RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 2 Castleberry v. Brigano No. 02-3433 ELECTRONIC CITATION: 2003 FED App. 0398P (6th Cir.) File Name: 03a0398p.06 _________________ COUNSEL UNITED STATES COURT OF APPEALS ARGUED: Stephen P. Hardwick, PUBLIC DEFENDER’S FOR THE SIXTH CIRCUIT OFFICE, Columbus, Ohio, for Appellant. M. Scott Criss, _________________ O F F IC E OF T H E A T T OR N E Y G E NE R A L, CORRECTIONS LITIGATION SECTION, Columbus, Ohio, WYMAN CASTLEBERRY , X for Appellee. ON BRIEF: Stephen P. Hardwick, PUBLIC Petitioner-Appellant, - DEFENDER’S OFFICE, Columbus, Ohio, for Appellant. M. - Scott Criss, OFFICE OF THE ATTORNEY GENERAL, - No. 02-3433 CORRECTIONS LITIGATION SECTION, Columbus, Ohio, v. - for Appellee. > , _________________ ANTHONY J. BRIGANO , - Warden, - OPINION Respondent-Appellee. - _________________ - N RONALD LEE GILMAN, Circuit Judge. Wyman Appeal from the United States District Court Castleberry was convicted in an Ohio state court of for the Southern District of Ohio at Columbus. aggravated murder and aggravated robbery. After exhausting No. 00-01122—George C. Smith, District Judge. his state court remedies, Castleberry petitioned the district court for a writ of habeas corpus. He argued that the Argued: October 24, 2003 prosecution withheld the following evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963): (1) a statement by Decided and Filed: November 12, 2003 the victim describing his assailant in a way inconsistent with Castleberry’s appearance, (2) a statement to detectives Before: DAUGHTREY and GILMAN, Circuit Judges; indicating that the prosecution’s key witness had been HAYNES, District Judge.* plotting to rob the victim, and (3) statements by neighbors of the victim describing suspicious individuals in the vicinity of the shooting who did not match Castleberry’s appearance. The district court denied the writ. For the reasons set forth below, we REVERSE the judgment of the district court and GRANT Castleberry a conditional writ of habeas corpus that will result in the vacation of his conviction and sentence unless the state of Ohio commences a new trial against him * within 90 days after this judgment becomes final. The Honorable William J. Haynes, Jr., United States District Judge for the Middle District of Tennessee, sitting by designation.

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I. BACKGROUND Testifying for the prosecution, Thomas said that he went to Jason’s Bar at 8:00 p.m. on the evening of the shooting with The charges against Castleberry arose from the shooting of his friend Carl “Skeeter” Gamble. He claimed to have seen Jose Soriano, resulting in Soriano’s death several months Castleberry, whom he says he knew from the neighborhood, later. Following a mistrial in July of 1991, a second jury trial walk across the street toward the back of Soriano’s apartment commenced in February of 1992 and concluded nine days while holding a small gun, knock on the back door, and then later. Castleberry was sentenced to life with parole eligibility ask for “a bag of weed.” Thomas testified that he heard a after twenty years, plus three years of additional incarceration single gunshot a “couple seconds” after Soriano opened the for the use of a firearm. door and that he then saw Castleberry exit the apartment. According to Thomas, Castleberry asked him to “say nothing The following facts are based upon the summary provided to nobody about what happened” when they saw each other by the Ohio Court of Appeals in its de novo review of the the next day at Jason’s Bar. final order by the state trial court denying Castleberry’s petition for post-conviction relief: Parts of Thomas’s testimony were supported by the testimony of other witnesses. One was Thomas’s friend On March 29, 1990, detectives David Morris and Sharon Gamble, who testified that he had been drinking with Thomas Ceckitti were dispatched to Soriano’s apartment, which was at Jason’s Bar on the night of the shooting and that he saw located across the street from Jason's Bar and near a grassy Castleberry at the bar. According to Gamble, Castleberry area where people from the neighborhood often gathered. “was talking about robbing the . . . dope man, the dude that Soriano could not be interviewed at the scene due to his sells weed.” Gamble claimed that Castleberry had a gun with wound. From the time of the shooting until Soriano’s death him as “he walked up [to Soriano’s apartment,] . . . knocked several months later, there were no