Petition For Rehearing - Andrew Thomas

Case: 15-5399 Document: 56-1 Filed: 03/10/2017 Page: 1 (1 of 92)
NO. 15-5399
IN THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT
______________
ANDREW LEE THOMAS, JR.,
Petitioner-Appellant,
v.
BRUCE WESTBROOKS, Warden,
Respondent-Appellee.
______________
ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
PETITION FOR REHEARING WITH

SUGGESTION FOR REHEARING EN BANC
HERBERT H. SLATERY III

Attorney General and Reporter
State of Tennessee
ANDRE S. BLUMSTEIN
Solicitor General
JENNIFER L. SMITH
Associate Solicitor General
P.O. Box 20207
Nashville, Tennessee 37202-0207
(615) 741-3487
Attorneys for Bruce Westbrooks
TABLE OF CONTENTS
TABLE OF AUTHORITIES .................................................................................... ii
PETITION APPENDIX CONTENTS ..................................................................... iv
I. PETITION FOR REHEARING ................................................................1
II. FACTUAL AND PROCEDURAL BACKGROUND ..............................2
III. ARGUMENT IN SUPPORT OF PANEL REHEARING .........................5
A. THE DECISION IS ANALYTICALLY

INCONSISTENT WITH THE COMPANION CASE ...............6
B. THE PANEL MISAPPREHENDS AND

OVERSTATES THE IMPEACHMENT VALUE OF
THE PAYMENT EVIDENCE....................................................8
C. IMPUTED KNOWLEDGE IS NO KNOWLEDGE:

THE PANEL WRONGLY ASCRIBES ACTUAL
KNOWLEDGE OF THE PAYMENT TO THE
STATE AND UNJUSTLY IMPUGNS STATE
PROSECUTORS.......................................................................11
IV. ARGUMENT IN SUPPORT OF EN BANC REHEARING ...................16
CONCLUSION ........................................................................................................18
CERTIFICATE OF COMPLIANCE .......................................................................19
CERTIFICATE OF SERVICE ................................................................................20
i
TABLE OF AUTHORITIES
Page(s)
Cases
Anderson v. City of Bessemer City, N.C.,

470 U.S. 564 (1985) ............................................................................................ 14
Bell v. Bell,
512 F.3d 223 (6th Cir. 2008)....................................................................... 2, 9, 16
Brady v. Maryland,
373 U.S. 83 (1963) .......................................................................................passim
Contract Courier Servs., Inc. v. Research and Special Programs

Admin., U.S. Dept of Transp.,
924 F.2d 112 (7th Cir. 1991) .............................................................................. 14
Kyles v. Whitley,
514 U.S. 419 (1995) ...................................................................................... 11, 15
Mastracchio v. Vose,
274 F.3d 590 (1st Cir. 2001) ..................................................................... 2, 16, 17
Montgomery v. Bobby,
654 F.3d 668 (6th Cir. 2011)................................................................................. 8
State v. Herron,
461 S.W.3d 890 (Tenn. 2015) ............................................................................. 11
State v. Thomas,
158 S.W.3d 361 (Tenn. 2005) ....................................................................... 2, 3, 9
United States v. Agurs,

427 U.S. 97 (1976) .............................................................................................. 15
United States v. Garcia,

793 F.3d 1194 (10th Cir. 2015)................................................................. 2, 16, 17
ii
United States v. Thomas,

29 Fed. Appx 241 (6th Cir. 2002).................................................................... 2, 3
Zenith Radio Corp. v. Hazeltine Research, Inc.,

