The opinion
Case: 21-70010 Document: 419-1 Page: 1 Date Filed: 08/14/2026
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
____________ Fifth Circuit
FILED
No. 21-70010 August 14, 2026
____________ Lyle W. Cayce
Clerk
Brittany Marlowe Holberg,
Petitioner—Appellant,
versus
Eric Guerrero, Director, Texas Department of Criminal Justice,
Correctional Institutions Division,
Respondent—Appellee.
______________________________
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 2:15-CV-285
______________________________
Before Elrod, Chief Judge, and Higginbotham, Jones, Smith,
Stewart, Richman, Southwick, Haynes, Graves,
Higginson, Willett, Ho, Duncan, Engelhardt, Oldham,
Wilson, Douglas, and Ramirez, Circuit Judges.
Per Curiam: *
The judgment is AFFIRMED by an equally divided en banc court.
_____________________
*
Elrod, Chief Judge, and Higginbotham, Richman, Southwick,
Graves, Willett, Ho, Duncan, Engelhardt, and Wilson, Circuit Judges.
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Andrew S. Oldham, Circuit Judge, joined by Judges Jones, Smith,
Ho, Duncan, Engelhardt, and Wilson, and Judge Willett in
all but Parts II.A.1 and III.B:
On November 13, 1996, Brittany Holberg savagely murdered a “kind
little old man” named A.B. Towery in Amarillo, Texas. ROA.8351. Towery
was 80 years old, had no teeth, could barely walk, used a wheelchair, and
shook when he ate. Holberg robbed Towery for drug money. And she stabbed
him 58 times, bound him with an electrical cord, and shoved a lamp 5.5 inches
down his throat while he was still alive and drowning in his own blood.
Holberg stabbed Towery in the head, face, nose, lips, chin, neck, shoulder,
chest, back, abdomen, forearms, wrists, and hands. Holberg continued
stabbing Towery after he was already dead and left a paring knife protruding
from his abdomen. She “pulverized” the old man’s nose with blunt objects,
including a steam iron. ROA.8319. After murdering Towery, Holberg
showered and changed into his clothes, spent the night partying with drugs
purchased with his stolen money, and then fled the State.
In the 30 years since Holberg’s horrific crimes, she confessed to
everything. Her only defense? That Holberg (a then-23-year-old able-bodied
and cocaine-addled woman) was somehow acting in “self-defense” when she
ferociously beat and stabbed an 80-year-old wheelchair-using invalid for 45
minutes, stabbed him 18 times in the back, continued stabbing him after he
was dead, and then left to buy drugs with his money and party in his clothes.
At Holberg’s capital-murder trial, the jury obviously rejected her self-defense
theory. So too did every state judge who ever looked at her case on direct
appeal and in state-postconviction proceedings. So too did the federal district
court, which denied postconviction relief under the relitigation bar of the
Antiterrorism and Effective Death Penalty Act of 1996, 28 U.S.C. § 2254(d)
(“AEDPA”).
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But then a deeply divided panel of our court granted relief on subpart
four of claim thirty-four in Holberg’s thirty-five-claim postconviction
petition. Holberg v. Guerrero, 130 F.4th 493 (5th Cir. 2025). The panel
majority held that information completely unconnected to Holberg’s case
was nonetheless “exculpatory” under Brady v. Maryland, 373 U.S. 83 (1963).
The panel majority further held that information was “material” to
Holberg’s self-defense theory. The panel majority included precisely one
citation to AEDPA’s relitigation bar. See 130 F.4th at 499 n.13. Judge
Duncan dissented. Our court granted en banc rehearing. 145 F.4th 625 (5th
Cir. 2025) (mem.).
Today we affirm the district court and hold that AEDPA bars
Holberg’s claims.
I
A
Three months after Holberg savagely murdered Towery, she was
arrested in Memphis, Tennessee. Holberg confessed to killing Towery. She
was indicted and tried for capital murder.
At trial, the State’s theory was that Holberg murdered Towery as a
crime of opportunity and to feed her drug addiction. The State presented 21
witnesses. Some of those witnesses saw Holberg shortly before she entered
Towery’s apartment. Some saw her when she left. One partied with her
shortly after the murder. Several of the State’s witnesses testified about
Holberg’s confession. For example, Holberg’s mother testified about her
daughter’s confession. So too did three police officers. And so too did a
woman named Vicki Kirkpatrick, who was a prostitute and Holberg’s
cellmate. But “[t]he climax of the State’s case was . . . the chief medical
examiner’s description of Towery’s horrific injuries.” Holberg, 130 F.4th at
513 (Duncan, J., dissenting).
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Vicki Kirkpatrick’s testimony was a brief interlude at the trial, but it’s
central to this appeal. Kirkpatrick testified only during the guilt phase. Her
direct testimony spanned only ten pages of 1,943-page trial transcript and the
111,617-page record. After cross and a brief redirect, the entirety of
Kirkpatrick’s testimony consumed 20 pages of transcript text. Kirkpatrick’s
testimony was cumulative insofar as she was one of five prosecution witnesses
who told the jury that Holberg confessed to butchering Towery. But the
jailhouse confession, as relayed by Kirkpatrick, had some additional details
that Holberg apparently did not relay to her mother or police. For example,
according to Kirkpatrick, Holberg said Towery’s blood was “pretty,” like a
“fountain,” that she “couldn’t stop” stabbing Towery, and that “[t]he more
she did it, the prettier it was to her.” ROA.8623. Holberg allegedly said it was
“fun and amazing.” ROA.8623. Holberg allegedly said she “[s]tuck the lamp
thing down his throat” to stop the “[g]urgling” and “pain” noises, because
Holberg was “tired” of hearing Towery’s death throes. ROA.8623–24. And
Holberg allegedly said that she’d do it again because she’d do anything “to
get drugs or drug money.” ROA.8624. Far from emphasizing these details to
the jury, at closing, the State discounted Kirkpatrick’s gory details as just
“jailhouse talk”: “That’s what you tell your roommate to let them know
you’re bad.” ROA.9339.
The defense’s trial theory centered on Holberg’s decision to testify in
her own defense. She told the jury that she had been high on crack cocaine
for ten days. She testified that she went to Towery’s apartment because he
was one of her prostitution clients. She testified that, once inside Towery’s
apartment, she started smoking crack. This allegedly upset Towery so much
that he “hit” Holberg “in the back of the head.” ROA.9010. A 45-minute
fight ensued. Holberg stabbed Towery 58 times, and 18 of those stab wounds
were in Towery’s back. And Holberg testified that she unintentionally shoved
a lamp 5.5 inches down Towery’s throat to “get him off” of her. ROA.9034,
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9140–41. While Holberg initially told police that Towery bit her, she
admitted at trial that was a lie because Towery had no teeth or dentures. It is
unclear from the record whether Holberg suffered any injuries in her
purported exercise of self-defense against her toothless octogenarian victim.
What is clear is that, after the murder, Holberg showered, changed into
Towery’s pants and shirt, did not call police, and instead went out to buy
drugs and party with the money she stole from the “kind little old man.”
ROA.8351, 9037–40.
The jury unanimously convicted Holberg of capital murder after finding that
she did not act in self-defense. The jury unanimously concluded that Holberg
intentionally caused Towery’s death “in the course of committing or
attempting to commit” burglary or robbery. ROA.21672.
At the sentencing phase, the jury considered two issues relevant to
this appeal. The first was whether there was a “probability” that Holberg
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“would commit criminal acts of violence that would constitute a continuing
threat to society.” ROA.21456; see Tex. Code Crim. Proc. art. 37.071,
§ 2(b)(1) (1995). This is the so-called “future-dangerousness” issue. The
second question was the existence vel non of “a sufficient mitigating
circumstance or circumstances to warrant . . . a sentence of life imprisonment
rather than a death sentence.” ROA.21451, 21457; see Tex. Code Crim.
Proc. art. 37.071, § 2(e)(1) (1995). This is the so-called “mitigating-
circumstances” issue. 1
The jury found future dangerousness, and it found insufficient
mitigating circumstances. So it unanimously recommended that Holberg be
sentenced to death. The trial court adopted that recommendation.
B
On direct appeal, Holberg raised 50 points of error. The Texas Court
of Criminal Appeals (“TCCA”) rejected all of them. The Supreme Court
of the United States denied certiorari. Holberg v. Texas, 534 U.S. 972 (2001)
(mem.).
Holberg then filed a 35-claim petition for state postconviction relief.
Two of those claims are relevant here.
Claim 28 alleged ineffective assistance of trial counsel in violation of
Strickland v. Washington, 466 U.S. 668 (1984). Holberg contended that her
trial counsel exerted insufficient effort to investigate her troubled family and
social history in violation of Wiggins v. Smith, 539 U.S. 510 (2003). The state
habeas court conducted a two-week evidentiary hearing. Two highly
experienced lawyers, two highly experienced investigators, and a mental-
_____________________
1
After Holberg’s trial, both issues were recodified without material change in the
Texas Code of Criminal Procedure, article 37.071, § 2(b)(1) (future dangerousness) and
§ 2(e)(1) (mitigating circumstances).
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health expert collaborated on Holberg’s case. Her trial team conducted
dozens of interviews. They made multiple investigatory trips to find and
corroborate sources. They collected and reviewed medical, school,
employment, and criminal records. And they made a “strategic decision[]”
to portray Holberg as an intelligent woman who got mixed up with drugs—
rather than a woman who was ‘damaged goods’ by consequence of her past.
ROA.98068. The state court thus rejected Holberg’s 28th claim under
Strickland-Wiggins.
Claim 34 in Holberg’s state habeas petition alleged eight separate
Brady violations. Subpart D of claim 34 alleged that the State failed to disclose
information that could have been used to impeach Vicki Kirkpatrick.
Crucially, Holberg pointed to zero evidence about Kirkpatrick that was
related to her own case in any way. Rather, Holberg alleged that a man named
Corporal Stallings, a member of the Amarillo Police Department’s SWAT
Team, paid Kirkpatrick up to $100 to help him get warrants in robbery cases
totally unrelated to Holberg’s case. Corporal Stallings testified about this
arrangement during Kirkpatrick’s separate and unrelated criminal trial. And
later testimony suggests Holberg’s defense counsel knew about Kirkpatrick’s
and Stallings’s activities and chose not to impeach her with it. ROA.76006
(attacking Kirkpatrick’s credibility would have been a “double edge[d]
sword” because the State would have called in officers to testify that she
“provided them truthful information to solve other crimes”). Still, Holberg
contended that Brady required the State to somehow find the information
and disclose it so Holberg could use it to cross-examine Kirkpatrick. The
state habeas court rejected subpart D of Holberg’s 34th claim under Brady in
an order that included 128 pages of factual findings and legal conclusions.
Holberg then turned to federal district court. She filed a 19-claim
federal habeas application. The district court rejected it in a 322-page order.
And the district court rejected a certificate of appealability (“COA”).
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A divided panel of our court granted Holberg a COA on her
Strickland-Wiggins claim and on the subpart of her Brady claim related to
Vicki Kirkpatrick. Then, over Judge Duncan’s sharp dissent, the panel
majority granted Holberg postconviction relief and vacated both her
conviction and her death sentence. The panel majority announced its
conclusion that the State violated Brady and then, almost as an afterthought,
said any contrary conclusion was “an unreasonable application of clearly-
established federal law.” Holberg, 130 F.4th at 502 (quoting Floyd v. Vannoy,
894 F.3d 143, 163 (5th Cir. 2018) (per curiam)). The panel majority did not
identify any case, let alone a Supreme Court case, that ever extended the
State’s disclosure obligations to information about a witness’s providing aid
to an officer whose affairs were entirely disconnected from the defendant’s
case. Having ordered the vacatur of Holberg’s conviction and sentence under
Brady, the panel majority did not reach her Strickland-Wiggins claim.
We granted en banc rehearing.
II
The panel majority’s most fundamental error was that it started and
ended its analysis with Brady. The question in this case is not whether
information about Kirkpatrick’s relationship with Corporal Stallings was
Brady material. The question is whether jurists of reason unanimously would
conclude that the state court misapplied Brady. That is the AEDPA
standard, and the panel majority did not even discuss it—let alone apply it. 2
_____________________
2
Holberg halfheartedly attempts to defend the panel majority by contending that
AEDPA does not apply because the state courts did not explain why her Brady claim failed.
E.g., Holberg En Banc Br. at 33. But all 18 members of this en banc court agree on one
thing—if only one thing—and that’s that AEDPA does apply. AEDPA does not require
either the state trial court or the TCCA to write a reasoned opinion rejecting Holberg’s
Brady claim. See ROA.97964 (“Holberg . . . failed to show that the State violated its
obligations under Brady v. Maryland.”); Ex parte Holberg, No. WR-68,994-01, 2014 WL
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The AEDPA standard is known as the “relitigation bar.” 28 U.S.C.
§ 2254(d); e.g., Harrington v. Richter, 562 U.S. 86, 100 (2011) (so calling it).
AEDPA’s relitigation bar “stops short of imposing a complete bar on federal-
court relitigation of claims already rejected in state proceedings.” Richter,
562 U.S. at 102 (emphasis added). But it’s close to a complete bar. Cf. Felker
v. Turpin, 518 U.S. 651, 664 (1996) (discussing AEDPA’s “modified res
judicata rule” under § 2244). Once a claim is adjudicated on the merits in
state court, AEDPA prohibits federal courts from granting postconviction
relief unless one of three conditions is met: the state court decision was
“contrary to . . . clearly established Federal law, as determined by the
Supreme Court of the United States,” 28 U.S.C. § 2254(d)(1); the state
court decision “involved an unreasonable application of[] clearly established
Federal law, as determined by the Supreme Court of the United States,”
ibid.; or the state court decision “was based on an unreasonable
determination of the facts in light of the evidence presented in the State court
proceeding,” id. § 2254(d)(2).
Holberg does not contend that the state courts’ decisions were
contrary to the Supreme Court’s clearly established law. 3 So we need only
_____________________
5389907, at *1 (Tex. Crim. App. Sept. 17, 2014) (per curiam) (“Based upon the trial court’s
findings and conclusions and our own review, we deny relief.”). Where, as here, “a state
court’s decision is unaccompanied by an explanation,” AEDPA requires the habeas
petitioner to show that “there was no reasonable basis for the state court to deny relief.”
Harrington v. Richter, 562 U.S. 86, 98 (2011) (citing 28 U.S.C. § 2254(d)).
