Kenneth Jefferson v. United States

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 13a0272p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

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KENNETH ANDREW JEFFERSON,

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Petitioner-Appellant,

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No. 12-1182

v.

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Respondent-Appellee. -

UNITED STATES OF AMERICA,

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Appeal from the United States District Court

for the Eastern District of Michigan at Detroit.

Nos. 2:98-cr-80812-3; 2:04-cv-73288—Paul D. Borman, District Judge.

Argued: June 20, 2013

Decided and Filed: September 12, 2013

Before: MOORE and GRIFFIN, Circuit Judges; SARGUS, District Judge.*

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COUNSEL

ARGUED: Elizabeth L. Jacobs, Detroit, Michigan, for Appellant. Bruce C. Judge,

UNITED STATES ATTORNEY’S OFFICE, Detroit, Michigan, for Appellee.

ON BRIEF: Elizabeth L. Jacobs, Detroit, Michigan, for Appellant. Bruce C. Judge,

UNITED STATES ATTORNEY’S OFFICE, Detroit, Michigan, for Appellee.

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OPINION

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KAREN NELSON MOORE, Circuit Judge. In this case, an internal

investigation by the U.S. Attorney’s Office found evidence suggesting that during the

trial of Petitioner-Appellant Kenneth Jefferson (“Jefferson”) on drug-conspiracy charges,

the prosecution failed to disclose to the defense the extent of the promises of leniency

*

The Honorable Edmund A. Sargus, Jr., United States District Judge for the Southern District of

Ohio, sitting by designation.

1

No. 12-1182 Jefferson v. USA Page 2

that the prosecution made to several cooperating witnesses. In a motion to vacate his

sentence filed pursuant to 28 U.S.C. § 2255, Jefferson alleged that he was denied a fair

trial because the prosecutor violated his obligation under Brady v. Maryland to disclose

material impeachment evidence. Although the district court initially denied Jefferson’s

motion, we remanded the case so that the district court could make additional findings

of fact regarding whether some of Jefferson’s claims were filed within the statute of

limitations, and whether equitable tolling should be applied. On remand, the district

court again denied Jefferson’s motion, finding that Jefferson’s claims were not timely

filed, that equitable tolling was not warranted, and that even if timely, Jefferson’s Brady

claims failed on the merits. We reject the district court’s conclusion that Jefferson failed

to exercise due diligence in these circumstances, and hold that a § 2255 petitioner is

permitted to rely on the government’s representation that it has fulfilled its Brady

obligations. Reasonable diligence does not require a § 2255 petitioner repeatedly to

scavenge for facts that the prosecution is unconstitutionally hiding from him.

Nonetheless, assuming that Jefferson’s claims were timely filed, we agree with the

district court that Jefferson’s Brady claims fail on the merits, because the undisclosed

impeachment evidence was not prejudicial. Accordingly, we AFFIRM the judgment

of the district court.

I. BACKGROUND

This appeal stems from Jefferson’s conviction in June 1999 for conspiring to

distribute and to possess with intent to distribute cocaine and cocaine base in violation

of 21 U.S.C. §§ 841(a)(1) and 846. See United States v. Stines, 313 F.3d 912, 913

(6th Cir. 2002). The evidence at trial established that Jefferson was part of a gang

organized in the late 1980s in Ypsilanti, Michigan, by codefendant Joseph Stines

(“Stines”) for the purpose of processing and distributing crack cocaine. See id. at 914.

In statements to law enforcement agents following his arrest, Jefferson “admitted that

he had started selling crack in Ypsilanti in the summer of 1996,” that “[an unindicted

coconspirator] was one of his principal suppliers[,] and that he often bought one-eighth

of a kilogram, but on two occasions he had purchased a half kilogram.” Id. at 915.

No. 12-1182 Jefferson v. USA Page 3

Several coconspirators, including Tali Alexander (“Alexander”), Reese Palmer

(“Palmer”), Rasul Warren (“Warren”), and Eva Taylor (“Taylor”), cooperated with the

government in exchange for favorable plea agreements and testified as to the nature of

the conspiracy and defendants’ connections to it. On cross-examination, these witnesses

testified that the sentences the government agreed to recommend pursuant to the plea

agreements were far lower than the sentences they would face for the full scope of

criminal activity to which each admitted. Another witness, Samuel Mullice (“Mullice”),

testified that in 1996 Jefferson gave him a ride home from the parole office and told

Mullice that “he was doing something” and that if Mullice “need[ed] to do something,

get in contact.” R. 331 (Trial Tr. at 2767) (Page ID #6749). Mullice interpreted this

statement to mean that Jefferson was selling drugs. Id. at 2768 (Page ID #6750).

Witness Labron Nunn (“Nunn”) testified that in 1997 he bought two and a half ounces

of crack cocaine from Jefferson, and that Jefferson asked Nunn to join “the family.”

Stines, 313 F.3d at 915. The jury returned a verdict of guilty as to all defendants, and

Jefferson was sentenced to 240 months of imprisonment, followed by five years of

supervised release.

In July 1999, one of Jefferson’s codefendants filed a motion for a new trial,

joined by Jefferson, asserting that their trial was tainted by prosecutorial misconduct

because “the government clearly had either a tacit agreement or an overt agreement with

. . . witnesses [including Alexander] that they would receive certain additional

consideration following their testimony which they did not reveal and which the

Government did not reveal.” R. 209 (Mot. for New Trial at 5) (Page ID #9090). The

district court denied the motion for a new trial. R. 240 (Dist. Ct. Order) (Page ID

#9259). The following year, in June 2000, Stines filed a renewed motion for a new trial,

which Jefferson joined. See R. 305 (Am. Mot. for New Trial) (Page ID #9749). The

amended motion repeated the allegation that the prosecution failed “to disclose the full

extent of their agreements with the[] witnesses” who testified against the defendants,

including Alexander, Warren, and Palmer, and that the prosecutor “knowingly allowed

perjured testimony to be given.” Id. at 19 (Page ID #9772). This motion was not

No. 12-1182 Jefferson v. USA Page 4

considered on the merits by the district court, because at the time the motion was filed,

the case was already on appeal. See R. 370 (Dist. Ct. Order) (Page ID #10201).