395 U.S. 100 (1969) ............................................................................................ 14
Statutes
28 U.S.C. 2254 ........................................................................................................ 4
28 U.S.C. 2255 ........................................................................................................ 4
Other Authorities
Fed. R. App. P. 35 ...................................................................................................... 1
Fed. R. App. P. 40 ...................................................................................................... 1
Rule 52(a) ................................................................................................................. 14
iii
PETITION APPENDIX CONTENTS:
A. Thomas v. Westbrooks, No. 15-5399 (6th Cir. Feb. 24, 2017).
B. United States v. Thomas, No. 15-6200 (6th Cir. Feb. 24, 2017).
C. Excerpt from district courts Order denying relief, filed March 30, 2015, pp.
16-52 (Order, RE 102, PageID# 12094-12130).
iv
I. PETITION FOR REHEARING
The Tennessee Attorney General, on behalf of respondent, respectfully petitions
for rehearing of the February 24, 2017, decision in this case, a copy of which is
included in the Petition Appendix. In a split decision, the panel majority reversed the
district courts denial of a writ of habeas corpus from Andrew Thomass state
conviction for first-degree murder. It concluded that failure to disclose a payment
made to a witness in connection with an earlier, federal trial was a Brady violation.
The dissent would have affirmed the habeas denial because suppression of the payment
evidence did not result in prejudice or an unfair trial.
Fed. R. App. P. 40 Rehearing. This case turns on a question of prejudicei.e.,
materialityunder Brady v. Maryland, 373 U.S. 83 (1963). Rehearing is necessary
because the panels finding of materiality is based on errors of fact and law. The
particular facts that the panel has overlooked or misapprehended are addressed below
in the Argument in Support of Panel Rehearing, as are the resultant erroneous legal
conclusions.
Fed. R. App. P. 35 Rehearing. Moreover, rehearing en banc is warranted to
address an important question and to ensure uniformity of the Courts decisions with
authoritative decisions of other Courts of Appeal and to ensure analytical uniformity
within this Court. As detailed below in the Argument in Support of En Banc

