Case: 15-5399 Document: 58 Filed: 03/23/2017 Page: 1

No. 15-5399
DEATH PENALTY CASE

IN THE
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

ANDREW THOMAS

Petitioner-Appellant

v.

BRUCE WESTBROOKS, Warden

Respondent-Appellee

ANDREW THOMAS RESPONSE TO

PETITION FOR REHEARING EN BANC

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TENNESSEE

Kevin Wallace Robert L. Hutton

Elizabeth Cate GLANKLER BROWN, PLLC
Mollie Richardson 6000 Poplar Avenue, Suite 400
WINSTON & STRAWN LLP Memphis, TN 38119
200 Park Avenue (901) 525-1322
New York, NY 10166
(212) 294-6700 Counsel for
Andrew Thomas
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Thomas raised ten issues on appeal in this capital habeas proceeding.

Though the panel discussed two of the claims, it granted relief only on onethe

Brady claimand pretermitted all the remaining issues. (Opinion p. 12) Given

the stipulations by the parties concerning the Brady claim, the panel only

needed to determine whether there was a reasonable probability that had the

undisclosed evidence been produced it would have made a difference. Because

the Warden fails to raise any errors of fact or law that the panel has not already

considered, panel rehearing should be denied. Furthermore, because this case

involves a routine determination of materiality in a Brady claim, it does not

meet the rigorous standards for en banc review under F.R.A.P. 35.

1. The panels grant of relief for a routine Brady claim for

which the parties stipulated as to all elements except
materiality does not merit panel rehearing or en banc
review.

A. The parties stipulated to all elements of the Brady claim except

materiality.

Upon request of a joint federal-state task force that investigated and

participated in both Thomas federal and state trials for the same shooting, the

federal government paid $750 to Angela Jackson, the states key witness. (Joint

Stipulation 1, 2, 4, 5, 7 RE 78, Page ID 11953-11954) She was paid after

Thomas federal trial, but before his state trial commenced. The parties

stipulated that (1) a $750 payment was made to states witness, Angela Jackson,

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(2) the payment was not disclosed to Thomas or his counsel, (3) the payment

was exculpatory evidence that should have been disclosed, and (4) knowledge

of the payment is imputed to the state prosecutors. (Joint Stipulation 1, 2, 7,

9, 10, 11 RE 78, Page ID 11954)

These undisputed facts gave rise to the Brady claim (Claim 1) in Thomas

2254 petition seeking habeas relief.1 A Brady claim has three elements: (1) the

evidence at issue must be favorable to the accused, either because it is

exculpatory or because it is impeaching; (2) the evidence must have been

suppressed by the state, either willfully or inadvertently; and (3) prejudice must

have ensued. Strickler v. Greene, 527 U.S. 263, 281-282 (1999). Prejudice

exists when the suppressed evidence is material for Brady purposes. Banks v.

Dretke, 540 U.S.668, 691 (2004). As stated above, the parties stipulated to all

of these elements except whether the secret $750 payment was material. (Joint

Stipulation, RE 78, Page ID 11953-11954.) Regarding materiality, the parties

stipulated that the sole question was whether a reasonable probability existed

The Warden expressly waived exhaustion as to this claim because the
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$750 payment was not discovered until after all state-court proceedings
had concluded through no fault of Thomas. (Stipulation of the Parties,
RE 23, Page ID 7891-7893) Thus, the Brady claim is not subject to the
deferential review standards of the Antiterrorism and Effective Death
Penalty Act. Barton v. Warden, Southern Ohio Correctional Facility,
786 F.3d 450, 460 (6th Cir. 2015).
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that, had the suppressed evidence been disclosed, the results of the proceedings

would have been different. (Joint Stipulation, 11 RE 78, Page ID 11954)

B. The panels conclusion that the undisclosed witness

payment was material is properly supported by a review of
the state court trial record and federal law.

In assessing materiality, the panel determined that Thomas case was

factually similar to Robinson v. Mills, where an undisclosed payment of $70 to

a witness was found to be material and warranted habeas relief. (Opinion pp. 6-

7, discussing Robinson v. Mills, 592 F.3d 730 (6th Cir. 2010)) As in Robinson,

the panel concluded that Angela Jacksons testimony was pivotal. (Opinion p.

7) Supporting this conclusion is the fact that Jackson was one of only two

witnesses placing Thomas at the scene of the crime and the other witness

initially identified Thomas co-defendant, Anthony Bond, as the person he saw

at the scene (not Andrew Thomas). Id. Jackson was also the only witness

linking Thomas to his co-defendant Bond. Id. The panel further discussed that

the other circumstantial evidence presented did not overwhelmingly suggest

that Thomas was the shooter. Id. The panel emphasized the importance of

impeachment for pecuniary bias in contrast to other forms of impeachment

evidence and rejected arguments that evidence of Jacksons payment by the

joint task force would have been cumulative, since no other impeachment

evidence was presented at the trial that showed Angela Jacksons pecuniary

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bias. Id. at 9. Finally, the panel found that Thomas case was more compelling

than Robinsons, since the payment was made in connection with a case against

the same defendant involving the exact same facts. Id. at 8.