In 2002, we affirmed Jefferson’s conviction and sentence on direct appeal.

Stines, 313 F.3d at 913. Jefferson was not a party to the petition for a writ of certiorari

from the Supreme Court filed by some of his codefendants, and accordingly, Jefferson’s

“conviction became final on May 12, 2003, upon the expiration of the 90-day period for

seeking the writ.” Jefferson v. United States, 392 F. App’x 427, 429 (6th Cir. 2010).

Jefferson filed a motion to vacate his sentence under 28 U.S.C. § 2255 on August 26,

2004, raising four grounds for relief. R. 486 (§ 2255 Pet.) (Page ID #213). Jefferson

concedes that these claims were untimely under § 2255(f)(1), and he does not pursue any

of these claims in the instant appeal. Appellant Br. at 11; see Jefferson, 392 F. App’x

at 429.

In March 2004, five months before Jefferson filed his initial § 2255 motion,

Alexander, in a letter to the district judge presiding over his criminal case, stated that he

had expected AUSA Richard Convertino (“Convertino”), the prosecutor in charge of his

case (and in charge of Jefferson’s and Stines’s prosecutions), to make a

recommendation for a downward departure to reduce Alexander’s sentence. Jefferson,

392 F. App’x at 432. This letter prompted a closer look at the Alexander case, and the

district court identified an absence of downward departure motions and yet sentences

were below amounts identified in plea agreements. Subsequently, the U.S. Attorney’s

Office (“USAO”) began an internal investigation into Convertino’s conduct in the

Alexander case. Interviews with witnesses Alexander, Warren, Palmer, and Hans

Thomas (“Thomas”), who also testified in Jefferson’s trial, revealed that they had all

been sentenced far below the downward-departure sentences the government had agreed

to recommend in their respective plea agreements, and extremely far below the

maximum sentences agreed to in the plea agreements. The investigation culminated in

a report known as the Schools Memorandum, which we previously summarized as

follows:

No. 12-1182 Jefferson v. USA Page 5

Without recounting the information set forth in that Memorandum, we

note that it suggests there is evidence that Convertino met with some

cooperating witnesses in this case without defense counsel; entered

written plea agreements and made some, at least tacit, promises of further

sentencing reductions; had witnesses testify without revealing the

additional understandings; moved orally at sentencing or in Rule 35

motions for downward departures; and had the sentencing records of

these witnesses sealed. The fairness of Jefferson’s trial was not the focus

of the investigation, but it produced evidence that the government felt

compelled to disclose to Jefferson.

Jefferson, 392 F. App’x at 432. Adding to concerns regarding Convertino’s conduct as

an AUSA was United States v. Koubriti, in which the district court dismissed—with the

agreement of the government—terrorism charges against several convicted defendants.

The district court in Koubriti found that the prosecutors, including Convertino, failed to

turn over exculpatory evidence to the defense and “materially misled the Court, the jury

and the defense as to the nature, character and complexion of critical evidence that

provided important foundations for the prosecution’s case.” 336 F. Supp. 2d 676,

680–81 (E.D. Mich. 2004).

On March 25, 2005, Jefferson filed an Amended Motion for New Trial or in the

Alternative Defendant’s Renewed Motion for Mistrial and for Evidentiary Hearing and

a Motion to Recall Mandate or, In the Alternative, Motion under Fed. R. Civ. P. 60(b)(5)

(together, the “March 2005 motions”). R. 517 (Am. Mot. for New Trial) (Page ID

#691); R. 519 (Mot. to Recall) (Page ID #717). Jefferson’s amended motion for a new

trial was a verbatim repetition of Stines’s 2000 Amended Motion for a New Trial. The

2005 motion (consisting of a photocopy of Stines’s 2000 motion) stated that “Defendant

has recently discovered that the Government made additional deals with various

witnesses which was withheld from the Defendant.” R. 517 (Am. Mot. for New Trial

at 2) (Page ID #692). Jefferson’s motion to recall the mandate asserted a new claim that

Nunn provided perjured testimony at trial that was contradicted by his testimony at an

earlier trial. R. 519 (Motion to Recall at 2) (Page ID #718). Both of these motions were

No. 12-1182 Jefferson v. USA Page 6

construed by the district court as motions to amend Jefferson’s initial § 2255 motion.1

R. 533 (Mag. J. R&R at 1) (Page ID #784); R. 614 (Dist. Ct. Op. at 1–2) (Page ID

#2391–92).

Six months after Jefferson filed these motions, on September 30, 2005, the

government disclosed to Jefferson memoranda of interviews with Thomas, Warren, and

Alexander conducted in late 2004 in connection with the internal investigation into

Convertino’s conduct. See Appellant Br. at 14–15. Following these disclosures, as well

as Stines’s counsel’s efforts to unseal sentencing records for several of the witnesses

who testified at Stines’s and Jefferson’s trial, Stines filed a supplemental motion on

March 27, 2006, adding to his previously filed § 2255 motion. See R. 552 (Supp.

Arguments in Supp. of Pet.) (Page ID #913). Jefferson obtained counsel in January

2006, and that counsel filed a motion to join Stines’s supplemental briefing on

September 26, 2006. R. 573 (Notice of Joinder) (Page ID #1270).

The district court denied Jefferson’s § 2255 motion and the March 2005 motions

to amend as untimely. R. 614 (Dist. Ct. Op. at 24) (Page ID #2414). Jefferson had

argued that his claims regarding prosecutorial misconduct were timely because they

could not have been discovered until either (i) September 2, 2004, when the unrelated

terrorism Koubriti decision was issued, finding that Convertino had failed to disclose

exculpatory evidence, or (ii) September 30, 2005, when the government disclosed its

interviews with witnesses from Jefferson’s trial. The district court rejected both of these

triggering dates. First, the district court found that a decision in an unrelated terrorism

case could not constitute the factual predicate for prosecutorial-misconduct claims in

Jefferson’s case. Id. at 22 (Page ID #2412). Second, the court found that the September

30, 2005 disclosures could not form the basis of Jefferson’s § 2255 motion, because

Jefferson filed his motions in March 2005, before the September 2005 disclosures. Id.