1
Rehearing, the panels decision conflicts with decisions of the First and Tenth Circuits
holding, under essentially indistinguishable circumstances, that consistency of a
witnesss statements before and after receiving compensation forecloses all possibility
that the payment corrupted the witnesss testimony or that failure to disclose the
payment was material under Brady. See Mastracchio v. Vose, 274 F.3d 590 (1st Cir.
2001) (payment made before trial not material when witness staked out position before
receiving payment and position remained consistent all along); United States v. Garcia,
793 F.3d 1194 (10th Cir. 2015) (timing of undisclosed meetings with prosecutors
foreclosed possibility that they corrupted the witnesss testimony since pre-meeting
statements did not differ from post-meeting trial testimony); Bell v. Bell, 512 F.3d 223
(6th Cir. 2008) (jury already apprised of potential witness bias; additional evidence
would not have cast case in such a different light as to undermine confidence in the
verdict).
II. FACTUAL AND PROCEDURAL BACKGROUND
On April 21, 1997, Andrew Thomas shot James Day in the back of the head as
Day, an armored truck driver, was carrying a money bag from a store to his truck.
State v. Thomas, 158 S.W.3d 361, 373 (Tenn. 2005); United States v. Thomas, 29 Fed.
Appx 241, 243 (6th Cir. 2002). Thomas and his accomplice then drove off in a stolen
2
car, taking the money and leaving Day severely injured. Day initially survived the
shooting, but died two years later of the injuries inflicted by Thomas.
Based on this series of events, Thomas was first triedin November 1998,
before Days deathin federal court on federal armed robbery charges. He was
convicted and sentenced to life in prison. This Court affirmed on direct appeal.
Thomas, 29 Fed. Appx at 243. Based on the very same series of events, Thomas was
then triedin 2001, after Days deathfor murder in state court. He was convicted
and sentenced to death. Thomas, 158 S.W.3d at 373-75. The murder conviction and
death sentence were affirmed on direct appeal. Id., at 383.
Angela Jackson, Thomass girlfriend at the time of the robbery, testified as a
government witness at the federal trial. She was not an eyewitness to the robbery.
Rather, she testified about Thomass actionsspending the proceeds of the robbery
and his statements after the robbery. Her federal trial testimony was entirely consistent
with a pre-trial statement she had given to FBI agents. Pet. App. 43-53.
Jackson also testified as one of many witnesses for the prosecution at the state
murder trial. As in the federal trial, she testified in the state trial about Thomass
doings after the robbery. Her state-trial testimony was entirely consistent with her
federal-trial testimony. Id.
3
After exhausting state post-conviction remedies, Thomas sought relief in district
court from the state judgment under 28 U.S.C. 2254. In a parallel district court
proceeding, he also challenged the federal judgment under 28 U.S.C. 2255. United
States v. Thomas, No. 2:03-cv-02416-JPM-tmp (W.D. Tenn.).
In October 2011, during an evidentiary hearing in district court related to the
federal judgment, U.S. Marshal Scott Sanders acknowledged for the first time that on
December 18, 1998a month after the conclusion of Thomass federal trialhe had
given Jackson a $750 payment for her services as a government witness in the federal
trial. Pet. App. 29. Since the state prosecutors did not know about the payment until
Sanders testified in 2011, the payment had not been disclosed to the defense in
connection with the 2001 state trial.
Nevertheless, after the Sanders testimony, Thomas claimed that the failure of the
federal government to disclose the payment in the federal trial and the failure of the
State to disclose the payment in the state trial each constituted a Brady violation.
Because the state prosecutors did not have actual knowledge of the payment at the time
of the state trial, Thomas alleged that knowledge of the payment is imputed to the
prosecutors and to the State for Brady purposes. Petition, RE 1, p. 21, Page ID# 36.
4
Finding no Brady violation in either case, the district court denied habeas relief
to Thomas in both the federal and the state convictions. On February 24, 2017, in two
separate companion cases, this Court affirmed the district courts denial of habeas
from the federal conviction, Thomas v. United States, No. 15-6200, 2017 WL 727153
(6th Cir., Feb. 24, 2017) (Pet. App. 16-27), but in a 2-1 decision reversed the district
courts denial of habeas from the state murder conviction. Pet. App. 12 (No. 15-5399).
It is undisputed that Jacksons federal-trial testimony was not given in exchange
for promised or anticipated compensation. As the panel noted in the companion case,
the payment to Jackson occurred only after the conclusion of Thomass federal trial,
and there was no proof that Jackson knew before she testified that she would be
compensated for her cooperation in that proceeding. Pet. App. 17, 26-27 (No. 15-
6200).
III. ARGUMENT IN SUPPORT OF PANEL REHEARING
Rehearing is necessary to correct factual misstatements and omissions in the
panels decision and the resultant legal errors. First, the panels decision is in some
important particulars irreconcilable with its decision in the companion case. Second,
the panels finding of prejudice under Brady is erroneous because its legal analysis is
tainted by erroneous and overlooked facts. When one takes the correct facts into
5
consideration, it becomes clear that the failure to disclose the payment to Thomass
state-trial counsel was immaterial and non-prejudicial under Brady.
Last, but by no means least, the panel decision rests on factual inaccuracies
likely engendered by the false statements of Thomass counsel at oral argument. The
panel wrongly assumes that the state prosecutor acknowledged possession of evidence
of the payment before trial, Pet. App. 3, and then proceeds with an analysis premised
on knowing prosecutorial misconduct in the state trial. These assumptions of actual
knowledge track statements made by Thomass counsel but are contrary to the record,
the parties stipulations, and the district courts findings.
A. The Decision is Analytically Inconsistent with the Companion Case.
The panels finding of a Brady violation in this case is analytically inconsistent
with its finding of no Brady violation in the companion case. When considering the
Brady claim in that companion case, the same panel properly declined to speculate
about the federal governments ability or obligation to disclose its eventual
compensation to Jackson. Pet. App. 26. The panel correctly acknowledged that the
fact that a witness was later compensated for her testimony [does not] give rise to a
sufficient presumption for a Brady claim. Id. It declined to presume that federal
prosecutors had any deal with Jackson and inferred no bad faith on the part of federal
prosecutors based on the timing, amount, or lack of explanation of the payment. Pet.
6
App. 26-27. It accepted the Governments representation that investigators did not
anticipate, plan, or discuss with Angela Jackson a payment to be made to her after the
federal trial, affirmed the district courts refusal to permit further discovery on the
issue, and concluded that there was no Brady violation. Id.
In stark contrast to that analysis is the panels analysis of the Brady claim in this
case. Without record justification, the panel engages in negative speculation and
unjustified disparagement of the actions and motives of state prosecutors to find
materiality under Brady.
The panel would like to attribute the divergent outcomes to the sequence of the
trials. Pet. App. 17. But that explanation does not withstand scrutiny. There was no
Brady violation in the federal trial because there was no proof that Jackson testified in
exchange for the payment. The only difference between the federal and state trials was
the intervening paymentone month after the federal trial and three years before the
state trial. But logic dictates that, since Jacksons federal testimony was not motivated
by the payment, her state testimony was not motivated by the payment, since the state
and federal testimony were consistent.
In short, suppression of the payment evidence was immaterial. Jackson had
taken a position before getting any payment and that position never changed. Thus, it
7
is highly unlikely that the jury, had it known about the federal payment, would have
discounted Jacksons state-trial testimony as financially motivated.
B. The Panel Misapprehends and Overstates the Impeachment Value of

