Holberg v. Guerrero
U.S. Court of Appeals for the Fifth Circuit
Holberg v. Guerrero, 130 F.4th 493 (5th Cir. 2025)
Holberg v. Guerrero
Opinion
Case: 21-70010 Document: 246-1 Page: 1 Date Filed: 03/07/2025
United States Court of Appeals
for the Fifth Circuit
____________
United States Court of Appeals
Fifth Circuit
No. 21-70010
____________
FILED
March 7, 2025
Brittany Marlowe Holberg, Lyle W. Cayce
Clerk
Petitioner—Appellant,
versus
Eric Guerrero, Director, Texas Department of Criminal Justice,
Correctional Institutions Division,
Respondent—Appellee.
______________________________
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 2:15-CV-285
______________________________
Before Higginbotham, Higginson, and Duncan, Circuit Judges.
Patrick E. Higginbotham, Circuit Judge:
Brittany Marlowe Holberg was 23 years old when she was sentenced
to death for capital murder by a jury in Amarillo, Texas. Holberg has spent
the last 27 years of her life on death row, contending that the State of Texas
violated her right to due process when it chose to disobey the commands of
Brady v. Maryland, 373 U.S. 83 (1963), and failed to disclose impeachment
evidence that its critical trial witness was a paid informant. Under Brady and
its progeny, we REVERSE and VACATE Holberg’s conviction, and
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REMAND the case to the district court for further proceedings consistent
with this opinion.
We pause only to acknowledge that 27 years on death row is a reality
dimming the light that ought to attend proceedings where a life is at stake, a
stark reminder that the jurisprudence of capital punishment remains a work
in progress. The death penalty itself has traversed a torturous path in this
country, dragging Ms. Holberg along with it. From the return of capital
punishment in the Seventies—paired with a veritable flood of habeas
petitions—came attendant efforts to temper the flow. 1 In the service of
federalism and management, Congress enlisted the aid of the lower federal
courts by routing review of state decisions to the district courts through the
gates of the Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”). Yet capital punishment cannot survive without adherence to
the fundamental constitutional girds securing the right to trial by jury. Ms.
Holberg’s 27 years on death row is a showcase of the State’s failure to abide
by a core structure of prosecution: the Brady doctrine.
I.
A.
This is the story of Brittany Marlowe Holberg, a bright young woman
who—after a childhood and adolescence marked by repeated sexual abuse
and trauma—fell into the iron grip of crack cocaine and turned to prostitution
to support her addiction. 2
_____________________
1
This included a brief flirtation with prospective-only rulings that would confine
prisoners to the law in place when their cases are final. See generally Teague v. Lane, 489
U.S. 288 (1989).
2
The district court below issued an appendix to its decision outlining the severe
and pervasive sexual trauma and substance abuse of Holberg’s young life and urging Texas
to consider clemency. See Appendix, Holberg v. Davis, No. 2:15-CV-285-Z, 2021 WL
2
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On November 13, 1996, after ten consecutive days of a high on crack
cocaine, Holberg had a minor traffic accident and sought refuge in the
apartment of a former customer, A.B. Towery, Sr. A heated argument
followed that quickly turned violent, leaving Towery dead with stab wounds
and part of a lamp in his throat, and with Holberg leaving the apartment cut
and bruised, bleeding from the head where Towery struck her and tore out
clumps of her hair. A crime scene investigation was performed on November
14 and an autopsy report completed on November 15.
Holberg was arrested in Memphis, Tennessee in February 1997 and
was extradited to Amarillo, Texas, where she was held in the Randall County
Jail. There, the local District Attorney’s Office unsuccessfully approached
multiple inmates, including Holberg’s cellmates, to question them about
Holberg and offered them deals in exchange for their testimony against her. 3
The prosecution also attempted to feed them false narratives. One of
Holberg’s cellmates, Lynette Tucker, stated that she “never heard [Holberg]
boast about the death of A.B. Towery[,]” but that the prosecution told her
_____________________
3603347, at *151-52 (N.D. Tex. Aug. 13, 2021). As the district court noted, “[a]lmost every
man in Holberg’s life prior to her arrest treated her as a sexual object[,]” and Holberg was
exposed to “rampant abuse of prescription medication and illicit drugs” by her family at a
young age. Id.
3
Ella Gibbs, who ran weekly Bible study at Randall County Jail, stated in an
affidavit that prior to trial, “several of the ladies in the Bible study were upset because they
were being pulled out of their cell to be questioned about Brittany. I learned that the inmates
were being asked if they were afraid of Brittany; and they were being offered ‘deals’ if they
could help the prosecution. Many of the inmates told me that they told the prosecutor they
thought highly of Brittany and could give favorable testimony for Brittany.” Furthermore,
Lynette Tucker, a cellmate of Holberg’s while Holberg was waiting to go to trial for capital
murder, stated in her affidavit: “I was approached twice by the people from the District
Attorney’s Office to give testimony against Brittany. . . . I know there were other girls in
jail that were getting approached by the prosecution also.”
3
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that “it would be in [her] best interest” “to say [she] knew [Holberg] longer
than [she] did, and that [Holberg] bragged about the killing.”
About three months after Holberg’s arrest, in May 1997, Vickie Marie
Kirkpatrick was arrested for felony burglary. At the time, Kirkpatrick was
working as a confidential informant for Corporal Eddie Stallings of the City
of Amarillo police and was placed in the same cell as Holberg. Just two days
later, Kirkpatrick produced her statement to the Amarillo police detailing
Holberg’s alleged admission. Crucial details in Kirkpatrick’s affidavit
corroborated findings from the autopsy report and the crime scene
investigation, which had been with law enforcement for six months. 4
That same day, Corporal Stallings secured a dismissal of a criminal
trespass charge against Kirkpatrick and helped her gain release on bond. But
Corporal Stallings left the felony burglary charge pending until after
Kirkpatrick testified against Holberg at trial.
B.
At trial, Holberg stated that she had an ongoing relationship with
Towery in which “sexual favors [were] exchanged for money[,]”and that
there were times when “he got angry” and frightened her. According to
Holberg, Towery would get angry if he “had a hard time performing” or if
he thought she was on drugs when with him.
Regarding the encounter, Holberg asserted that she acted in self-
defense when Towery attacked her, testifying to the following sequence of
events. High on crack cocaine, Holberg wrecked her car and sought refuge in
Towery’s apartment, meeting him by the gate as he was coming back with
_____________________
4
Such details included the fact that a fork and a lamp were used as weapons in the
struggle, and the fact that some blood-soaked bills were found at the crime scene.
4
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groceries. Towery invited her into his home, and began unpacking his
groceries. When he later saw her crack pipe in his kitchen, he became angry,
screaming: “You stupid bitch, whore. What do you want? You want money?
Is that what you want to do so you can smoke the rest of the day away?”
Holberg then heard Towery approaching her from behind and the next
thing she knew, he struck her on the back of her head, then shoved her to the
floor. At some point during the struggle, Towery pulled money out from his
wallet and threw it at her. When Towery pulled Holberg by her hair and
refused to stop—even after Holberg had asked him to let her go—Holberg
stabbed him to protect herself, fearing for her life. Holberg denied that she
killed Towery for his money and drugs, but testified that she took the money
thrown at her. The evidence is that high on crack cocaine, Holberg gained the
edge and in the frenzy of the fight, repeatedly struck Towery, and in her own
words: “I lost it.”
To challenge Holberg’s account of self-defense and to advance its
robbery theory, the prosecution called Kirkpatrick to the stand. Kirkpatrick
testified that Holberg admitted to killing Towery; that she stabbed him with
a fork; that she had stuck the lamp down Towery’s throat because she got
tired of hearing him make “gurgling” or “gagging” noises; that she initiated
the altercation with Towery in order to get money for a “fix”; that Holberg
thought the “fountain” of blood was “pretty,” “fun,” and “amazing”; and
that Holberg would do it all over again for more drugs, a remarkable draw
upon the autopsy report as read by the prosecution.
Holberg, however, testified that she never spoke with Kirkpatrick
while in jail; that Towery initiated the violent struggle; and that instead of the
euphoria Kirkpatrick depicted, she was “afraid,” “terrified,” and could not
breathe throughout her violent struggle with Towery. Melissa Wisemen, a
cellmate of Holberg and Kirkpatrick’s at the Randall County Jail, also
5
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testified and supported Holberg’s assertion, stating that the cellmates “were
all in [the cell] at the same time” and that she did not “ever hear a
conversation between Ms. Holberg and Ms. Kirkpatrick where Ms. Holberg
was describing committing acts against Mr. Towery[.]”