3
“A state-court decision is ‘contrary to’ clearly established federal law only if it
‘arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of
law or if’ it resolves ‘a case differently than [the Supreme] Court has on a set of materially
indistinguishable facts.’” Langley v. Prince, 926 F.3d 145, 155 (5th Cir. 2019) (en banc)
(quoting Terry Williams v. Taylor, 529 U.S. 362, 413 (2000)). In her en banc brief, Holberg
repeatedly says the state court’s decision was “contrary to” and/or “an unreasonable
application” of clearly established Supreme Court precedent. Holberg En Banc Br. at 2,
24, 26, 31, 46, 68. But she never applies the Terry Williams standard. Nor does she ever
point to a Supreme Court decision involving materially indistinguishable facts. Cf. id. at 30
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consider two exceptions to AEDPA’s relitigation bar: (A) whether the state
court decision “involved an unreasonable application” of clearly established
Supreme Court holdings; and (B) whether the state court based its decision
“on an unreasonable determination of the facts in light of the evidence
presented in the State court proceeding.” The first of these is a legal inquiry;
the second is a factual one. We consider both in turn before turning to (C) the
dissents’ counterarguments.
A
Law first. A state court decision is an “unreasonable application of”
clearly established Supreme Court precedent only if “the state court was so
wrong that the error was ‘well understood and comprehended in existing law
beyond any possibility for fairminded disagreement.’” Langley v. Prince, 926
F.3d 145, 156 (5th Cir. 2019) (en banc) (quoting Shoop v. Hill, 586 U.S. 45, 48
(2019) (per curiam)). “In other words, the unreasonable-application
exception asks whether it is ‘beyond the realm of possibility that a fairminded
jurist could’ agree with the state court.” Ibid. (quoting Woods v. Etherton, 578
U.S. 113, 118–19 (2016) (per curiam)). Of course, AEDPA “does not
‘require state and federal courts to wait for some nearly identical factual
pattern before a legal rule must be applied.’” Panetti v. Quarterman, 551 U.S.
930, 953 (2007) (quotation omitted). But “even a strong case for relief does
_____________________
(contending only that the state court’s decision was contrary to circuit precedent in the
Sixth and Ninth Circuits). But see, e.g., White v. Woodall, 572 U.S. 415, 420 n.2 (2014) (“[A]
lower court may not consul[t] its own precedents, rather than those of this Court, in
assessing a habeas claim governed by § 2254.” (quotation omitted)); Renico v. Lett, 559 U.S.
766, 779 (2010) (same); Parker v. Matthews, 567 U.S. 37, 48 (2012) (per curiam) (same);
Marshall v. Rodgers, 569 U.S. 58, 64 (2013) (per curiam) (same); Lopez v. Smith, 574 U.S. 1,
6 (2014) (per curiam) (same). Nor do today’s dissenters apply AEDPA’s “contrary to”
exception to the relitigation bar.
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not mean the state court’s contrary conclusion was unreasonable.” Richter,
562 U.S. at 102.
AEDPA thus does not authorize federal courts to correct errors in
state court proceedings. It does not even authorize correction of clear errors.
Rather, it authorizes federal courts to reach only “extreme malfunctions” in
the state courts’ adjudication of constitutional claims. Ibid. (quotation
omitted). The Supreme Court recently explained the rule this way:
[I]n order to obtain federal habeas relief, a state prisoner must
show far more than clear error. The habeas claimant must
instead establish that the state court blundered so badly that
every fairminded jurist would disagree with the decision. Only
then is a decision so lacking in justification that its error
precludes even the possibility for fairminded dispute.
Klein v. Martin, 607 U.S. 213, 220–21 (2026) (per curiam) (quotations
omitted). “If this standard is difficult to meet, that is because it was meant to
be.” Richter, 562 U.S. at 102.
Holberg argues that the state court unreasonably applied the Supreme
Court’s Brady precedents. The Court held in Brady that “the suppression by
the prosecution of evidence favorable to an accused . . . violates due process
where the evidence is material either to guilt or to punishment.” Kyles v.
Whitley, 514 U.S. 419, 432 (1995) (quoting Brady, 373 U.S. at 87). “As we
have previously explained, ‘given that the Supreme Court has stated the
Brady disclosure requirement at a high level of generality,’ a state court has
‘substantial leeway’ in deciding whether it is satisfied.” Reeder v. Vannoy, 978
F.3d 272, 279 (5th Cir. 2020) (per curiam) (quoting Cobb v. Thaler, 682 F.3d
364, 379 (5th Cir. 2012)); see also Yarborough v. Alvarado, 541 U.S. 652, 664
(2004) (“The more general the rule, the more leeway courts have in reaching
outcomes in case-by-case determinations.”).
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Holberg argues that the state court exceeded its “substantial leeway”
and unreasonably applied Brady in two ways. First, she contends the state
court unreasonably applied Brady by finding the State did not suppress
Kirkpatrick’s informant status. Second, she contends the state court
unreasonably applied Brady by finding Kirkpatrick’s informant status was not
material. We consider each contention—(1) suppression and
(2) materiality—in turn.
1
We begin with suppression. Holberg contends that the State
suppressed Kirkpatrick’s status as a police informant in unrelated cases. She
concedes such information appeared nowhere in the Holberg case file, and
that the State’s open-file policy therefore could not have disclosed it. See
Holberg En Banc Br. at 31; Kyles, 514 U.S. at 437 (emphasizing the Supreme
Court has “never held that the Constitution demands an open file policy”).
She further concedes that to disclose this information, prosecutors first
would have had to interview every person in the entire Amarillo Police
Department—including people who had nothing to do with Holberg’s case.
Holberg En Banc Br. at 32. Finally, she concedes that no Supreme Court case
ever has required prosecutors to interview police officers who are totally
unconnected to the defendant’s case. Id. at 30 (pointing only to circuit
precedent in the Sixth and Ninth Circuits requiring that).
Holberg also acknowledges testimony in the state court record that
undermines her suppression claim. See Holberg En Banc Reply Br. at 9–13.
As the state court said, “it is axiomatic that the State cannot suppress
information that the applicant actually possesses.” ROA.97964; see also
Brady, 373 U.S. at 87; Banks v. Dretke, 540 U.S. 668, 691 (2004). And in the
state court, Holberg’s trial counsel Candace Norris testified under oath and
penalty of perjury that she knew Kirkpatrick was a police informant. Norris
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testified that she intentionally did not challenge Kirkpatrick’s “credibility”;
did not tell the jury that Kirkpatrick “lied”; and did not tell the jury that
Kirkpatrick was trying “to get something for herself.” ROA.76005. Why?
Because if trial counsel had done any of that, it would have opened the door
for the State to prove Kirkpatrick’s “reputation in the community for truth
and veracity.” ROA.76006. How would the State prove that reputation?
“The State in all likelihood would . . . call in law enforcement officers to
testify that Kirkpatrick has a reputation in the community for truth and
veracity because she has provided them [that is, police] with truthful information
to solve other crimes.” ROA.76006 (emphasis added).
Ultimately, however, we need not decide whether jurists of reason
unanimously would concur that the state court erred on suppression. That’s
because, as we discuss in the next subsection, jurists of reason would not
unanimously conclude that the state court erred on materiality.
2
a
Even assuming Holberg can establish suppression, she also must show
that, if trial counsel had possessed the suppressed evidence, “‘there is a
reasonable probability’ that the result of the trial would have been different.”
Strickler v. Greene, 527 U.S. 263, 289 (1999) (quotation omitted); see also
Turner v. United States, 582 U.S. 313, 324 (2017) (same). “[T]he
Constitution is not violated every time the government fails or chooses not
to disclose evidence that might prove helpful to the defense.” Kyles, 514 U.S.
at 436–37. And the Constitution does not require “an open file policy,” nor
does it require the State to disclose “any evidence tending to exculpate or
mitigate.” Id. at 437. Rather, the question is whether the “cumulative effect”
of a non-disclosure “destroy[s] confidence in [the trial’s] result.” Id. at 439–
40.
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And of course, we are not applying Brady or Kyles or Strickler; we are
applying AEDPA. That means the state court need not cite or discuss the
relevant rules—and need not cite federal law at all. See Early v. Packer, 537
U.S. 3, 8 (2002) (per curiam); see also McCarthy v. Hernandez, 146 S. Ct. 1873,
1881 (2026) (per curiam) (summarily reversing grant of AEDPA relief and
upholding state court decision that cited no federal law). Rather, we review
the state court’s decision and give it “the benefit of the doubt.” Martin, 607
U.S. at 220 (quotation omitted).
To illustrate the distinction between clear error (off limits under
AEDPA) and extreme malfunctions (the AEDPA standard), see ibid.,
consider the Supreme Court’s summary reversal of the Fourth Circuit in
Martin. That case also involved a Brady claim subject to AEDPA’s
relitigation bar, and it too hinged on materiality. But the Martin petitioner’s
materiality argument was much stronger than Holberg’s.
Charles Brandon Martin was convicted of the attempted murder of
one of his girlfriends. She was found in her home with a gunshot to the back
of the head and a “peculiarly modified” Gatorade bottle lying nearby. Id. at
216 (describing the bottle as having tape on the top with a rectangular hole
cut into it, and a “jagged hole” on the bottom). The bottle had Martin’s
DNA on it. The prosecution sought to prove that the bottle was used as a
makeshift suppressor, which would tend to show that Martin planned to
murder the victim.
To prove this theory, the prosecution relied on the testimony of Sheri
Carter, another of Martin’s girlfriends. She testified that “she had seen
Martin ‘looking up gun silencers’” on a laptop “not long before the
shooting,” that he “took the laptop from her apartment after the shooting,”
and that he said he “‘got rid of it’ ‘in case [the] apartment got searched,’
because he ‘didn’t want it found there.’” Id. at 218 (quotation omitted).
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After trial, Martin’s counsel discovered an undisclosed forensic report that
analyzed five computers found in Martin’s home. One of them matched
Carter’s description of the laptop Martin allegedly used to research
homemade silencers. “The report found no evidence that this laptop had
been used since 2005, and it noted that a keyword search for words such as
‘Handgun,’ ‘Gatorade,’ ‘silencer,’ and ‘Homemade silencer’ had yielded
no hits.” Id. at 219 (quotations omitted). Martin claimed the State
suppressed that forensic report in violation of Brady.
The state habeas court, the federal district court, and the Fourth
Circuit all found that the nondisclosure was material under Brady and
granted habeas:
• Fourth Circuit:
o “[T]he forensic computer report was particularly valuable
impeachment evidence because it provided the only means of
undermining Carter’s damaging testimony. . . . While Carter’s
testimony was not the sole evidence for an essential element of
Martin’s conviction as an accessory before the fact to first
degree murder, it was by far the strongest. Without Carter’s
testimony, the link between Martin and the construction of the
alleged silencer is exceedingly weak.” Martin v. Nines, No. 24-
6086, 2025 WL 215521, at *10 (4th Cir. Jan. 16, 2025)
(emphases added).
o “Carter’s testimony played a central role in the Prosecution’s
closing argument and entire case. Any reasonable jurist would
be compelled to find that evidence that successfully impeaches
Carter’s testimony, at the time touted by the Prosecution as
airtight, would be material.” Id. at *11 (emphasis added).
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o “Carter’s testimony fundamentally altered the character of this
case. It formed the entire basis for a devastating jury instruction,
bolstered the State’s weaker witnesses, and undermined the
Defense’s theories.” Id. at *12 (emphases added).
• District of Maryland:
o “The state’s only evidence to meet its burden of proof as to the
essential elements was Carter’s testimony, which was
dramatically discredited and undermined by the suppressed
document. Further, the suppressed document provided the
only basis for impeachment of Carter’s testimony.” Martin v.
Nines, No. CV JRR-20-2602, 2023 WL 8650294, at *14 (D.
Md. Dec. 14, 2023) (emphases added), opinion vacated and
superseded, No. CV JRR-20-2602, 2024 WL 341174 (D. Md.
Jan. 30, 2024).
o “Without Carter’s testimony, the jury would not have been
instructed that there was evidence Martin concealed evidence
and that such concealment may be viewed as consciousness of
guilt.” Id. at *13.
o “Carter’s testimony substantiated a mere theory from
Detective Alban based on a Steven Seagal movie that a
Gatorade bottle found in the victim’s home was a homemade
silencer. Without Carter’s testimony, the Gatorade bottle is
simply a Gatorade bottle, and the presence of Martin’s DNA
is completely innocuous.” Ibid.
• Circuit Court for Anne Arundel County (State Habeas Court):
o “Importantly, Carter was the only witness to testify that she
saw Petitioner using the CSM computer to research gun
silencers or that Petitioner ‘got rid of’ the laptop. Had this
evidence been available, there is a reasonable probability that
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the jury would have decided this case differently, and a
substantial probability that the jury instruction on concealment
of evidence wou1d not have been given.” Martin v. Maryland,
No. 02-K-09-000831, at *11 (Md. Cir. Ct. Anne Arundel Cnty.
Oct. 5, 2018) (mem. op.).
o “The essential link between Petitioner and the victim was the
silencer. . . . The two strongest links connecting Petitioner to
the silencer were the DNA evidence and Carter’s testimony.
In that context, it would have been significant for Petitioner to
have questioned Carter about the inconsistencies between her
testimony and the [report].” Id. at *12.
o “[C]arter’s testimony [also] provided the only evidence
suggesting that Petitioner concealed or destroyed evidence, for
which a jury instruction was given. Notwithstanding the other
evidence presented by the State, there is a ‘reasonable
probability’ that disclosure of the Computer Analysis would
have led to a different result in this case.” Ibid.
Thus, the Martin forensic report obviously implicated Brady: It was
(1) in the defendant’s own case; (2) powerfully exculpatory; and (3) might
have destroyed a key witness’s credibility. See, e.g., Strickler, 527 U.S. at 280–
81 (listing the elements of a Brady claim). And as the state habeas court held,
Martin’s Brady claim could even be a winning one.
But none of that mattered under AEDPA because the Maryland
Court of Appeals rejected the Brady claim on the merits. So when the claim
arrived in federal court, the question was no longer whether the State should
have disclosed the forensic report, and the question was not whether the
forensic report would have fundamentally changed the trial. Rather, the
question was whether the Maryland Court of Appeals acted so unreasonably
that a federal court could accuse the state-court jurists of transcending the
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bounds of fairmindedness. Even on the facts of Martin, the state court’s
decision did not fall to that level. So the United States Supreme Court
summarily reversed. Fairminded jurists of reason could have found alternate
explanations for the Gatorade bottle “farfetched” and concluded that
disclosure of the report “would not have made a difference.” Martin, 607
U.S. at 224–25.
b
As to the materiality of the allegedly suppressed evidence, ours is an a
fortiori case from Martin. Unlike Carter, Kirkpatrick was far from the State’s
key witness; the latter’s direct testimony consumed approximately 0.5% of
the trial transcript and 0.009% of the overall record in this case. Far from
emphasizing Kirkpatrick’s testimony in closing, the State discounted it as
“jailhouse talk.” ROA.9339. So under Martin, it is enough to say that
reasonable jurists could conclude that Kirkpatrick’s testimony was relatively
peripheral to the case, and impeaching her with her prior work as a
confidential informant in other cases “would not have made a difference.”
