RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 2 Armstrong v. Morgan No. 02-6374 ELECTRONIC CITATION: 2004 FED App. 0185P (6th Cir.) File Name: 04a0185p.06 David H. Findley, OFFICE OF THE ATTORNEY GENERAL, Nashville, Tennessee, for Appellee.

UNITED STATES COURT OF APPEALS _________________ FOR THE SIXTH CIRCUIT OPINION _________________ _________________ ARTHUR L. ARMSTRONG, X BOYCE F. MARTIN, JR., Circuit Judge. Arthur Armstrong appeals the denial of his petition for a writ of Petitioner-Appellant, - habeas corpus following his state court convictions for - - No. 02-6374 robbery, rape, kidnaping and crimes against nature. For the v. - reasons stated below, we AFFIRM. > , I.

JACK MORGAN, Warden, - Respondent-Appellee. - Armstrong’s convictions arise from his participation in the N abduction, rape and robbery of a young woman on the night Appeal from the United States District Court of February 11, 1977. The victim testified that she was for the Middle District of Tennessee at Nashville. abducted by two men as she was exiting her vehicle. During No. 99-00265—William J. Haynes, Jr., District Judge. much of the overnight ordeal, the victim’s eyes were taped, but at times the tape loosened and she was able to see the Argued: December 4, 2003 identity of her abductors. The victim alleged that one of her abductors–later identified as Armstrong–had told her to call Decided and Filed: June 18, 2004 him “Nate.” The testimony at trial indicated that “Nate” was one of Armstrong’s nicknames. Upon her release the Before: KENNEDY, MARTIN, and MOORE, Circuit following morning, the victim reported the incident to the Judges. police. The victim identified Ronny Harris, Armstrong’s co- defendant, as one of the perpetrators. Harris later pleaded _________________ guilty to abduction and robbery. The victim also made a photographic identification of Armstrong as the second COUNSEL abductor. Armstrong was indicted for armed robbery, rape, kidnaping and two counts of crimes against nature.

ARGUED: C. Douglas Thoresen, FEDERAL PUBLIC DEFENDER’S OFFICE, Nashville, Tennessee, for Appellant. At Armstrong’s jury trial, identification was a hotly David H. Findley, OFFICE OF THE ATTORNEY contested issue. Specifically, Armstrong attempted to cast GENERAL, Nashville, Tennessee, for Appellee. doubt on the victim’s identification because her initial ON BRIEF: C. Douglas Thoresen, FEDERAL PUBLIC identification did not make reference to Armstrong’s DEFENDER’S OFFICE, Nashville, Tennessee, for Appellant. prominent gold teeth and because her eyes were taped during No. 02-6374 Armstrong v. Morgan 3 4 Armstrong v. Morgan No. 02-6374 most of the ordeal. The trial testimony indicates that the reports prepared by Officer Donzaleigh Heard on different defense attorney questioned the victim regarding the kind of dates in February 1977,2 both of which contain statements adhesive that was used over her eyes and whether more than indicating that the victim never had the opportunity to see her one strip of tape covered her eyes. Indeed, at one point the attackers clearly. Thus, Armstrong included in his appeal of defense attorney referred to the tape covering the victim’s the denial of his state petition for habeas corpus relief an eyes as a “mask.”1 Another factor used to cast doubt on the allegation that the prosecution violated the disclosure victim’s identification of Armstrong was that Armstrong’s co- requirements under Brady v. Maryland, 373 U.S. 83 (1963). defendant denied that Armstrong had any involvement in the The Tennessee Court of Criminal Appeals affirmed the crimes. Additionally, Earline Harris House, Harris’s sister denial, but noted that Armstrong’s Brady violation claim and Armstrong’s girlfriend at the time, testified that should be presented in a state post-conviction proceeding.