the Payment Evidence.
The panel provided only a brief summary of the facts as context for its
decision. Pet. App. 2. But context is critical for a proper analysis; factual
misstatements and omissions will not lead to a reliable legal determination. A
reviewing court must consider the totality of the evidenceand not merely
exculpatory facts in isolationwhen evaluating a claim of error for its prejudicial
effect. Montgomery v. Bobby, 654 F.3d 668, 679 (6th Cir. 2011).
The panel begins with the unsupported assertions that Jackson was the pivotal
witness in both trials, and that she provided the only credible identification placing
Thomas at the scene of the crime. Pet. App. 3, 7. By miscasting Jackson as the
pivotal witness, the panel vastly overrates the impeachment value of the payment
evidence.
Jackson was not at the scene of the crime and she was far from the only witness
who tied Thomas to the crime. Many other witnesses testified, and their testimony, as
this Court previously found, provided overwhelming proof of Thomass guilt aside
from the testimony of Jackson and his accomplice; those other witnesses provided
8
substantial corroborating evidence, including the videotape of the robbery, and
testimony contradicting Thomass alibi. Thomas, 29 Fed. Appx. at 246. The district
court also discussed this substantial proof, other than Jacksons testimony, linking
Thomas to the crime. Pet. App. 53-54.
But now this panel inexplicably rejects as incredible or inadequate all remaining
evidence of guilt. For example, the panel discounts Fishers eyewitness testimony,
which independently placed Thomas at the crime scene, as lacking credibility, a
finding outside the role of an appellate court. Pet. App. 7. The panel deems
insignificant Thomass use of proceeds from the robbery, because that evidence could
showimprobablythat Thomas or Jackson just happened to come into substantial
wealth around the time of the shooting. Pet. App. 8.
In any event, this pivotal witness was, the panel declares, thoroughly
impeached on other grounds. Pet. App. 9. Under Bell, which holds that when the
jury already knew of potential witness bias, additional evidence would not have cast
the whole case in such a different light as to undermine confidence in the verdict, this
should put a stop to the materiality finding. 512 F.3d at 236-37.
But it does not stop the panel from concluding that, had the jury known Jackson
was paid $750 in the federal trial, the state verdict would have been different because
jurors inherently despise criminals who sell out and become prosecution witnesses.
9
Pet. App. 8. The conclusion is erroneous, because there is no evidence that Jackson
sold out. Indeed, the undisputed evidence is that she did not sell out: she gave a
statement to the FBI without payment or anticipation of payment; she gave consistent
testimony at the federal trial without payment or anticipation of payment; she was later
paid $750 for her services in the federal trial; and she then gave consistent testimony in
the state trial for which she received no payment.
The district court correctly analyzed how the consistency of Jacksons testimony
negates the impeachment value of the payment evidence:
Thomas has not demonstrated that Jackson was induced to lie in

exchange for $750 payment, especially as to the state court trial, which
was three years after the payment. The evidence indicates that Jacksons
statement in November 1997, when the FBI came to her house, and her
testimony at the federal trial and the state trial were consistent. The
statement and the federal testimony were given before the payment was
made. Although Thomas has tried to establish that Jackson had a bad
motive for presenting her testimony, he has failed to demonstrate that any
of the testimony about his participation in the robbery, the shooting, and
spending the proceeds of the robbery is false.
Pet. App. 54-55 (emphasis supplied).
In short, when the evidence is considered in context, it is clear that the payment
evidence would have little, if any, impeachment value; it would not undermine
confidence in the verdict. Kyles v. Whitley, 514 U.S. 419, 435 (1995). Indeed, had
defense counsel attempted to impeach Jackson with the payment evidence, state
10
prosecutors would have been permitted under state law to introduce her prior
consistent statements to show that her trial testimony was consistent with statements
made before any improper influence or motive to lie existed. State v. Herron, 461
S.W.3d 890, 904-05 (Tenn. 2015). Far from undermining Jacksons credibility, use of
the payment evidence at the state trial would have opened the door to proof shoring up
her testimony.
C. Imputed Knowledge Is No Knowledge: The Panel Wrongly Ascribes