2. Panel rehearing is not warranted.

With respect to the panel rehearing request, the Warden raises no new

points, but rather merely asserts that the panel erred in its analysis of

materiality. In response, Thomas relies upon his opening brief and reply brief

because the materiality of Angela Jacksons testimony was thoroughly

discussed there. (See Brief of Appellant, Doc. 23, pp. 41-52; and Reply Brief,

Document 41)

Additionally, the materiality inquiry under Brady necessarily involves the

Court examining the state court record and determining whether the newly

discovered favorable evidence could reasonably undermine confidence in the

verdict. Strickler, 527 U.S. at 291-293 (examining new evidence in light of

trial-court witness testimony). In this case, there is no deference to the district

courts materiality determinationas the district court also made its materiality

findings by reviewing the state court record. See Barton, 786 F.3d at 460

(When the district court does not itself conduct an evidentiary hearing and relies

instead exclusively on the state court record, the appellate court reviews the

district courts factual findings de novo.) Furthermore, the panels reaching a

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different conclusion as to the Brady issue in Thomas federal case does not

warrant a rehearing in this state case, as both the timing of the payment, and

proof presented at the trials differed.

Finally, the Warden argues that Thomas counsel misled the panel during

oral argument with respect to concessions concerning actual versus imputed

knowledge for purposes of the false testimony claim (Claim 2). This assertion

is not only untrue,2 but irrelevant. Because the panel granted relief only upon

the Brady claim (Claim 1), where actual versus imputed knowledge was not at

issue, any discussion of actual versus imputed knowledge is moot.

2 The Warden conceded the knowledge element of the false testimony

claim, contending that agency principles applicable in Brady claims should also
impute knowledge to the prosecutor for false testimony claims. The Warden
expressly conceded that the only remaining issues as to the false testimony
claim were whether Angela Jacksons testimony was false and whether it was
material. (Respondents Brief Clarifying Issues Regarding Necessity of an
Evidentiary Hearing on Count 2, RE 95, Page ID 12043-12044). Based upon
this concession, the district court denied as moot the evidentiary hearing
Thomas requested as to the knowledge prong of the claim. Because the
Warden conceded the knowledge prong for the false testimony claim
regardless of his articulated reasons for doing soif actual knowledge of the
payment by the prosecutors is in fact a required element of the claim (as some
Sixth Circuit authority holds), then actual knowledge has been in fact conceded
for that claim. Moreover, it is hard to fathom how the Warden may credibly
assert the panel could have been confused as to the parties positions on this key
point, given the briefing of the parties, the entirety of the oral argument, and
Thomas supplemental letter filed the week after oral argument quoting
verbatim the Wardens concession. (See Supplemental Letter following Oral
Argument, Docket Entry 53).
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3. The Wardens Application for En Banc Review Should be

Denied

A. The Warden has not met the rigorous standards for en banc
review

Under Rule 35, en banc review is not favored and ordinarily will not be

ordered unless (1) it is necessary to secure or maintain uniformity of decisions,

or (2) the proceeding involves a question of exceptional importance. F.R.A.P.

35. The Sixth Circuits rules further clarify that en banc review is an

extraordinary procedure, intended to bring to the full Courts attention a

precedent-setting error of exceptional public importance or an opinion that

directly conflicts with Supreme Court or Sixth Circuit precedent. 6 Cir. I.O.P.

35(a). Errors in the facts of the case or errors in the application of the facts to

the correct law are not matters for en banc review. Id. As discussed below,

Warden has not identified any conflict in the application of the law or conflict

with existing precedent; rather, he merely has cited to cases that reflect different

analyses of materiality based upon the unique circumstances of each case.

B. The three cases cited by the Warden do not present conflicts that
warrant en banc review.

Citing Mastracchio v. Vose, 274 F.3d 590 (1st Cir. 2001), the Warden

argues that the consistency between Angela Jacksons statements before and

after the payment should automatically render the failure to disclose the

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payment immaterial for Brady purposes. However, contrary to the Wardens

implicit assertion, Mastracchio does not set forth any bright-line rule that

consistency of a witness story prior to payment automatically renders any

undisclosed payments by the government immaterialthis was merely one of

several factors considered. Specifically, in Mastracchio, the states witness

who testified about discussions he had with the defendant conceded that, while

in protective custody, state authorities had provided him with several benefits in

exchange for his cooperation. These included payment for items totaling

$1500-$1800 per month, conjugal visits while in custody, excursions to local

restaurants, and a thirty-day stay with his family during the holidays.