significant leads in the on the door[,] . . . and then . . . there was a fire off.” He said case. Morris eventually interviewed Soriano’s parents, that later, at Jason’s Bar, Castleberry told him that “the dude however, which led to his contacting Kenneth “Chief” tried to grab the gun and he shot it and the gun went off.” Thomas. Morris, in his testimony, said that when he first questioned Gamble, “there was an indication that Gamble was not telling Detectives Morris and Ceckitti interviewed Thomas at the the truth.” Gamble eventually “told the truth,” however, after Orient Correctional Institution in September of 1990, where Gamble was told what Thomas had said to the detectives and he was incarcerated as the result of a conviction for receiving Gamble’s “father made a comment to his son.” property stolen from apartments adjacent to Soriano’s. Morris testified that “right off the bat he [Thomas] said Another Jason’s Bar patron who supported Thomas’s Wyman Castleberry did it.” According to Morris, Thomas testimony was Thomas Bailey. Bailey took the stand to say “did not make any requests prior to the interview,” but the that he had heard a gunshot and, approximately one hour detective later received a request from Thomas’s attorney to later, Castleberry had said: “the guy tried to take the gun from write a letter to a judge on Thomas’s behalf. Morris him and it went off.” acknowledged that he wrote the letter and that Thomas was granted early release from prison. Still another prosecution witness supporting Thomas was Orlando Wilborn, who testified that he, his brother Thomas Wilborn, “Chief” Thomas, and Gamble had been drinking at No. 02-3433 Castleberry v. Brigano 5 6 Castleberry v. Brigano No. 02-3433

his house on the evening of the shooting. He said that some subsequently declared a mistrial), she overheard Thomas say time after Thomas and Gamble left his house, he and his to someone in the hallway outside of the courtroom: “I don’t brother went to Jason’s Bar. According to Orlando Wilborn, know what good I can do when all I did was walk in and find he was standing near the bar when he heard a gunshot. He him.” said that he immediately ran to his car, where his brother, who was already at the car, remarked: “[T]hose guys are crazy, The conflicting testimony of the witnesses was the sole they tried to rob the weed spot.” evidence presented at trial. No physical or forensic evidence was introduced to link Castleberry to the crime. Wilborn’s brother, Thomas Wilborn, also testifying for the prosecution, said that after getting a drink at Jason's Bar, he The Ohio Court of Appeals noted that the following went across the street to the grassy area to join a group of additional facts were revealed at the hearing conducted on about 15 to 20 people, and that Castleberry was standing Castleberry’s post-conviction petition: among them with a gun. He claimed that someone in the group spoke of a “place where you buy marijuana.” At the During the course of canvassing the neighborhood and time he heard the gunshot, Thomas Wilborn said, he could see conducting interviews, Detective Morris interviewed both his roommate Lamont Martin and Thomas standing near Judy Thomas of 3413 Bexvie, Apartment B, located a wall in the grassy area. diagonally from Mr. Soriano’s apartment. Ms. Thomas told the police that at approximately 8:15 on the evening Martin was the prosecution’s final witness. He claimed that of the shooting, she was watching television. When she he saw Castleberry go behind the apartment complex across heard two men arguing outside, she looked out her the street while Martin, Gamble, and Thomas walked to the window and saw two thin black men, one of whom was front of the complex. According to Martin, he was on his “tall” and the other was somewhat shorter. This way “to see if he [Castleberry] was going to rob the dope argument was taking place while the two men were man” when he heard a gunshot and ran back to the bar. standing on a front porch shared by Mr. Soriano's residence and a next door residence. According to Ms. Castleberry testified on his own behalf. He claimed that he Thomas, one of the two men said, “You mother f . . . . . , did not know Soriano, had never been to Soriano’s apartment, I'll kick your ass.” The men stepped down to the never owned a firearm, and did not have one in his possession sidewalk area and looked over at Ms. Thomas, who on the night of the shooting. immediately closed her drapes. The police summary of this interview was