Martin, 607 U.S. at 225.
Rather, the trial record in this case establishes beyond cavil that
Kirkpatrick’s testimony generally and the potential to impeach it specifically
were immaterial to the jury’s verdict on both guilt and punishment.
Start with the guilt phase. For the jury to convict Holberg of capital
murder, it had to conclude that she murdered Towery “in the course of
committing or attempting to commit” robbery or burglary. ROA.21672.
Holberg argues that Kirkpatrick’s testimony was critical to the jury’s robbery
finding. Holberg En Banc Br. at 36–42. But consider the parade of evidence
presented to the jury that supported the prosecution’s robbery theory:
• Towery’s children testified that Towery was carrying over $1,000 in
hundred-dollar bills in his wallet at the time he was murdered.
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ROA.8345–46, ROA.8362–63. And when police found his body, they
found that someone had “gone through” his wallet and left it lying
open on his chest, and his pants pockets were “pulled out” and
“emptied of their contents.” ROA.8210.
• Holberg had refused to pay the cab fare when she arrived at Towery’s
apartment but then paid two strangers $200 in hundred-dollar bills for
a ride when she left. ROA.8556, ROA.8570.
• One of those strangers testified that blood had been found on one of
the bills, ROA.8571, and that Holberg counted at least $1,000 worth
of hundred-dollar bills in the backseat, ROA.8568, ROA.8583.
• After being arrested, Holberg asked officers why she would rob a man
for $1,400 when she was making much more than that per day—
without explaining how she knew the precise amount of money stolen
from Towery. ROA.8459.
• Although Towery usually had up to ten bottles of prescription
medication at a time in his apartment, ROA.8354–55, ROA.8359–60,
only two bottles were found during the crime scene search,
ROA.8125–29.
None of this evidence has anything to do with Kirkpatrick. Sure, Kirkpatrick
testified that Holberg told her she would “do it again” to get “drugs or drug
money.” ROA.8624. But that statement only goes to Holberg’s state of mind
at the time she was in the county jail—not at the time she murdered Towery.
Kirkpatrick’s only testimony about Holberg’s state of mind at the time of the
murder was that Holberg told her Towery “had some money on him, she
[Holberg] wanted it, [and] they started struggling.” ROA.8621. That banal
statement pales in comparison to the gory evidence supporting the
prosecution’s robbery theory.
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True, the State’s evidence of Holberg’s intent to commit robbery
included circumstantial evidence. But that does not mean impeaching
Kirkpatrick’s informant status would generate a reasonable probability of a
different outcome. Holberg only presented one competing motive for why
she killed Towery: self-defense. And a mountain of evidence contradicted
that motive. Holberg’s theory would have required the jury to believe that
Towery—a feeble, wheelchair-bound octogenarian—withstood 58 stabbing
attempts while continuing to fight a healthy twenty-three-year-old for 45
minutes. See ROA.8674, 8677–88, 9384. Holberg’s theory would have
required the jury to credit her claim that she unintentionally shoved a lamp
5.5 inches down his throat while she was trying to “get him off” her.
ROA.9034. And Holberg’s testimony would have required the jury to ignore
that Holberg had no explanation for why Towery had eighteen stab wounds
in his back; why the final stab in his abdomen was made after he was already
dead; and why she was uninjured, “relaxed,” and “laid back” as she drove
away from after a nearly hour-long, life-threatening struggle and then
proceeded to buy drugs and celebrate. ROA.8682–86, 9141; ROA.8128,
8184; ROA.8562, 8564, 8581–82; ROA.8593, 8602–03.
A fairminded jurist reasonably could conclude that no jury would
credit such a far-fetched theory of self-defense—with or without knowledge
that one of the State’s witnesses was a paid informant in unrelated cases. And
if the jury didn’t believe Holberg’s self-defense theory, no other rationale
(other than money) explained Holberg’s decision to kill Towery. Absent
Kirkpatrick’s testimony, the jury could easily infer that Holberg intended to
rob Towery. In light of the bloodstained wad of $100 bills Holberg was
carrying after the killing—and Holberg’s preposterous self-defense theory—
there is “no reasonable probability that impeaching Kirkpatrick would have
made the tiniest bit of difference.” Holberg, 130 F.4th at 514–15 (Duncan,
J., dissenting).
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Next, the punishment phase. To sentence Holberg to death, the jury
was required to find, beyond a reasonable doubt, a “probability” that
Holberg “would commit criminal acts of violence that would constitute a
continuing threat to society,” ROA.21456, and that there were no “sufficient
mitigating circumstance or circumstances to warrant . . . a sentence of life
imprisonment rather than a death sentence,” ROA.21451, 21457; see also
Tex. Code Crim. Proc. art. 37, § 2(d)(2). Holberg and the dissents
claim that Kirkpatrick’s testimony about the fountain of blood and Holberg’s
lack of remorse was critical to Holberg’s likelihood of future violence.
Holberg En Banc Br. at 43; post, at 78 (Higginbotham, J., dissenting);
post, at 111 (Higginson, J., dissenting).
With respect, that is rank speculation. The State proved Holberg’s
future dangerousness with a “flood of vivid and gruesome evidence”—not
through Kirkpatrick’s testimony. Holberg, 130 F.4th at 514 (Duncan, J.,
dissenting). The grisly reality of this case is that Holberg stabbed Towery 58
times, including nearly 20 times in the back and nine times in his hands,
wrists, and forearms. ROA.8677–88. Towery was found tied up with
electrical cord, with a paring knife in his stomach (inserted after he was
already dead, ROA.8128, 8184) and a lamp shade shoved 5.5 inches down his
throat while he was still alive. ROA.8688–89. The dissents want to ignore all
of this. See, e.g., post, at 64 (Higginbotham, J., dissenting) (describing
the murder with no more detail than “[t]he struggle turned deadly”); post at
102 (Higginson, J., dissenting) (spending more time recounting that
Towery was “in pretty good shape” and “paid [Holberg] for sex for years”
than the fact that “[a] jury found Brittany Holberg guilty of capital murder”
(quotation omitted)). But it’s easy to understand why Holberg herself
concedes the grisly nature of this murder posed “a ‘virtually impossible battle’
on the issue of future dangerousness.” Holberg En Banc Br. at 50; see also
ibid. (“[T]he crime itself was sufficient to show future dangerousness.”).
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And it’s easy to understand why the jury and the state courts reasonably saw
the future danger posed by a drug-addled woman who so savagely murdered
a toothless old man.
What’s more, the State submitted overwhelming evidence of
Holberg’s past violent conduct and a “pattern of behavior of controlling
others.” ROA.9513. The jury heard testimony that Holberg beat another
elderly man with a cane and “may have killed him,” ROA.9944, “broke[] her
husband’s nose,” ROA.9943, and “cut somebody else with a knife,”
ROA.9943. Holberg admitted to being “involved in 76 other” past crimes,
ROA.9941, and would “manipulat[e] others” to commit violent acts for her,
ROA.9945.
By contrast, Kirkpatrick’s testimony—which occurred entirely at the
guilt phase—“played virtually no role in the punishment phase.” Holberg,
130 F.4th at 515 (Duncan, J., dissenting). As Judge Duncan observed,
it surfaced only once during punishment testimony, when a separate witness
said Holberg had asked her to kill Kirkpatrick to keep her from testifying. Ibid.
And only the defense mentioned Kirkpatrick in punishment closing—once.
Ibid. Even at guilt, the prosecution discounted Holberg’s statement to
Kirkpatrick as mere “jailhouse talk.” ROA.9339. Holberg now casts
Kirkpatrick as central to the State’s case for death. The record does not.
In sum, a reasonable jurist could conclude the “cumulative effect” of
non-disclosure did not “destroy confidence in [the trial’s] result,” Kyles, 514
U.S. at 439–40, in light of the evidence of Holberg’s future dangerousness,
past crimes, use of deadly weapons, proclivity for breaking men’s noses, and
pattern of attacking old men before leaving them for dead. Whatever benefit
Holberg could have derived from a different cross-examination of Kirkpatrick
would have been modest by comparison. Especially after the jury listened to
the prosecutor pound the table 58 times to reflect the gut-wrenching horrors
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of this drawn-out and gruesome killing. And even if we are wrong about that,
the state courts’ decision was—at the barest of bare minimums—reasonable.
And we cannot say that all jurists of reason unanimously would conclude the
state courts erred.
B
So much for Holberg’s challenges to the state court’s application of
law. We next consider her challenge to the state court’s determinations of
fact.
AEDPA narrowly circumscribes the ability of federal courts to grant
habeas relief based on their understanding of the facts. A federal court may
grant habeas relief only if the state-court decision was “based on an
unreasonable determination of the facts in light of the evidence presented in
the State court proceeding.” 28 U.S.C. § 2254(d)(2). Under this rule, federal
courts owe “substantial deference” to state-court findings. Brumfield v.
Cain, 576 U.S. 305, 314 (2015). “If reasonable minds reviewing the record
might disagree about the finding in question, on habeas review that does not
suffice to supersede the trial court’s determination.” Ibid. (citation
modified). When a state-court decision is “reasonable and supported by the
record,” a federal court cannot replace the state court’s evaluation of the
facts with its own. Burt v. Titlow, 571 U.S. 12, 24 (2013). In this way,
AEDPA’s relitigation bar imposes twin barriers on reviewing state-court
legal and factual determinations. While § 2254(d)(1) allows habeas relief only
if the state-court decision was contrary to or unreasonably applied clearly
established law, § 2254(d)(2) similarly restricts habeas relief only to when the
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state-court decision was based on an unreasonable determination of the
facts. 4
Holberg—and today’s dissenting opinions—present an ugly picture
of a corrupt police department and a crooked prosecutor’s office. According
to the dissents, Holberg is the real victim here. That’s because, in their
overzealous attempts to secure a conviction, the police and the DA
“bought” and “paid for” Kirkpatrick’s testimony with bail, dropped
charges, and plea deals. See post, at 67–69 (Higginbotham, J.,
dissenting); post, at 102–03 (Higginson, J., dissenting). The corruption
in Amarillo’s law enforcement community ran so deep that everyone
conspired to hide this information from Holberg—thus depriving her of a fair
trial. This understanding of the facts appears to drive the dissents’ desire to
grant habeas relief. See post, at 63 (Higginbotham, J., dissenting)
(accusing the majority of “endors[ing] a death sentence resting on
unimpeached, compensated witness testimony” (emphasis added)); post, at
100 (Higginson, J., dissenting) (“[T]he state kept secret that it was
compensating its ‘key’ accusing witness” (emphasis added)).
The problem for Holberg and the dissents is that the state court
reached the precise opposite conclusion based on unrebutted testimony in
the state court record. And Holberg never—not in state court, not in the
_____________________
4
Another provision in AEDPA suggests a potentially more onerous standard of
review for state-court factual determinations: “[A] determination of a factual issue made
by a State court shall be presumed to be correct. The applicant shall have the burden of
rebutting the presumption of correctness by clear and convincing evidence.” 28 U.SC.
§ 2254(e)(1). The Court has never clarified the relationship between §§ 2254(d)(2) and
(e)(1). Brumfield, 576 U.S. at 322. Here, we need not resolve this question because even
under the arguably more lenient standard of § 2254(d)(2), the state court’s factual
determinations were far from unreasonable. See Wood v. Allen, 558 U.S. 290, 301 (2010)
(opting to apply § 2254(d)(2)); Titlow, 571 U.S. at 18–19 (similar); Brumfield, 576 U.S. at
322 (similar).
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district court, and not in our court—pointed to a single fact that could
undermine any of the state court’s factual determinations. That means
Holberg cannot meet § 2254(d)(2) and hence cannot push aside AEDPA’s
relitigation bar.
The state habeas court flatly rejected the dissents’ theory that the
State “bought and paid for” Kirkpatrick’s testimony. The state habeas court
instead agreed with the prosecuting DA. This is what the DA said:
[T]here was no plea agreement reached between the State and
Kirkpatrick; . . . Kirkpatrick testified truthfully at Holberg’s
trial; Kirkpatrick did not testify at Holberg’s trial thinking that
it would help her get a better deal on her own charges;
Kirkpatrick did not ask for any kind of deal; the State did not
come asking Kirkpatrick what she knew about the case; [and]
Kirkpatrick is the one who initiated the contact with the State
about Holberg.
ROA.97941–42. Then the state habeas court credited the DA’s testimony
and found as a matter of fact that Holberg’s contrary bought-and-paid-for
allegations “ha[d] no basis in fact.” ROA.97943. The state habeas court
further found that “Kirkpatrick did not testify at Holberg’s trial thinking that
it would help her get a better deal on her own charges” and “Kirkpatrick did
not ask for any kind of deal.” ROA.97941–43. The state habeas court found
Kirkpatrick’s testimony to the contrary was “not credible.” ROA.97943.
Under AEDPA, these factual findings “shall be presumed to be
correct.” 28 U.S.C. § 2254(e)(1). And Holberg must show that the state
court’s decision was “based on an unreasonable determination of the facts in
light of the evidence presented in the State court proceeding.” Id.
§ 2254(d)(2). Yet Holberg’s Brady argument does not even mention these
standards—let alone does Holberg attempt to meet them. The dissents
cannot manufacture a bought-and-paid-for theory that the state court
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rejected as a matter of fact and that Holberg herself has never attempted to
substantiate under AEDPA.
C
Today’s dissenting opinions are long on rhetoric and short on law.
Four legal errors merit emphasis: (1) the dissents all but ignore AEDPA;
(2) the dissents misunderstand Brady’s materiality requirement; (3) the
dissents draw all sorts of factual inferences that have no basis in the state
court record (or the federal record for that matter) and hence cannot be the
basis for relief under § 2254(d)(2); and (4) the dissents obfuscate which of
Holberg’s claims for relief are actually before us.
1
The dissents all but ignore AEDPA.
Start with Chief Judge Elrod, who is “not confident” that “a
jury still would have convicted Holberg of the same charge without
Kirkpatrick’s testimony.” Post, at 99. With deepest respect, this inverts the
AEDPA standard. In the face of doubt, AEDPA requires us to deny relief.
We can grant relief only when “no fair-minded jurist could agree with” the
state court. McCarthy, 146 S. Ct. at 1880. The Chief Judge’s dissent
reaches the opposite conclusion by reciting the statutory standard, id. at 89–
90; performing a de novo analysis of the merits, id. at 91–98; and then
conclusorily proclaiming that any contrary outcome is unreasonable, id. at 94,
95, 98.
