United States Court of Appeals For the First Circuit

No. 05-2587

SETH BADER,

Petitioner, Appellant,

v.

WARDEN, NEW HAMPSHIRE STATE PRISON,

Respondent, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Joseph A. DiClerico, U.S. District Judge]

Before

Boudin, Chief Judge,

Cyr and Stahl, Senior Circuit Judges.

B. Michael Cormier for petitioner. N. William Delker, Senior Assistant Attorney General, Criminal Justice Bureau, with whom Kelly A. Ayotte, Attorney General, was on brief for respondent.

May 25, 2007 BOUDIN, Chief Judge. Vicki Bader--ex-wife of appellant

Seth Bader--was murdered on August 24, 1996, seemingly in Stratham,

New Hampshire, and her body was found in a grave in Waterboro,

Maine, on April 10, 1997. Police were led to the body by 14-year-

old Joseph Bader, who was Seth's adopted son and biological cousin.

In December 1997, Joseph agreed with the state to enter a plea of

"true" to a juvenile delinquency petition, confessing that he

assisted in helping Seth murder Vicki.

At Seth's trial in April and May 1998 in New Hampshire

state court, Joseph testified against Seth for four trial days.

The gist of the testimony was that Seth and his girlfriend Mary

Jean Martin had plotted to murder Vicki; that Seth had hired Sandro

Stuto to assist in the murder and to dispose of Vicki's car; that

Seth had traveled to Maine with Joseph a few days before the

murder, located a spot in the woods and dug a grave; and that

Joseph had kept Seth's younger son outside the house while the

murder was committed.

Joseph did not claim to have witnessed the murder, but,

according to his testimony, he had been called back into the house

by Stuto after the murder and witnessed his adoptive father

emerging from the basement with a rifle barrel and a spent casing;

Joseph had then helped clean up the blood. Joseph also testified

that Seth had told him earlier that he (Seth) would shoot Vicki.

Joseph further testified that he had then helped Seth transport and

-2- bury Vicki's body in Maine and that on the way home he and Seth had

gone shopping for new clothes.

The prosecution offered records of Seth's mobile phone to

show calls from Maine on the date of Vicki's death. Credit card

records showed Seth's card had been used that day to purchase pants

in two different sizes, one pair of shoes and other items. Seth

did not testify at his trial but the prosecution played a recording

of a police interview for the jury in which Seth, while denying

guilt, conceded that he might have driven with Joseph to Maine that

day because of the good weather.

Stuto testified that on the day of the murder, he,

Martin and Seth met together in the afternoon and agreed that Stuto

would dispose of Vicki's car after the murder, leaving it at a

bookstore. Seth and Stuto drove to the bookstore and then

proceeded to Seth's house where, according to Stuto, Seth shot

Vicki.1 At trial the defense sought to call Martin, who refused to

testify.

Although the state primarily relied on the testimony of

Joseph and Stuto, other evidence in addition to the mobile phone

and credit card records was offered. Vicki's lawyer testified as

to Seth's aggressive efforts to reduce his financial obligations to

1 While in prison Stuto apparently recanted, saying that Joseph had murdered Vicki in exchange for sexual favors from Martin and that Seth had nothing to do with the murder. The district court decided that Bader's habeas claim based on this recantation had no merit, and this issue is not before us.

-3- Vicki and to secure custody of their children. In tape recordings

of phone calls with Vicki, Seth expressed his obsession with

holding onto and pleasing Martin and stated that Martin had said

she would leave Seth unless he won the alimony and custody

litigation.

A woman who regularly cleaned Seth's house testified to

prior statements that Seth and his girlfriend wished Vicki were

dead. Vicki's doctor said that Vicki had told him that she

remained overweight so that her body would be difficult to move if

she were killed. The prosecution also sought to connect Seth with

a pipe bomb planted in Vicki's mailbox; one witness testified to

Seth having a bomb-making book in his home.