not provided to defense counsel. Another defense witness was James Correy, who lived in Soriano’s apartment complex. He said that on the night of the The police also interviewed Suntina Neddles, who shooting he heard a gunshot as he went to answer a knock at resided at 3419 Bexvie, Apartment E, located just north his door by a man he identified only as “Albert.” Albert of Mr. Soriano’s apartment building. Ms. Neddles told pushed him back into the apartment, from where they police that she was looking at the parking lot area out of observed two men running between the apartments. her upstairs window. She saw two male, black subjects exit a car which had been between two buildings. She Castleberry’s mother also testified for the defense. She said believed that there were two other black males who that on July 10, 1991 (during the first trial that was stayed inside the car. Soon thereafter, she heard what she No. 02-3433 Castleberry v. Brigano 7 8 Castleberry v. Brigano No. 02-3433

thought was the sound of a gunshot. She did not see the After exhausting his remedies in the state courts, two men who had exited the car and walked between the Castleberry petitioned the district court for a writ of habeas buildings. However, she did see the two men who had corpus on September 26, 2000. The Magistrate Judge issued stayed in the car (now parked in the lot) drive away from a Report and Recommendation to deny the petition on the area. The police summary of this interview was May 30, 2001. Adopting the Report and Recommendation on likewise never provided to defense counsel. April 7, 2002 over Castleberry’s objection, the district court later granted Castleberry’s motion for a certificate of The police also interviewed Cerrie Clark, of 3407 appealability. The present appeal followed. Bexvie, Apartment A, located diagonally from the Soriano apartment. Ms. Clark told the police that II. ANALYSIS between 8:00 and 8:30 p.m., she looked out of her front window, facing the parking lot. She saw three male, A. Standard of review black subjects walking between the apartment buildings on the east side of the complex. Minutes later, she heard Castleberry filed his petition for a writ of habeas corpus a car driving out of the parking lot at a high rate of speed. after the effective date of the Antiterrorism and Effective Death Penalty Act of 1996. Accordingly, we may not grant Two days after Mr. Soriano was shot, Detectives Morris habeas relief unless the state court’s decision either (1) “was and Ceckitti interviewed the victim at the hospital. Mr. contrary to . . . clearly established Federal law, as determined Soriano told the police that he did not know the identity by the Supreme Court of the United States,” or (2) “involved of the person who shot him. The victim described the an unreasonable application of . . . clearly established Federal lone gunman as male, dark-black skin, who was 5'6" to law, as determined by the Supreme Court of the United 5'8", who had short hair and was clean-shaven. This States.” 28 U.S.C. § 2254(d)(1). information from the victim himself regarding the description of his assailant was never provided to defense The Supreme Court explained these concepts in Williams counsel. There was testimony at the [post-conviction] v. Taylor, 529 U.S. 362, 412-13 (2000), as follows: hearing indicating that on the date of the shooting, appellant wore a goatee and, thus, was not “clean- Under the “contrary to” clause, a federal habeas court shaven.” may grant the writ if the state court arrives at a conclusion opposite to that reached by this Court on a The police interviewed James Johnson again in question of law or if the state court decides a case September 1990. According to the statement he provided differently than this Court has on a set of materially to police (after the detectives informed him what “Chief” indistinguishable facts. Under the “unreasonable had told them), Johnson told the detectives that he heard application” clause, a federal habeas court may grant the Kenneth “Chief” Thomas plotting the robbery of writ if the state court identifies the correct governing Soriano. This interview was never related to defense legal principle from this Court’s decisions but counsel. unreasonably applies that principle to the facts of the prisoner’s case. State v. Castleberry, 1999 WL 1009738, at *6-7 (Ohio Ct. App. Nov. 9, 1999). No. 02-3433 Castleberry v. Brigano 9 10 Castleberry v. Brigano No. 02-3433