Besides Holberg’s own description of the events, Kirkpatrick
provided the sole testimony of what happened inside Towery’s apartment.
The prosecution pointed to additional circumstantial evidence—such as the
amount of money on Holberg’s person after exiting Towery’s apartment,
prescriptions missing from Towery’s apartment, and the rifled contents of
Towery’s wallet—to argue Holberg killed Towery while robbing him. The
jury convicted her of murder and sentenced her to death. 5
C.
Holberg, her counsel, and hence the Amarillo jury had no knowledge
that Kirkpatrick was a confidential informant for Corporal Stallings; that in
the months leading up to Holberg’s alleged confession, Kirkpatrick had
almost daily contact with Corporal Stallings, who paid her $100 for each drug
buy; that he paid her thousands of dollars to make drug buys; and that
Kirkpatrick helped the Amarillo police run approximately 40 search warrants
and secure multiple convictions.
Indeed, during a trial of Kirkpatrick’s after Holberg was sentenced to
death, Robert Love, one of the prosecutors in Holberg’s case, repeatedly
referred to Kirkpatrick as a “confidential informant,” and Corporal Stallings
admitted that Kirkpatrick “helped [the department]” on “many, many
things.” Before testifying against Holberg, Kirkpatrick wrote to the judge
_____________________
5
See State v. Holberg, 38 S.W.3d 137(Tex. Crim. App. 2000) (published in part), cert. denied,534 U.S. 972
(2001).
6
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handling her burglary charge, touting her informant work as a reason why the
judge should give her probation.
At the time of Holberg’s trial, the State knew about Kirkpatrick’s
confidential informant work for the Amarillo police but presented her to the
Amarillo jury as a disinterested individual who “wanted to do the right
thing” and was attempting to be “as truthful . . . and complete as [she] could
be[.]” The State did not disclose Kirkpatrick’s work as a paid informant until
after Holberg was sentenced to death. Holberg’s counsel’s cross-
examination of Kirkpatrick spanned only six pages of the trial transcript, a
reality that speaks volumes.
Then, during Holberg’s post-conviction state habeas proceedings,
Kirkpatrick—in a 2011 deposition—recanted her testimony at Holberg’s
trial, asserting that the State used her pending burglary charge as leverage to
ensure her testimony at Holberg’s trial. Specifically, Kirkpatrick stated that
then-District Attorney James Farren coached her statements at Holberg’s
trial, and that Farren both “threatened to send Kirkpatrick to jail if she did
not give him what he wanted but also offered her a deal if she cooperated.”
Kirkpatrick also stated that “Holberg seemed remorseful and sad about
[Towery’s] death”, and that Holberg never used the descriptors “fountain,”
“pretty,” “fun,” or “amazing” when discussing the murder.
This narrative, which the jury did not hear, razes Kirkpatrick’s
credibility: either her testimony at trial was supplied by the State, or her
recantation was a lie. Against this context, the State’s intentional
nondisclosure of Kirkpatrick’s informant status strikes at the heart of the
jury’s conviction, and most assuredly its sentence of death.
II.
Consistent with AEDPA, Holberg has challenged her conviction and
7
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sentence on multiple grounds in the proper state and federal forums. 6 After
each denied all of Holberg’s claims, we granted a Certificate of Appealability
for two of her claims. 7
First, Holberg asserts that as the State suppressed evidence that its
most critical witness, Kirkpatrick, worked as a paid informant for law
enforcement, she is entitled to relief under Brady v. Maryland 8 and related
cases. Second, Holberg argues that her trial counsel failed to investigate and
present compelling mitigation evidence at the sentencing phase, entitling her
to relief under Strickland v. Washington 9 and its progeny. Finding the Brady
claim dispositive, we focus on that issue.
In affirming Holberg’s conviction on direct appeal, the Texas Court
of Criminal Appeals recognized that Kirkpatrick was “a key prosecution
witness,” adopting crucial parts of her testimony in its final order. 10
Incorporating the state trial judge’s determinations, however, the Texas
Court of Criminal Appeals denied Holberg’s Brady claim, finding that
“Holberg’s allegations regarding Kirkpatrick have no merit.” Specifically,
the state court emphasized the absence of a plea agreement between the State
and Holberg, the prosecutor’s testimony that Kirkpatrick “did not ask for
any kind of deal” for testifying against Holberg, that “the State did not refer
to Kirkpatrick’s testimony in its closing argument at the punishment
_____________________
6
See 28 U.S.C. § 2254(b).
7
Holberg v. Lumpkin, No. 21-70010, 2023 WL 2474213 (5th Cir. Mar. 13, 2023)
(per curiam).
8
373 U.S. 83 (1963).
9
466 U.S. 668, 691 (1984).
10
Holberg, 38 S.W.3d at 139.
8
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phase[,]”and Kirkpatrick’s testimony that she “did not testify at Holberg’s
trial thinking that it would help her get a better deal on her own charges[.]” 11
In the federal habeas proceedings, the able district court concluded
that although Holberg had properly exhausted her Brady claim as required by
AEDPA, she was not entitled to relief. Specifically, the federal district court
found that Holberg’s Brady claim “would have backfired because trial
counsel knew there was no deal” between Kirkpatrick and the prosecution at
the time of Kirkpatrick’s testimony, and that disclosing Kirkpatrick’s
confidential informant status would have merely allowed the prosecution to
further bolster Kirkpatrick’s testimony. The prosecution would have
emphasized to the jury that Kirkpatrick was only testifying for altruistic
reasons—not pursuant to some deal—and that she was a “trusted”
informant with a reputation in the community for truth. Ultimately, the
district court held that, under Brady, the state habeas court could reasonably
conclude Holberg failed to demonstrate that Kirkpatrick’s informant status
was favorable or material in a way that would undermine confidence in the
verdict.
On appeal, Holberg reasserts her constitutional challenge, arguing
that the State violated her due process rights under Brady when it failed to
disclose Kirkpatrick’s status as a confidential informant.
_____________________
11
Looking at the state habeas court’s reasoning, we note that the state court’s
analysis regarding Kirkpatrick’s testimony conflates Holberg’s Brady violation claim with
Holberg’s claim that the State intentionally elicited misleading testimony from Kirkpatrick,
and uses the same factual findings to conclude that Holberg’s Brady claim regarding
Kirkpatrick had no merit. While the state habeas court identified the standard for
establishing a Brady violation, it did not apply the legal framework to explain why “Holberg
has failed to show that the State violated its obligation under Brady v. Maryland.”
9
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III.
A.
After exhausting their claims in state court, prisoners turning to
federal court must overcome the relitigation bar of AEDPA. 12 That is, this
court must show “AEDPA deference”. Under this congressionally-
mandated standard, we defer to a state court decision unless it “[1] was
contrary to, or [2] involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the United States[.]” 13
While the first exception—the “contrary to” prong—is narrower in
its reach, the second exception is still quite demanding. 14 Under the second
exception, it is not enough that a federal court disagreed with the state court
as a matter of its independent judgment. Rather, the second exception asks
whether the state court’s determination was unreasonable, beyond any
possibility of fair-minded disagreement. 15
B.
Assuming a prisoner overcomes AEDPA’s relitigation bar,
successful Brady violations provide grounds for habeas relief. In Brady, the
Supreme Court held that “the suppression by the prosecution of evidence
_____________________
12
See 28 U.S.C. § 2254(b); Langley v. Prince,926 F.3d 145, 155
(5th Cir. 2019) (en
banc).
13
“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 . . . 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[.]” 28 U.S.C. § 2254(d)(1).
14
Langley, 926 F.3d at 155–56.
15
See id. at 156; see also Shoop v. Hill, 586 U.S. 45, 48 (2019) (per curiam).
10
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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.” 16 The purpose of Brady and its progeny is to
ensure that “criminal trials are fair[,]” 17 and “that a miscarriage of justice
does not occur.” 18 Placing the burden on prosecutors to disclose information
“illustrate[s] the special role played by the American prosecutor in the search
for truth in criminal trials”: a prosecutor must disclose evidence to the
defense because its interest “is not that it shall win a case, but that justice
shall be done.” 19
To succeed on a Brady claim then, a petitioner must establish that (1)
favorable evidence, (2) was suppressed and was relevant, and (3) that the
suppression was material or prejudicial to their case. 20 As the State rightfully
concedes that evidence of Kirkpatrick’s status as a confidential informant
was suppressed, we will consider only whether this evidence was favorable
and material to Holberg’s case.
Favorable evidence is “evidence tending to strengthen a defense[.]” 21
“[T]he character of a piece of evidence as favorable will often turn on the
_____________________
16
Brady, 373 U.S. at 87.
17
Id.