The defense sought to discredit both Joseph and Stuto,

emphasizing that Stuto had reached a deal for only five years in

prison and that Joseph would do no time in prison. It offered

evidence of Martin's deceptive character, her links to Joseph, and

Joseph's hostility towards Vicki. It also attempted to raise

doubts about the state's theory.2 In closing, the defense offered

an alternative theory that, without Seth's involvement, Martin had

2 For example, the defense argued that Joseph's testimony about the time of the murder could not be true because Joseph's testimony that Seth and Stuto arrived at the Stratham, New Hampshire, house around 3 p.m. seemed to conflict with the fact that Seth had been cited for a traffic violation around 2:30 p.m. in Massachusetts. The defense also noted that Joseph testified to several items that should have been found buried with the body, but were not.

-4- convinced Joseph to do the killing and that both Joseph and Martin

stood to benefit from killing Vicki and framing Seth.

The jury convicted Seth of first-degree murder and

conspiracy to murder, and he was sentenced to life imprisonment on

the murder charge. The New Hampshire Supreme Court affirmed his

conviction. State v. Bader,

(N.H. 2002). After Seth's

trial, juvenile court hearings were held to track Joseph's

progress; but Joseph never spent any time in a correctional

facility.

In October 2002, Seth filed the present habeas case in

federal district court. He claimed, inter alia, that in violation

of Brady v. Maryland,

(1963), the prosecution had made

but did not disclose to the defense a leniency-for-testimony deal

for Joseph's testimony, which could have been used to impeach

Joseph at trial. Giglio v. United States,

(1972). Seth now conjectures that the agreement might have been

kept secret from Joseph himself.

The issue whether any agreement existed had been

elaborately explored in the state proceedings. In September 1997,

prior to Seth's trial, the defense filed a motion for discovery of

"all details of all agreements and understandings with" Joseph or

other co-defendants. When in December 1997 Joseph agreed to plead

guilty in the juvenile proceedings, the state got court permission

-5- and then disclosed to Seth's lawyers Joseph's juvenile court

records.

On March 26, 1998, after Seth's trial had begun, he filed

a second motion for discovery, this time asking for all records

relating to communication between the Attorney General's office and

Joseph's attorneys and documents relating to charging decisions

made by the Attorney General's office. Defense counsel also made

oral motions at trial. In response, the judge ordered that "all

documents in the file(s) relating to the juvenile filed in the

Family Court," including notes from therapists, be provided to the

court.

The trial judge then reviewed in camera the documents

that the state had provided. After this review, on April 9, 1998,

the state judge determined that the record did not contain any

material "which is exculpatory, essential to the defendant

receiving a fair trial, or which relate[s] to any understandings or

agreements relative to plea decisions or other information which

can be construed as Giglio materials."

The prosecutor reaffirmed on April 10, 1998, that the

state had disclosed all agreements with Joseph and his attorneys.

The judge nevertheless ordered expedited access to the transcript

of Joseph's plea hearing, which had occurred in December 1997.

Although defense counsel inferred from tapes of that hearing that

-6- a leniency-for-testimony agreement existed,3 the trial judge

listened himself and ruled that there was no evidence of a deal

requiring Joseph to testify at Seth's trial.

At Seth's trial, the judge let Seth's trial counsel

cross-examine Joseph about any such deal. Joseph admitted that his

plea agreement meant that he would not be incarcerated even for

"one second," that the disposition hearing in his case would not

occur until after Seth's trial, and that the juvenile court would

know of his testimony in Seth's trial. But Joseph said that he had

not made any agreement to testify.4

Nevertheless, on his state appeal, Seth argued to the New

Hampshire Supreme Court that Joseph's plea agreement was contingent

on his testifying against Seth and that the trial court had erred

in finding to the contrary. In rejecting the appeal, the court

said:

There is no evidence in the extensive record in this case to support a conclusion that the trial court erred either in its finding following the in camera review or in its

3 Defense counsel noted that at the juvenile plea hearing a state attorney stated that "Joseph will be testifying" in Seth's trial. But this was not listed as a term of the plea agreement, but rather as part of a time line relating to Joseph. When the juvenile court judge explained the agreement to Joseph, he made no mention of testifying. 4 Shown a transcript of the plea agreement, he backtracked somewhat; but in fact, the transcript confirms that the prosecutor told the juvenile court only that Joseph was expected to testify against Seth--not that this was a term of the plea agreement or in exchange for leniency.