This approach is (unfortunately) familiar. The Supreme Court has
time and again reversed courts of appeals’s taking it. 5 It’s easy to see why.
_____________________
5
See, e.g., Waddington v. Sarausad, 555 U.S. 179, 194 (2009) (reversing the Ninth
Circuit because it “failed to review the state courts’ resolution of this question through the
deferential lens of AEDPA”); Richter, 562 U.S. at 101 (reversing the Ninth Circuit because
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The question under AEDPA is not, “in my view, was there a Brady
violation?” and, if the answer is yes, announce that no reasonable jurist could
disagree. See id. at 94, 95, 98 (Elrod, C.J., dissenting). The question is
whether the state court’s Brady analysis was so erroneous that no reasonable
jurist could ever agree with it. And that requires asking if there is any fair
argument that supports the state court’s rejection of Holberg’s Brady claim.
See, e.g., Martin, 607 U.S. at 221.
Judge Higginbotham’s AEDPA discussion is similarly
deficient. This dissent makes much of the “tendons supporting capital
punishment” and the “sinew of the modern death penalty,” but it says
virtually nothing about AEDPA. Compare post, at 69, 71–72, 87 (repeatedly
discussing the “sinew of the modern death penalty”), with id. at 73 (devoting
three sentences to the AEDPA rule). And it provides the same level of
AEDPA non-analysis as Chief Judge Elrod’s dissent, offering lip
service to the statute, id. at 73, de novo merits analysis, id. at 74–81, and a
conclusory declaration that any contrary decision is unreasonable, id. at 81.
Tried, tested, and proven to fail, the formula fares no better a second time.
Finally, Judge Higginson’s dissent. That opinion principally
addresses “whether there is a reasonable probability that at least one juror
_____________________
“it is not apparent how the Court of Appeals’ analysis would have been any different
without AEDPA”); White v. Wheeler, 577 U.S. 73, 79 (2015) (per curiam) (reversing the
Sixth Circuit because it “did not properly apply the deference it was required to accord the
state-court ruling”); Sexton v. Beaudreaux, 585 U.S. 961, 968 (2018) (per curiam) (reversing
the Ninth Circuit because its “essentially de novo analysis disregarded [AEDPA’s]
deferential standard”); Shinn v. Kayer, 592 U.S. 111, 119 (2020) (per curiam) (reversing the
Ninth Circuit because it “essentially evaluated the merits de novo, only tacking on a
perfunctory statement at the end of its analysis asserting that the state court’s decision was
unreasonable” (quotation omitted)); Mays v. Hines, 592 U.S. 385, 392 (2021) (per curiam)
(reversing the Sixth Circuit for “essentially evaluat[ing] the merits de novo” (quotation
omitted)). There are many more examples.
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would not have found Holberg guilty knowing that the prosecution had
compensated the relator of her alleged confession.” Post, at 113; see also id. at
111–17. That is not the controlling legal rule. The “only question that
matters” here is whether, under AEDPA, the state court “blunder[ed] so
badly that every fairminded jurist would disagree.” Lockyer v. Andrade, 538
U.S. 63, 71 (2003); Mays v. Hines, 592 U.S. 385, 392 (2021) (per curiam). As
with the other dissents, Judge Higginson’s treats AEDPA as an
afterthought—a standard to be confronted only after he decided that
Holberg’s Brady claim should succeed. Post, at 118.
2
Next materiality. First and foremost, the dissents incorrectly assert
that all reasonable jurists would have found Kirkpatrick’s informant status
material. See post, at 95–98 (Elrod, C.J., dissenting); post, at 76–81
(Higginbotham, J., dissenting); post, at 120–21 (Higginson, J.,
dissenting). An abundance of evidence unrelated to Kirkpatrick supported
the jury’s guilt and punishment verdicts. See supra, Part II.A.2.b.
But the immateriality of Kirkpatrick’s informant status is far from the
only flaw in the dissents’ logic. In the dissents’ view, changing one variable—
disclosure of the allegedly suppressed information—would have started a
counterfactual chain reaction that would have changed everything. And the
jury would’ve somehow acquitted Holberg for brutally stabbing an
octogenarian invalid to death and then continuing to stab him after he was
already dead. But there are at least five ways that the dissents’ hypothetical
change would either be irrelevant or hurtful to Holberg.
First, before the dissents begin guessing at what could have changed
had Kirkpatrick’s allegedly suppressed status been disclosed, they must
confront the possibility that Kirkpatrick’s informant status was not actually
suppressed. In a sworn statement in the state habeas proceeding, trial counsel
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testified that she chose not to use other impeachment witnesses because
doing so would have been a “double edge[d] sword.” ROA.76006. Trial
counsel chose not to use those witnesses because the “State [in response] in
all likelihood” would have “call[ed] in law enforcement officers to testify
that Kirkpatrick has a reputation in the community for truth and
veracity because she has provided them truthful information to solve other
crimes.” ROA.76006. At a minimum, that raises the question of whether
defense counsel knew about Kirkpatrick’s dealings with police. While our
holding ultimately rests on materiality grounds, see supra, at 13, the dissents
must show both suppression and materiality. They also must show that every
fairminded jurist would find suppression in light of contradictory record
evidence. See Martin, 607 U.S. at 221.
Second, not only must the dissents show that trial counsel was unaware
of Kirkpatrick’s informant status in unrelated cases, they must also address
the possibility that trial counsel might have chosen not to use the
impeachment evidence because it would undermine other parts of her case.
ROA.76006. Trial counsel’s “strategic decision[s]” can “undermine[] the
suggestion” that suppressed evidence would have been material to the result
in light of counsel’s overall strategy. Wood v. Bartholomew, 516 U.S. 1, 7
(1995) (per curiam). And here, Holberg’s counsel called two confidential
informants to testify on Holberg’s behalf. See ROA.9312. During guilt-phase
closing, counsel argued that those witnesses “must be pretty credible
because they’re confidential informants.” ROA.9313. It would be surpassing
strange to argue (a) confidential informants are reliable when they help
Holberg, but (b) confidential informants are hired guns and feckless
mercenaries when they hurt Holberg. Trial counsel made an informed
judgment to pursue strategy (a), and that’s obviously preclusive of (b). Thus,
the dissents cannot speculate that Holberg would have “fiercely impeach[ed]
Kirkpatrick” with the very same tactic Holberg used to bolster the credibility
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of her own witnesses. Post, at 76 (Higginbotham, J., dissenting). And it
strains credulity to doubt that “any . . . juror would have convicted Brittany
Holberg . . . based on a severely discredited paid informant[],” post, at 117
(Higginson, J., dissenting), when Holberg’s very own counsel was telling
the jurors that government informants were all the more credible, see also post,
at 97–98 (Elrod, C.J., dissenting) (falling into this same trap).
Third, even if counsel used the impeachment evidence, the dissents
must grapple with defense counsel’s testimony that doing so could have
unintentionally bolstered Kirkpatrick’s testimony. In her state-court affidavit,
Holberg’s trial counsel explained that challenging Kirkpatrick’s credibility
would have been a “double edge[d] sword” because “[t]he State in all
likelihood would then call in law enforcement officers to testify that
Kirkpatrick has a reputation in the community for truth and veracity because
she has provided them truthful information to solve other crimes.”
ROA.76006. And that would obviously have hurt Holberg’s case by
bolstering the testimony of her cellmate. It is awkward for the dissents to
contend that Kirkpatrick’s informant status was somehow “indispensable”
without addressing the possible consequences had counsel decided to use
that evidence. Post, at 120 (Higginson, J., dissenting); cf. Cullen v.
Pinholster, 563 U.S. 170, 201 (2011) (recognizing the double-edged nature of
additional mitigating evidence in an ineffective-assistance-of-counsel claim).
Fourth, suppose Holberg’s trial counsel lied under oath. Again, no one
has ever suggested that. There is no allegation to that effect in the state court
record; the state courts’ decisions are uniformly to the contrary; Holberg
never alleged it in federal court; and no member of the panel majority or
today’s dissenters can bring themselves to allege it now. See, e.g., ROA.97999
(state court finding Norris’s testimony “reliable and credible as to the
historical events surrounding Holberg’s trial and [her] thoughts and
impressions at the time”). But assume it anyway. Assume all the nefarious
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speculation that the dissenters speculate—that somehow this was a crooked
DA’s office that knew Kirkpatrick was an informant for unrelated officers in
unrelated cases and somehow suppressed that key fact to unjustly “get” the
woman who confessed to brutally stabbing an octogenarian invalid. Even
then, disclosure of the suppressed evidence would not reasonably lead to a
different result for the obvious reason that the State easily could have chosen
not to call Kirkpatrick.
That makes this Brady claim substantially weaker than a typical one.
In the typical Brady case, the suppressed evidence is material precisely
because it is the key to the State’s case. See, e.g., Banks, 540 U.S. at 675–76.
The only way to prosecute Martin, for example, was to present evidence of
his computer research on suppressors. See Martin, 607 U.S. at 218–19; supra,
at 14. Here, by contrast, if the prosecution knew about Corporal Stallings’
deals with Kirkpatrick, there is no guarantee that the State still would have
called her to testify. Kirkpatrick’s testimony played a small role in the
prosecution’s case. See supra, at 3. Rather, the keys to the prosecution’s case
were (1) Holberg’s confession to killing Towery and (2) the medical
examiner’s vivid, gruesome, and stomach-churning description of the 58 stab
wounds, which put paid to any suggestion of “self-defense.” Had the
prosecution known that calling Kirkpatrick would open its case to attack, the
prosecution might have decided that the juice of her testimony was not worth
the squeeze. 6
_____________________
6
Judge Higginson’s dissent cites the state court’s description on direct
appeal of Kirkpatrick as a “key prosecution witness” as if it were a holding that her
testimony was material to Holberg’s guilt. Post, at 102 & n.1. But the dissent removes all
context from the statement. The court was recounting the evidence supporting the jury’s
future dangerousness finding. Among that evidence was the fact that “while awaiting
trial . . . , [Holberg] repeatedly solicited a cell-mate to kill Vickie Marie Kirkpatrick, a key
prosecution witness.” See Holberg v. State, 38 S.W.3d 137, 139 (Tex. Crim. App. 2000). So
the only import of that statement was that Holberg was dangerous because she tried to get
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Fifth, assume all of that is wrong. Assume the State still called
Kirkpatrick; assume Holberg’s counsel altered her trial strategy; and assume
Holberg’s counsel chose to impeach Kirkpatrick. Even then, the attack would
have been cumulative. When suppressed material is merely “cumulative with
already presented impeachment evidence,” it is all the more immaterial for
Brady purposes. Murphy v. Davis, 901 F.3d 578, 598 (5th Cir. 2018). Here,
defense counsel thoroughly impeached Kirkpatrick in other ways that were
consistent with their trial strategy. See ROA.9865 (Kirkpatrick and Holberg’s
cellmate testifying that she never heard Holberg mention Towery’s murder);
ROA.9055–56 (Holberg testifying that she never discussed her case with
Kirkpatrick); ROA.9226 (Kirkpatrick’s cellmate testifying that Kirkpatrick
had a “bad” reputation for truthfulness); ROA.9319–20 (defense counsel
insinuating to the jury that Kirkpatrick “had something to gain” by “saying
something that would help the State”). Given that the jury twice heard that
Holberg never discussed this case with Kirkpatrick and again heard that
Kirkpatrick was a liar, there is no “reasonable probability” that telling the
jury of Kirkpatrick’s informant role in totally unrelated cases would have
changed the outcome.
One dissent responds that impeachment would not have been
cumulative because Kirkpatrick’s testimony was the “sole confession
evidence contradicting Holberg’s own trial testimony that she killed Towery
in self-defense.” Post, at 102 (Higginson, J., dissenting); see also id. at
100–01, 105, 112–16 (same). That is like saying, “Yes, the Dodgers lost 11–
1—but the Astros’ eleventh run was the only one they scored in the top of
_____________________
a prosecution witness killed. In no way did the court’s use of the word “key” signify that
Kirkpatrick’s testimony was material to Holberg’s guilt, punishment, or future
dangerousness—let alone the “sole” evidence of anything. Contra post, at 3
(Higginson, J., dissenting).
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the ninth, so it was decisive.” Perhaps it’s true that Kirkpatrick was the “sole
confession evidence contradicting Holberg’s” self-defense theory. But it’s
also true that the State had a mountain of other evidence that contradicted the
self-defense theory:
• No one has ever disputed that Holberg brutally killed A.B. Towery.
• Three police officers and Holberg’s own mother testified to Holberg’s
confession to the killing. ROA.8246–54, 8452–59, 8479–80;
ROA.8648–51, ROA.8655–58.
• Evidence totally unrelated to Kirkpatrick showed that Holberg
attacked an 80-year-old, wheelchair-bound invalid for 45 minutes,
stabbed him 58 times, including 18 times in the back, shoved a lamp
shade 5.5 inches down his throat, continued stabbing him after he was
dead, and then left to buy drugs with his money and party in his
clothes.
Kirkpatrick’s testimony was cumulative in that it told the jury what the other
evidence already showed—that Holberg brutally murdered an old man and
was so untroubled by it that she went to party. And even assuming
Kirkpatrick’s testimony was in some sense non-cumulative, impeaching it for
a fifth time—over and above the four the jury already heard, ROA.9055–56;
ROA.9226; ROA.9319–20; ROA.9865—plainly would have been
cumulative. So at a minimum, we cannot say that all jurists of reason would
unanimously condemn the state courts’ adjudication of this Brady claim. 7
_____________________
7
Kirkpatrick’s testimony was indeed graphic—as was the entirety of the trial, given
the gruesomeness of the murder. See, e.g., post, at 88 (Elrod, C.J., dissenting); post, at
83 (Higginbotham, J., dissenting); post, at 116 (Higginson, J., dissenting). State
prosecutors therefore had ample fodder for arguments to the jury. It’s noteworthy,
however, that prosecutors chose not to emphasize Kirkpatrick’s testimony and instead
downplayed it three times as “jailhouse talk” and “jailhouse puffery.” ROA.9338–39.
Prosecutors obviously had plenty of other evidence to emphasize at trial. There is a stark
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A final point on materiality. One dissent repeatedly surmises that, had
Kirkpatrick not testified, Holberg would not have taken the stand to rebut
Kirkpatrick’s testimony, the prosecution would not have had the opportunity
to conduct its devastating cross-examination, and “the entire trial may have
[been] reconfigured.” Post, at 114 (Higginson, J., dissenting). But the
dissent cannot point to a shred of record evidence to support the theory that
Holberg only took the stand in response to Kirkpatrick and would not have
taken the stand if Kirkpatrick had not testified. There is not one page of the
state court record to support it. Holberg herself has never asserted it. And
that’s unsurprising given that Holberg’s theory of the case was self-defense,
and the linchpin of that theory was her own testimony. See, e.g., ROA.9291–
99 (defense counsel consistently relying on Holberg’s testimony at closing).