18
United States v. Bagley, 473 U.S. 667, 675 (1985).
19
Strickler v. Greene, 527 U.S. 263, 281 (1999).
20
See id. at 281–82 (“The evidence at issue must be favorable to the accused, either
because it is exculpatory, or because it is impeaching; that evidence must have been
suppressed by the State, either willfully or inadvertently; and prejudice must have
ensued.”).
21
Floyd v. Vannoy, 894 F.3d 143, 163(5th Cir. 2018) (citing Cone v. Bell,556 U.S. 449, 470
(2009)).
11
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context of the existing or potential evidentiary record.” 22 Over a decade
before Holberg’s trial, the Supreme Court held in United States v. Bagley that
favorable evidence includes impeachment evidence. 23 Because impeachment
evidence is “evidence favorable to the accused,” for many years now it has
been well-established federal law that impeachment evidence “falls within
the Brady rule.” 24 The Supreme Court has emphatically “disavowed any
difference between exculpatory and impeachment evidence for Brady
purposes[.]” 25
As to the materiality element, “evidence 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.” 26 The touchstone of the materiality analysis is “a reasonable
probability of a different result,” such that “the government’s evidentiary
suppression undermines confidence in the outcome of the trial.” 27 The Brady
materiality analysis is “not considered in the light of the probability of
acquittal”28 and instead simply asks whether there is a reasonable probability
_____________________
22
Kyles v. Whitley, 514 U.S. 419, 439 (1995).
23
473 U.S. at 676(“Impeachment evidence, however, as well as exculpatory evidence, falls within the Brady rule. . . . Such evidence is ‘evidence favorable to an accused[.]’” (citing Giglio v. United States,405 U.S. 150, 154
(1972); Brady,373 U.S. at 87
)).
24
Id.
25
Kyles, 514 U.S. at 433.
26
Bagley, 473 U.S. at 682.
27
Kyles, 514 U.S. at 434(citing Bagley,473 U.S. at 678
) (cleaned up).
28
Floyd, 894 F.3d at 166(citing Bagley,473 U.S. at 680
; Wearry v. Cain,577 U.S. 385, 392
(2016)) (emphasis in original).
12
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that the resulting proceeding “would have been different.” 29 Materiality “is
not a sufficiency of evidence test.” 30
IV.
Holberg contends she is entitled to relief under Brady because the
evidence of Kirkpatrick’s informant status was favorable to Holberg,
suppressed by the State, and material to her conviction and sentence. We find
that Holberg is entitled to relief under Brady—and in doing so—find that the
state habeas court’s decision to the contrary was an unreasonable application
of clearly established Supreme Court law.
A.
Holberg argues that Kirkpatrick’s status as a confidential informant
for the City of Amarillo police is favorable evidence, a reality the State
properly conceded. Counsel for the State, when questioned about whether
Kirkpatrick’s status as a confidential informant would have been favorable
bias evidence to cross-examine and impeach Kirkpatrick, said that “in
fairness, Your Honor, I think it would be favorable.” 31 We agree.
This evidence would have strengthened Holberg’s defense at trial. 32
Specifically, Holberg’s counsel could have pointed to a trove of suppressed
evidence to impeach Kirkpatrick. Holberg’s counsel could have introduced
_____________________
29
Youngblood v. West Virginia, 547 U.S. 867, 870(2006) (per curiam) (quoting Strickler,527 U.S. at 280
).
30
Kyles, 514 U.S. at 434.
31
Oral Argument at 40:30–42:00.
https://www.ca5.uscourts.gov/OralArgRecordings/21/21-70010_6-5-2024.mp3.
32
See Floyd, 894 F.3d at 163(holding that evidence of impeachment was favorable); see alsoid.
(“[T]he Court has held evidence impeaching a prosecution witness is favorable Brady evidence.”) (citing Bagley,473 U.S. at 676
).
13
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the evidence of Kirkpatrick’s work for the City of Amarillo, including the
approximately 40 search warrants and multiple convictions secured; the
thousands of dollars she received as cash payments for her information; her
daily communications with the Amarillo police department during the
months leading up to Holberg’s alleged confession; and the legal benefits
Corporal Stallings secured for Kirkpatrick on the same day she shared
Holberg’s alleged confession, which included a dismissal of a criminal
trespass charge and a release on bond. Instead of the six-page cross-
examination, Holberg’s counsel could have effectively cross-examined
Kirkpatrick and undermined the State’s only testimonial account of the
violent encounter.
The State emphasizes that Kirkpatrick was a paid informant in
“unrelated matters”. Because Kirkpatrick was only formally paid cash for
her assistance in unrelated cases, the State argues that Holberg’s facts are
distinct from those considered in Brady and Banks v. Dretke. 33 But the State’s
argument has no purchase. For decades, it has been established federal law
that impeachment evidence is favorable evidence under Brady’s
protections. 34 And as the Supreme Court recently stated, “certain principles
are fundamental enough that when new factual permutations arise, the
necessity to apply the earlier rule will be beyond doubt.” 35 Indeed,
Kirkpatrick’s confidential informant status is classic favorable impeachment
evidence, and the state court unreasonably applied Brady and its progeny in
concluding otherwise. “Any reason to support a conclusion the evidence was
_____________________
33
540 U.S. 668 (2004).
34
See Bagley, 473 U.S. at 676.
35
Andrew v. White, 145 S. Ct. 75, 82 (2025) (cleaned up).
14
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not favorable to [Holberg] is contrary to Court precedent, and, therefore, an
unreasonable application of clearly-established federal law.” 36
B.
Finally, we consider whether any reasonable theory supported the
state court’s conclusion that the withheld evidence was collectively
immaterial. 37 After a careful and deferential review of the record and the
findings below, we find that if the State had disclosed Kirkpatrick’s status as
a confidential informant, there is a reasonable probability that the result of
Holberg’s proceedings would have been different.
1.
Holberg was convicted and sentenced to death for capital murder in
the course of committing or attempting to commit robbery. Kirkpatrick’s
testimony was critical to the State’s case, providing the supporting evidence
for the robbery, undercutting Holberg’s account of self-defense, and painting
her as an unremorseful addict who posed a continued threat to society. In
fact, the State represented, on direct appeal, that Kirkpatrick’s testimony
was “direct evidence” that “alone” proved Holberg committed the murder
in order to “get [Towery’s] money and to get drugs.”
Furthermore, Kirkpatrick’s testimony was the State’s only evidence
to assert that Holberg took pleasure in the gruesome act. These details
include Holberg’s statements to Kirkpatrick that “she’d do anything to get
her drug money[,]” that “if she had to do it all over again . . . she would,”
that Towery’s blood “looked real pretty like a fountain,” and that Holberg
shoved the lamp down Towery’s throat to stop his gagging noises.
_____________________
36
Floyd, 894 F.3d at 163.
37
Id.at 165 (citing Kyles,514 U.S. at 436
).
15
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2.
Despite the dissent’s assertion that the State disavowed such
statements as “jailhouse talk,” 38 the prosecution relied on the “talk”
throughout both the guilt and punishment phases of the trial.
During the guilt phase of Holberg’s trial, the lead prosecutor explicitly
drew on Kirkpatrick’s testimony in his opening statement and used
Kirkpatrick’s version of the murder to describe the violent struggle,
comment on Holberg’s mens rea, and challenge Holberg’s credibility as a
witness. Specifically, the prosecutor cited Kirkpatrick’s testimony that
Holberg used the lamp to stop Towery’s gagging noises, that Holberg was
“amazed” by the “fountain” of blood, that Holberg would do “anything to
get her drug money,” and that Holberg had lied to Kirkpatrick about her
sexual relationship with Towery. The prosecutor ended his opening by telling
the jury that they would “hear [Towery’s] gagging noises, not in this
courtroom, but in [their] thoughts, [their] sleep and in [their] dreams maybe
for the rest of [their] lives.”
While cross-examining Holberg, the prosecution used Kirkpatrick’s
testimony to challenge her testimony that she did not plan to use the lamp to
kill Towery and to undercut Holberg’s denial that she would do “anything”
to get her drug money. 39 At closing, the prosecution again leveraged
Kirkpatrick’s testimony to maintain that Holberg admitted to killing Towery
for a fix and showed no remorse. And during the State’s rebuttal, the
_____________________
38
Post, at 36.
39
Holberg testified that she would not do “anything” for drugs. She stated: “No,
I would not hurt somebody for my addiction, I hurt myself. I never beat any of those pimps,
I never beat any of those people. I ran from people. I was scared”.
16
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prosecution asserted “Kirkpatrick is telling the truth” and that Holberg
“really did talk to Ms. Kirkpatrick and she really did tell her these things.”