1

Because the district court, as well as the prior panel of this court, construed Jefferson’s March

2005 motions as amendments to his previously filed § 2255 motion, we reject the government’s argument

in this appeal that Jefferson’s March 2005 motions should be treated as a successive § 2255 motion.

No. 12-1182 Jefferson v. USA Page 7

On appeal, we reversed and remanded. Jefferson, 392 F. App’x at 433. We

agreed with the district court that Jefferson could not rely on the September 2, 2004

dismissal of the terrorism charges in Koubriti as the factual predicate of his claims. Id.

at 431. We also agreed that Jefferson could not use the September 2005 disclosures as

the basis for his March 2005 motions. See id. We concluded, however, that the district

court “did not resolve the critical question of whether Jefferson’s additional claims were

brought within one year of ‘the date on which the facts supporting the claim or claims

presented could have been discovered through the exercise of due diligence.’” Id.

(quoting 28 U.S.C. § 2255(f)(4)). We thus remanded “for further consideration of the

statute of limitations and the possible application of equitable tolling.” Id. at 427.

On remand, the district court again denied Jefferson’s § 2255 motion. The

district court found that Jefferson’s claims were untimely and were not subject to

equitable tolling, and that even if the claims were timely, they failed on the merits. This

appeal followed.

II. ANALYSIS

A. Standard of Review

“In reviewing the denial of a 28 U.S.C. § 2255 motion, we apply a de novo

standard of review to the legal issues and uphold the factual findings of the district court

unless they are clearly erroneous.” Hamblen v. United States, 591 F.3d 471, 473

(6th Cir. 2009). We review de novo the district court’s determination regarding the

applicability of equitable tolling when the facts are undisputed. Solomon v. United

States, 467 F.3d 928, 932 (6th Cir. 2006).

B. Statute of Limitations

“A motion filed pursuant to 28 U.S.C. § 2255 is subject to a one-year statute of

limitations, with the limitations period beginning to run ‘from the latest of’ four possible

dates.” Benitez v. United States, 521 F.3d 625, 629 (6th Cir. 2008). At issue in this case

is whether Jefferson filed his claims within one year of “the date on which the facts

supporting the claim or claims presented could have been discovered through the

No. 12-1182 Jefferson v. USA Page 8

exercise of due diligence.” 28 U.S.C. § 2255(f)(4). This standard “does not require the

maximum feasible diligence, only due, or reasonable, diligence.” DiCenzi v. Rose,

452 F.3d 465, 470 (6th Cir. 2006) (internal quotation marks omitted). “‘[T]he petitioner

bears the burden of proving that he exercised due diligence.’” Johnson v. United States,

457 F. App’x 462, 468 (6th Cir. 2012) (quoting DiCenzi, 452 F.3d at 471). Accordingly,

the key question is whether, taking into account “the reality of the prison system,”

DiCenzi, 452 F.3d at 470 (internal quotation marks omitted), Jefferson could have

discovered the factual predicate for his claims using due diligence more than a year

before filing his March 2005 motions, supplemented by his September 2006 filing.

1. Brady Claims

Jefferson argues that he could not have discovered the facts underlying his claims

earlier than March 2005 because Convertino deliberately hid the plea agreements and

sentencing records of the cooperating witnesses. R. 667 (Pet.’s Br. After Remand at 4)

(Page ID #3513). The district court rejected this argument and found that using due

diligence, Jefferson could have discovered the facts underlying the claims raised in his

March 2005 motions more than a year before he filed the motions. The district court

faulted Jefferson for failing to attempt to investigate further his suspicions of

prosecutorial misconduct and failing to seek out sources other than the government to

acquire facts and evidence to substantiate his suspicions. We hold that, given the record

in this case, the district court’s determinations are erroneous: Section § 2255(f)(4)’s

requirement that a petitioner exercise reasonable diligence to discover the factual

predicate underlying his claims does not require a petitioner repeatedly to seek out

information that the government unconstitutionally failed to disclose despite having

notice that petitioner sought the very information suppressed.

We must determine what diligence a reasonable person in Jefferson’s

circumstances would have exercised to discover the facts underlying his claim that the

prosecution withheld information relating to promises made to government witnesses.

Prior to Jefferson’s trial, the defense requested “information relating to . . . any

consideration, reward, agreement, or promise . . . given by the government to [any

No. 12-1182 Jefferson v. USA Page 9

witness that the government intends to call at trial].” R. 97 (Mot. for Discovery at 5)

(Page ID #9039). In response, the government represented that it was “aware of its

duties under Brady v. Maryland, 373 U.S. 83 (1963), and will provide impeachment

information as contemplated in Giglio v. United States, 405 U.S. 150 (1972).” R. 139

(Gov’t Resp. to Def.’s Various Mots. for Discovery at 1–2) (Page ID #8875–76). After

their convictions, in July 1999 and again in June 2000, the defendants filed motions for

a new trial, each of which explicitly raised the claim that the government had failed to

disclose the full extent of the promises made to cooperating witnesses. See R. 209 (Mot.

for New Trial at 5) (Page ID #9090); R. 305 (Am. Mot. for New Trial at 19) (Page ID

#9772). The government responded to both motions, arguing that defendants’ challenges

regarding the impeachment of government witnesses lacked merit and were based on

pure speculation. See R. 213 (Gov’t Resp. in Opp. to Def.’s Mot. for New Trial) (Page

ID #9116); R. 349 (Gov’t Resp. to Def.’s Am. Mot. for New Trial at 2–3) (Page ID

#10264–65). This procedural history demonstrates both that the prosecution was clearly

on notice that the defendants sought all information relating to promises made to

government witnesses, and that the prosecution made a representation that it would

disclose all impeachment evidence in its possession to the defense.