The dissent’s lack of support also is unsurprising because numerous other
witnesses testified to Holberg’s confession to the killing, and myriad other
evidence debunked Holberg’s self-defense theory. And even if the dissenting
opinion could take over the litigation of this case and reimagine it in ways that
Holberg herself never has, we would not fault the state court for unreasonably
rejecting a theory it never heard. That no one—not the state courts, the
district court, or even Holberg herself—has embraced the dissent’s
speculative chain reaction suggests that jurists of reason could likewise
decline to embrace it. Ultimately, the dissent points to only a “mere
possibility” that the undisclosed evidence would have helped Holberg—and
a “mere possibility . . . does not establish ‘materiality’ in the constitutional
sense.” United States v. Agurs, 427 U.S. 97, 109–10 (1976).
_____________________
contradiction between the dissenting opinions, which seize on Kirkpatrick’s testimony and
emphasize it, and the actual trial record, which did the opposite.
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3
What’s more, some of the factual assertions in today’s dissenting
opinions are fantastical. The dissents posit a wide-ranging conspiracy
between police unconnected to Holberg’s case and the DA’s office. The
dissents point to fact X and unconnected fact Y and then proclaim “Aha—a
conspiracy to convict an innocent woman!”
The problem for today’s dissents is two-fold. First, AEDPA does not
allow this sort of factual reimagination. See supra, Part II.B; 28 U.S.C.
§ 2254(d)(2).
And second, record evidence rebuts the dissents’ every inferential
leap. Kirkpatrick was arrested shortly after Holberg, and they were placed in
the same jail cell. “A ‘short time’ later,” the dissents theorize, Kirkpatrick
“signed an affidavit” describing her conversation with Holberg about
Towery’s murder, and “[p]olice thanked Kirkpatrick by releasing her from
jail that very day.” Post, at 67–68 (Higginbotham, J., dissenting); post,
at 102–03 (Higginson, J., dissenting). But Sergeant Arnold Hudson, the
officer who notarized Kirkpatrick’s affidavit, wrote in his police report that
she “had just been released from the Randall County Jail” when he met with
her to take her statement on the Towery murder. ROA.21595 (emphasis
added). Later testimony from Corporal Stallings corroborates the fact that
Kirkpatrick was not let out of jail because of her affidavit. Stallings was the
one who “ma[de] arrangements for her” pre-trial release so she could help
him recover stolen property. ROA.21562–64; see also Holberg v. Davis, No.
2:15-CV-285-Z, 2021 WL 3603347, at *57 (N.D. Tex. Aug. 13, 2021) (sharing
the same view of the record). And again, Stallings’s work as the SWAT
Team leader for the County had nothing to do with Holberg’s case. So the
idea that everyone was conspiring against Holberg—including police officers
who had nothing to do with her case—is based on nothing but speculation.
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Next, the dissents point to a document detailing Kirkpatrick’s
criminal record, which reflects various dropped charges. Both suggest that
the dropped charges reflect some sort of foul play. See post, at 102–03
(Higginson, J., dissenting). The sentencing-phase dissent even adopts
that single document as conclusive evidence that the prosecution dropped all
but one burglary charge to keep Kirkpatrick “on a short leash” and persuade
her to testify at Holberg’s trial, “sensing the impact her gripping testimony
would have on an Amarillo jury.” Post, at 68 (Higginbotham, J.,
dissenting). But Corporal Stallings has an answer to this too. Stallings was
the one who “got a trespass warrant dismissed and . . . some traffic tickets
dismissed” in exchange for Kirkpatrick’s help “recover[ing] [] stolen
merchandise.” ROA.21562–63. The dissents cite zero evidence to connect
Corporal Stallings’ activities to the Holberg prosecution.
The sentencing-phase dissent also relies on Kirkpatrick’s letter asking
for probation to claim that the State persuaded Kirkpatrick to testify in
Holberg’s trial in exchange for leniency in her burglary case. Post, at 68
(Higginbotham, J., dissenting). But the record shows the State’s five-
year plea offer to Kirkpatrick had zero connection whatsoever to her Holberg
testimony. At Kirkpatrick’s sentencing hearing, the district attorney testified
under oath that the prosecution’s offer “had absolutely nothing to do with—
with her testifying in the Holberg case.” ROA.21525. Three times, he
emphasized that Kirkpatrick “never asked [them] to cut her a deal,” and that
the office would never change her deal because of the concern of impropriety
it might cause in the Holberg case. ROA.21523–25. And there is not one
document or assertion anywhere in the state court record to suggest the DA
was lying.
Finally, the sentencing-phase dissent claims that the State “floated
the possibility of an even sweeter deal for three years,” Kirkpatrick “testified
against Holberg incentivized by this better deal,” and the office later
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“reneged” on the offer because it “might create an appearance of
impropriety if [the State] changed [its] offer.” Post, at 69
(Higginbotham, J., dissenting) (quotation omitted). The record, again,
says the precise opposite. The district attorney testified that the office never
changed its offer because “it might create an appearance of impropriety if
[the office] changed [its] offer.” ROA.21525. And there is zero evidence the
State “reneged” on its offer after Kirkpatrick testified at Holberg’s trial. Post,
at 69 (Higginbotham, J., dissenting). In fact, the dissent conveniently
omits the fact that Kirkpatrick was the one who rejected the plea deal—not
the State. ROA.97941. Kirkpatrick instead entered an open plea, and the
State urged the court to give Kirkpatrick more than five years. ROA.21571.
Far from “compensating” Kirkpatrick for her testimony, the prosecution
threw the book at her. 8
AEDPA forbids federal courts from granting habeas relief based on
our own version of the facts. 28 U.S.C. § 2254(d)(2). In this case, there are
unreasonable versions of facts—but they all belong to the dissents. Those
_____________________
8
The sentencing-phase dissent cites two pieces of evidence to prove that a
mysterious three-year “deal” took place: (1) Kirkpatrick’s 2011 deposition for Holberg’s
habeas application, ROA.21302, and (2) Kirkpatrick’s written judgment of conviction,
ROA.30273. Post, at 68 (Higginbotham, J., dissenting). As to the first, the state habeas
court found Kirkpatrick’s deposition testimony “not credible.” ROA.97943.
As to the second, nothing about the written judgment proves a “sweeter” deal was
offered. Post, at 68 (Higginbotham, J., dissenting). The written judgment does have a
line stating there was a “Term of Plea Agreement” for “three (3) years in the TDCJ-ID
and a $1,000.00 fine.” ROA.30273. But the only plea agreement identified at Kirkpatrick’s
plea hearing was the five-year deal, which Kirkpatrick refused. ROA.21507; ROA.97941.
The judgment also has several typographical errors, including a statement that Kirkpatrick
was sentenced to “five (5) years in the TDCJ-ID.” ROA.30274. No one disputes that
Kirkpatrick was sentenced only to three years in jail. ROA.21573 (“Vicki Marie
Kirkpatrick, you’re sentenced to serve three years . . . and pay a fine of $1,000.00 plus
cost.”). Those inconsistencies undermine any inference that the typo-ridden judgment is
smoking-gun evidence of a secret deal.
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dissenting opinions are based on speculation at best and demonstrable
inversions of the state court records at worst. In all events, they do not come
close to establishing an AEDPA violation.
4
Finally, the dissents’ rendition of the facts is so divorced from the
Brady claim before us that it is often unclear which of Holberg’s claims they
are purporting to adjudicate.
Prosecutorial misconduct claims come in two relevant flavors. First,
prosecutors violate Brady by failing to disclose material evidence favorable to
the defendant. United States v. Bagley, 473 U.S. 677, 679–80, 682 (1985).
District Attorney James Farren’s alleged failure to reveal Kirkpatrick’s
confidential-informant status is the Brady claim on which Holberg obtained
a COA and is therefore jurisdictionally before us. See ECF 111, at 6–8.
Second, prosecutors may also violate the Fourteenth Amendment if they
either “present[] . . . known false evidence” or “allow[]” false testimony
“to go uncorrected.” Giglio v. United States, 405 U.S. 150, 153 (1972)
(quoting Napue v. Illinois, 360 U.S. 264, 269 (1959)). This second, distinct
constitutional error is called a Giglio-Napue violation. But Holberg’s Giglio-
Napue theory is barred by the law of the case: She brought a Giglio-Napue
claim in her state and federal habeas petitions. ROA.1905–07 (state);
ROA.29506–12 (federal). But our court denied a COA on that claim, so it is
not jurisdictionally before us. See ECF 111, at 6; 28 U.S.C. § 2253(c).
While Holberg’s Brady claim is before us and her Giglio-Napue claim
is not, the dissents’ conception of this case often sounds more in the latter
than the former. The dissents repeatedly suggest that DA Farren actively or
potentially induced Kirkpatrick to provide false testimony. One dissent, for
example, emphasizes the State’s “potential leverage over” Kirkpatrick’s
testimony. See post, at 100 (Higginson, J., dissenting); see also id. at 104
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(referring to the State’s supposed “leverage”). Another believes that the
State “kept [Kirkpatrick] on a short leash until Holberg’s trial . . . to assure
[Kirkpatrick] would perform again.” Post, at 68 (Higginbotham, J.,
dissenting). In this way, the dissents paint a lurid picture of DA Farren as
Kirkpatrick’s puppeteer, manipulating every jot and tittle of her trial
testimony—knowing that the testimony was false. These accusations are
taken almost verbatim from Holberg’s Giglio-Napue claim. See, e.g.,
ROA.1905 (alleging that Kirkpatrick “had been induced to testify against
Holberg through threats and promises”); ROA.29507 (describing
Kirkpatrick’s testimony as “fabricated, authored and coerced”).
That the dissents want to adjudicate a claim not before us shows how
divorced from the law and facts their position really is. We have no basis to
say that Kirkpatrick lied on the stand because the state court found as a
matter of fact that she testified truthfully. ROA.97941–43. And no one—
other than the dissents—has ever suggested otherwise in our court. That
presumably explains why no one—including the dissents—thought the
Giglio-Napue claim was even debatable enough to warrant a COA.
*
Brittany Holberg admitted to the savage killing of an 80-year-old
invalid. She claimed self-defense. Unsurprisingly, the jury did not buy it.
Today, the dissents claim the mantle of defending the jury as the “ultimate
decisionmaker.” Post, at 70 (Higginbotham, J., dissenting). Yet the
dissents undermine the jury in two ways.
First, the jury—not the dissenters—sat through the trial, listened to
the testimony, and assessed the credibility of everyone involved. They heard
a mountain of evidence on Holberg’s guilt, including Holberg’s confession to
stabbing Towery 58 times. And the jury recommended a death sentence in
conformance with the law and the values of the Amarillo community in the
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late 1990s. According to the dissents, federal judges have the power to undo
the jury’s conscience three decades later from the safety of our chambers in
New Orleans—without seeing a single witness or understanding a single
thing about the affected community. And we can do it, the dissents say, using
impeachment evidence that trial counsel swore under penalty of perjury she
had and strategically chose not to use against a peripheral witness.
Second, without seeing a single witness or assessing anyone’s
credibility 30 years ago, the dissents simply assert that four people lied to get
Holberg: Holberg’s trial counsel, Corporal Stallings, DA Farren, and of
course Kirkpatrick. That is quite the perjurious conspiracy. It is unsupported
by the record. And the dissents’ efforts to speculate it into existence are
prohibited by AEDPA.
III
Finally, we turn to Holberg’s ineffective-assistance-of-counsel claim.
We (A) explain the legal rules; (B) describe the state court’s reasons for
rejecting Holberg’s claim; and (C) hold Holberg cannot surmount AEDPA.
A
Strickland’s Sixth Amendment standard requires the defendant to
show (1) “that counsel’s representation fell below an objective standard of
reasonableness” and (2) prejudice, meaning an “effect on the judgment.”
Strickland, 466 U.S. at 688, 691. “Judicial scrutiny of counsel’s performance
must be highly deferential,” id. at 689, and courts considering Strickland
claims “must apply a ‘strong presumption’ that counsel’s representation
was within the ‘wide range’ of reasonable professional assistance,” Richter,
562 U.S. at 104 (quoting Strickland, 466 U.S. at 689). Counsel can make
“demonstrable errors” without falling below the Sixth Amendment floor.
United States v. Cronic, 466 U.S. 648, 656 (1984); see also id. at 656 n.18
(collecting cases).
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To function as “counsel” as that term is used in the Sixth
Amendment, lawyers in capital cases must perform a reasonable mitigation
investigation. Wiggins v. Smith, 539 U.S. 510, 521–22 (2003). But the
Strickland-Wiggins duty has limits. It “does not require counsel to investigate
every conceivable line of . . . evidence no matter how unlikely the effort would
be to assist the defendant.” Id. at 533. Instead, “counsel has a duty to make
reasonable [professional] investigations or to make a reasonable decision that
makes particular investigations unnecessary.” Id. at 521 (quoting Strickland,
466 U.S. at 691). The ultimate question is not whether the decision to forgo
presenting certain mitigating evidence was unreasonable, but whether the
“investigation” supporting that decision “was itself reasonable.” Id. at 523.
To illustrate, consider four Wiggins cases. In each of them, trial
counsel failed to conduct more than a perfunctory mitigation investigation.
In Porter v. McCollum, for example, trial counsel was deficient because “[h]e
did not obtain any of Porter’s school, medical, or military service records,”
and therefore “did not even take the first step of interviewing witnesses or
requesting records.” 558 U.S. 30, 39–40 (2009) (per curiam) (emphases
added). In Rompilla v. Beard, defense counsel failed entirely to examine the
defendant’s “prior conviction file,” which contained evidence depicting the
defendant’s “childhood and mental health very differently from anything
defense counsel had seen or heard.” 545 U.S. 374, 383, 390 (2005). In
Wiggins, trial counsel “abandoned their investigation of petitioner’s
background after having acquired only rudimentary knowledge of his history
from a narrow set of sources.” 539 U.S. at 524. And in Terry Williams v.
Taylor, trial counsel “failed to conduct an investigation that would have
uncovered extensive records graphically describing Williams’ nightmarish
childhood, not because of any strategic calculation but because they
incorrectly thought that state law barred access to such records.” 529 U.S.
362, 395 (2000).
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Once counsel functions as counsel, we do not second-guess counsel’s
strategic decisions using 20/20 hindsight. See Strickland, 466 U.S. at 689
(emphasizing we must “eliminate the distorting effects of hindsight”). That
is particularly true when it comes to mitigation decisions under Wiggins. The
sort of mitigation evidence contemplated by Wiggins—such as a defendant’s
family history, victimization by violent abuse, substance abuse, mental
illness, &c.—is inherently a “two-edged sword.” Pinholster, 563 U.S. at 201
(quotation omitted). True, such evidence can cause jurors to pity the
defendant. But it’s also true that such evidence can cause jurors to find the
defendant “was simply beyond rehabilitation.” Ibid.