3.
The State continued to rely on Kirkpatrick’s testimony during the
punishment phase of Holberg’s trial. “In Texas, capital cases require
bifurcated proceedings—a guilt phase and a penalty phase. If the defendant
is found guilty, a separate proceeding before the same jury is held to fix the
punishment.” 40 During the penalty phase, the jury answered the following
two questions:
(1) Do you find from the evidence beyond a reasonable doubt
that there is a probability that the Defendant, BRITTANY
MARLOWE HOLBERG aka BRITTANY MARLOWE
JOHNSON, would commit criminal acts of violence that
would constitute a continuing threat to society?
(2) Taking into consideration all of the evidence, including the
circumstances of the offense, the defendant’s character and
background, and the personal moral culpability of the
defendant, do you find that there is sufficient mitigating
circumstance or circumstances to warrant that a sentence
of life imprisonment rather than a death sentence is
imposed? 41
If the jury returns a unanimous finding on the first question and a
unanimous negative finding on the second question, then “the court shall
sentence the defendant to death.” 42 If at least one juror disagrees as to either
question, then the death sentence is precluded.
_____________________
40
Estelle v. Smith, 451 U.S. 454, 457 (1981).
41
See also TEX. CODE CRIM. PROC. ANN. art. 37.071 (West); 1991 Tex. Sess. Law
Serv. 2898-99 (West).
42
Id.
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While Holberg’s trial was conducted in two phases, the State re-
offered all the admitted evidence in the guilt phase at the beginning of the
sentencing phase. Kirkpatrick’s testimony—again, the State’s only evidence
that Holberg enjoyed the violent encounter—was critical to the jury’s
unanimous affirmative finding on the first question in the punishment phase
of Holberg’s trial: whether Holberg “would commit criminal acts of violence
that would constitute a continuing threat to society”.
The force of Kirkpatrick’s testimony was demonstrated by its use in
the hypothetical posed to the State’s expert psychiatrist, Dr. Coons. The
prosecution referred to Kirkpatrick’s statements when it laid the foundation
for Dr. Coons, stating:
And that finally at some point while [Towery] was probably still
alive, I want you to assume that an eleven and a half inch lamp
stand, a pole-like object with a round plate was jammed down
his throat with what the pathologist described as significant
force, some five inches down his throat. I want you to assume
that the Defendant, Ms. Holberg, in some five or six different
versions of what occurred, told at least one person that
[Towery] was making some kind of a gagging sound and that
she shoved the lamp down his throat to stop the noise.
Dr. Coons, in turn, used such statements to conclude that there was a
probability that Holberg “would commit criminal acts of violence in the
future which could constitute a continuing threat to society[,]” stating that
“the gratuitous lamp down the throat” spoke of “intensity, anger, [and]
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violence[,]” 43 and was “unnecessary” and “overkill.” 44 Relying on the
State’s hypothetical, Dr. Coons concluded that although there appeared to
be “an easy opportunity to get away[,]” the violence was “carried on to a
conclusion.” The State, in its closing arguments of the punishment phase,
emphasized Dr. Coons’s testimony in imploring the jury to find that Holberg
would continue to commit criminal acts of violence. And the jury ultimately
did.
4.
Kirkpatrick’s testimony was material because defense counsel was
effectively deprived of the opportunity to impeach her during trial. The
Supreme Court has recognized that witnesses who are compensated for their
testimony have acute incentive to lie. 45 Despite this incentive, the Court has
concluded this testimony may be presented to the jury because the jury can
weigh a witness’s credibility when their status as a paid informant is
disclosed, that status is subject to rigorous cross examination, and the jury
receives a clear instruction to be cautious when weighing such testimony. 46
_____________________
43
“The opinion based on that hypothetical is that there is a probability that that
person would commit criminal acts of violence in the future which would constitute a
continuing threat to society. . . . And then, the gratuitous lamp down the throat, that just
speaks intensity, anger, violence with defensive wounds, and so forth, where, if the
hypothetical is correct, an easy opportunity to get away as opposed to going through all of
that. Instead, it’s carried on to a conclusion.”
44
“Well, there shouldn’t be any question about violence. . . . I would say there is
more there than is necessary. . . . I suspect that the lamp stand was unnecessary. At least
that.”
45
See Hoffa v. United States, 385 U.S. 293, 311 (1966).
46
Id.(“The established safeguards of the Anglo-American legal system leave the veracity of a witness to be tested by cross-examination, and the credibility of his testimony to be determined by a properly instructed jury.”); On Lee v. United States,343 U.S. 747, 757-58
(1952) (“The use of informers, accessories, accomplices, false friends, or any of the
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Kirkpatrick’s testimony—and what Holberg allegedly told her in the
jail cell—turned on her credibility. Though Kirkpatrick asserted at trial that
Holberg was the source of her information, the jury was not presented with
the possibility that her statements were cultivated by the prosecution. The
jury’s ability to weigh Kirkpatrick’s credibility against the information
elicited by defense counsel was only as effective as the information provided
to them. As such, we are persuaded that had Kirkpatrick’s informant status
been disclosed, defense counsel could have challenged Kirkpatrick’s
credibility and the true source of her statements so as to raise “a reasonable
probability that at least one juror would have struck a different balance.” 47
In light of Kirkpatrick’s role as a key prosecution witness, one that
supplied the State’s only testimonial account of the violent encounter and
the “direct evidence” of the alleged robbery, “there is no sound theory,
considering the record as a whole, to support the conclusion that the
evidence” of Kirkpatrick’s suppressed status as a confidential informant did
not reasonably affect Holberg’s trial.48 The state court’s finding of
_____________________
other betrayals which are ‘dirty business’ may raise serious questions of credibility. To the
extent that they do, a defendant is entitled to broad latitude to probe credibility by cross-
examination and to have the issues submitted to the jury with careful instructions.”);
Banks, 540 U.S. at 702(“Jurors suspect [informants’] motives from the moment they hear about them in a case, and they frequently disregard their testimony altogether as highly untrustworthy and unreliable . . . . ”) (quoting Stephen Trott, Words of Warning for Prosecutors Using Criminals as Witnesses, 47 HASTINGS L.J. 1381, 1385 (1996))); cf. United States v. Cervantes-Pacheco,826 F.2d 310, 315-316
(5th Cir. 1987) (en banc) (stressing that
guardrails are in place to protect criminal defendants in context like these).
47
Wiggins v. Smith, 539 U.S. 510, 537(2003). See also TEX. CODE. CRIM. PROC. ANN., art. 37.071, § 2(b)(1);1991 Tex. Sess. Law Serv. 2899
(West).
48
Floyd, 894 F.3d at 167.
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immateriality is an unreasonable application of clearly established Supreme
Court law. 49
5.
The federal district court, however, found that the suppression of the
evidence did not prejudice Holberg because there was no formal deal for this
case in place at the time of trial, and Kirkpatrick’s impeachment would have
only empowered the State to bolster Kirkpatrick as a reliable confidential
informant. This analysis misses the mark on materiality.
First, the federal district court’s potential bolstering reasoning is
dubious in light of the State’s own view of Kirkpatrick. In the immediate
aftermath of Holberg’s trial, the State did not vouch for Kirkpatrick’s
credibility but savaged it. Mr. Love, who prosecuted both Holberg and
Kirkpatrick, argued in Kirkpatrick’s burglary case, barely a month after
Holberg was sentenced to death, that “Ms. Kirkpatrick has lied throughout
her entire testimony, and in fact, was caught in a lie before she got up on the
witness stand today until I pointed it out to her and her attorney that she had
had a previous[] felony conviction.”
Second, and more importantly, materiality simply requires showing
there is a reasonable probability that the result of Holberg’s proceedings
would have been different. 50 We ask only whether it is reasonably probable
_____________________
49
We acknowledge the recent Supreme Court case, Andrew v. White, which
vacated the lower court’s judgment regarding the possibility of unduly prejudicial evidence
that violates the Due Process Clause of the Fourteenth Amendment. 145 S. Ct. 75 (2025).
Here, the non-admission of evidence at trial is itself a violation of the Constitution.
Furthermore, this is not a case of a court’s self-judgment of evidence. Instead, this is a case
of withheld evidence, and the ability of defense counsel—armed with this evidence—to
effectively argue its case to the jury.
50
Kyles, 514 U.S. at 434–35.
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that denying defense counsel the undisputed fact that Kirkpatrick was a paid
informant and that the State held the future sentence of her burglary charge
over her head for the trial would have impacted the trial outcome.