Actual Knowledge of the Payment to the State and Unjustly Impugns
State Prosecutors.
The panel decision improperly ascribes to the state prosecutors actual knowledge
of the payment, wrongly asserting that they acknowledged possession of evidence of
the payment before trial, Pet. App. 3, and allowed the witness to commit perjury by
denying its existence and failed to correct the record when Jackson denied receiving
reward money. Pet. App. 1, 3-4. There is no support for any of this in the record,
but the panel uses those facts unjustly to impugn the motives and professional
competence of state prosecutors. Pet. App. 11-12. Such actual knowledge was never
conceded or stipulated to by the parties, is contrary to the findings of the district
court, and is wholly without support in the record.
11
The panel appears to have been misled by the false statements of Thomass
counsel at oral argument. 1 He repeatedly insisted that the State had conceded that
state prosecutors had actual knowledge of the federal payment to Jackson. He was
asked: Did the [state] prosecutor actually know about [the payment to Jackson]? He
responded that the warden conceded in briefing knowledge of the false testimony
claim, and that false testimony claims do require actual knowledge. He was
immediately then asked: Has [actual knowledge] been conceded? He replied: Yes,
Your Honor, thats been conceded . . . . He elaborated that, in light of the concession
and the briefing of knowledge of the payment by the Attorney General, the only then
question is, given that the prosecution knew about this $750 payment, is Angela
Jacksons testimony that she did not receive a reward and did not receive one red cent,
is that material. And a bit later he repeated here we have a prosecutor where its
been conceded in briefing knew about the $750 payment.
But all those answers suggesting that the State conceded, whether for purposes
of the Brady claim or for purposes of the false evidence claim, that the state
prosecutors had actual knowledge of the payment are categorically false. The record is
devoid of any such concession.
1
The quotations that follow are from the recording of the November 2, 2016, oral
argument available on the Courts website. The questions and answers took place
towards the beginning of the argument.
12
The parties did enter into certain stipulations regarding the payment. The
district court recited verbatim the parties factual stipulations, and based its rejection of
Thomass Brady claim on those stipulations. Pet. App. 32-33. There is no stipulation
that the state prosecutors had actual knowledge of the $750 payment.
Nevertheless, the panel takes it as fact the parties agree that the file [given to
the state prosecutors by the federal authorities] contained a receipt documenting the
FBIs payment to Jackson and that knowledge of the $750 payment must be imputed
to the States prosecutors. Pet. App. 3 (emphasis added). This is a
mischaracterization of the stipulations. For reasons included in the stipulations, the
State did stipulate that knowledge of the payment was, as a matter of law, imputed to
the state prosecutors. But the stipulations say nothing about the transfer of documents,
receipts for payment, or the contents of any files turned over to the state prosecutors by
the federal authorities. Most importantly, there is no concession, stipulation, or
agreementand no evidencethat a file in the States possession contained a receipt
documenting the payment.
Nor did the district court make any such findings. In rejecting the state-trial
Brady claim, the district court based its conclusions on the stipulations; it conducted no
evidentiary hearing and did not make other findings of fact. The panel was not entitled
to make additional factual findings on its own initiative. See Anderson v. City of
13
Bessemer City, N.C., 470 U.S. 564, 573 (1985) (The reviewing court oversteps the
bounds of its duty under Rule 52(a) if it undertakes to duplicate the role of the lower
court.); Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 122 (1969)
([A]ppellate courts must constantly have in mind that their function is not to decide
factual issues de novo.).
Piling insult upon injury, the panel suggests that the state prosecutors could be
charged with actual knowledge based on the knowledge that was imputed. Pet. App.
11. This notion that actual knowledge can be imputed based on imputed knowledge is
the epitome of upside-down thinking. Imputed knowledge is not the same as actual
knowledge; it is the very opposite of actual knowledge. It is a legal construct that, in
certain circumstances, assigns knowledge to someone who does not have actual
knowledge. Imputed knowledge is, in effect, tantamount to no knowledge. See
Contract Courier Servs., Inc. v. Research and Special Programs Admin., U.S. Dept of
Transp., 924 F.2d 112, 113-14 (7th Cir. 1991) (Easterbrook, J.) (defining imputed
knowledge as no knowledge, accompanied by circumstances that lead the legal
system to treat ignorance the same way it treats knowledge).
Thus, a concession that there is imputed knowledge cannot, contrary to the
panels pronouncement, be read to imply that there was actual knowledge. Pet. App.
11. It would be illogical and contrary to the law to do so.
14
There is no allegation, proof, or stipulation in this case that state prosecutors had
actual knowledge before or during the state trial that Jackson had received money from
the federal government, or that state prosecutors possessed any documentation of the
federal payment. There was no proof of any connection between the federal payment
and Jacksons participation in the state trial. But the panel ignores the record to
condemn state prosecutors for allowing Jackson to testify at the state trial that she
received no reward for her participation in state proceedingstestimony that is
entirely accurate on the record and that the district court found not to be false. Pet.
App. 60.
Whether provoked by the false and misleading statements of Thomass counsel,
a misapprehension of the record, or both, this Courts rebuke of state prosecutors is
unjustified and unwarranted. It must be corrected.
Ultimately, the question is whether the defendant received a fair trial resulting in
a verdict worthy of confidence. Kyles, 514 U.S. at 436-37. The proper standard of
materiality must reflect [the] overriding concern with the justice of the finding of
guilt. United States v. Agurs, 427 U.S. 97, 112 (1976). If nothing else, the parallel
federal and state guilty verdicts arising from the same core facts show that the verdict
in the state trial is worthy of confidence.
15
IV. ARGUMENT IN SUPPORT OF EN BANC REHEARING
The panels finding of materiality also conflicts with decisions of other Courts of
Appeals in essentially indistinguishable cases. In Mastracchio v. Vose, 274 F.3d 590
(1st Cir. 2001), the First Circuit concluded that nondisclosure of a witness payment is
not material when the witnesss statement has remained consistent.
[W]e do not believe that disclosure of the cash payments prior to trial
conceivably could have affected the verdict. [The witness] told a
consistent story all along. . . . The fact that [he] had staked out his
position well before he received any emoluments renders remote any
possibility that the jury would have thought that he had fabricated his
story in return for cash.
Mastracchio, 274 F.3d at 604. See also Bell, 512 F.3d at 236 (jury already apprised of
potential witness bias; inclusion of additional evidence would not have cast case in such
a different light as to undermine confidence in the verdict).
In United States v. Garcia, 793 F.3d 1194 (10th Cir. 2015), the Tenth Circuit
held that a witnesss undisclosed meetings with prosecutors was not material under
Brady given the consistency of his statements throughout the proceeding.
[T]he timing of the undisclosed meetings forecloses the possibility that

