Whitley, 115 S.Ct. at 1565-1575 (most citations and footnotes omitted) (emphasis supplied).
It is against this legal backdrop that Beintema's trial must be viewed and the Wyoming Supreme Court's analysis assessed. In so doing, the Court finds that the Wyoming Supreme Court improperly concluded that the evidence of the threats made by Rozier to Huskinson was not material to Beintema's guilt or punishment. Beintema's trial was dependent almost entirely upon the testimony of a single witness, Brent Huskinson, and as such, impeachment evidence Beintema's counsel could have used to attempt to discredit that witness or question the veracity of that witness would be material.
This is the explicit lesson set forth in Giglio v. United States, 92 S.Ct. 763 (1972), and Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959). Where a prosecution depends almost entirely on the testimony of one witness, without whom there would be no indictment or evidence to carry the case to the jury, the reliability and credibility of that witness is an important issue and may well be determinative of guilt or innocence of the defendant. Evidence of any understanding or agreement as to a future prosecution would be relevant to the credibility of that witness and a jury is entitled to know of it. Giglio, 92 S.Ct. at 766.
Here, the evidence of Officer Rozier's threats was not disclosed to Beintema's trial counsel. This failure to disclose exculpatory evidence served to eliminate from trial impeachment evidence that was crucial to the jury's assessment of Huskinson's reliability and credibility as a witness. Indubitably, such evidence in what was essentially a single-witness trial would be material in that there is a reasonable probability of a different verdict. In the absence of this evidence, the defendant did not receive a fair trial resulting in a verdict worthy of confidence.
While the Wyoming Supreme Court recited the correct law, it does not appear that it properly applied that law to the facts of the case when it stated it need not determine "whether the prosecution improperly suppressed the evidence in this case because Beintema has not shown that the evidence was material to his guilt or punishment." Beintema v. State, 969 P.2d 1124.
The Wyoming Supreme Court erred in its limited considerations of materiality by holding that "[t]aking all evidence presented into consideration, we conclude that, even if the evidence of Officer Rozier's threats were presented, it probably would not produce a different result." Beintema v. State of Wyoming, 969 P.2d at 1129. The Wyoming Supreme Court's opinion includes repeated references stating that certain evidence was not material. This suggests that "cumulative materiality" was not the touchstone of the Wyoming court's opinion and that it was rather a series of independent materiality evaluations, contrary to the requirements of Bagley. See Kyles v. Whitley, 115 S.Ct. at 1569. This is clearly application of a sufficiency of the evidence test, contrary toKyles v. Whitley, 115 S.Ct. at 1566, and is an unreasonable application of clearly established law as determined by the Supreme Court of the United States. As such, the Court concludes that the petitioner is entitled to habeas relief and that his petition should be granted.
Conclusion
The Court recognizes that the due process clause does not confer upon a criminal defendant a right to an error-free trial. Smith v. Secretary of New Mexico Department of Corrections, 50 F.3d 801, 835 (10th Cir. 1995), citing United States v. Hasting, 461 U.S. 499, 508-09, 103 S.Ct. 1974, 1980, 76 L.Ed.2d 96 (1983). However, the due process clause "unquestionably guarantees a criminal defendant a fundamental right to a fair trial." Id., and citing Lutwak v. United States, 344 U.S. 604, 619, 73 S.Ct. 481, 490, 97 L.Ed. 593 (1953).
The prosecution's failure to disclose relevant, material exculpatory and impeachment evidence to Beintema violated his constitutional due process right to a fair trial, particularly in this case where Beintema's guilt or innocence may well have hinged on the jury's assessment of Huskinson's credibility. The Court does not make this finding lightly and acknowledges the important interests of "comity and federalism inherent in our dual sovereignty system of governance." Smith v. Secretary of New Mexico Department of Corrections, 50 F.3d at 835.
These interests undoubtedly command hesitation before acting under these circumstances; yet, these interests do not exist in a vacuum. They must be understood in light of the countervailing obligation of the federal courts to insure that a criminal conviction is not obtained in violation of the Constitution.Id.
Beintema's trial, including jury selection, occurred in a single day. The prosecution's evidence included testimony of Brent Huskinson and Officer Rozier. Officer Rozier testified that his investigation had shown that Darrell Huskinson, Brent Huskinson's juvenile son, had stolen marijuana out of his parents' bedroom and had sold it to other juveniles. When Rozier contacted Brent Huskinson, he was told by Huskinson that he and his wife were heavy marijuana users.