A state trial court’s findings of fact must be accepted unless appellate court must follow is to evaluate the individual bits rebutted by clear and convincing evidence. 28 U.S.C. of information withheld to determine if the information was § 2254(e)(1). In cases arising under § 2254, we accord beneficial to the defense and material to the guilt or innocence deference to the state appellate court’s “determination of what such that the information should have been provided.” the trial judge found.” Parker v. Dugger, 498 U.S. 308, 320 Because the state court applied only an item-by-item (1991). determination of materiality, the decision is contrary to the Supreme Court’s decision in Kyles, 514 U.S. 419. The Court Castleberry argues that evidence was withheld in violation in Kyles specified that the materiality of withheld evidence of Brady v. Maryland, 373 U.S. 83, 87 (1963) (holding that a may be determined only by evaluating the evidence defendant’s due process rights are violated where the collectively. Id. at 436 (“The fourth and final aspect of . . . government withholds evidence favorable to a defendant that materiality to be stressed here is its definition in terms of is “material either to guilt or to punishment”). “There are suppressed evidence considered collectively, not item by three components of a true Brady violation: The evidence at item.”); see also Schledwitz v. United States, 169 F.3d 1003, issue must be favorable to the accused, either because it is 1012 (6th Cir. 1999) (“[I]n determining whether undisclosed exculpatory, or because it is impeaching; that evidence must evidence is material, the suppressed evidence is considered have been suppressed by the State, either willfully or collectively, rather than item-by-item, to determine if the inadvertently; and prejudice must have ensued.” Strickler v. ‘reasonable probability’ test is met.”); United States v. Frost, Greene, 527 U.S. 263, 281-82 (1999). Favorable evidence is 125 F.3d 346, 383 (6th Cir. 1997) (stating that “courts should material for Brady purposes “if there is a reasonable evaluate the material effect of exculpatory evidence by probability that, had the evidence been disclosed to the examining the evidence collectively, not item-by-item”). defense, the result of the proceeding would have been different.” United States v. Bagley, 473 U.S. 667, 682 (1985); Curiously, the state court proceeded to misstate the law see also Jamison v. Collins, 291 F.3d 380, 385 (6th Cir. 2002) under Kyles even though it had previously noted that (“The prejudice (or materiality) element of a Brady violation Castleberry’s “arguments, considered collectively, contend is established if there is a reasonable probability of a different that the prosecution repeatedly violated the fundamental outcome of the trial had the Brady material been available.”). discovery rules . . . and that the violations cumulatively For purposes of determining reasonable probability, “[t]he resulted in the lack of due process.” (Emphasis added.) question is not whether the defendant would more likely than not have received a different verdict with the evidence, but In its brief, the government acknowledges that the state whether in its absence he received a fair trial, understood as court performed only an item-by-item determination of a trial resulting in a verdict worthy of confidence.” Kyles v. materiality: “Having explained why none of the withheld Whitley, 514 U.S. 419, 434 (1995). evidence was either exculpatory or material, it should go without saying that collectively, the evidence also falls short B. The state court’s decision is contrary to Supreme of establishing a Brady violation.” (Emphasis added.) The Court precedent district court, too, noted that the state courts had examined “each item of evidence individually,” but the district court The state appellate court rejected Castleberry’s petition for nevertheless concluded (without explanation) that it was “not post-conviction relief because it found that no single item of convinced that the cumulative effect of the excluded evidence withheld evidence was material: “The process which this denied petitioner a fair trial.” No. 02-3433 Castleberry v. Brigano 11 12 Castleberry v. Brigano No. 02-3433

