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Brady claim not “fairly presented” in state court, so it’s procedurally defaulted in federal habeas proceeding

Tony Thomas v. Tarry Williams, 7th Circuit Court of Appeals No. 14-2610, 5/18/16

Thomas’s federal habeas petition argued the state withheld potentially exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963), but didn’t raise this claim in his state postconviction proceeding so he can’t raise it in his federal habeas petition.

After his conviction for murder Thomas learned that police had information that a drug dealer named Pinkston actually shot the victim. He filed a state postconviction petition arguing this information showed he was actually innocent. The petition was denied because the evidence presented (a letter from his trial lawyer to the prosecutor with several layers of hearsay) wasn’t sufficient to show actual innocence in light of the evidence presented at trial. He asked for leave to file a second postconviction petition arguing the information about Pinkston was withheld in violation of Brady, but state courts denied leave to file because he didn’t show cause for not raising the Brady argument in the first petition. (Slip op. at 5-7).

Thomas then filed a federal habeas petition raising the Brady claim, but he defaulted this claim under the independent and adequate state ground doctrine:

…. The first time that Thomas labeled his claim a Brady claim in state court was in his second state post‐conviction petition filed in November 2007. The state court denied his petition because he did not show cause for his failure to raise the claim in his first state post‐conviction petition. See 725 ILCS 5/122‐1(f). The state procedural rule is an adequate and independent state ground precluding federal habeas review of the Brady claim raised in his second state petition.

(Slip op. at 10).

He argues that he did present the Brady claim in his first petition, but the court holds that claim wasn’t “fairly presented” because, under the factors in McDowell v. Lemke, 737 F.3d 476, 482 (7th Cir. 2013), and Ellsworth v. Levenhagen, 248 F.3d 634, 639 (7th Cir. 2001), the state court wasn’t sufficiently alerted to the federal constitutional nature of the issue:

The first three Ellsworth factors are not present. Thomas did not present the law controlling a Brady claim, nor did he offer any federal or state cases engaging in a Brady analysis. His petition also was not framed in terms “so particular as to call to mind a specific constitutional right.” McDowell, 737 F.3d at 482. Thomas did not attribute to the government any withholding of evidence or allege that the evidence was available at the time of trial but not disclosed.

Thus, Thomas relies on the fourth Ellsworth factor, arguing that he alleged “a pattern of facts that is well within the mainstream of constitutional litigation.” Id. But, Thomas alleged that Officer John Massi “has recently received information” that Pinkston may have been the shooter. Recent discovery of evidence did not constitute a typical Brady claim then, and the Supreme Court has since said that Brady only applies to evidence existing at the time of trial. Dist. Atty’s Office for the Third Judicial Dist. v. Osborne, 557 U.S. 52, 68–69 (2009). Furthermore, Thomas argued that the recently discovered evidence showed he was “actually innocent.” We agree that the pattern of facts Thomas alleged was within the mainstream of constitutional litigation, but for a state‐law actual innocence claim, which the state court did address. The pattern of facts alleged is not within the mainstream of Brady litigation.

(Slip op. at 12).

Nor can Thomas’s default be excused on the ground that failure to consider his claim will result in a fundamental miscarriage of justice. Given the overwhelming evidence of his guilty, the new evidence Thomas relies on, with its multiple levels of hearsay, isn’t enough to show he is probably “actually innocent.” (Slip op. at 14-16).

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