Armstrong was with her on the night of the incident and that Thus, Armstrong filed for post-conviction relief with the state during this visit her brother, Harris, by himself, brought the court in September 1995. After an evidentiary hearing, the victim to her house and took her into his bedroom. Harris state court denied Armstrong relief, crediting the testimony of essentially testified that Armstrong could have had no the prosecutor at the original trial, David Raybin, that he had involvement in the crimes committed against the victim turned over all exculpatory evidence before Armstrong’s trial. because Armstrong was never in the presence of the victim. The Tennessee Court of Criminal Appeals affirmed and the The evidence at trial, however, also demonstrated that the Tennessee Supreme Court declined review. victim’s necklace and a tennis racket, which the perpetrators stole, were recovered from Armstrong’s possession. The jury In March 1999, Armstrong, proceeding without the benefit convicted Armstrong on every count contained in the of counsel, filed a petition for a writ of habeas corpus with the indictment, and the conviction was affirmed on direct appeal. district court. Counsel was appointed in March 2000. In June 2002, Armstrong sought leave to file an amended petition for In July 1989, Armstrong filed a petition for post-conviction habeas corpus relief, which was granted. It is the June 2002 relief with the state court, arguing that trial counsel was petition that is at issue in the instant case. In this petition, ineffective for not challenging the photographic lineup and Armstrong argues that the state court erred in concluding that for not filing any pretrial motions. This petition was denied no Brady violation occurred and that if the district court found and the Tennessee Court of Criminal Appeals affirmed. The that the exculpatory materials were presented to Armstrong’s Tennessee Supreme Court denied Armstrong’s appeal. In original counsel, then his trial attorneys were constitutionally June 1992, Armstrong filed a petition for habeas corpus relief ineffective. The district court, on September 30, 2002, in the district court, which held that Armstrong had failed to granted summary judgment in favor of Warden Morgan properly exhaust three out of his four claims for relief. concluding that Armstrong had procedurally defaulted his ineffective assistance of counsel claim and that the state In April 1993, Armstrong filed a petition for state habeas court’s factual determination that Raybin disclosed the reports corpus relief which was denied. According to Armstrong, on to Armstrong’s counsel was entitled to the statutory approximately August 27, 1993, his attorney discovered two No tably, the district court opinion erroneously stated that the On the objection of the prosecution to the termin ology of “mask,” supplemental report was dated “February 12, 1997.” The actual date of the reference was changed to “tape.” the supplemental report was Fe bruary 27, 197 7.

No. 02-6374 Armstrong v. Morgan 5 6 Armstrong v. Morgan No. 02-6374 presumption of correctness. See 28 U.S.C. § 2254(e)(1). This process where the evidence is material either to guilt or to timely appeal followed. punishment, irrespective of the good faith or bad faith of the prosecution.” 373 U.S. at 87. The Supreme Court has since II. held that material, exculpatory evidence must be disclosed even absent the defendant’s request. See United States v. Because Armstrong’s petition for habeas corpus review was Agurs, 427 U.S. 97 (1976). Evidence is “material” if “there filed after the effective date of the Antiterrorism and Effective is a reasonable probability that, had the evidence been Death Penalty Act of 1996, the Act governs this Court’s disclosed to the defense, the result of the proceeding would review. Bowling v. Parker, 344 F.3d 487, 497 (6th Cir. have been different.” United States v. Bagley, 473 U.S. 667, 2003). Under the Act, this Court reviews “de novo the legal 682 (1985). On appeal, the parties appear to agree that Brady conclusions of a district court denying habeas relief.” Id. required the disclosure of these reports.