Remarkably, in one paragraph of its opinion, the state court not have reasonably believed that the outcome of of appeals appeared as though it would evaluate the withheld Castleberry’s trial was worthy of confidence under Brady. evidence collectively: In its de novo review, the state appellate court identified Defense counsel and the jury never knew that Ms. three items of withheld evidence, which, had they been Neddles saw two men go in or near the building where evaluated collectively, strongly support the conclusion that the victim was shot, and then saw a car leave Castleberry’s trial did not produce an outcome worthy of immediately after she heard the shot. Defense counsel confidence. The first item of withheld evidence involved the and the jury never knew that Ms. Clark could corroborate description of his assailant that Soriano gave to the detectives, Ms. Neddles’s recollections, including the physical which differed from Castleberry’s appearance in terms of both description of the “thin” subjects they saw. The jury and height and facial hair. Soriano said that his assailant was defense did not know that “Chief” had allegedly “5'6" to 5'8", had short hair and was clean-shaven.” The state conspired to rob Mr. Soriano. The jury and defense did court of appeals noted that “[t]here was testimony at the not know the details of the victim’s description of his [post-conviction] hearing indicating that on the date of the assailant, particularly that he was clean-shaven; this was shooting, [Castleberry] wore a goatee,” and that “[w]ritten contrary to evidence presented by appellant that he wore police records indicate that Mr. Castleberry is a male, black, a goatee at the time and did not have long hair. height 5'10", weight 170 pounds.” In addition, the state appellate court noted that “a photograph of Wyman State v. Castleberry, 1999 WL 1009738, at *7 (Ohio Ct. App. Castleberry taken three weeks after the shooting shows Nov. 9, 1999). Despite this summary of the withheld identification information of 5'9", 221 pounds, very dark evidence, however, the state court never went beyond complexion with a moustache.” evaluating the materiality of each individual item of evidence separately. Kyles requires a different evaluation. The district Because Soriano was the sole witness to the actual court, therefore, erred in determining that the state court shooting, his description of the assailant would have been decision did not conflict with clearly established federal law, highly relevant evidence for the jury to consider had it not as determined by the Supreme Court. been withheld by the government. The state appellate court offered a theory to account for the discrepancy between C. The state court’s decision involved an unreasonable Soriano’s description of his assailant and Castleberry’s application of Supreme Court precedent appearance: “Given Mr. Soriano’s occupation as a drug dealer, Mr. Soriano may have had a motive to conceal what As the result of its de novo review of the state trial court’s he knew about his assailant from police, either through his post-conviction proceedings, the state court of appeals distrust of the police or out of a desire to extract his own concluded that Castleberry’s trial produced an outcome street justice at a later time.” Based largely on this worthy of confidence. The state appellate court reached its conjecture, the state court concluded that “[u]nder the conclusion after applying a standard that has been rejected by circumstances, we cannot say that police or prosecuting the Supreme Court, as discussed above. But even if the state attorneys knew that the description given by Jose Soriano was court had identified the correct legal standard and had inaccurate or that it described someone other than Wyman evaluated the evidence collectively, we conclude that it could Castleberry.” But whether “the police or prosecuting attorneys knew that the description . . . was inaccurate or that No. 02-3433 Castleberry v. Brigano 13 14 Castleberry v. Brigano No. 02-3433

it described someone other than Wyman Castleberry” is These statements, given to detectives by three neighbors of irrelevant in determining whether evidence was withheld in Soriano, point to a number of other possible suspects, and violation of Brady. Jamison v. Collins, 291 F.3d 380, 385 among them might be the one described by Soriano as his (6th Cir. 2002) (noting that whether the evidence was assailant. The state court, however, dismissed the statements withheld “intentionally or not” is irrelevant); Carter v. Bell, of the neighbors as having “no demonstrated ties to the 218 F.3d 581, 601 (6th Cir. 2000) (“The [Brady] inquiry is shooting.” objective, independent of the intent of the prosecutors.”). True enough, some of the testimony by the patrons at The second