The Supreme Court has held that a defendant may rely on exactly this kind of

representation of full disclosure by the government, and that a defendant may “assume

that his prosecutors would not stoop to improper litigation conduct to advance prospects

for gaining a conviction.” Banks v. Dretke, 540 U.S. 668, 694 (2004). Accordingly,

given the prosecution’s representation that it would disclose impeachment evidence, a

defendant such as Jefferson “had no basis for believing [the prosecution] had failed to

comply with Brady.” Strickler v. Greene, 527 U.S. 263, 287 (1999). In Banks, despite

representing to the defendant that the government would “provide her with all discovery

to which [she was] entitled,” the government failed to disclose certain evidence that

would have aided the defense in impeaching the government’s witnesses. Banks,

540 U.S. at 675. Further, at trial, “the prosecution raised no red flag when the informant

testified[] untruthfully.” Id. The Court rejected the Fifth Circuit’s conclusion that the

defendant was not sufficiently diligent in pursuing her post-conviction claims because

No. 12-1182 Jefferson v. USA Page 10

she did not seek out evidence to support her claim of a Brady violation. Id. at 688, 698.

Specifically, the Court rejected the position “that the prosecution can lie and conceal and

the prisoner still has the burden to . . . discover the evidence, . . . so long as the potential

existence of a prosecutorial misconduct claim might have been detected.” Id. at 696

(internal quotation marks and citation omitted). The Court concluded that “[a] rule thus

declaring ‘prosecutor may hide, defendant must seek,’ is not tenable in a system

constitutionally bound to accord defendants due process.” Id.

Likewise, in Strickler, the Court explained that “[t]he presumption, well

established by tradition and experience, that prosecutors have fully discharged their

official duties, is inconsistent with the novel suggestion that [a] conscientious

[defendant] [has] a procedural obligation to assert constitutional error on the basis of

mere suspicion that some prosecutorial misstep may have occurred.” 527 U.S. at

286–87. Especially when the prosecutor “was an active participant in shielding any

evidence of the facts underlying the [Brady] claim,” a prisoner does not have a burden

to investigate whether there exists evidence that the government had a constitutional

obligation to disclose, but did not. Douglas v. Workman, 560 F.3d 1156, 1181 (10th Cir.

2009) (holding that petitioner could not, “exercising due diligence,” have “uncovered

the existence of a deal” between the prosecutor and a cooperating witness any sooner);

see United States v. Tavera, 719 F.3d 705, 711–12 (6th Cir. 2013) (rejecting a rule that

would require defendants to exercise due diligence to discover exculpatory evidence in

the government’s possession); Starns v. Andrews, 524 F.3d 612, 619 (5th Cir. 2008)

(holding that “there was no requirement that [petitioner] act diligently to investigate

further assuming the state could be taken at its word”).

Accordingly, the government’s position that Jefferson failed to exercise due

diligence because he did not seek information “the very existence of which the

[government] had improperly withheld in violation of Brady . . . . is fundamentally at

odds with Brady itself.” Willis v. Jones, 329 F. App’x 7, 16–17 (6th Cir. 2009). The

prosecution in Jefferson’s trial had a constitutional obligation to disclose the full extent

of the consideration given to the cooperating witnesses in exchange for their testimony.

No. 12-1182 Jefferson v. USA Page 11

This obligation existed regardless of whether the defendants in Jefferson’s trial asked for

the information—which they did, repeatedly. We hold that § 2255(f)(4)’s due-diligence

standard did not require Jefferson continuously to seek out evidence that the government

had a constitutional duty to disclose (evidence that, despite specific requests by the

defense for the information, the government represented did not exist). We reject the

district court’s determination that because Jefferson suspected undisclosed promises as

early as 2000, his failure to seek information from “the cooperating witnesses themselves

or their acquaintances” and his failure to seek sentencing records—which the prosecutor

had sealed—rendered his diligence insufficient. We do not fault Jefferson for failing to

scavenge for evidence of undisclosed promises when he already repeatedly asked for

disclosure and the evidence was unconstitutionally withheld by the government.2

This holding, however, does not answer the factual question of when Jefferson

could have discovered the factual predicate underlying the claims presented in his March

2005 motions, supplemented by his September 2006 filing. On the one hand, we reject

Jefferson’s argument that he did not discover the factual predicate underlying his claims

until September 30, 2005, when the government disclosed the witness interviews. In

some circumstances, the statute of limitations under § 2255(f)(4) will not begin to run

on a Brady claim until the suppressed evidence is disclosed by the government. See,

e.g., Willis, 329 F. App’x at 17; Rinaldi v. Gillis, 248 F. App’x 371, 378 (3d Cir. 2007);

Starns, 524 F.3d at 619. We need not consider whether these circumstances are present

in this case, because Jefferson’s § 2255 motion was filed in March 2005, before the

government disclosures in September 2005. As we explained in our prior consideration

of Jefferson’s petition, Jefferson cannot “logically argue that he did not discover the

2

This case is distinguishable from Bell v. Bell, 512 F.3d 223, 236 (6th Cir. 2008) (en banc), in

which the relevant Brady material was a “matter of public record.” Here, the record suggests that

Convertino actively sought to hide the excessively low sentencing recommendations through off-the-record

discussions with district judges, and through sealing the ultimate sentences the witnesses received. The

Bell court relied on the proposition that “[t]here is no Brady violation where information is available to

the defense ‘because in such cases there is really nothing for the government to disclose.’” Id. at 235

(quoting Coe v. Bell, 161 F.3d 320, 344 (6th Cir. 1998)). Here, the alleged non-disclosures consisted of

tacit promises from the prosecution to government witnesses in exchange for their testimony. The

evidence suggests that deliberate efforts were made to hide the extent of promised sentencing

recommendations from the defense, for example through sealing sentencing records. Given these

circumstances, we cannot conclude that the information deliberately hidden from public view was readily

available to Jefferson.

No. 12-1182 Jefferson v. USA Page 12

facts supporting the claims presented in the March 2005 motions until after the

government’s disclosures in September 2005.” Jefferson, 392 F. App’x at 431.