Mastracchio, 274 F.3d at 594. After trial, the defendant discovered that the

witness had received other favors, including an additional $20,000 over a six-

month period that had not been disclosed. Mastracchio, 274 F.3d at 595-596.

In finding that the undisclosed benefits were not material and would only have

been cumulative, in addition to the consistency of the statements before and

after receiving the payments, the First Circuit noted that the jury knew about

substantial payments by the authorities for the witness benefit and that the

witness had provided details concerning physical evidence of the crime that he

would not have known unless he was told by someone with specific

information. Mastracchio, 274 F.3d at 604.

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In contrast, the jury in Thomas case was not aware of any payments to

Angela Jackson by the authoritiesa point which the panel correctly focused

upon in its opinion. (Opinion p. 9) Furthermore, coupling the highly unusual

nature of the $750 payment with Jacksons denial under oath at the state trial

that she received any money, it is reasonable to assume that, had the jury

known, it could have believed that the joint task force agents had promised

Jackson payment for her cooperation from the time of their first meeting. The

receipt that the task force provided to Jackson for the payment reflects that it is

for services beginning in April 1997well before her first statement.

(Receipt for $750 Payment, RE 15-1, Page ID 7853) And law enforcement

does not typically surprise fact witnesses with large gifts of money and provide

no explanation for the payment. Thus, Mastracchio is distinguishable and does

not establish that the consistency in Angela Jacksons statements renders the

payment immaterial.

Second, the Warden cites Bell v. Bell, 512 F.3d 223 (6th Cir. 2008), to

support his request for en banc review. In Bell, the issue was whether a

prosecutors undisclosed notes taken in a meeting with an incarcerated witness

constituted Brady evidence warranting a new trial. Bell, 512 F.3d at 232. The

notes indicated that the witness wanted consideration on his sentences in

exchange for his cooperation. Id. Although the court found that the notes

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should have been disclosed, it concluded they were not material and were

cumulative of other impeachment evidence. Bell, 512 F.3d at 237. However,

Bell did not involve a substantial cash payment by the authorities to a witness

occurring prior to trial and therefore is clearly distinguishable.

Finally, the Warden cites U.S. v. Garcia, 793 F.3d 1194 (10th Cir. 2015),

which is also distinguishable. In Garcia, the witness plea agreement, which

resulted in the dismissal of certain charges and recommended a reduced

sentence in exchange for cooperation, was disclosed to the defense and used in

cross examination. Garcia, 793 F.3d at 1203. But the Government failed to

disclose evidence of meetings where it also promised to consider the witness

cooperation in an unrelated state murder case and agreed that, by cooperating,

he would further reduce his sentence. Id. In finding the disclosure to be

immaterial, the court noted that several considerations convince us that

disclosure of the meetings would not have affected the verdict[,] one of which

was the consistency between the witness statements to law enforcement while

cooperating before the undisclosed meetings occurred. Id. at 1205. However,

the court also considered that the jury was well aware of the witness criminal

propensities and knew that the witness would receive consideration in exchange

for testifying under the plea agreement. Id. at 1206. In sharp contrast, Angela

Jackson was not a jailhouse witness; rather, she was presented to the jury as a

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scared spouse whose only motive in testifying was that it was the right thing to

do. (Trial testimony of A. Jackson, RE 12-17, Page ID 1733, 1746-7, 1753,

1805)

Although the Warden cited three cases where, under the specific facts of

each case, the court determined the withheld evidence not to be material,

Thomas can likewise cite other cases where under similar facts a payment was

determined to be material, such as the one relied upon by the panel, Robinson v.

Mills, 592 F.3d 730 (6th Cir. 2010). Evaluating materiality is necessarily a

case-specific analysis, which is precisely why a panels determination of the

materiality of a Brady violation is not suitable for en banc review.

The bottom line is that the Warden disagrees with the panels determination

that the withheld evidence was material. Although the panels conclusion was

correct, even if a judge disagreed with the panel, such disagreement is not

enough to warrant en banc review. As Judges Sutton and Kethledge noted,

[s]aving en banc review for the rarest of circumstances, particularly when the

leading ground for review is disagreement on the merits, thus reflects a sound

collegial attitude. Mitts v. Bagley, 626 F3d 366, 370 (6th Cir. 2010). Thus,

the Wardens request for en banc review should be denied.

Respectfully submitted,

/s/ Robert L. Hutton

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Certificate of Service

I certify that on March, 27 2017, a true and correct copy of this Response
to Petition for Rehearing En Banc was filed via the Courts electronic
filing system, which will forward a copy to Appellees counsel and all
other counsel of record.

/s/ Robert L. Hutton

Robert L. Hutton

4824-3642-9125, v. 1

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