This Court, however, presumes that the state court’s factual determinations are correct, “unless [they are] rebutted by clear A Brady violation, however, only occurs if the prosecution and convincing evidence.” Castleberry v. Brigano, 349 F.3d failed to disclose the evidence to the defense. The state court, 286, 291 (6th Cir. 2003); 28 U.S.C. § 2254(e)(1). Pursuant to after conducting an evidentiary hearing on the issue, the Act, we may not grant a writ of habeas corpus unless we determined that the evidence was indeed disclosed to defense find that the state court’s decision: (1) “was contrary to, or counsel before Armstrong’s trial. This decision was based involved an unreasonable application of, clearly established upon the testimony of David Raybin, the original prosecutor Federal law . . .” or (2) “was based on an unreasonable in the case, who testified that he had disclosed this determination of the facts . . . .” 28 U.S.C. § 2254(d)(1). information to the defense. Upon review of Armstrong’s federal petition for habeas corpus relief, the district court On appeal, Armstrong repeats his argument that the afforded the state court’s finding on this ground the statutory prosecution failed to disclose Brady material–i.e, two police presumption of correctness. See Brown v. Davis, 752 F.2d reports containing material, exculpatory evidence. The first 1142, 1147 (6th Cir. 1985) (“factual findings of the state court report, taken by Officer Heard, contains seven pages, but are presumed to be correct” on federal habeas review).

Armstrong claims to have received at the time of his trial only one page of this report. This report contains statements that On appeal, Armstrong argues that the district court erred in the victim was blindfolded and never got a good look at her finding that he had failed to rebut by clear and convincing abductors and that they stayed behind her during the ordeal. evidence the state court’s factual determination that Raybin The second report, also taken by Officer Heard, noted that the had provided Armstrong with the police reports. victim “did not get a good look at her assailants,” and that Alternatively, Armstrong argues that the district court erred having the victim “look at mug shots would have been in affording the state court’s factual determination that useless.” As discussed, Armstrong claims that he had not Raybin had provided Armstrong with the police reports the received these reports until 1993, when he requested a copy statutory presumption of correctness. of his police file. We now analyze the merits of these very serious allegations of Brady violations. We first address Armstrong’s argument that the district court erred in finding that he had not rebutted by clear and Brady held that “the suppression by the prosecution of convincing evidence the state court’s factual determination evidence favorable to an accused upon request violates due that Raybin had provided Armstrong with the police reports.