As deferential as the Strickland-Wiggins standard is under the Sixth
Amendment, it’s all the more so under AEDPA. The Supreme Court has
said AEDPA makes ineffectiveness claims “all the more difficult” because
the “standards created by Strickland and § 2254(d) are both ‘highly
deferential.’” Richter, 562 U.S. at 105 (quotation omitted). So “when the two
apply in tandem, review is ‘doubly’ so.” Ibid. (quotation omitted). We “may
grant relief only if every fairminded jurist would agree that every reasonable
lawyer would have made a different decision.” Dunn v. Reeves, 594 U.S. 731,
739–40 (2021) (per curiam) (citation modified).
B
In this case, the state habeas court conducted a nearly two-week
evidentiary hearing. The state habeas court considered live witness
testimony, post-trial exhibits, and the trial record. It made 88 pages of factual
findings that are presumed correct. See 28 U.S.C. § 2254(e)(1); ROA.97981–
98069. And on the basis of those factual findings, the state habeas court held
that trial counsel “did not perform deficiently in their investigation of
mitigating evidence” because they made “strategic decisions that were well
within the range of reasonable professional judgment.” ROA.98068.
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Holberg had two highly experienced trial lawyers. Both had extensive
experience before Amarillo juries. ROA.98020–23, 98034. The defense team
also had the assistance of two highly experienced investigators and a mental-
health expert. ROA.98000–02, 98041–46.
This five-person defense team interviewed numerous witnesses—
including family members, “acquaintances,” “dozens of Holberg’s fellow
prostitutes, drug addicts, and strippers,” “former school counselors,”
Holberg’s “former ‘sugar daddy,’” and “multiple jail personnel.” Holberg
v. Davis, 2021 WL 3603347, at *135. Holberg’s trial team traveled several
times to “locate witnesses.” ROA.98010–15. One of Holberg’s attorneys
traveled to multiple states “trying to locate individuals to build a mitigation
case.” ROA.98046. Her counsel even walked the streets and went to a
“‘crack house’ at ‘1:00 . . . in the morning’ to try and interview . . .
witnesses.” ROA.98039.
The defense team reviewed Holberg’s medical, school, employment,
and criminal records; investigated Holberg’s “family troubles,” “sexual and
drug history, Holberg’s non-violent character, and Holberg’s relationship
with her ex-husband and daughter”; interviewed Holberg multiple times;
interviewed Holberg’s stepfather about “the family’s troubles with drugs
and alcohol,” “Holberg’s drug history, the physical trauma and abuse she
suffered,” and Holberg’s ex-husband’s abusiveness during their marriage.
ROA.98008–10.
All told, the defense team made a strategic decision to portray Holberg
as “a person with problems that could be fixed.” ROA.98016. “The hope
was that a juror would view Holberg’s crime as an aberration for a girl who
was basically and intrinsically good.” ROA.98016. As the court found, “the
defense team’s strategy was to help at least one juror to see Holberg as
someone who could be the juror’s sister, daughter, or friend.” ROA.98016.
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And defense counsel worried that amplifying Holberg’s troubled, violent,
abusive, and drug-ridden past would make her appear “defective” to
Amarillo jurors in the mid-1990s. ROA.98015–16.
C
Holberg cannot show that the state courts transgressed AEDPA. We
need not decide whether the five-person defense team’s multi-State
investigation and dozens of mitigation interviews comported with
professional norms in the 1990s. That’s because reasonable jurists would not
unanimously find that Holberg proved Strickland prejudice.
First, Holberg challenges the state court’s statement that the
“allegedly uninvestigated and unpresented evidence, even taken at face
value, is not so remarkable that it would have offset the brutality and
depravity of her crime.” ROA.97915. She says that statement imposed a
standard “more onerous . . . than the outcome-determinative standards the
Supreme Court [has] rejected.” Holberg En Banc Br. at 68. But read with the
“benefit of the doubt” § 2254(d) requires, Woodford v. Visciotti, 537 U.S. 19,
24 (2002) (per curiam), the state court did no such thing. It did not announce
a new legal standard. It explained why Holberg had not satisfied Strickland’s
reasonable-probability standard: the aggravating evidence—most notably,
the brutality of Towery’s murder—overwhelmed the mitigating evidence.
The Supreme Court has not forbidden that reasoning. It has endorsed it. 9
The state court did not act unreasonably by employing it here.
_____________________
9
See Thornell v. Jones, 602 U.S. 154, 165 (2024) (“[W]here the aggravating factors
greatly outweigh the mitigating evidence, there may be no ‘reasonable probability’ of a
different result.”). Because Thornell postdates the relevant state-court adjudication, it is
not clearly established law for § 2254(d) purposes. See Greene v. Fisher, 565 U.S. 34, 38
(2011). But Thornell remains relevant for a narrower point: a state court’s reading of
Supreme Court precedent can hardly be unreasonable under § 2254(d) when the Supreme
Court later adopts that same reading. Cf. Berghuis v. Thompkins, 560 U.S. 370, 389 (2010)
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Second, Holberg argues that the state court’s observation that “the
majority of the evidence that Holberg alleges was not presented . . . was
actually presented” effectively “subtracted” the mitigation evidence
presented at trial from the unpresented mitigation evidence. ROA.97915;
Holberg En Banc Br. at 68. That subtraction, she says, violated the Supreme
Court’s command that courts consider “the totality of the available
mitigation evidence—both that adduced at trial, and the evidence adduced in
the habeas proceeding.” Terry Williams, 529 U.S. at 397. But again, that
misreads the state court. Its point was not that new mitigation evidence must
be considered in isolation—much less “subtracted” from the trial mitigation.
Its point was the familiar one the Supreme Court itself has made: “[m]ost of
the mitigating evidence [Holberg] presented [in state habeas proceedings]
was not new.” Thornell v. Jones, 602 U.S. 154, 165 (2024).
Nor was the state court’s conclusion so plainly wrong that some
impermissible rationale must be hiding beneath the surface. The unpresented
mitigation was serious. It included evidence that Holberg had been exposed
to drugs and alcohol in utero, raped multiple times, sexually abused by her
stepfather, and afflicted with significant cognitive impairments. See Holberg
En Banc Br. at 53–55. But as the Supreme Court recently summarized its
mitigation-prejudice cases, those cases generally involved sentencings where
“defense counsel introduced little, if any, mitigating evidence at the original
sentencing.” Thornell, 602 U.S. at 171. Holberg, “by contrast, started with
much more mitigation,” including her trial testimony about physical and
sexual abuse beginning in early childhood, her long history of substance
abuse, and the traumatic effects of her aunt’s murder. Ibid.; see Texas En
_____________________
(“The state court’s decision . . . was thus correct under de novo review and therefore
necessarily reasonable under the more deferential AEDPA standard of review.”
(quotation omitted)).
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Banc Br. at 15–16 (collecting record citations). And the brutal nature of
Towery’s murder—which the plurality recounts in detail—was a “weighty
aggravating circumstance[.]” Thornell, 602 U.S. at 171. Given those
distinctions, “fairminded jurists could disagree” on whether the
unpresented mitigation created a reasonable probability of a different
outcome. Alvarado, 541 U.S. at 664.
It is telling that neither the dissents nor Holberg confronts the state
habeas hearing or the relevant state habeas court decision. Holberg argues
that the state habeas court erred in its May 14, 2012, decision. See Holberg
En Banc Br. at 68–74 (quoting from that order). But she all but ignores the
state court’s subsequent decision. After the May 2012 order, the Texas Court
of Criminal Appeals sent the case back for an evidentiary hearing. The state
habeas court conducted it over the course of two weeks and then issued the
operative 88-page supplemental order on December 30, 2013. See
ROA.97981–98069. That December 2013 supplemental order is the relevant
one—and Holberg all but ignores it. Worse, the dissenters ignore it
altogether.
* * *
In an AEDPA case like this one, it is not enough to say that the state
courts erred. Nor is it enough to find clear error in the state courts’ decision
that the 58 stab wounds (18 of them in the back), the knife in Towery’s
abdomen, the lamp shoved 5.5 inches down Towery’s throat, Towery’s iron-
pulverized nose, Holberg’s confession, and the wad of bloodsoaked bills
found on Holberg after her drug-fueled post-murder party make any Brady
error immaterial. Rather, Holberg (and the dissenting opinions) must show
that the state courts were so wrong and blundered so badly that they cannot
be fairminded jurists. We hold Holberg cannot meet that standard.
AFFIRMED.
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Leslie H. Southwick, Circuit Judge, concurring: *
The dissenting opinions are well taken. I believe they have accurately
described the constitutional violation in this case, which is the prosecutor’s
failure to uphold the duty to disclose impeachment evidence that is material
to guilt or punishment.
Even so, our authority to grant relief under Section 2254 after a state
court decision rejecting the same claim is significantly restricted. See, e.g.,
Harrington v. Richter, 562 U.S. 86, 102 (2011). My reluctance to join those
learned opinions has all to do with my conclusion that we must read the state
court decision as finding that the undisclosed evidence was not material. I
cannot say that all fairminded jurists would disagree with that finding.
Accordingly, that means that the state court decision was not unreasonable
to the extent required by precedent.
My failure to join the principal opinion is because it does not accept
that there was a Brady violation here. I believe there was a serious one. See
Brady v. Maryland, 373 U.S. 83, 87 (1963). I write separately to explain my
more limited reasons to affirm.
I. Antiterrorism and Effective Death Penalty Act, or AEDPA
A federal court may not grant habeas relief to a state prisoner unless
the applicant establishes that the relevant state court decision “was contrary
to, or involved an unreasonable application of, clearly established Federal
law, as determined by the Supreme Court of the United States.” See 28
U.S.C. § 2254(d)(1).
_____________________
*
Judge Richman concurs in Parts I, II, III, IV and V, but does not join the final
two Parts nor the court’s judgment.
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The statutory phrases “contrary to” and “an unreasonable
application of” clearly established federal law have “independent meaning.”
Williams v. Taylor, 529 U.S. 362, 405–06 (2000). A decision is “contrary to”
clearly established federal law “only if it arrives at a conclusion opposite to
that reached by the Supreme Court on a question of law or if it resolves a case
differently than the Supreme Court has on a set of materially
indistinguishable facts.” Jimenez v. Guerrero, 133 F.4th 483, 492 (5th Cir.
2025) (quoting Langley v. Prince, 926 F.3d 145, 155 (5th Cir. 2019) (en banc)).
An “unreasonable application,” though, occurs where the state court
“correctly identifies the governing legal rule but applies it unreasonably to
the facts of a particular prisoner’s case.” Williams, 529 U.S. at 407–08.
More generally, “[a] state court’s determination that a claim lacks
merit precludes federal habeas relief so long as ‘fairminded jurists could
disagree’ on the correctness of the state court’s decision.” Richter, 562 U.S.
at 101. The obligation to accept a state court’s decision so long as fairminded
jurists could disagree with it (implying that some fairminded jurists agree
with it) does not apply to disagreements about the law. Each judge is to make
that analysis and apply it regardless of the analysis of others. See Andrew v.
White, 604 U.S. 86, 95 (2025).
“General legal principles can constitute clearly established law for
purposes of AEDPA so long as they are holdings” of the Supreme Court.
Andrew, 604 U.S. at 94. Therefore, the Court’s precedents should not be
limited to their facts. Id. In Andrew, the Court was discussing Tennessee v.
Payne, 501 U.S. 808, 827 (1991), which specifically held that the Eighth
Amendment did not erect a per se bar to the “admission of victim impact
evidence and prosecutorial argument on that subject.” Id. at 93. Despite that
clear holding, the broader, clearly established principle was that “the
introduction of unduly prejudicial evidence could . . . violate the Due Process
Clause.” Id. As another example, the “Eighth Amendment principle that a
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sentence may not be grossly disproportionate to the offense is ‘clearly
established under § 2254(d)(1),’ even though it arises out of a ‘thicket of
Eighth Amendment jurisprudence’ and lacks ‘precise contours.’” Id. at 94–
95 (quoting Lockyer v. Andrade, 538 U.S. 63, 72 (2003)).
On the opposite end of the spectrum, holdings “that speak only at a
high level of generality” may not supply a ground for relief. See Brown v.
Davenport, 596 U.S. 118, 136 (2022). That limitation has been illustrated
when a court construed general Supreme Court holdings that a “defendant
must have adequate notice of the charges against him,” as “clearly
establish[ing] that a prosecutor’s focus on one theory of liability at trial can
render earlier notice of another theory of liability inadequate.” Lopez v.
Smith, 574 U.S. 1, 5–7 (2014).
In sum, a clear principle, even in the absence of an on-point
application of the principle, is what makes clearly established law.
II. Clearly Established Law in this Case
Brady, of course, is more than a “general legal principle.” See Andrew,
604 U.S. at 94. It is an opinion in which the Supreme Court “squarely
established” the operative rule and has consistently thereafter has applied it.
See White v. Woodall, 572 U.S. 415, 427 (2014) (citation omitted). Brady’s
clear legal principle is that a prosecutor has a duty to disclose favorable
evidence that is “material either to guilt or punishment.” Strickler v. Greene,
527 U.S. 263, 280 (1999) (quoting Brady, 373 U.S. at 87). Impeachment
evidence is favorable evidence, see United States v. Bagley, 473 U.S. 667, 676
(1985), and any evidence is material “if there is a reasonable probability that,
had the evidence been disclosed to the defense, the result of the proceeding
would have been different,” Kyles v. Whitley, 514 U.S. 419, 433–34 (1995)
(citation omitted).
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In another opinion, the Court considered a concession by the State
that certain evidence was favorable to the defendant and not disclosed,
causing the case to turn on whether the evidence was material. Smith v. Cain,
565 U.S. 73, 75 (2012). The Court explained a “reasonable probability” of a
different outcome “does not mean that the defendant ‘would more likely
than not have received a different verdict with the evidence,’ only that the
likelihood of a different result is great enough to ‘undermine[] confidence in
the outcome of the trial.’” Id. at 75 (quoting Kyles, 514 U.S. at 434
(alterations in original). I will later discuss the particular relevance of
materiality in my conclusions about this case.
These precedents do not require that the specific form the favorable,
material evidence takes in a case have been identified as such in a Supreme
Court precedent. To require disclosure, the evidence need not come in any
particular shape or size, be written in ink but not pencil, have been captured
on audio- or video-recording, or appear in any specific form. Instead, the
Court has said clearly that if the prosecution has material exculpatory
evidence, it must be disclosed.