On the other hand, we also reject the government’s argument that Jefferson

“discovered facts underlying the § 2255 motions” as early as 1999 and 2000, when the

motions for a new trial were filed. Appellee Br. at 20. The government’s position

ignores the distinction between suspicions of misconduct and having sufficient facts to

sustain a § 2255 motion. Generally, courts have held that “conclusory allegations alone,

without supporting factual averments, are insufficient to state a valid claim under

§ 2255.” United States v. Moya, 676 F.3d 1211, 1213 (10th Cir. 2012) (citing United

States v. Fisher, 38 F.3d 1144, 1147 (10th Cir. 1994)); see also Lynn v. United States,

365 F.3d 1225, 1238 (11th Cir. 2004) (holding that a § 2255 motion failed on the merits

when the motion was supported by affidavits containing “nothing more than conclusory

allegations”); Randy Hertz & James S. Liebman, 1-11 Federal Habeas Corpus Practice

& Procedure § 11.6 (2012) (explaining that the “Rules Governing Section 2254 Cases

. . . require the petitioner to . . . ‘state the facts supporting each ground’” for relief

alleged by the petitioner (quoting Rule 2(c) of the Rules Governing Section 2254 Cases

in the United States District Courts (2010))). We acknowledge that new information

discovered “that merely supports or strengthens a claim that could have been properly

stated without the discovery . . . is not a ‘factual predicate’ for purposes of triggering the

statute of limitations under § 2244(d)(1)(D).” Rivas v. Fischer, 687 F.3d 514, 535 (2d

Cir. 2012). However, we cannot accept the government’s argument that Jefferson had

knowledge of the factual predicate underlying his Brady claim based on his

unsubstantiated suspicion that the prosecution withheld evidence regarding deals with

cooperating witnesses. This is especially so given the prosecution’s representation that

it had fulfilled its obligations under Brady and Giglio to disclose impeachment evidence.

We decline to interpret AEDPA’s competing requirements—the requirement to plead

at least some facts and the requirement of filing within one year of discovering the “vital

facts”—so as to create a trap that renders litigation of a successful § 2255 claim

effectively impossible. “Without a clear standard [as to when suspicion and hints ripen

into a factual predicate], it is likely that when a prisoner spends a tremendous amount

No. 12-1182 Jefferson v. USA Page 13

of time establishing the validity of the facts, a court may find that the initial piece of

uncorroborated information would be deemed a ‘factual predicate’ to start the

statute-of-limitations period; if, however, a prisoner instead chooses to submit an

application with the same piece of ‘raw’ information, it may fail the fact-pleading

requirement.” Limin Zheng, Actual Innocence as a Gateway through the Statute-of-

Limitations Bar on the Filing of Federal Habeas Corpus Petitions, 90 Cal. L. Rev. 2101,

2135 (2002).

Although we do not decide at what point in time Jefferson could have discovered

the factual predicate underlying his claims, we note that it was not until March 29, 2004,

that Alexander wrote to the district court asking about the status of his sentencing

reduction. And it was not until October 2004 that Stines filed a § 2255 motion raising

the Brady claim. After counsel was appointed for Stines in January 2005, following a

motion by the government to appoint counsel, Stines’s counsel began to file motions to

unseal the sentencing records of the relevant cooperating witnesses, in an effort to

discover the facts about the consideration received by the witnesses. Given that the

factual development that ultimately uncovered the prosecutorial misconduct appears to

have been ongoing from March 2004 through early 2005, and especially because “a due

diligence inquiry should take into account that prisoners are limited by their physical

confinement,”3 Moore v. Knight, 368 F.3d 936, 940 (7th Cir. 2004), Jefferson’s motion,

filed in March 2005, appears to have been filed within one year of when the factual

predicate underlying his claims was discoverable using reasonable diligence. We need

not conclusively decide this complicated factual question, however, because, even

assuming Jefferson’s claims were timely filed, we agree with the district court that the

claims fail on the merits.

3

We are mindful of “the reality of the prison system,” DiCenzi, 452 F.3d at 471 (internal

quotation marks omitted), and are careful not to overestimate the extent to which the average prisoner is

able to conduct factual investigations given his incarceration and lack of resources.

No. 12-1182 Jefferson v. USA Page 14

2. Ineffective-Assistance-of-Counsel Claim

With respect to his ineffective-assistance-of-counsel claim, Jefferson argues that

“the predicate fact was that Labron Nunn had testified for Convertino in USA v. Eric

Hinton a few weeks before he testified against Petitioner Jefferson,” and that Jefferson

did not discover this fact until the spring of 2006 when Hinton and Jefferson were in the

same prison facility. Appellant Br. at 15. This argument is not persuasive, because

Jefferson could have discovered that Nunn testified in the Hinton trial years before 2006.

Specifically, Nunn was cross-examined during Jefferson’s trial regarding inconsistencies

between Nunn’s testimony in the Hinton trial and his testimony at Jefferson’s trial, and

regarding the fact that Convertino was involved in both cases. R. 334 (Trial Tr. at

3442–46, 3455–56) (Page ID #4545–49, 4558–59). Accordingly, Jefferson was aware

of the factual predicate—that Nunn testified in the Hinton trial and that his testimony

may have been inconsistent with his testimony at Jefferson’s trial—at the time of

Jefferson’s trial in 1999. Jefferson could have filed a claim of ineffective assistance of

counsel based on counsel’s failure to get a copy of Nunn’s trial testimony in the Hinton

trial years before Jefferson filed his ineffective-assistance-of-counsel claim in September

2006. Therefore, Jefferson’s ineffective-assistance-of-counsel claim is untimely.

C. Equitable Tolling

The district court also was instructed by the prior panel to determine whether any

of Jefferson’s claims were entitled to equitable tolling. “The one-year statute of

limitations for filing a § 2255 petition is subject to equitable tolling.” Johnson, 457 F.

App’x at 469. “[E]quitable tolling allows courts to toll a statute of limitations when a

litigant’s failure to meet a legally-mandated deadline unavoidably arose from

circumstances beyond that litigant’s control.” Robertson v. Simpson, 624 F.3d 781, 783

(6th Cir. 2010) (internal quotation marks omitted). A petitioner is entitled to equitable

tolling “only if he shows (1) that he has been pursuing his rights diligently, and (2) that

some extraordinary circumstance stood in his way and prevented timely filing.” Holland

v. Florida, 130 S. Ct. 2549, 2562 (2010) (internal quotation marks omitted). We have

explained that courts should not be rigid in applying this standard and should “consider

No. 12-1182 Jefferson v. USA Page 15

each claim for equitable tolling on a case-by-case basis.” Jones v. United States,

689 F.3d 621, 627 (6th Cir. 2012). “The flexibility inherent in equitable procedure

enables courts to meet new situations that demand equitable intervention, and to accord

all the relief necessary to correct particular injustices.” Holland, 130 S. Ct. at 2563

(internal quotation marks and alterations omitted).