-7- finding of no evidence of a "sine qua non" [sic] on the part of the State in return for Joseph Bader's testimony. . . . Accordingly the defendant cannot prevail in his effort to secure a new trial on this issue as he has failed to "prove that the prosecution withheld evidence that is favorable and material."

Bader,

(citations omitted).

In federal habeas proceedings directed to state

prisoners, the federal statute provides that findings by the state

court are conclusive unless overcome by clear and convincing

evidence.

(e)(1) (2000). The district court

initially dismissed Seth's Brady claim as one previously litigated

and resolved, adding that Joseph could not have been influenced in

his testimony if a deal had existed but been kept secret from him.

Seth then discovered that a social worker had kept notes

of a November 26, 1997, meeting attended by Joseph's public

defenders, his social workers and a state prosecutor. Shortly

after the district court dismissed Seth's habeas petition, Seth

sought reconsideration, accompanying the motion with affidavits

from one of his own trial lawyers saying that he had not known of

the November 26, 1997, meeting. The notes kept by one of the

social workers attending the meeting said

Joe will be charged with conspiracy to commit murder. It would be appropriate to do accomplice but that would mean being certified as an adult and life in prison . . . Want a plea of true [guilty] at the Dec. 8 arranmnet [sic]. Do NOT want to do the dispositional [sentencing] before the [petitioner's] criminal trial. . . . Attys. for Joe

-8- advocating strongly for a change to a minor charge . . . .

The district court reopened the habeas proceeding, and

Seth filed a proposed discovery plan seeking to depose the three

social workers who had attended the meeting and also various

lawyers, including the prosecutors. The district court found the

plan overbroad because it covered unrelated issues but approved a

second plan by Seth's counsel to depose the social workers.5

The depositions occurred, and the social workers recalled

that the prosecutor had said that he wanted Joseph to plead guilty

before Seth's trial and be sentenced afterwards and that they

understood that Joseph was expected to testify at Seth's trial.

However, they also recalled no agreements--either for leniency in

exchange for testimony or for anything else--being made at the

November 26, 1997, meeting.

Seth's counsel then sought to depose the lawyers who had

attended the meeting, including the prosecutor, but the district

court refused, saying that there was no good cause for further

discovery. The judge repeated that if there had been a deal

between prosecutor and defense counsel but this was unknown to

Joseph--as Seth now suggested--it could not have affected his

5 In Bader's revised discovery motion, he stated that "the three social workers can claim no privilege of any sort, are not committed to any prior statements, and presumably are unfamiliar with any legal theories of this case. They are the most likely of the meeting's participants to offer unvarnished recollections."

-9- testimony and so could not undermine the court's confidence in the

verdict.

The district court granted a certificate of appealability

limited to the supposed agreement. Seth argues to us (under

several headings) the same central claim: that the district court

erred in granting summary judgment against him because there

remained a genuine issue of fact requiring resolution in an

evidentiary hearing, namely, whether the prosecutors concealed a

leniency-for-testimony deal with Joseph or at least with his

lawyers. Seth relies in particular on Townsend v. Sain,

(1963).

Townsend,

, laid out a broad right of de

novo federal fact-finding for state prisoners. But it was

significantly qualified by later case law and congressional action

leaving the circuit courts in some uncertainty.6 In all events,

just this month the Supreme Court, glossing Townsend itself, has

made clear that the "decision to grant an evidentiary hearing [is]

generally left to the sound discretion of district courts."

Schriro v. Landrigan, No. 05-1575,

, at *5-*6 (U.S.

May 14, 2007).

6 See Keeney v. Tamayo-Reyes,

(1992); Antiterrorism and Effective Death Penalty Act of 1996,

(4)(e),

. Compare Campbell v. Vaughn,

(3d Cir. 2000), cert. denied,

(2001), with Conaway v. Polk,

(4th Cir. 2006).