The State also points to Holberg’s own “damaging” testimony to
argue that withholding Kirkpatrick’s status as a confidential informant was
not prejudicial. The State’s observation, alas, fails to account for the real
possibility that Holberg may have never testified were it not for Kirkpatrick’s
testimony. More importantly, as this Circuit has previously held, even if the
state court could have concluded that the jury could still have convicted
Holberg based on her own testimony, “that, too, would be an unreasonable
application of Supreme Court law. Materiality is not a sufficiency of evidence
test.” 51 Again, Brady is not a sufficiency of evidence analysis; it instead
requires asking whether there is a reasonable probability that the outcome
would have been different. We find that it is reasonably probable that defense
counsel’s impeachment of Kirkpatrick during trial would have undermined
the jury’s confidence in the State’s argument. Had the suppressed
information been disclosed, defense counsel could have mounted a more
fulsome argument that the jury should discredit Kirkpatrick’s testimony.
V.
With all due respect, our able colleague steps past the salient issue in
his dissent: the prosecution’s reliance upon the credibility of Kirkpatrick’s
testimony while withholding from defense counsel that she was a paid
informant placed in Holberg’s cell on her arrest, taking only two days to
report Holberg’s confession to the killing and embellishing details of
Holberg’s delight in the “fountain” of blood her blows produced. The
dissent argues that the State’s failure to disclose had no salience as the State
_____________________
51
Floyd, 894 F.3d at 167(quoting Kyles,514 U.S. at 434
) (cleaned up).
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produced a “mountain of evidence” of the brutality of the killing for which
Kirkpatrick was not the source. 52 With respect, the prosecution thought
otherwise, electing to disobey a fundamental tenet of criminal prosecution.
But the prosecution’s failure to disclose was no oversight. It was rather a
tactical decision in service of its reliance upon the credibility of Kirkpatrick
throughout the trial.
Both Brady and Giglio 53 respond to the real-world effects of
handicapping counsel in preparing the defense of the case. Did Holberg tell
Kirkpatrick that she enjoyed the fountain of blood, or was Kirkpatrick simply
enhancing her bargaining power in her then-ongoing negotiations of her
pending charges of burglary?
It bears emphasis that Kirkpatrick did not create her testimony on her
own. Unbeknownst to the jury, Kirkpatrick’s statements were compensated
by the State, and it intentionally withheld the information. The prosecution
went to great lengths to obtain Kirkpatrick’s testimony: six months passed
between the State’s initial investigation into Towery’s death and
Kirkpatrick’s involvement in this case. The prosecution made multiple
attempts to secure testimony against Holberg from her cellmates, offering
them deals in exchange for false statements, to no avail. 54 But within two days
of placing Kirkpatrick in Holberg’s cell, the State received Holberg’s alleged
admission. The State compensated Kirkpatrick by dismissing her criminal
trespass charge and releasing her on bond. Critically, however, the State held
Kirkpatrick’s felony burglary charge over her head until after she had
testified against Holberg.
_____________________
52
Post, at 32.
53
405 U.S. 150 (1972).
54
Supra n.3.
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The dissent—in a footnote—dismisses Kirkpatrick’s 2011
recantation, stating that the state habeas court ruled that Kirkpatrick’s
recantation was not credible. 55 With deference to the state court, its
determination of Kirkpatrick’s veracity in the distinct environment of a
separate proceeding is, at best, further evidence that Kirkpatrick’s testimony
turned on its benefits to herself. In the words of the federal district court,
“Kirkpatrick is a liar.” It is undisputed that Kirkpatrick cut deals with the
State in exchange for protection from prosecution, and that the State relied
upon the testimony Kirkpatrick later recanted to bolster its case. Defense
counsel, however, was never given the opportunity to cross-examine
Kirkpatrick effectively and to develop the relationship between Kirkpatrick
and the State.
The dissent also argues that Kirkpatrick’s testimony was immaterial
as to Holberg’s sentencing, asserting that her testimony “played virtually no
role in the punishment phase.” 56 The dissent’s analysis of the trial transcript,
however, disregards the mechanics of the bifurcated trial in capital
punishment. The dissent cannot take a siloed view of the punishment phase,
especially as the State reintroduced all its guilt-innocence phase evidence—
including Kirkpatrick’s testimony—before the very same jury.
_____________________
55
Post, at 32 n.4.
56
Id. at 39-40. The dissent states that the only mention of Kirkpatrick made during
the prosecution’s punishment-phase was during the testimony of Katina Dixon (also
spelled “Katina Dickson” in the state habeas court’s opinion), a cellmate of Holberg and
Kirkpatrick who testified that Holberg asked Dixon to “shut [Kirkpatrick] up[.]” Id. The
dissent, however, overlooks that Dixon also stated that she did not believe Holberg
“mean[t] any harm,” asserting that Holberg “was just blowing off some steam” and that
“we all say things that we don’t mean to say[.]” Furthermore, as with Kirkpatrick,
Dixon—in her 2011 affidavit—later asserted that “Holberg never told her to shut
[Kirkpatrick] up,” and asserted that the State “told her to say that [Holberg] told her, ‘I
wish you would shut [Kirkpatrick] up.’”
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Furthermore, common experience supported by empirical studies
demonstrate that “evidence and arguments presented during the guilt phase
of a capital trial will often have a significant effect on the jurors’ choice of
sentence.” 57 As the State’s only testimonial account of the violent encounter,
Kirkpatrick’s testimony presented a gripping story. 58 Though Kirkpatrick
testified only in the guilt phase, the narrative force of her words had a lasting
impact on the jury, as it was Kirkpatrick alone who stated that Holberg
relished the violent act against Towery. The prosecution recognized this,
telling the jury that they would remember Kirkpatrick’s statements in their
“thoughts, [their] sleep and in [their] dreams maybe for the rest of [their]
lives.”
Our colleague in dissent underestimates the power of an advocate
armed with the evidence here illegally withheld and its impact on the trial.
That fatality is the driving force of the Brady doctrine itself. We highlight
here Glossip v. Oklahoma, the recent decision of the Supreme Court,
reversing and remanding the Oklahoma Court of Criminal Appeals’
judgment and ordering a new trial for defendant Richard Glossip. 59 The
Court found the jury’s credibility assessment of the prosecution’s star
witness “necessarily determinative” and the prosecution’s Napue v. Illinois,
360 U.S. 264 (1959), violation material—even though the jury was aware that
the witness in question was untrustworthy. 60 Here, the State succeeded in
_____________________
57
Strickler, 527 U.S. at 305 (Souter, J., concurring). See also Bowers, Sandys, &
Steiner, Foreclosed Impartiality in Capital Sentencing: Jurors’ Predispositions, Guilt-Trial
Experience, and Premature Decision Making, 83 CORNELL L. REV. 1476, 1486-1496 (1998).
58
Strickler, 527 U.S. at 307 (Souter, J., concurring). See also E. Loftus & J. Doyle,
Eyewitness Testimony: Civil and Criminal 5 (3d ed. 1997) (“[R]esearch re[s]oundingly
proves that the story format is a powerful key to juror decision making”).
59
No. 22-7466, 2025 WL 594736, at *3 (Feb. 25, 2025).
60
Id., at *11-12.
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blocking evidence undermining Kirkpatrick’s credibility. Given the
prosecution’s knowledge and nondisclosure of Kirkpatrick’s government
informant status, and the deal it struck with her including a ticket to avoid
jail, the prosecution had to know that there was—at best—a high risk of
presenting false testimony. We do not conflate Brady and Napue but only note
that this recent ruling reinforces that the ultimate decisions in capital cases
lie with the jury; practices that take that power from the jury to the
prosecution are forbidden. Brady and Napue hold hands in their efforts to
protect the jury in their decision-making and to preserve the fundamentals of
a fair trial.
The critical question here is whether there is a “reasonable probability
that, had the evidence been disclosed to the defense, the result of the
proceeding would have been different.” 61 And because Holberg’s conviction
required a unanimous jury recommendation, 62 materiality here requires only
“a reasonable probability that at least one juror” would have decided
differently. 63 Looking at these facts through the lens of a jury who was
deprived of this information, we find that at least one juror would have done
so. 64
VI.
There is a reason Brittany Marlowe Holberg has been on death row
for over 27 years. The State denied her right to due process by keeping from
_____________________
61
Bagley, 473 U.S. at 682.
62
TEX. CODE. CRIM. PROC. ANN., art. 37.071; 1991 Tex. Sess. Law Serv. 2898-99
(West).
63
Wiggins, 539 U.S. at 537.
64
We pause to note here that even if one assumes that the Brady violations were
not material as to Holberg’s conviction, they were as to her sentencing, a reality requiring
that Holberg’s death sentence be vacated and her case returned for further proceedings.
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the jury evidence favorable to the Defendant, and this suppression prejudiced
her case.