It is true that “‘[t]he difference between applying a rule and extending
it is not always clear,’ but ‘[c]ertain principles are fundamental enough that
when new factual permutations arise, the necessity to apply the earlier rule
will be beyond doubt’” to fairminded jurists. White, 572 U.S. at 427 (quoting
Yarborough v. Alvarado, 541 U.S. 652, 666 (2004)). Where it is “so obvious
that a clearly established rule applies to a given set of facts that there could
be no ‘fairminded disagreement on the question,’” we still characterize the
state habeas court’s failure to apply the rule in that way as an unreasonable
application of clearly established law. See id. (quoting Richter, 562 U.S. at
103).
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No extension is required in this case as Brady is clearly implicated.
This court must “look for ‘the governing legal principle or principles set
forth by the Supreme Court at the time the state court render[ed] its
decision.’” Yarborough, 541 U.S. at 661 (quoting Andrade, 538 U.S. at 71–
72). A reviewing court’s evaluation of a Brady violation examines whether
the evidence was (1) suppressed, (2) favorable, and (3) material. See
Youngblood v. West Virginia, 547 U.S. 867, 869–70 (2006). While the
materiality of specific evidence will differ from case to case, Brady’s focus
remains unchanged. See Strickler v. Greene, 527 U.S. 263, 281–82 (1999).
Whether this evidence was material and favorable is what we must examine,
not whether a new factual scenario has presented itself for considering those
requirements.
III. The Undisclosed Evidence
By the mid-1990s, Brittany Holberg had been engaged for several
years in prostitution to support her drug addiction. A.B. Towery had been a
client. The principal and dissenting opinions highlight different evidence
about Towery’s physical condition in 1996, when he was 80 years old, but
there is no doubt that in November of that year, Holberg inflicted brutal
injuries on him that caused his death.
The undisclosed evidence concerned why Vicki Kirkpatrick was in
the cell with Holberg and how Kirkpatrick was benefitted after obtaining a
supposed confession. That is different information than defense counsel’s
being generally aware that Kirkpatrick had worked as an informant for the
Amarillo Police Department on several different occasions. That is all
defense counsel knew.
Holberg’s initial state habeas petition requested an evidentiary
hearing, arguing: “Kirkpatrick indicated she was a confidential informant for
the Task Force or SWAT team[, and] defense counsel was entitled to know
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that information as well as if any deals had been cut.” Eleven years later, in
July 2011, the state court held a hearing to determine whether affidavits or
live testimony would be needed to resolve Holberg’s claims for relief. See
Tex. Code Crim. Proc. art. 11.071 § 9(a). The court ordered the parties
to depose Kirkpatrick and allowed the State to present an affidavit from
District Attorney James Farren. In May 2012, the state habeas court made
several findings, citing the transcript of Kirkpatrick’s plea colloquy — which
included Kirkpatrick’s testimony regarding her previous testimony at
Holberg’s trial — and District Attorney Farren’s affidavit and testimony.
This evidence before the state habeas court detailed that a few months
before the start of Holberg’s trial, on May 13, 1997, Kirkpatrick had been
arrested for felony burglary. The charge carried a maximum of 20 years’
imprisonment. Kirkpatrick rejected a five-year plea offer from the State, later
choosing to plead guilty and seek a sentence of probation. With her
sentencing forthcoming, she was placed in the same cell as Holberg, but was
then removed from that cell immediately after informing someone that she
had obtained a full confession. Later, at Kirkpatrick’s plea hearing, District
Attorney Farren, who led the prosecution of Holberg, testified favorably for
Kirkpatrick. Those details were not known to Holberg’s counsel.
With those as the relevant facts, I next consider how the Texas state
courts resolved Holberg’s Brady claims.
IV. State Court Proceedings
Already mentioned is that a state prisoner applying for relief in federal
court must establish that the relevant state court decision on those claims
“was contrary to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court of the United
States.” 28 U.S.C. § 2254(d)(1). Insofar as the Brady claim is concerned,
the relevant state court decision is an unpublished opinion issued by the 251st
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Texas District Court on May 14, 2012. The opinion denied numerous claims
for relief. We must first decide whether that opinion rejected the Brady claim
on the merits and explained its reason for doing so.
First possibility. If the state court opinion is “reasoned” and explains
its decision on the merits, “a federal habeas court simply reviews the specific
reasons given by the state court and defers to those reasons if they are
reasonable.” Wilson v. Sellers, 584 U.S. 122, 125 (2018). This approach
necessarily includes “look[ing] through” an unexplained opinion from the
state’s court of last resort to the “last related state-court decision that does
provide a relevant rationale.” Id. That “look through” comes into play here
because on September 17, 2014, the Texas Court of Criminal Appeals, after
reviewing the 2012 district court decision and its supplemental opinion,
simply held: “We adopt the trial judge’s findings and conclusions on all of
the claims raised. Based upon the trial court’s findings and conclusions and
our own review, we deny relief.” Ex parte Holberg, Nos. WR-68,994-01, -02,
-03, 2014 WL 5389907, at *1 (Tex. Crim. App. Sept. 17, 2014). No reasons
there, just an adoption of the state district court’s findings and conclusions.
Before examining the state district court opinion on the possibility of a look
through, I will set out the effect of not finding any reasoning.
Second possibility. If the state court “decision is unaccompanied by
an explanation, the habeas petitioner’s burden still must be met by showing
there was no reasonable basis for the state court to deny relief.” Richter, 562
U.S. at 98. This means a federal “habeas court must determine what
arguments or theories supported or, as here, could have supported, the state
court’s decision; and then it must ask whether it is possible fairminded jurists
could disagree that those arguments or theories are inconsistent with the
holding in a prior decision of this Court.” Id. at 102.
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Further, the same principle applies where a “state-court opinion
addresses some but not all of a defendant’s claims.” Johnson v. Williams, 568
U.S. 289, 298 (2013). This “presumption of merits adjudication” is not
easily overcome. Jimenez v. Guerrero, 133 F.4th 483, 489 (5th Cir. 2025).
“[A] petitioner rebuts the presumption of merits adjudication only if he
offers evidence of ‘state-law procedural principles’ that are contrary to the
presumption, [] or evidence that ‘leads very clearly to the conclusion that a
federal claim was inadvertently overlooked in state court.” Id. (first quoting
Richter, 562 U.S. at 99; and then quoting Johnson, 568 U.S. at 303).
Here, there is no basis to find the state district court overlooked the
Brady claim. That claim is specifically identified as an issue, discussed in two
numbered paragraphs, and rejected in a third. No procedural bar was
mentioned in the discussion, and for all these reasons I conclude the denial
was on the merits. It is difficult to decide, though, if the opinion was
reasoned, i.e., that it announced its legal or factual basis for denial. If there
were reasons, we evaluate the rejection of the Brady claim based on those
reasons. Wilson, 584 U.S. at 125. If there is not a reasoned explanation, “the
habeas petitioner’s burden still must be met by showing there was no
reasonable basis for the state court to deny relief.” Richter, 562 U.S. 98.
With respect for the state habeas court that needed to address 35 issues
and wrote a 128-page opinion in doing so, the Brady explanation is disjointed,
i.e., the relation between the paragraphs is unclear. The first of three
paragraphs that discuss the claim sets out the requirements for a Brady
violation: “(1) the evidence at issue is ‘favorable to the accused, either
because it is exculpatory, or because it is impeaching’; (2) the State
suppressed the evidence, ‘either willfully or inadvertently’; and (3)
‘prejudice . . . ensued’ because the evidence was material.” The third and
final paragraph stated: “Holberg has failed to show that the State violated its
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obligations under Brady v. Maryland.” If there are reasons, they are not in
any of those paragraphs.
That middle, second paragraph inexplicably identified three possible,
non-exhaustive, and seemingly irrelevant shortcomings that might bar a
Brady claim: (1) the prosecutor’s files were opened to the defense for
examination; (2) the allegedly suppressed information was actually possessed
by the defense; and (3) the allegedly suppressed evidence was not admissible.
As far as I can tell from the briefing before that court and from the hearing
that was held — the briefs and a transcript being in the record here — no one
suggested the prosecutor had an open file policy or that Holberg was allowed
such access. Even if that policy had existed, it would not by itself bar a Brady
claim, as the relevant favorable information would not likely have been in the
file. As to the second reason, the State argued in the state court and a few of
my colleagues now take the position that Holberg’s counsel knew that
Kirkpatrick at times had worked as an informant. As I will discuss, though,
there has never been a finding that the defense knew Kirkpatrick was working
with the prosecution or law enforcement in this case. As to the third
supposed bar to a Brady claim, I did not find any argument before the state
district court (or now) that the alleged undisclosed Brady material would be
inadmissible.
If the second paragraph did constitute the reasons, it would be an
unreasonable application of any known Supreme Court precedent. Instead of
adopting that understanding, my interpretation is that because those specific
grounds for denying a Brady claim were not relevant to the case as presented
in the state court, we cannot consider them to be poor reasons for the result
and therefore not worthy of deference. Instead, they were simply general
statements of law. I conclude the state court decision never stated reasons to
reject the Brady claim. Consequently, we must affirm unless there is “no
reasonable basis for the state court to deny relief.” Richter, 562 U.S. at 98.
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V. Applying Brady
“Factual determinations by state courts are presumed correct absent
clear and convincing evidence to the contrary.” Miller-El v. Cockrell, 537
U.S. 322, 340 (2003) (citing 28 U.S.C. § 2254(e)(1)). One factual finding
that I accept as correct is that Kirkpatrick testified truthfully at Holberg’s
trial. Of course, a federal court’s AEDPA obligation to accept the state-
court findings is irrelevant to whether jurors would have accepted the
testimony as truthful if the testimony had been impeached.
Kirkpatrick’s testimony included that she was not acting as an
informant in Holberg’s case. “Informant” is a label whose definition could
be disputed. Kirkpatrick could be found to have been truthful in denying that
her role in Holberg’s case was that of an “informant,” or at least truthfully
did not think she was. Indeed, many of my colleagues in this case insist she
was not. The undisclosed evidence, though, was that after Kirkpatrick’s
work with Corporal Stallings was insufficient to make her burglary charge go
away, she obtained Holberg’s murder confession and used that confession in
pursuit of receiving probation in her own case.
As discussed already, the duties imposed on prosecutors by Brady are
not limited to a closed set of facts but will arise from the ever-changing
situations in which material, exculpatory evidence known to the prosecutor
can be discovered or created. As applied to this case, Kirkpatrick’s role need
not be forced into a narrow category like “informant” for Brady to apply. At
the very least, Kirkpatrick knew about the benefits of working with the police
and assisted the prosecution in Holberg’s case. 1 The defense was entitled to
_____________________
1
Corporal Stallings testified that he had gotten a “trespass warrant” and “traffic
tickets” against Kirkpatrick dismissed after advising the DA’s office of her work for the
police. After her arrest for burglary, Stallings personally arranged for Kirkpatrick to be
released on pretrial bond so that Kirkpatrick could aid the recovery of stolen property.
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the information on how the supposed confession was obtained and how
Kirkpatrick immediately benefitted and could benefit further as she would
not be sentenced until after she testified. That information would have
allowed counsel to impeach Kirkpatrick’s credibility.
Further, it is not sufficient that defense counsel knew Kirkpatrick was
a sometimes-informant, that such knowledge could have led counsel to
question Kirkpatrick before trial or cross-examine at trial, and that those
missed opportunities are the problem, not the failure to disclose. That is not
how Brady works. The obligation of the prosecution is not satisfied simply
because defense attorneys knew a little and might with a better investigation
have learned more. Where the relevant information is favorable and material
and the prosecution has it, the obligation is to disclose. To repeat, the scope
of that duty extends to the learning of “any favorable evidence known to the
others acting on the government’s behalf in the case, including the police.”
Kyles, 514 U.S. at 437 (emphasis added).
Under Brady, it is the favorability of the evidence that counts, and the
circumstances make clear that Kirkpatrick had much to gain from testifying
the right way against Holberg. Regardless as to why she was placed in
Holberg’s cell, once the confession was allegedly obtained, Kirkpatrick was
removed from the cell and told the police. Rather quickly, Kirkpatrick’s
“success” must have been brought to the attention of prosecutors — they
did use the confession, after all. Despite the prosecutors’ knowledge, the
State, decades later, is still arguing there was nothing to disclose.
In conclusion, there is ample, clearly established Supreme Court
authority that prosecutors had to disclose this information to the defense.
_____________________
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VI. Materiality
I find the facts that Kirkpatrick was placed in Holberg’s cell and
obtained a confession, along with her sentencing being delayed until her
testimony, to be significant items of impeachment evidence that could have
placed her testimony in a much less favorable light had jurors been informed
of them.
Relief does not inevitably follow, though, as not all Brady errors are
prejudicial. Because the state habeas decision was unreasoned but on the
merits, the state habeas applicant’s “burden still must be met by showing
there was no reasonable basis for the state court to deny relief.” Richter, 562
U.S. at 98. The potentially reasonable basis I will consider is that the
undisclosed evidence was not “material.” To repeat, “material” requires a
determination “that the likelihood of a different result is great enough to
‘undermine[] confidence in the outcome of the trial.’” Smith, 565 U.S. at 75
(quoting Kyles, 514 U.S. at 435). Or, in another strongly-worded standard,
there must be “‘far more’ than ‘clear error’” but be “so lacking in
justification” so as to “preclude[] even the ‘possibility for fairminded’
dispute.” Martin, 607 U.S. at 220–21 (citations omitted).
If other evidence that was before the jury was sufficiently strong, it
would be proper to hold that the Brady violation was not material. In
addition, regardless of my own view, I must conclude that every fairminded
jurist would find that this undisclosed evidence undermined confidence in
the conviction or in the capital sentence. See Strickler, 527 U.S. at 290.
Materiality needs to be considered separately as to the jurors’ finding
of guilt and their determination about the sentence of death.
The materiality of the violation as to guilt can be assessed, first, in
terms of her counsel’s trial strategy that Holberg killed Towery in self-
defense. The state habeas court found that the self-defense theory was
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overwhelmingly weak and at times was contradicted by Holberg’s own
testimony. Second, to find Holberg guilty of capital murder, jurors had to
find that she committed the murder while in the commission of or attempt to
commit a burglary or a robbery. Kirkpatrick alone gave direct evidence, based
on the supposed confession, that Holberg was trying to take cash from
Towery. She testified that a struggle ensued and that the murder occurred
during that struggle.
In my assessment, the evidence was quite weak that Holberg was
acting in self-defense. The Brady violation was not material as to the murder
conviction. As to capital murder, even though I see merit in Chief Judge
Elrod’s dissent on this point, I conclude there are reasonable jurists who
could reject the materiality of Kirkpatrick’s testimony about robbery because
there was other evidence that money was taken, the events of the murder and
the theft were sufficiently contemporaneous, and, consequently, the
evidence about Kirkpatrick did not “put the whole case in such a different
light as to undermine confidence in the verdict.” Strickler, 527 U.S. at 290
(quoting Kyles, 514 U.S. at 435).