they corrupted Wortheys testimony. Worthey provided information to
law enforcement on at least three occasions in 2012. Defendants do not
direct us to any differences between Wortheys statements at the 2012
meetings and his testimony at trial, and no differences were elicited at
trial. We fail to see how any assurances given Worthey at the 2013
16
meetings influenced his testimony when the substance of that testimony

had previously been communicated to law enforcement.
Garcia, 793 F.3d at 1206.
Just as in Mastracchio and Garcia, the timing and circumstances of the payment
to Jackson coupled with the consistency of her testimony pre- and post-payment
foreclose any possibility that it influenced her state testimony in any way or that the
fact of the payment would have been an effective impeachment tool.
Thus, en banc rehearing is warranted to ensure that this Courts decisions are
analytically consistent with other Circuit Courts of Appeals and with its own decisions
on this important issue.
17
CONCLUSION
For the reasons stated, this Court should grant respondents petition for
rehearing.
Respectfully submitted,
HERBERT H. SLATERY III

Attorney General and Reporter
_/s/ Andre S. Blumstein____

ANDRE S. BLUMSTEIN
Solicitor General
/s/ Jennifer L. Smith_______

JENNIFER L. SMITH
P.O. Box 20207
Nashville, Tennessee 37202-0207
(615) 741-3487
B.P.R. No. 16514
18
CERTIFICATE OF COMPLIANCE
I hereby certify that this petition complies with the type-volume limitations set
forth in Fed. R. App. P. 32(a)(7) and Fed. R. App. P. 35(b)(2)(A). The petition
contains 3,829 words, excluding the parts exempted by Fed. R. App. P.
32(a)(7)(B)(iii). The petition also complies with the typeface and style requirements of
Fed. R. App. P. 32(a)(5) and Fed. R. App. P. 32(a)(6). The petition was prepared in
Times New Roman, 14-point, proportional-type font.
/s/ Jennifer L. Smith