By the metric of AEDPA, fair-minded jurists could not disagree that
the state court’s denial of relief involved an unreasonable application of
clearly established Supreme Court law. For these reasons, we REVERSE
and VACATE Holberg’s conviction, and REMAND the case to the
district court for further proceedings consistent with this opinion.
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Stuart Kyle Duncan, Circuit Judge, dissenting:
The majority grants habeas to Brittany Holberg, who admitted over a
quarter century ago to butchering a sickly 80-year-old man named A.B.
Towery. Holberg claimed self-defense, but the jury didn’t buy it. No wonder
why. No jury in its right mind would believe that a 23-year-old cocaine-addled
prostitute “defended” herself against a frail old man by (1) stabbing him 58
times, (2) bludgeoning him with various objects including a steam iron, and
(3) ramming a lamp base down his throat while he was still alive. I will spare
you the crime scene photos of Towery’s ghastly injuries. But the jury saw
them. It also heard Holberg admit to inflicting each and every one of the
blows that turned Towery’s face into unrecognizable red pulp. So, it is not
hard to understand why the jury rejected Holberg’s self-defense theory as—
in the prosecutor’s words—“a lot of BS.” Nor is it hard to understand why
the jury sentenced Holberg to die.
Yet my colleagues now award Holberg a new trial on both guilt and
punishment. Why? Because the prosecution failed to disclose that one of its
witnesses, Vickie Kirkpatrick, previously acted as a police informant in
unrelated drug cases. Kirkpatrick testified that, when they were cell-mates,
Holberg admitted killing Towery for drugs, not in self-defense, and that she
enjoyed doing it. According to the majority, Holberg could have impeached
Kirkpatrick with the suppressed information, which could have led the jury
to credit her self-defense theory or, at least, spare her the death penalty.
The majority is mistaken. A defendant gets a new trial under Brady v.
Maryland, 373 U.S. 83 (1963), only if undisclosed evidence is “material.”
The Kirkpatrick evidence was not. Contrary to the majority’s insistence,
Kirkpatrick was by no means the prosecution’s “critical trial witness,” Op.
1, either as to guilt or punishment. To the contrary, a wealth of other powerful
evidence—evidence entirely unconnected to Kirkpatrick—obliterated
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No. 21-70010
Holberg’s self-defense claim and proved she robbed Towery after killing him.
And Kirkpatrick’s testimony played virtually no role at the punishment
phase. So, even had Kirkpatrick been impeached, there’s zero chance that a
jury would have credited Holberg’s laughable claim of self-defense or spared
her the death penalty for slaughtering a sick old man.
I.
The majority proceeds on the following assumptions: (1) Holberg
exhausted a Brady claim based on the prosecution’s failure to disclose that
Kirkpatrick acted as a police informant in unrelated drug cases, see Op. 10;
(2) the state habeas court denied this Brady claim on the merits, ibid.;
(3) AEDPA deference applies to the state habeas court’s decision, ibid.;
(4) the prosecution failed to disclose Kirkpatrick’s informant activities, id.at 6–8; (5) that evidence was favorable because Holberg’s attorneys could have impeached Kirkpatrick with it,id.
at 13–15.
I accept all those assumptions for present purposes. 1 Still, I disagree
with the majority’s conclusion that this undisclosed evidence was material
under Brady, either as to Holberg’s guilt or her eligibility for the death
_____________________
1
There is a strong argument, however, that this Brady claim was never raised on
state habeas and is now procedurally barred. See Davila v. Davis, 582 U.S. 521, 527(2017) (“[A] state prisoner must exhaust available state remedies before presenting his claim to a federal habeas court.”). Holberg points to two state habeas claims as exhausting this claim, but both are different—one claimed the prosecution knowingly presented false testimony from Kirkpatrick under Giglio v. United States,405 U.S. 150
(1972), and the other was a Brady claim concerning another witness, not Kirkpatrick. That said, procedural bar is no longer an issue because in supplemental briefing the State expressly waived the defense. See Carty v. Thaler,583 F.3d 244, 256
(5th Cir. 2009) (“A State shall not be deemed to have waived the exhaustion requirement or be estopped from reliance upon the requirement unless the State, through counsel, expressly waives the requirement.” (quoting28 U.S.C. § 2254
(b)(3))). Accordingly, I proceed on the assumption—shared by
both parties and the majority—that the Kirkpatrick-related Brady claim was exhausted in
state proceedings and ruled on by the state habeas court.
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penalty. A fortiori, I cannot accept the majority’s bottom-line holding that the
state habeas court’s rejection of this claim was an “unreasonable
application” of Brady under AEDPA. See 28 U.S.C. § 2254(d)(1).
II.
The core of the majority’s ruling is that the Kirkpatrick impeachment
evidence was material as to both guilt and punishment. As to guilt,
Kirkpatrick’s testimony went to (1) whether Holberg killed Towery in self-
defense and (2) whether Holberg robbed Towery during the killing. Op. 15.
As to punishment, Kirkpatrick’s testimony spoke to Holberg’s remorse (or
lack thereof) and future dangerousness. Id. at 17–19. In the majority’s view,
if Holberg could have exposed Kirkpatrick as a police informant in other
cases, it’s reasonable to think she would have been acquitted or at least
spared capital punishment. That is wrong.
Brady’s materiality standard is well-settled. “[E]vidence is ‘material’
within the meaning of Brady when there is a reasonable probability that, had
the evidence been disclosed, the result of the proceeding would have been
different.” Turner v. United States, 582 U.S. 313, 324(2017) (quoting Cone v. Bell,556 U.S. 449
, 469–70 (2009)). 2 A defendant need not show the jury would have reached a different verdict had the evidence been disclosed. Wearry v. Cain,577 U.S. 385, 392
(2016). Rather, she must show the undisclosed evidence “undermines confidence in the outcome of the trial.” Turner,582 U.S. at 324
(quoting Kyles v. Whitley,514 U.S. 419, 434
(1995)). “[W]ithheld evidence is more likely material when the State presents a weaker case for guilt.” Floyd v. Vannoy,894 F.3d 143, 166
(5th Cir. 2018) (citing Smith v. Cain,565 U.S. 73, 76
(2012); United States v. Agurs,427 U.S. _____________________
2
See also Youngblood v. West Va., 547 U.S. 867, 870(2006); Strickler v. Greene,527 U.S. 263, 280
(1999); United States v. Bagley,473 U.S. 667, 682
(1985).
30
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97, 113 (1976)). Conversely, such evidence is less likely material when “a
substantial body of evidence establishing . . . guilt . . . is left unscathed by the
suppressed evidence.” United States v. Miller, 520 F.3d 504, 515(5th Cir. 2008). 3 In other words, “[i]n assessing the materiality of undisclosed impeachment evidence, ‘we must consider the nature of the impeachment evidence improperly withheld and the additional evidence of the defendant’s guilt independent of the disputed testimony.’” Wilson v. Whitley,28 F.3d 433, 439
(5th Cir. 1994) (quoting United States v. Weintraub,871 F.2d 1257, 1262
(5th Cir. 1989)).
Under these standards, the state habeas court correctly ruled that the
Kirkpatrick impeachment evidence was immaterial as to guilt or punishment.
By definition, then, that court did not “unreasonably” apply Brady.
A. Materiality as to guilt
1. Self-defense
Holberg admitted to killing Towery, a frail and sickly 80-year-old man,
by stabbing him 58 times, bludgeoning him with various objects, and shoving
a lamp down his throat. She claimed she did all this in self-defense, however,
after Towery attacked her for smoking crack in his apartment. Kirkpatrick’s
testimony undermined this story. Kirkpatrick testified Holberg said she killed
Towery for drugs and would do it again. She also testified that Holberg
thought Towery’s blood was “pretty like a fountain,” that the killing was
_____________________
3
See also Medellin v. Dretke, 371 F.3d 270, 281(5th Cir. 2004) (suppressed evidence was not material “in light of the overwhelming evidence establishing his guilt”); United States v. Cessa,872 F.3d 267, 272
(5th Cir. 2017) (“[W]hen the testimony of a witness who might have been impeached is strongly corroborated by additional evidence supporting a guilty verdict, the undisclosed evidence is generally not found to be material.”) (quoting Spence v. Johnson,80 F.3d 989, 995
(5th Cir. 1996)); United States v. Brumfield,89 F.4th 506, 515
(5th Cir. 2023) (same).
31
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“fun and amazing,” and that she shoved the lamp down Towery’s throat to
stop his “gurgling noises.” Impeaching Kirkpatrick, according to the
majority, could have “undercut[] Holberg’s account of self-defense.” Op.