No. 02-6374 Armstrong v. Morgan 7 8 Armstrong v. Morgan No. 02-6374 In support of his argument, Armstrong points to: (1) the trial the defense with the exculpatory police reports. Simply put, testimony of Officer Heard indicating that her only Officer Heard’s testimony and indeed her credibility, is involvement in the investigation of the case was that she took irrelevant to the issue of Raybin’s credibility and whether or the initial description and report from the victim, when there not he disclosed both of Officer Heard’s police reports to the was evidence indicating that that was not, in fact, her only defense. involvement in the investigation of the case because she wrote a supplemental report approximately two weeks after she took Second, at the 1989 hearing on Armstrong’s ineffective the initial description and wrote the first report; and (2) the assistance of counsel claim, Raybin essentially testified that 1989 testimony of Raybin indicating that there was only one there was only one piece of evidence that he felt constituted piece of exculpatory evidence–“the sheet”–which Armstrong Brady material and that he had given the defense “the sheet.” argues is inconsistent with Raybin’s 1996 testimony that all During this 1989 testimony, Raybin essentially testified that exculpatory evidence was disclosed and also demonstrates he knew the standard under Brady for evaluating whether that only one sheet of Officer Heard’s report was given to the information needed to be disclosed to the defense and that he defense.3 We find these arguments unpersuasive. acted consistently with his disclosure duties. By viewing Raybin’s testimony as a whole, one could argue that Raybin’s First, regardless of whether Officer Heard’s testimony was testimony could be understood as an indication that he arguably inconsistent with the facts surrounding her disclosed only the one sheet description of the perpetrators involvement in the case because there is evidence that she and nothing else, because he did not believe Brady required was more involved in the case than she testified to, this is not any more than that disclosure. dispositive of the genuine issue involved on appeal –whether Armstrong provided clear and convincing evidence to rebut We conclude, however, that this testimony merely reflects the state court’s factual determination that Raybin provided Raybin’s own assessment of the relevant weight of the evidence and not the amount of evidence that Rabyin disclosed to the defense. Stated otherwise, even if Raybin believed that only one piece of evidence was exculpatory, that Armstrong also argues that there is evidence that Rayb in misled the does not mean that he did not disclose more than that “one defense about the content of the p olice re ports. Specifically, Armstrong sheet.” Indeed, even Armstrong’s own trial counsel testified contends that Raybin told defense counsel that he had a statement from that Raybin had provided “open file” discovery. Thus, we do the victim indicating that one of her abductors took off the tape on her eyes while she ate, so she w as able to see clearly the abductor’s identity, not believe that Raybin’s 1989 testimony is inconsistent with but that this statement was not mentioned in the reports. Armstrong his 1996 testimony. In any event, even were we to conclude argues that the absence of any notation in the police reports about this that Raybin’s 1989 testimony was arguably inconsistent with statement demonstrates that the prosecution engaged in a practice of his 1996 testimony, such an inconsistency would not withholding evidence from his defense. The attorney’s full statement, constitute “clear and convincing” evidence to rebut the state however, was that he remembered Raybin telling him that “he had a statement - - or a least I remember him telling m e . . . .” This full court’s determination that Raybin provided the defense with statement explains the absence of such a statement in the po lice rep ort; copies of the police reports in question. Regardless of how that is, the testimony leaves open the possibility that Raybin did not we interpret Raybin’s 1989 testimony and what implicit actually have an official statement from the victim on this point. assumptions can be made from that testimony, in 1996 he Mo reover, while we reject the factual basis of this argume nt, we also note testified clearly and directly that he gave the defense the that it is of no legal consequence to Armstrong’s Brady claim, as the statement was not withheld from the d efense, nor exculpa tory. police reports that Armstrong alleges were withheld. Under No. 02-6374 Armstrong v. Morgan 9 10 Armstrong v. Morgan No. 02-6374 these circumstances, Armstrong has not met his burden of (“J.A.”) at 627 (“The staff hospital emergency room record demonstrating clear and convincing evidence that the state was available to me . . . .”); J.A. at 628 (referring to the court’s factual determination was erroneous. second report taken by the staff physician three hours after the initial report).

We next address Armstrong’s alternative argument that the district court erred in applying the statutory presumption of For the foregoing reasons, we AFFIRM the district court’s correctness to the state court’s factual determination that denial of Armstrong’s petition of a writ of habeas corpus.

Raybin had disclosed the police reports at issue. Armstrong argues that because Raybin’s 1996 testimony was inconsistent with his 1989 testimony and because the state court in making its finding did not have the benefit of analyzing and comparing Raybin’s 1989 testimony with the 1996 testimony, the district court erred in relying upon the uninformed findings of the state court. Additionally, Armstrong argues that the state court’s determination is not entitled to the statutory presumption of correctness because in making its finding it did not have the benefit of two medical reports containing notations that the victim’s eyes were taped, thereby preventing her from seeing her abductors. Armstrong argues that these reports were withheld from the defense and discovered only after the state evidentiary hearing and that these reports impeach Raybin’s testimony regarding the amount of exculpatory material. We find this argument unpersuasive.

First, as discussed, we cannot conclude that Raybin’s 1996 testimony was inconsistent with his 1989 testimony. Second, given the fact that the same judge conducted both the 1989 and the 1996 evidentiary hearings and issued the accompanying orders, it is highly doubtful, contrary to Armstrong’s assertion, that the “findings of the [state] court following the 1996 hearing would have been different” had it considered the inconsistency of Raybin’s testimony. Finally, regarding Armstrong’s argument that the medical reports impeach Raybin’s credibility, we find no evidence to indicate that the medical reports were withheld during the initial trial.

Rather, our review of the record indicates that the defense was fully aware of such reports; indeed, these reports were repeatedly referred to during the trial. See Joint Appendix