JENNIFER L. SMITH
19
CERTIFICATE OF SERVICE
I hereby certify that the foregoing was filed electronically on March 10, 2017. A
copy will be served by operation of the Courts PACER/ECF system on petitioners
counsel of record: Robert L. Hutton, Glankler Brown, 6000 Poplar Ave., Suite 400,
Memphis, TN 38119; Elizabeth A. Cate, Mollie C. Richardson, and Kevin Wallace,
Winston & Strawn, 200 Park Ave., New York, NY 10166.
/s/ Jennifer L. Smith

JENNIFER L. SMITH
20

Petition For Rehearing - Andrew Thomas

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Case: 15-5399 Document: 56-1 Filed: 03/10/2017 Page: 1 (1 of 92)

IN THE UNITED STATES COURT OF APPEALS

ANDREW LEE THOMAS, JR.,

BRUCE WESTBROOKS, Warden,

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

PETITION FOR REHEARING WITH

HERBERT H. SLATERY III

TABLE OF AUTHORITIES .................................................................................... ii

PETITION APPENDIX CONTENTS ..................................................................... iv

I. PETITION FOR REHEARING ................................................................1

II. FACTUAL AND PROCEDURAL BACKGROUND ..............................2

III. ARGUMENT IN SUPPORT OF PANEL REHEARING .........................5

A. THE DECISION IS ANALYTICALLY

B. THE PANEL MISAPPREHENDS AND

C. IMPUTED KNOWLEDGE IS NO KNOWLEDGE:

IV. ARGUMENT IN SUPPORT OF EN BANC REHEARING ...................16

CERTIFICATE OF COMPLIANCE .......................................................................19

CERTIFICATE OF SERVICE ................................................................................20

Anderson v. City of Bessemer City, N.C.,

Contract Courier Servs., Inc. v. Research and Special Programs

United States v. Agurs,

United States v. Garcia,

United States v. Thomas,

Zenith Radio Corp. v. Hazeltine Research, Inc.,

28 U.S.C. 2254 ........................................................................................................ 4

28 U.S.C. 2255 ........................................................................................................ 4

Fed. R. App. P. 35 ...................................................................................................... 1

Fed. R. App. P. 40 ...................................................................................................... 1

Rule 52(a) ................................................................................................................. 14

PETITION APPENDIX CONTENTS:

A. Thomas v. Westbrooks, No. 15-5399 (6th Cir. Feb. 24, 2017).

I. PETITION FOR REHEARING

The Tennessee Attorney General, on behalf of respondent, respectfully petitions

conviction for first-degree murder. It concluded that failure to disclose a payment

evidence did not result in prejudice or an unfair trial.

Fed. R. App. P. 40 Rehearing. This case turns on a question of prejudicei.e.,

materialityunder Brady v. Maryland, 373 U.S. 83 (1963). Rehearing is necessary

Fed. R. App. P. 35 Rehearing. Moreover, rehearing en banc is warranted to

authoritative decisions of other Courts of Appeal and to ensure analytical uniformity

within this Court. As detailed below in the Argument in Support of En Banc

holding, under essentially indistinguishable circumstances, that consistency of a

II. FACTUAL AND PROCEDURAL BACKGROUND

death sentence were affirmed on direct appeal. Id., at 383.

Angela Jackson, Thomass girlfriend at the time of the robbery, testified as a

federal-trial testimony. Id.

After exhausting state post-conviction remedies, Thomas sought relief in district

States v. Thomas, No. 2:03-cv-02416-JPM-tmp (W.D. Tenn.).

In October 2011, during an evidentiary hearing in district court related to the

connection with the 2001 state trial.

It is undisputed that Jacksons federal-trial testimony was not given in exchange

III. ARGUMENT IN SUPPORT OF PANEL REHEARING

Rehearing is necessary to correct factual misstatements and omissions in the

state-trial counsel was immaterial and non-prejudicial under Brady.

on knowing prosecutorial misconduct in the state trial. These assumptions of actual

the parties stipulations, and the district courts findings.

A. The Decision is Analytically Inconsistent with the Companion Case.

The panels finding of a Brady violation in this case is analytically inconsistent

about the federal governments ability or obligation to disclose its eventual

issue, and concluded that there was no Brady violation. Id.

unjustified disparagement of the actions and motives of state prosecutors to find

materiality under Brady.

and federal testimony were consistent.

In short, suppression of the payment evidence was immaterial. Jackson had