17. 4
That is wrong for a simple reason: Holberg’s self-defense theory was
ludicrous. It was obliterated by a mountain of evidence, none of which had
any connection to Kirkpatrick. So, undermining Kirkpatrick couldn’t have
made any difference to the outcome.
Holberg stabbed Towery in the head, face, neck, chest, back,
abdomen, hands, and wrists—a total of 58 times. Towery also suffered blunt
force wounds to his head, face, neck, and trunk. To inflict these injuries,
Holberg used a claw hammer, a butcher knife, a cast iron skillet, a steam iron,
forks, and a paring knife (the last was found sticking out of Towery’s
abdomen). Holberg also pushed an 11.5 inch lamp base down Towery’s
throat—so far that it nicked his carotid artery. None of these injuries was
instantly fatal. Given evidence of hemorrhaging in his mouth, Towery was
likely alive when Holberg forced the lamp down his windpipe.
When he was killed, Towery was 80 years old and weighed about 160
pounds. He had several health problems—gout, stomach ulcers, prostate
_____________________
4
It bears mentioning that, in a 2011 deposition, Kirkpatrick tried to recant most of
her testimony at Holberg’s trial, asserting instead that the district attorney had offered her
a deal for her cooperation and coached her testimony. Holberg introduced this evidence to
support her state habeas claim that the prosecution knowingly elicited false testimony from
Kirkpatrick. The state habeas court rejected that claim, however. In doing so, the court
ruled that Kirkpatrick’s recantation was “not credible,” that her trial testimony was
“credible,” that the district attorney’s affidavit rebutting Kirkpatrick’s recantation was
“credible,” and that Kirkpatrick’s testimony at Holberg’s trial was “not misleading.” My
colleagues in the majority state that my “dissent . . . dismisses Kirkpatrick’s 2011
recantation.” Op. at 24. Not so. It was the state habeas court that “dismissed” Kirkpatrick’s
recantation as a lie.
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issues, and bad knees—and took numerous prescription medications
including painkillers. He had had a tumor removed on one ankle and surgery
on one knee. One of his sons testified Towery walked “very slow,” “shuffled
when he walked,” and “didn’t take very big steps.” His children had taken
away his car keys.
Not one iota of this evidence had anything to do with Kirkpatrick. It
came from the police, the medical examiner, and Towery’s adult children. It
was supported by crime scene videos and autopsy photos.
Let’s suppose that, armed with the withheld evidence, Holberg’s
attorneys discredited Kirkpatrick. Brady asks this materiality question: with
Kirkpatrick impeached, was there a “reasonable probability” that the jury
would credit Holberg’s self-defense theory? The answer is no. The jury was
presented with graphic physical evidence that Holberg sadistically butchered
a sick old man—with a lamp rammed down his throat as the coup de grâce.
Holberg admitted to striking each and every one of those blows. That
evidence doomed Holberg’s self-defense theory and there is no chance that
impeaching Kirkpatrick would have resurrected it.
In other words, the state habeas court correctly ruled the withheld
evidence was immaterial to self-defense. “[W]hen the testimony of a witness
who might have been impeached is strongly corroborated by additional evidence
supporting a guilty verdict, the undisclosed evidence is generally not found to
be material.” Cessa, 872 F.3d at 272(quoting Spence,80 F.3d at 995
)
(emphasis added). 5 That principle ends this appeal. Kirkpatrick’s testimony
_____________________
5
See also Brumfield, 89 F.4th at 515(same); United States v. Brown,650 F.3d 581, 592
(5th Cir. 2011) (same); Miller,520 F.3d at 515
n.26 (same); United States v. Sipe,388 F.3d 471, 478
(5th Cir. 2004) (“‘The materiality of Brady material depends almost entirely on the value of the evidence relative to the other evidence mustered by the state.’” (quoting Smith v. Black,904 F.2d 950, 967
(5th Cir. 1990), vacated on other grounds,503 U.S. 930
(1992))); Rocha v. Thaler,619 F.3d 387
, 396–97 (5th Cir. 2010) (same); Medellin v. Dretke,
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that Holberg did not kill Towery in self-defense was strongly—
overwhelmingly—corroborated by the uncontradicted physical evidence of
the ghastly brutality Holberg visited on Towery. Even with Kirkpatrick
impeached, there is no reasonable probability of the jury’s coming out
differently. Or, to ask the question another way: if Kirkpatrick was
impeached, might the jury have accepted the theory that Holberg defended
herself by stabbing an ailing 80-year-old man 58 times, bludgeoning him with
blunt objects, and shoving a lamp down his throat? To ask is to answer. 6
The majority fails to place Kirkpatrick’s testimony within the overall
context of the trial evidence. Cf. Porretto v. Stalder, 834 F.2d 461, 464 (5th
Cir. 1987) (“Brady requires that materiality be determined in light of all the
evidence at trial, not just that portion sought to be introduced by the
defendant.”). It says Kirkpatrick’s testimony was “critical” because it
“undercut[] Holberg’s account of self-defense.” Op. 15. But this ignores that
the self-defense theory was demolished by a flood of other evidence
unconnected to Kirkpatrick.
The majority claims the prosecution “relied” on Kirkpatrick’s
testimony “throughout both the guilt and punishment phases of the trial.”
Op. 16. When unpacked, though, that statement means much less than meets
the eye. In the course of an opening argument spanning 19 transcript pages,
_____________________
371 F.3d 270, 281 (5th Cir. 2004) (suppressed evidence was not material “in light of the
overwhelming evidence establishing his guilt”).
6
The majority suggests this reasoning is out of place because materiality under
Brady “is not a sufficiency of evidence analysis.” Op. 22; see Kyles, 514 U.S. at 434. That
argument fails. My point is not that, subtracting Kirkpatrick’s testimony, enough evidence
still supported the verdict. Instead, it is that, given the independent evidence demolishing
Holberg’s self-defense theory, impeaching Kirkpatrick couldn’t have made any difference
to the verdict. The same is true of the evidence independently proving that Holberg robbed
Towery. See infra.
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the prosecutor referenced Kirkpatrick only four times. His focus was not on
Kirkpatrick, but rather on the shocking barbarism of Towery’s injuries—
something Holberg did not and could not contest. (“You will learn that she
beat A. B. Towery with a hammer, a claw hammer. She beat him with a heavy
cast iron skillet. You will learn she stabbed him 58 times.”). The prosecutor
also focused on the plethora of evidence that Holberg robbed Towery (more
on that below).
As for the prosecution’s closing, it did not mention Kirkpatrick at all.
Instead it focused, like its opening, on the strong evidence of robbery and on
the savagery of Towery’s killing. The prosecutor used the latter point to
argue that Holberg’s “self-defense claim [wa]s a lot of BS.” Here’s a key
passage:
Well, I want you to think about this: If that story is true, this is
an 80-year-old man who has been stabbed 57 times. Stab
wounds puncturing his lung, liver, he’s been beaten with a claw
hammer causing chips to his skull. He has a pulverized nose,
he’s just – he just keeps coming at her. Just keeps coming at
her.
[***]
And you have heard the number 57 and 58. I say 57 because the
pathologist said there were 57 – I’m sorry, 58 sharp force stab
wounds to Mr. Towery. His back, his torso, his neck, his face,
his hands. He said 58, I say 57 because she says that in the
course of that last series of events, she shoves the lamp down
his throat by accident and then he moves and she has to stab
him one last time.
[***]
And we talk about 57 and it’s just a number, but it’s not. Fifty-
seven is not just a number as it relates to this case. I want you
to think about 57 stab wounds to an 80-year-old man. This is
how many it was.
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(Whereupon Assistant State’s Attorney Blount hit the jury
counter with his hand 57 times.)
It was not the prosecution but the defense that brought up Kirkpatrick
in its closing, arguing she lied about Holberg’s saying the blood was “pretty
like a fountain.” In rebuttal, the State addressed this by disavowing those
comments. The prosecutor said he didn’t believe that Holberg was “so
callous and uncaring that she actually really did enjoy stabbing [Towery]” or
that she thought his blood was “pretty.” He dismissed this as “jailhouse
talk.” The prosecutor argued only that Kirkpatrick testified about “details”
(specifically, Towery’s repeated stabbing) she otherwise couldn’t have
known about.