On appeal, Jefferson argues that the extraordinary circumstance that prevented

him from timely filing his § 2255 motion was “the elaborate action[] taken by former

prosecutor Convertino . . . to hide promises made to the witness[es] in return for false

testimony, and to suppress pending charges against Witnesses Mullice and Nunn.”

Appellant Br. at 18. Jefferson contends that Convertino’s concealment of sentencing

records through sealing orders prevented him from accessing the relevant documents

needed to pursue his Brady claims. In effect, Jefferson argues that the substance of his

Brady claims—the withholding of relevant impeachment evidence—is the extraordinary

circumstance that prevented him from timely filing. In certain circumstances, “the same

facts supporting a Brady claim [will] also support the application of the doctrine of

equitable tolling.” Wardlaw v. Cain, 541 F.3d 275, 279 (5th Cir. 2008). This

justification for equitable tolling cannot succeed in this case, however, because Jefferson

filed his March 2005 motions before the sentencing records were unsealed, and before

the government disclosed the results of its internal investigation. Accordingly, Jefferson

cannot logically argue that he was prevented from filing his claims before the

information regarding the hidden deals was disclosed to him. Additionally, if it were the

case that the alleged prosecutorial misconduct prevented Jefferson from obtaining the

facts supporting his Brady claim, then the statute of limitations under § 2255(f)(4) would

not have been triggered until Jefferson discovered those relevant facts, which would

permit him to timely file his motion. See Rinaldi, 248 F. App’x at 380. We therefore

conclude that Jefferson has not established that he is entitled to equitable tolling.

D. Merits of Jefferson’s § 2255 Motion—Brady Claims

Jefferson argues that the district court erred when it determined that the Brady

claims raised in his § 2255 motion failed on the merits. “To warrant relief under section

No. 12-1182 Jefferson v. USA Page 16

2255, a petitioner must demonstrate the existence of an error of constitutional magnitude

which had a substantial and injurious effect or influence on . . . the jury’s verdict.”

Griffin v. United States, 330 F.3d 733, 736 (6th Cir. 2003) (citing Brecht v. Abrahamson,

507 U.S. 619, 637 (1993)). In this case, Jefferson claims that his rights under Brady v.

Maryland, 373 U.S. 83 (1963), were violated when the prosecutor failed to disclose the

extent of the agreements he had made with several witnesses who testified at trial.

Under Brady, “a defendant’s due process rights are violated if the prosecution suppresses

material exculpatory evidence that is favorable to the defense.” Hanna v. Ishee, 694

F.3d 596, 610 (6th Cir. 2012). “Likewise, the prosecution violates Brady if it . . . fails

to volunteer evidence not requested by the defense, or requested only generally.” Id.

To succeed on a Brady claim, “a habeas petitioner must show that (1) the withheld

evidence was favorable to the petitioner, (2) the evidence was suppressed by the

government, and (3) the petitioner suffered prejudice.” Jells v. Mitchell, 538 F.3d 478,

501 (6th Cir. 2008).

The first prong of the Brady test is met with respect to all of the witnesses with

whom Jefferson alleges Convertino had undisclosed agreements, because a prosecutor’s

duty under Brady extends to impeachment evidence in addition to exculpatory evidence.

See Strickler, 527 U.S. at 280. Both express agreements between the prosecution and

cooperating witnesses, as well as “less formal, unwritten or tacit agreement[s]” are

“subject to Brady’s disclosure mandate.” Bell v. Bell, 512 F.3d 223, 233 (6th Cir. 2008)

(en banc); see Giglio v. United States, 405 U.S. 150, 154–55 (1972). Evidence that the

witnesses in Jefferson’s trial were going to be granted more favorable deals than they

disclosed could have been used to discredit their testimony to a greater degree than was

possible without the impeaching evidence. Thus, Jefferson has demonstrated that the

evidence allegedly withheld was favorable to him.

Nonetheless, we agree with the district court that for each of the witnesses at

issue, Jefferson either failed to demonstrate the existence of an undisclosed agreement

or failed to meet the prejudice prong of the Brady test. The prejudice analysis under

Brady evaluates the materiality of the evidence. “Evidence is material under Brady if

No. 12-1182 Jefferson v. USA Page 17

a reasonable probability exists that, had the evidence been disclosed to the defense, the

result of the proceeding would have been different.” Jells, 538 F.3d at 501–02. “The

question is not whether the defendant would more likely than not have received a

different verdict with the evidence, but whether in its absence he received a fair trial,

understood as a trial resulting in a verdict worthy of confidence.” Kyles v. Whitley,

514 U.S. 419, 434 (1995). Accordingly, “‘where the undisclosed evidence merely

furnishes an additional basis on which to challenge a witness whose credibility has

already been shown to be questionable or who is subject to extensive attack by reason

of other evidence, the undisclosed evidence may be cumulative, and hence not

material.’” Byrd v. Collins, 209 F.3d 486, 518 (6th Cir. 2000) (quoting United States v.

Avellino, 136 F.3d 249, 257 (2d Cir. 1998)); see Akrawi v. Booker, 572 F.3d 252, 264

(6th Cir. 2009) (holding that when “the jury heard substantial evidence of the potential

for a charge-reduction deal,” the failure of the prosecution to disclose an informal

agreement with a witness did not meet the prejudice prong of the Brady analysis). We

address below the testimony of each witness who allegedly had an undisclosed deal with

the prosecution.

1. Tali Alexander, Reese Palmer, and Rasul Warren

The district court found that evidence of additional deals with witnesses

Alexander, Palmer, and Warren, even if disclosed, would not have been material. We

agree. Assuming that the impeachment evidence was suppressed, the evidence was not

material because Alexander, Palmer, and Warren were each cross-examined regarding

their deals with the government resulting in favorable sentences, as well as their

willingness to lie to prevent incarceration. See Brooks v. Tennessee, 626 F.3d 878, 891

(6th Cir. 2010) (“assum[ing] without deciding that the evidence was suppressed” for

purposes of a Brady analysis).