-10- In all events, Seth has no clear and convincing evidence

of an actual agreement, made between the prosecutors and defense

counsel, by which Joseph would testify in exchange for leniency.

Absent evidence that, if accepted, could overcome the powerful

presumption in favor of the state-court finding, there is nothing

to be tried in an evidentiary hearing. Thus, the real issue is not

the right to an evidentiary hearing but whether Seth is entitled to

more discovery than he got. See Blackledge v. Allison,

(1977).

In civil matters including habeas, evidentiary

proceedings are appropriate only where the party bearing the burden

of proof on an element starts with enough evidence to create a

genuine issue of fact; otherwise summary judgment is proper.

Anderson v. Attorney Gen. of Kan.,

(10th Cir.

2005). Seth recognizes the distinction, arguing in his brief that

the question is not whether he now has enough evidence but whether

he should be entitled to depose more witnesses in order to get it.

Rule 6 of the Rules Governing Section 2254 Cases provides

that in habeas proceedings "[a] judge may, for good cause,

authorize a party to conduct discovery under the Federal Rules of

Civil Procedure and may limit the extent of discovery." Bracy v.

Gramley,

(1997), stated that "[a] habeas

petitioner, unlike the usual civil litigant in federal court, is

-11- not entitled to discovery as a matter of ordinary course." Quoting

Harris v. Nelson,

(1969), the Court explained:

[W]here specific allegations before the court show reason to believe that the petitioner may, if the facts are fully developed, be able to demonstrate that he is . . . entitled to relief, it is the duty of the court to provide the necessary facilities and procedures for an adequate inquiry.

Bracy,

.

However, Bracy also said that "the scope and extent of

such discovery is a matter confided to the discretion of the

District Court."

. Since the 1996 statutory changes,

circuit courts have continued to apply Bracy. E.g., Newton v.

Kemna,

(8th Cir.), cert. denied,

(2004) (denial of discovery reviewed "for an abuse of discretion");

Pham v. Terhune,

(9th Cir. 2005) (same).

In this case the context for the district judge's

decision on discovery is that the state court had found there was

no evidence of an agreement. What Seth's habeas counsel recently

found was evidence of a specific meeting between Joseph's lawyers

and the prosecutors. But all this shows is an occasion on which a

leniency-for-testimony agreement might have been made or disclosed.

And, when the three social workers were deposed, they said there

was no agreement made or disclosed at the meeting. This was hardly

clear and convincing evidence that the state finding had been

wrong.

-12- Just as the district judge had latitude to allow initial

discovery as to the previously unknown meeting, he also had

latitude to call a halt when three disinterested witnesses said

that no such agreement had been made. As Seth stated in his

discovery plan: "The prosecutor is unlikely to change his story

unless confronted with detailed accounts of the meeting by other

participants." The detailed accounts turned out to support the

prosecutors' prior consistent denials.

Seth also attacks the district judge's alternative ground

for bringing matters to a close, namely, that Joseph could not have

been influenced in his testimony by a deal of which he was unaware.

This inference may go too far: a promise to Joseph of leniency in

exchange for testimony would be the best basis for discrediting

Joseph. But, even if Joseph were unaware of a commitment only to

his lawyers, they might have encouraged him to help the government.

Yet this qualification is dwarfed by the reality that

regardless of any "agreement," secret or otherwise, Joseph already

had ample reason to tailor his testimony to please the prosecutor:

his plea was before Seth's trial, disposition came afterwards, and

Joseph had reason to please prosecutors who might have a persuasive

voice as to his sentence. But all this was known at the time of

Seth's trial and Joseph was subject to full cross-examination as to

the details of his testimony and his own motives in helping the

prosecution. See Kyles v. Whitley,

(1995)

-13- (noting that the government's non-disclosure of evidence must have

had a "substantial and injurious effect or influence in determining

the jury's verdict").

Faced with conflicting stories, the jury chose to believe

Joseph. Whether a secret leniency agreement, unknown to Joseph,

would have added much to available impeachment, may be open to

doubt. But in any event, the district judge did not abuse his

discretion in limiting discovery.

Affirmed.

-14-