item of evidence withheld by the government Jason’s Bar on the night of the shooting would not have been would certainly have undermined the credibility of Thomas, contradicted by the withheld evidence. The key question, the government’s key witness—a statement by Johnson that however, “is not whether the state would have had a case to “he heard Kenneth ‘Chief’ Thomas plotting the robbery of go to the jury if it had disclosed the favorable evidence, but Soriano.” By withholding this evidence, the government was whether we can be confident that the jury’s verdict would able to prevent the jury from learning that Thomas, because have been the same.” Kyles, 514 U.S. at 453. he was an obvious potential suspect himself, had a motive to point to Castleberry as the assailant. Impeachment evidence, In Kyles, the Court noted: like exculpatory evidence, is subject to the disclosure under Brady. Strickler v. Greene, 527 U.S. 263, 280 (1999) (“[T]he Not every item of the State's case would have been duty [to disclose evidence] encompasses impeachment directly undercut if the foregoing Brady evidence had evidence as well as exculpatory evidence . . . .”). been disclosed. It is significant, however, that the physical evidence remaining unscathed would . . . hardly The third area of withheld evidence identified by the state have amounted to overwhelming proof that Kyles was appellate court involved witness accounts of suspicious the murderer. . . . The inconclusiveness of the physical persons in the vicinity of the attack on Soriano: evidence does not, to be sure, prove Kyles’s innocence, and the jury might have found the eyewitness testimony Defense counsel and the jury never knew that Ms. . . . sufficient to convict . . . . But the question is not Neddles saw two men go in or near the building where whether the State would have had a case to go to the jury the victim was shot, and then saw a car leave if it had disclosed the favorable evidence, but whether we immediately after she heard the shot. Defense counsel can be confident that the jury’s verdict would have been and the jury never knew that Ms. Clark could corroborate the same. Confidence that it would have been cannot Ms. Neddles's recollections, including the physical survive a recap of the suppressed evidence and its description of the “thin” subjects they saw. significance for the prosecution. In addition, the government withheld a statement by Ms. Id. at 451, 453. Thomas, a neighbor of Soriano, that on the night of the shooting she heard one of the two men whom she saw arguing The same is true in the present case. As well-summarized on Soriano’s porch exclaim: “You mother f . . . . . , I'll kick in Castleberry’s brief: your ass.” No. 02-3433 Castleberry v. Brigano 15 16 Castleberry v. Brigano No. 02-3433

The evidence, taken together, indicates that the State’s conditional writ of habeas corpus that will result in the star witness was involved with the crime and that Mr. vacation of his conviction and sentence unless the state of Soriano’s killer was shorter, thinner and more clean- Ohio commences a new trial against him within 90 days after shaven than Mr. Castleberry. More specifically: this judgment becomes final. ! A jury should be allowed to weigh the victim’s withheld statement that his killer was a clean-shaven man who was 5'6" to 5'8" against evidence that Mr. Castleberry was 5'9" to 5'10" and wore a goatee at the time of the crime. ! A jury should consider the importance of the withheld testimony of three of the victim’s neighbors who—collectively—observed two thin men go in or near the building where the victim was shot and say, “You mother f . . . . . , I’ll kick you ass.” One of the witnesses then saw a car leave immediately after she heard the shot. Mr. Castleberry was 221 pounds at the time of the crime. ! Finally, a jury should be allowed to weigh the credibility of the State’s star witness, Kenneth “Chief” Thomas, against the withheld testimony of a witness who told the police that “Chief” had planned to rob the victim. No reasonable court can have confidence in the decision of a jury that did not hear this withheld evidence. [Emphasis in original.] We agree. With this additional evidence, there is certainly a “reasonable probability of a different outcome of the trial had the Brady material been available.” Jamison v. Collins, 291 F.3d 380, 385 (6th Cir. 2002). III. CONCLUSION For all of the reasons set forth above, we REVERSE the judgment of the district court and GRANT Castleberry a