Alexander was cross-examined extensively on the fact that his testimony was

made in exchange for a deal with the government to avoid a life sentence for shooting

multiple people, including a police officer, and for drug and firearm offenses that he

admitted he had committed. See R. 329 (Trial Tr. at 2534–41) (Page ID #7170–77).

No. 12-1182 Jefferson v. USA Page 18

Defense counsel made clear to the jury that Alexander had a strong incentive to testify

to the prosecutors’ satisfaction:

Q: If for any reason the two [prosecutors] decide not to [make a motion

for a downward departure], sir, you are looking at spending the rest of

your life plus 10 years in a federal penitentiary, correct?

A. Right.

...

Q. To avoid that, sir, you will do anything to get out rather than spend

the rest of your life in a federal penitentiary?

A. Yep.

Id. at 2541 (Page ID #7177). Alexander also admitted that he repeatedly had lied to

police officers, that he would lie to avoid criminal charges, and that he would lie to avoid

receiving a life sentence. See id. at 2600–01 (Page ID #7236–37); id. at 2673 (Page ID

#7309) (admitting that he “cooperated to keep from getting life”).

Similarly, Palmer was cross-examined about his motives for cooperating with the

government and testifying against his coconspirators. Palmer stated that he decided to

cooperate after learning that he had unwittingly sold crack cocaine to an undercover

police officer, stating, “I couldn’t deny it . . . because the [undercover agent] was right

before me.” R. 325 (Trial Tr. at 1970) (Page ID #6482). The jury was aware that

pursuant to his plea agreement, Palmer pleaded guilty to delivering only 13.57 grams of

cocaine base and 225.75 grams of cocaine, even though he had informed police that he

had been dealing cocaine in much larger quantities, upwards of three kilograms. See

R. 327 (Trial Tr. at 2250–53) (Page ID #7818–21). In other words, the jury was made

aware that had Palmer not cooperated, he would face 324 to 405 months in prison. Id.

at 2267 (Page ID #7836). Instead, because he cooperated, Palmer received a plea

agreement that calculated an agreed-to guidelines range of seventy to eighty-seven

months. Further, if the government was satisfied with Palmer’s cooperation, it agreed

to recommend a downward departure to sixty months. Id. at 2267–70 (Page ID

#7835–38). Palmer also admitted to lying repeatedly to his parole officer about selling

drugs to avoid additional penalties. R. 326 (Trial Tr. at 2211–13) (Page ID #6722–24).

Accordingly, the jury had reason to believe that Palmer had a strong incentive to give

No. 12-1182 Jefferson v. USA Page 19

perjured or exaggerated testimony against the defendants in exchange for a more lenient

sentence, and that he had a history of lying to law enforcement officers to protect

himself.

Finally, Warren was cross-examined on his incentives for cooperating with the

government. He stated: “The reason I cooperated that night was because I was caught

red handed for ounces of cocaine, and I was on parole and facing 50 years, and I think

about my kids and my family and think about myself.” R. 335 (Trial Tr. at 3672) (Page

ID #5922). Warren admitted that his agreement with the government included a

provision for the government to make a downward departure from a recommended

sentence of twenty-two years to a recommended sentence of ten years in exchange for

Warren’s cooperation. Id. at 3691–92, 3694 (Page ID #5941–42, 5944). Further,

Warren testified that he had a history of lying to government agents, and he admitted that

he would lie for the government in court to avoid going back to prison. Id. at 3708, 3808

(Page ID #5958, 6058).

This summary of the relevant cross-examinations demonstrates that Alexander,

Palmer, and Warren had their credibility impeached regarding their incentives to give

favorable testimony in exchange for significantly more lenient sentences: Alexander

was avoiding a life sentence in exchange for a downward departure that would leave the

maximum sentence at twenty-five years; Palmer would receive a downward-departure

recommendation for a sentence not to exceed five years, instead of facing between

twenty-seven and thirty-three years in federal prison for larger drug quantities; and in

exchange for Warren’s testimony, the government would recommend ten years in prison,

rather than the twenty-two-year sentence he would face absent any cooperation. Despite

the fact that these witnesses ultimately received even more lenient sentences, the jury

already was aware of the witnesses’ significant motives to exaggerate or fabricate to

please the government. Each witness also had admitted that he would lie to avoid harsh

penalties. Accordingly, under our precedents, the additional basis on which to attack

these witnesses’ credibility was not material, and Jefferson’s Brady claims regarding

these witnesses fail. See Byrd, 209 F.3d at 518.

No. 12-1182 Jefferson v. USA Page 20

2. Labron Nunn and Samuel Mullice

The testimony of Nunn and Mullice at Jefferson’s trial helped connect Jefferson

to the Stines conspiracy. Jefferson argues that the fact that both Nunn and Mullice were

not charged or prosecuted for crimes they admitted to committing demonstrates that they

had undisclosed agreements with Convertino. Appellant Br. at 33. The district court

rejected this argument, finding that Jefferson’s claims regarding Nunn and Mullice were

entirely speculative, and that Jefferson had presented no evidence to establish the

existence of an undisclosed deal. We affirm the district court’s determination that

Jefferson did not establish that a secret deal existed with respect either to Nunn or

Mullice. We have held that “[t]he mere fact that [some witnesses’] sentences were later

altered is not evidence that a deal existed prior to their testimony at trial.” Williams v.

Coyle, 260 F.3d 684, 707 (6th Cir. 2001); see also Matthews v. Ishee, 486 F.3d 883, 896

(6th Cir. 2007). Accordingly, the fact that both Nunn and Mullice were not prosecuted

for particular crimes, without more, is insufficient, under our precedents, to establish that

an undisclosed deal existed.