The State offered eight exhibits, which were received during trial, including Exhibit 1 (state's laboratory report analyzing material in Exhibits 5-8 (bags of marijuana seized from Huskinson's residence); Exhibit 2 (Huskinson's telephone book which included a notation "Paul B."); Exhibit 3 (telephone records for 1993 and 1994 for Brent Huskinson's telephone); Exhibit 4 (telephone records for 1993 and 1994 for Beintema's telephone).
Huskinson testified that he had known Beintema about two years and that he met him in about 1993 or 1994. At trial, Beintema's attorney presented testimony of another witness, Frank Fletcher, who testified that he had introduced Huskinson to Beintema in the summer of 1987. Fletcher testified that he had purchased an insurance policy through Beintema and testified that he believed he had introduced Huskinson and Beintema for insurance purposes. Beintema also offered telephone records from Beintema's residence from 1987 to 1994. At trial, Huskinson did concede that it was possible he had been dealing with Beintema since 1987.
In closing arguments, the prosecutor emphasized the testimony of Brent Huskinson as highly important to the jury's decision regarding Beintema's guilt or innocence. Without Brent Huskinson, the State of Wyoming would have had no case against Beintema. Defense counsel's closing arguments also focused in on Huskinson's testimony. Beintema's trial attorney noted that Huskinson had testified that he wanted the police out of his house on that day they came to his house after discovering Darrell Huskinson had supplied other juveniles with marijuana. He did not argue that Huskinson had a deal with the state requiring him to testify against Beintema, but he did attempt to bring Huskinson's credibility into question.
See Appendix A, infra, excerpts from defense counsel's closing argument.
The evidence in the case against Beintema was not overwhelming. Because the government failed to disclose Officer Rozier's threats to Huskinson regarding prosecution of Huskinson's family members, evidence which could have been used to discredit Huskinson, Beintema's trial attorney's ability to meaningfully cross examine was inhibited. Counsel could have confronted Huskinson at trial with these facts and could have suggested to the jury more effectively that the witness may have had a motive to lie. This evidence would have put the case in such a different light that confidence in the verdict has been undermined. As the record reflects, however, the jury was unaware of Rozier's purported threats and was led to believe Huskinson was testifying solely out of a sense of civic duty and that he was under no compulsion to testify against Beintema.
For the foregoing reasons, the Court finds that Beintema's petition for a writ of habeas corpus should be GRANTED. The State must release Petitioner from all custody immediately upon receipt of this Order. Should the State appeal this decision to the United States Court of Appeals for the Tenth Circuit, this Order will be automatically stayed pending the disposition of that appeal. Accordingly, it is therefore
ORDERED that Beintema's petition for a writ of habeas corpus shall be, and is, GRANTED. It is further ORDERED that the State must release Petitioner from all custody immediately upon receipt of this Order. Should the State appeal this decision to the United States Court of Appeals for the Tenth Circuit, this Order will be automatically stayed pending the disposition of that appeal.
Appendix A
Defense counsel's closing argument provided, in part, as follows:
I said were you threatened in any way? Well, I was told if I didn't give them a name, if I didn't give them a name that Officer Rozier was going to make it hard on me and I was going to lose my job.
We know he's working at Triton, which all of us would agree would be a pretty decent job.
So right away he knows that he has to give a name. Let's assume something here for just a moment. You're going to look at the evidence and the key evidence is State's Exhibit #2. That's the back page of this phone book that has a number of names on it, including a Paul. Does not say Paul who. It just says Paul with some phone numbers.
Ladies and gentlemen, what are you going to do? You have to give a name. Let's assume for a moment that you got the marijuana from your cousin, from your brother-in-law, from your sister-in-law. From someone closer to you than Paul. What are you going to do? You've got to give up a name. You've got to give them a name to get them out of your house.
Yet, how can Mr. Beintema defend against that? Now he's been named and there is evidence to show that this is what happened because guilt started wracking Mr. Huskinson concerning his statement to Officer Rozier that it was Paul Beintema when he knew it was someone else. When he shows up at the preliminary hearing, has to go under oath. He quite clearly goes, he goes to jail before saying Mr. Beintema gave him the marijuana.
You know, different minds might degree [sic] or disagree, but I will say that someone that is fearful of perjuring themselves, they do not want to get on the stand and say what they told a police officer, not under oath, and then commit possibly another crime and perjure themselves and tell a lie, that lie being that Mr. Beintema sold me this marijuana. In fact, he says, well, it's going to bother my conscience the rest of my life, I'm going to burn or fry this guy — wasn't sure which.
What does that sound like, ladies and gentlemen? That sounds like somebody wracked with guilt that they have perjured themselves, and they are fingering the wrong person.