Finally, it bears emphasizing that Kirkpatrick was the eighteenth of
twenty witnesses for the State. Besides Kirkpatrick, the prosecution relied on
a litany of testimony concerning: (1) the bloody crime scene; (2) Holberg’s
cocaine-addled state on arriving at Towery’s apartment; (3) Towery’s age
and frail health; (4) the $1,200–$1,400 missing from Towery’s wallet; (5) the
prescription bottles missing from Towery’s apartment; (6) Holberg’s
washing up and dressing in Towery’s clothes before leaving; (7) Holberg’s
paying someone $200 in bloodstained bills to drive her away from the scene;
(8) Holberg’s partying with hundreds of dollars’ worth of cocaine she bought
the same day as the killing; (9) Holberg’s strange comments to her mother
about the killing; (10) Holberg’s unprompted remark to the arresting officer
denying she stole “$1,400” from Towery; and (11) the grisly details from
Towery’s autopsy. The climax of the State’s case was not Kirkpatrick but
rather the chief medical examiner’s description of Towery’s horrific injuries.
This context is important. Although the majority is superficially
correct that Kirkpatrick provided “the State’s only testimonial account of
the violent encounter,” Op. 16, the evidence bearing on Holberg’s self-defense
theory is massive. And, as discussed, that evidence is (1) entirely separate
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from Kirkpatrick’s testimony and (2) devastating to the notion that Holberg
slaughtered Towery in self-defense.
Finally, let’s suppose that—contrary to the foregoing discussion—
the state habeas court’s materiality analysis was wrong. That still wouldn’t
entitle Holberg to habeas relief, though, because her petition is governed by
AEDPA. “The question under AEDPA is . . . not whether a federal court
believes the state court’s determination was incorrect, but whether that
determination was unreasonable—‘a substantially higher threshold’ for a
prisoner to meet.” Shoop v. Twyford, 596 U.S. 811, 819(2022) (quoting Schriro v. Landrigan,550 U.S. 465, 473
(2007)). The majority has not shown how that daunting standard is met here. See Harrington v. Richter,562 U.S. 86, 103
(2011) (“[A] state prisoner must show that the state court’s ruling on
the claim being presented in federal court was so lacking in justification that
there was an error well understood and comprehended in existing law beyond
any possibility for fairminded disagreement.”).
The majority seems to believe this is not a close case, given the
“critical” role it assigns to Kirkpatrick. Op. 1. As shown, though, the
majority overestimates Kirkpatrick’s role in the trial. While her testimony
was damaging to Holberg’s claim of self-defense, Kirkpatrick was not the
lynchpin witness the majority imagines. Rather, wholly apart from
Kirkpatrick’s testimony, a flood of vivid and gruesome evidence
independently showed that Holberg’s self-defense theory was—as the
prosecutor argued in closing—“a lot of BS.” Would impeaching Kirkpatrick
have made the slightest bit of difference? Not a chance.
2. Robbery
The majority also claims Kirkpatrick’s testimony was material
because it “provid[ed] the supporting evidence for the robbery.” Op. 15.
That is also mistaken.
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Kirkpatrick testified that Holberg said she killed Towery for money
and drugs. But there is a plethora of evidence—entirely unconnected to
Kirkpatrick—showing Holberg robbed Towery of over $1,000 in cash and
several bottles of prescription medication.
Start with the money. A wallet containing a $1 bill was found on
Towery’s corpse (near the handle of the paring knife protruding from his
abdomen). But two of Towery’s children and his daughter-in-law testified
Towery had recently been carrying over $1,000 in cash, in $100 bills, folded
in a particular way, and kept in his wallet. They had seen the cash with their
own eyes. Towery was saving up to buy an old pick-up truck, evidently in
defiance of his children’s taking his car keys away.
When Holberg arrived at the scene, she stiffed a cab driver for the fare.
She had money when she left, though. According to Cody Mayo and his
girlfriend, Misty Votaw, Holberg offered them $200 for a ride. One of the
bills was bloodstained. Both saw Holberg pull out a wad of cash. Cody
watched her “count[] out at least ten $100 bills.” Misty testified Holberg
“pulled out ten to twenty $100 bills” from her right pocket and had
“approximately ten $100 bills” left after she paid them $200. Finally, later
that evening Holberg “partied” with a drug dealer named Dimitris Pettus.
She testified that Holberg “had a lot of money” and bought “five or six
hundred” dollars of “dope,” paying for it “in $100 bills and some twenties.”
Next, the drugs. Multiple witnesses testified that Towery kept
numerous bottles of prescription medication—as many as ten—around his
apartment in plain sight. Yet only two bottles were found at the crime scene,
one in a bedroom drawer. Holberg was an admitted drug abuser. The cab
driver testified that, on the way to Towery’s place, Holberg tried
unsuccessfully to get pills from a pharmacy. The jury easily could have found
she stole Towery’s medication.
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None of this evidence had anything to do with Kirkpatrick. And it is
much more specific than Kirkpatrick’s generic testimony. The evidence
about the bloodstained wad of $100 bills Holberg was carrying immediately
after the killing is particularly damning. In light of that, there’s no reasonable
probability that impeaching Kirkpatrick would have made the tiniest bit of
difference. See Porretto, 834 F.2d at 464(“Brady requires that materiality be determined in light of all the evidence at trial . . . .”). And by no stretch of the imagination was the state habeas court’s decision “so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Harrington,562 U.S. at 103
. 7
B. Materiality as to punishment
The majority also claims that Kirkpatrick’s testimony played a
“critical” role in Holberg’s capital sentence because it “paint[ed] her as an
unremorseful addict who posed a continued threat to society,” Op. 15, and
was therefore material to punishment as well as guilt. This is again mistaken.
Kirkpatrick’s guilt-phase testimony played virtually no role in the
punishment phase. Multiple witnesses testified on both sides about
Holberg’s violent propensities (or lack thereof) and mitigating factors (or
lack thereof). Kirkpatrick’s guilt-phase testimony did not figure into any of
_____________________
7
Quoting the State’s brief on direct appeal, the majority implies the State itself
argued that “Kirkpatrick’s testimony was ‘direct evidence’ that ‘alone’ proved that Holberg
committed the murder in order to ‘get [Towery’s] money and to get drugs.’” Op. 15. That is
misleading, though. The State was arguing only that Kirkpatrick’s testimony was sufficient by itself to
prove the aggravating robbery factor. Immediately after that, however, the State spent a
dozen pages recounting a litany of other evidence—totally independent of Kirkpatrick’s
testimony—supporting the jury’s capital verdict.
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that, 8 and Kirkpatrick herself did not testify. Ironically, the only mention
made of Kirkpatrick during the prosecution’s punishment-phase case came
during the testimony of Katina (or Katrina) Dixon, a cell-mate of Holberg
and Kirkpatrick. Dixon testified that Holberg asked Dixon to “shut
[Kirkpatrick] up”—i.e., kill her—to prevent Kirkpatrick’s testifying. The
prosecution mentioned this threat against Kirkpatrick during its closing.
For its part, the defense mentioned Kirkpatrick’s guilt-phase
testimony once during its closing, again arguing Kirkpatrick was lying. The
defense said the same thing about Dixon’s testimony that Holberg asked her
to “shut up” Kirkpatrick.
That was it. The lengthy punishment phase—which goes on for nearly
500 transcript pages—barely mentioned Kirkpatrick. The prosecution
presented testimony from Towery’s daughter, from two of Holberg’s other
cell-mates (Dixon and Mary Burnett), from a woman in a drug treatment
facility with Holberg, from Holberg’s probation officer, and from a
psychiatrist who reviewed Holberg’s files. The defense side was the mirror
image, presenting testimony from Holberg’s family and friends, from a
psychiatrist, from various prison officials, from a chaplain, and from yet
another cell-mate. The punishment phase was about many things, but it was
assuredly not about Kirkpatrick’s guilt-phase testimony.
_____________________
8
The majority tries to link the testimony of the State’s psychiatrist, Dr. Richard
Coons, to Kirkpatrick’s statements about the lamp being shoved down Towery’s throat.
Op. 18–19. But the majority refers to something the prosecutor said to Coons, not to what
Coons himself testified. Ibid. Coons testified only that “the gratuitous lamp down the
throat” showed the “intensity, anger, [and] violence” of the crime. Moreover, as discussed
throughout this opinion, the extent of Towery’s injuries (including the lamp shoved down
his throat) was powerfully shown by forensic evidence entirely independent of
Kirkpatrick’s testimony.
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In light of that, I fail to see how the withheld evidence regarding
Kirkpatrick could have influenced the punishment phase—much less created
a “reasonable probability” of a different outcome. And, once again, that
doesn’t really matter because this is an AEDPA case. The question is not
whether the state habeas court correctly ruled on this point but whether it
unreasonably applied Brady. See Harrington, 562 U.S. at 103. The majority
somehow finds such an unreasonable application with respect to punishment
as well as guilt. I cannot agree.
***
I would affirm the district court’s denial of habeas relief as to
Holberg’s Brady claim.
41
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