Even assuming that there was an undisclosed agreement with Nunn, the

additional impeachment evidence would not be prejudicial, because the jury was made

aware that Nunn was admitting in open court to criminal acts, but stated he did not

expect to be prosecuted. Nunn testified at trial that he did not have an agreement with

anyone from the state or federal prosecutor’s office regarding any benefit he would

receive for his testimony. R. 334 (Trial Tr. at 3437) (Page ID #4540). However, on

cross-examination, Nunn also stated that he knew the government could charge him with

the crimes he admitted to under oath, and that if he was prosecuted for those crimes, he

could be facing “a substantial amount of time up to probably life in prison.” Id. at 3486

(Page ID #4589). Nunn was cross-examined thoroughly on his motives for testifying,

and the improbability of his providing testimony regarding his own criminal activities

without a written plea agreement, without a lawyer present, and with no promise of

immunity. See id. at 3486–87 (Page ID #4589–90). Nunn also admitted to the jury that

he was a liar and a thief. Id. at 3490 (Page ID #4593). As in Akrawi, the cross-

No. 12-1182 Jefferson v. USA Page 21

examination of Nunn “would arguably have been more effective if evidence of the

mutual understanding [with the prosecutor] had been disclosed prior to trial, but only

incrementally so.” 572 F.3d at 264. Accordingly, the non-disclosure of a tacit

agreement between Convertino and Nunn, assuming an agreement existed, was not

prejudicial.

Mullice similarly denied receiving benefits from the government for his

testimony. R. 331 (Trial Tr. at 2780) (Page ID #6762). However, Mullice admitted to

the jury that he had pending charges against him for possession of crack cocaine (and

that he was guilty of those offenses), but that he did not expect the government to pursue

the case against him. However, on cross-examination, he could not come up with an

answer for why he did not expect to be charged or prosecuted for these crimes. Id. at

2782–86 (Page ID #6764–68). The jury understood that Mullice had a motive to testify

favorably for the government and that he may have stood to benefit significantly through

his cooperation. Thus, any undisclosed impeachment evidence would have been

cumulative. Accordingly, even if Convertino suppressed evidence of deals with Nunn

and Mullice, the additional impeachment evidence would not “put the whole case in such

a different light as to undermine confidence in the verdict.” Kyles, 514 U.S. at 435. We

hold that Jefferson’s Brady claims relating to Nunn and Mullice fail.

3. Eva Taylor

Like Warren, Palmer, and Alexander, Taylor was cross-examined about her plea

agreement with the government. She admitted that, absent her cooperation with the

government, she would face a mandatory minimum of ten years in prison and would

likely receive a sentence of between twenty-five and thirty years in prison. R. 322 (Trial

Tr. at 1472) (Page ID #7087). However, pursuant to her plea agreement, if Taylor

cooperated with the government and testified against her coconspirators, the government

would make a recommendation to the sentencing judge that she receive a sentence of

only four years. Id. at 1473 (Page ID #7088). Taylor also admitted lying to the

government in the past. See id. at 1416 (Page ID #7031). After Jefferson’s trial ended,

Taylor ultimately was sentenced to only two years of probation. Assuming there was an

No. 12-1182 Jefferson v. USA Page 22

undisclosed deal, as the circumstantial evidence of Taylor’s grossly reduced sentence

suggests, the cross-examination repeated above demonstrates that Taylor’s credibility

was impeached thoroughly regarding her incentives to testify favorably towards the

government. Accordingly, the undisclosed evidence would be cumulative and not

prejudicial.

4. Aaron Bowles

Like Jefferson’s Brady claims with respect to the trial witnesses, Jefferson’s

Brady claim regarding an undisclosed promise with Aaron Bowles (“Bowles”) in

exchange for his testimony at sentencing fails, because even if such an undisclosed

promise existed, it would not meet the standard for prejudice.4 On cross-examination,

Bowles admitted that he was cooperating with the government so that it would make a

recommendation for a reduction in his sentence. R. 423-1 (Sent. Hr’g Tr. at 64–65)

(Page ID #3128–29). Accordingly, Bowles’s credibility was impeached, because it was

established that he had a strong motive to testify to the government’s satisfaction.

More significantly, the primary basis for the district court’s drug-quantity

determination was Jefferson’s admissions to law enforcement officers when he was

initially arrested. See R. 425 (Sent. Hr’g Tr. at 23–24) (Page ID #3171–72). Jefferson

conceded that if his statement to law enforcement officers was considered reliable

evidence, it would establish that he was responsible for three-and-a-half kilograms of

cocaine. R. 285 (Def.’s Supp. Sent. Mem. at 3) (Page ID #9849). The district court

found this statement reliable, and thus found that Jefferson was responsible for at least

one-and-a-half kilograms of cocaine. R. 425 (Sent. Hr’g Tr. at 23–24) (Page ID

#3171–72). Although the district court also credited Bowles’s testimony, even with

additional impeachment evidence, there is not a reasonable probability that the district

court would have found Jefferson liable for less than one-and-a-half kilograms of

cocaine. Thus, Jefferson’s claim relating to Bowles fails.

4

Brady’s obligations “appl[y] to evidence material to sentencing.” See, e.g., United States v.

King, 628 F.3d 693, 704 (4th Cir. 2011).

No. 12-1182 Jefferson v. USA Page 23

5. Donald Bailey

Jefferson’s assertions regarding Officer Donald Bailey (“Bailey) lack merit.

Jefferson asserts that Convertino withheld information regarding Bailey’s disciplinary

history from the court, or otherwise lied about that history. Appellant Br. at 41–42.

However, the trial transcript indicates that defense counsel was aware of the information,

and that Convertino did not deny it, but only objected to the questioning on evidentiary

grounds. R. 319 (Trial Tr. at 907–17) (Page ID #5259–69). Jefferson has not

established that Convertino withheld any information from defense counsel relating to

Bailey’s conduct in unrelated state-court cases.

* * *

Although the record in this case suggests egregious prosecutorial misconduct, the

bad faith of the prosecutor does not impact our Brady analysis. See Strickler, 527 U.S.

at 288 (“‘If the suppression of evidence results in constitutional error, it is because of the

character of the evidence, not the character of the prosecutor.’” (quoting United States

v. Agurs, 427 U.S. 97, 110 (1976))). We affirm the district court’s conclusion that

Jefferson’s Brady claims fail on the merits.

III. CONCLUSION

For the foregoing reasons, we AFFIRM the judgment of the district court.