Don't forget that in the meantime this individual went out and talked to his wife. What if it's his wife's brother? What if it's his wife's dad that delivered this marijuana?
There is a motive here to lie or there is a motive for this individual to finger someone other than who he actually got the marijuana from in order to protect possibly a family member, possibly a relative.
You might say you're speculating, but what else can you do? They're speculating about these phone calls. They're speculating about the time frame.
I find it interesting that Mr. Edelman gets up here and spends the greater portion of his closing explaining away the testimony of this non-witness. His one witness, Mr. Huskinson, who is the cog in his case. Without Mr. Huskinson you have nothing. And immediately he has to start covering up where, for the fact that this fellow said they knew each other for 2 years, testified to that under oath, and yet the phone records and Frank Fletcher both testify and show that they knew one another for close to 10 years, actually 8 years.
The state would propose to you that well, we all know some folks and we can remember when we knew them. It's 2 years — what's 2 Years? 8 years. That is a crock, ladies and gentlemen. If you're put on the stand — just put yourself on this stand. If you're put on the stand under oath. You know that you have to sit up there and tell the truth. Aren't you going to wrack your brain? It's a little more than 2 years. I think it was more like 8 years. Mr. Beintema sold some insurance and he ends up the fall guy to protect whomever it is that Mr. Huskinson is protecting. He had to come up with a name; there was pressure to do so.
Couple that fact with the idea that there's a possible 120 days and you have an absolutely vague case coming from the state that any of us — had it been Nick C. in the back of the phone book, I visited with this guy, he just comes off the top of his head, it's Nick C. that sold these drugs, what defense would I have available?
What defense would I have available if I've called an individual on the phone on an unrelated matter, can I cover for 120 days? Absolutely not. Is my name in the phone book? Yes.
Another point, ladies and gentlemen, is the fact that Mr. Huskinson said, well, I delivered some of these drugs to like friends and family. Did not mention who the family is.
And yet in all these supposed drug transactions that the state kind of creates out of mid-air, where is one other witness that ever shows Mr. Beintema with Mr. Huskinson?
The testimony is that both the wife, that is Tammy Huskinson, and Mr. Huskinson are very heavy pot users. How come she never saw Mr. Beintema deliver some of this marijuana? How come she wasn't in court today? The guess is that she probably has somebody to protect as well.
Ladies and gentlemen, we're, we're at a point here, and you as the peers for my client have the opportunity to protect him from an unjust prosecution and to protect yourself because if this case goes forward, if you guys are in any phone books and you can't account for 120 days, are they realistically going to convict you of a crime?
The jury instructions kind of go to a lot of this, and I encourage you to read some of these.
Jury instruction number 1, that was the jury instruction that Judge Price talked about at the very beginning. And I think it's on page 5 — and you'll get a packet of these — but I encourage you to look at them.
Number 5 on page 5 states: Whether the witness — you are to consider whether the witness has a bias or prejudice, an interest in the outcome of the trial, or any other motive for not telling the truth.
If he has a relative that gave him the drugs, is that not a motive?
Number 3 further down: As you consider the credibility of your witnesses, says if you conclude that a witness has willfully lied under oath about any material fact in this case, you may distrust all of his testimony.
Well, I know the state wants to say, well, gee, 2 years, 8 years, what is the difference? But I think that reasonable people know that I can see maybe messing up to 2 or 3 years, but 2 years to 8 years? When he testified I met — and testifying under oath at the preliminary hearing and testifying under oath here — that it was 2 years ago?
Ladies and gentlemen, in fact, the testimony from Mr. Huskinson, even when the prosecution tried to say, well, gee, how do you explain those phone bills, he never did actually change his testimony, he never said it.
You can distrust that testimony. You bet. Considering, considering Mr. Huskinson an incredible witness, someone who can't remember 2 years or 8, someone that has a motive.
Let's talk about other motives. We found out from Detective Rozier that his son was apparently distributing drugs to other children. Now, ladies and gentlemen, Mr. Huskinson's son is in a lot of trouble. His kid's selling drugs, he's dealing drugs. He wants to keep his job, his livelihood. Better finger someone. His conscience wouldn't let him finger a relative or closer friend, but somebody had to come out. That person, unfortunately, was my client.
Final sidelight, and I won't belabor the point here, the marijuana. They got sent down, these bags got sent down for fingerprinting, And if the state's got Mr. Beintema's fingerprints on the bags, they didn't put it into evidence, did they?
That is because they're not there. No evidence, nothing. But that marijuana from Mr. Beintema, an insurance salesman in 1987, into the hands of Mr. Huskinson.* * * *
See Petitioner's Appendix 13, Trial Transcript.