Relief as to the conviction of capital murder cannot be given.
As for punishment, Kirkpatrick also was alone in providing a
particular piece of evidence relevant to another requirement for a death
sentence, namely, a finding by jurors of future dangerousness. Kirkpatrick
testified that Holberg said how she enjoyed seeing the flow of blood. District
Attorney Farren downplayed that part of the testimony in the State’s closing
argument. Relevant here, he dismissed the accuracy of Kirkpatrick’s
testimony, perhaps finding it to undermine her credibility on more important
matters. Farren even stated to the jury that Kirkpatrick’s testimony
regarding the blood was likely “jailhouse talk.” The state habeas court found
that the effect of Kirkpatrick’s testimony at the punishment phase of the trial
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was minimal because “the purpose 2 of presenting [this bloody-fountain
testimony was to] . . . show that Holberg revealed details about the crime that
Kirkpatrick could not have known without Holberg having told her about
them.”
Before concluding every fairminded jurist would agree that Holberg
would not have been sentenced to death had jurors known of the undisclosed
evidence about Kirkpatrick, what has to be considered is the other evidence
in the State’s case during the punishment phase. The State highlighted the
depravity of the murder, connected Holberg to a separate murder, and
attacked the defense’s mitigation case. This evidence had nothing to do with
Kirkpatrick. In fact, during the punishment phase, the States’s only mention
of Kirkpatrick came in its closing argument and did not concern Kirpatrick’s
testimony. Moreover, as mentioned, the sheer brutality of the murder is at
least some evidence that a person is inclined to commit extreme violence.
The prosecutor’s informing jurors not to credit the most graphic parts of
Kirkpatrick’s testimony also makes me discount its weight.
I cannot conclude that every reasonable jurist would find that
Kirkpatrick’s testimony about Holberg’s delight in her crime was material.
VII. Conclusion
Reasonable, even excellent, arguments supporting that a state court
should have granted habeas relief are not enough. Richter, 562 U.S. at 102.
“It bears repeating that even a strong case for relief does not mean the state
court’s contrary conclusion was unreasonable.” Id. In the Supreme Court’s
controlling view, Congress “stop[ped] short of imposing a complete bar on
federal-court relitigation of claims already rejected in state proceedings,” but
_____________________
2
Regardless of the purpose, the issue on materiality is the effect of the evidence.
As indicated, I believe some fairminded jurists could conclude it did not affect sentencing.
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permitted it only “where there is no possibility fairminded jurists could
disagree that the state court’s decision conflicts with th[at] Court’s
precedents.” Id. at 102–03. In sum, Congress has declared that when a
federal court is reviewing the denial of habeas relief by a state court, the Great
Writ is a restricted writ. Nonetheless, it must not be treated as a caged writ.
As mentioned, the required disagreement by all “fairminded jurists”
does not apply to each judge’s obligation to apply that judge’s understanding
of what the relevant Supreme Court authority means. See Andrew, 604 U.S.
at 95–96. Having determined what the precedents require, I disagree with
the principal opinion’s apparent limiting of Brady. On de novo review, it
would not be unreasonable to say that the State violated Holberg’s due
process rights. Nonetheless, I am bound by the duty to uphold the state
habeas court’s unexplained ruling that could have been based on a finding that
the disputed evidence was not material, a duty that applies unless no
fairminded jurist could decide such a finding was reasonable. Seeking to be
fair about what some fairminded jurists could find, I believe the duty applies.
I agree with the decision to AFFIRM.
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Haynes, Circuit Judge, concurring in part and dissenting in part:
As other opinions discuss the complexities of this case in detail, I do
not write at length. I concur with the primary concurring opinion’s judgment
to the extent it denies Holberg habeas relief as to the issue of guilt, as it is
apparent to me that there is a great deal of evidence that Holberg committed
the murder of Towery.
However, I respectfully dissent from the primary concurring opinion
to the extent it denies Holberg habeas relief as to her death sentence. I agree
with Judge Higginbotham’s dissenting opinion that much of the evidence
presented that supports the death penalty was provided by only one witness
(Vicki Kirkpatrick), 1 that witness had criminal charges pending, and she
served as a paid informant for the police. Had Kirkpatrick not testified or
been discredited, it is highly likely that the jury would not have sentenced
Holberg to death. I agree with Judge Higginbotham that AEDPA’s demands
are satisfied in this case. Accordingly, I would send this back to the district
court to allow the state court to either set their own sentence other than the
death penalty or have a sentencing jury trial.
Accordingly, I concur in part and dissent in part from the primary
concurring opinion.
_____________________
1
Although she only testified during the guilt phase of the trial, the same jury
decided the sentencing, so that matters in the sentencing arena.
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Patrick E. Higginbotham, Circuit Judge, dissenting, joined by
Stewart, Graves, Higginson, Douglas, and Ramirez, Circuit
Judges:
This case turns on suppressed Brady evidence at a capital sentencing.
As our court fails to engage with the suppressed evidence, stepping past its
materiality, and endorses a death sentence resting on unimpeached,
compensated witness testimony, I dissent.
I.
A.
On November 13, 1996, a young Brittany Holberg had been high on
crack cocaine for days—one episode in a lifelong battle with addiction. She
wrecked her car and fled to A.B. Towery in order to calm down and “talk to
him.” Holberg testified that she had an ongoing relationship with Towery in
which “sexual favors [were] exchanged for money.” Towery was coming
home with groceries when Holberg arrived. When he saw Holberg at the gate
of his apartment complex, Towery invited her in and began unpacking his
groceries. Once inside, Holberg smoked more crack while Towery was in the
other room. But Towery discovered what she was doing. Holberg testified
that he became enraged—as had happened before. 1 He threw money at her
and screamed, “You stupid bitch, whore. What do you want? You want
money? Is that what you want to do so you can smoke the rest of the day
away?” Holberg testified that the next thing she knew, Towery “hit [her] in
the back of the head,” shoved her to the floor, and fought hard enough to rip
the hair from her scalp.
_____________________
1
Holberg testified that throughout her relationship with Towery, there were times
when “he got angry” and frightened her, like when he “had a hard time performing” or
thought she was on drugs while with him.
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The struggle turned deadly. Holberg ultimately stabbed Towery 58
times. She changed clothes, fled the scene with the money Towery threw at
her, and hitched rides with strangers to Memphis, Tennessee. She was
arrested three months later and brought back to Texas after waiving
extradition.
B.
Shortly after her arrival, the state made sure that Holberg shared a jail
cell with Vicki Kirkpatrick, an Amarillo burglar, prostitute, and compensated
informant. Kirkpatrick later served as a key trial witness, capping off the
state’s case-in-chief with chilling details that cast Holberg as a depraved
killer.
Kirkpatrick told the jury that Holberg not only confessed to
“committ[ing] the murder”—she bragged about it. The relevant parts of
Kirkpatrick’s testimony, elicited on direct examination by District Attorney
James Farren, unfolded as follows:
Kirkpatrick: She committed the murder, that she stabbed
him several times, she stuck a lamp thing
down his throat because she got tired of
hearing him make the noises.
[...]
Kirkpatrick: [S]he said that what happened was the man
had some money on him, she wanted it, they
started struggling. He wouldn’t give it to her
and then they just started fighting.
[...]
Kirkpatrick: There was a fork involved. She said that she
had picked it up and started to stab him. And
she said that as she started stabbing him the
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blood was just amazing, just — I don’t know
how you say it, just —
Farren: Did she ever tell you anything about the blood
looking pretty?
Kirkpatrick: It was pretty, like a fountain of — you know,
just a fountain.
Farren: After she saw the blood and it looked like a
fountain and it was pretty, did she indicate
what impact that had on her? How she felt
about that?
Kirkpatrick: She just said she couldn’t stop, that she just
kept doing it over and over. The more she did
it, the prettier it was to her.
Farren: Did she ever mention any words like “fun”
and “amazing?”
Kirkpatrick: It was fun and amazing. That was her exact
words.
Farren: Now, a few moments ago, you mentioned
some noises. Did she say what kind of noises?
Kirkpatrick: Gurgling noises. Just, you [k]now, I guess like
pain noises.
Farren: What did she do about these gurgling noises?
Kirkpatrick: Stuck the lamp thing down his throat.
Jammed it down his throat.
Farren: And, did she tell you if that had any effect on
the noises?
Kirkpatrick: No. She did not say whether it stopped or not.
She just said she got tired of hearing it so she
rammed it down his throat.
[...]
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Farren: Did you ask her how she felt about it now that
this was all over? Would she ever do
something like that again?
Kirkpatrick: She said that if things —if she was — she just
said that if she had to do it all over again, yes,
she would.
Farren: Did she say why?
Kirkpatrick: For drugs.
Farren: Do you remember her saying anything like
she’d do anything to get drugs or drug
money?
Kirkpatrick: Yeah. Yes, I do.
Farren: Did she indicate to you — what was her
demeanor while you were talking about this?
Kirkpatrick: What do you mean by that?
Farren: Was she crying, laughing?
Kirkpatrick: No. No remorse.
After hearing Kirkpatrick’s damning, scandalous testimony, the jury
convicted Holberg of capital murder and recommended a death sentence. But
this appeal turns on what the jury did not hear: the state promised Kirkpatrick
favorable treatment for her testimony in this case and paid her for
information in dozens of other cases. 2
II.
_____________________
2
Both monetary and non-monetary compensation trigger Brady disclosure
obligations. See United States v. Bagley, 473 U.S. 667, 676-78 (1985) (noting promises of
favorable treatment were Brady material).
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As it turns out, throughout 1997, Kirkpatrick built quite a résumé as a
compensated informant for Amarillo police. And their working relationship
was close; Corporal Eddie Stallings talked to her “almost every day.”
Stallings would provide Kirkpatrick “money to make drug buys.” If she
turned up a “good warrant” for police to investigate (which she did “possibly
40” times), he would pay her money and facilitate the dismissal of her
criminal charges.
Meanwhile, as this informant relationship came into bloom, Holberg’s
case cast a national spotlight on Amarillo. District Attorney James Farren
filed the murder complaint against Holberg in November 1996. In February
1997, the nationwide program “America’s Most Wanted” featured Holberg
as its lead story. Tips sent to the show enabled Holberg’s arrest in Memphis.
No doubt seeking victory in a highly publicized murder case,
prosecutors asked numerous inmates to testify against Holberg. One of
Holberg’s cellmates, Lynette Voss Tucker, later testified that she “never
heard [Holberg] boast about the death of A.B. Towery[,]” but that the
prosecution told her that “it would be in [her] best interest” to “say [she]
knew [Holberg] longer than [she] did, and that [Holberg] bragged about the
killing.” These attempts failed. But it just so happened that Kirkpatrick, the
state’s proven forty-time paid informant, was arrested for burglary soon after
Holberg’s capture. The Amarillo DA’s office saw opportunity and seized it.
Charged with burglary and numerous other crimes, Kirkpatrick was
placed in Holberg’s jail cell. A “short time” later, Kirkpatrick signed an
affidavit recounting Holberg’s alleged gruesome comments about Towery’s
murder. (Although Kirkpatrick said Holberg made these comments while
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“everybody was up talking,” multiple other cellmates testified that they
never heard them. 3)
Police thanked Kirkpatrick by releasing her from jail that very day.
Armed with her damning claims, the state dropped sixteen of Kirkpatrick’s
outstanding criminal charges, no doubt sensing the impact her gripping
testimony would have on an Amarillo jury. But the state kept her on a short
leash until Holberg’s trial. It left Kirkpatrick’s sentence upon the burglary
charge pending to assure she would perform again. And Kirkpatrick
understood what prosecutors wanted from her. After later being arrested
another time, she wrote a letter to the judge in her burglary case seeking
release and advising: “I made a statement that I’d testify on the brutal
murder that Brittany Holberg did and I am still willing.”
Kirkpatrick’s pending burglary charge carried up to 20 years in prison
plus a maximum $10,000 fine. 4 At first, Farren’s office gave Kirkpatrick an
initial five-year plea offer that Farren said “had absolutely nothing to do with
– with her testifying in the Holberg case.” But then, the state floated the
possibility of an even sweeter deal for three years.
_____________________
3
One cellmate later testified that she “never heard Brittany [Holberg] talk to any
of the other women about her crime” and that she “remember[ed] feeling very suspicious
of Vicki [Kirkpatrick] and thinking that the police were just sending Vicki in to get
information out of Brittany.” Another cellmate later testified that she “never heard
Brittany talk to anyone about her crime,” and that she “remember[ed] feeling suspicious
of Vicki” and “thinking that the police were using her to get information to use against
Brittany” because “the police kept calling Vicki out of the cell to talk to them.” And yet a
third cellmate later testified that she “was in the Randall County Jail with Brittany Holberg
while she was waiting to go to trial for capital murder,” that she “spoke with Brittany a
lot,” and that she “never heard [Holberg] boast about the death of A.B. Towery;” instead,
this cellmate said, Holberg “cried a lot and was very remorseful.”
4
Tex. Penal Code Ann. § 30.02 (West 1994) (burglary of a habitation was a
second-degree felony); id. at § 12.33 (penalties for second-degree felonies).
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Kirkpatrick testified against Holberg incentivized by this better deal,
plus her ongoing paid informant relationship with the same police
department. That is a textbook conflict of interest—but one that Holberg’s
jury never learned about. Although Farren later reneged the three-year offer
after the jury verdict in Holberg’s case and before Kirkpatrick’s sentencing,
conceding the state thought “it might create an appearance of impropriety if
we changed our offer,” the damage in Holberg’s case was already done.
Holberg’s death sentence rests on unimpeached testimony, bought
from Kirkpatrick by the state and paid for with promises of leniency. Brady
cannot support that outcome.
III.
A.
Brady v. Maryland bars “the suppression by the prosecution of
evidence favorable to an accused” whenever that evidence “is material either
to guilt or to punishment.” 5 Concealing Kirkpatrick’s conflicts of interest
violated Brady, and details of these conflicts would have been material at the
sentencing phase of Holberg’s trial.
Brady is not simply a rule of evidence. It is an allocation of
responsibility crafted to thwart overzealous capital prosecutors and ground
death sentences in constitutional due process. It remains part of a structural
foundation that sustains the death penalty today. Our court’s treatment of
Holberg’s case strikes at these underlying tendons supporting capital
punishment and poses a great threat to its loss—not to mention Brady
obligations in everyday prosecutions when government witnesses are
simultaneously being paid by the same prosecution team.
_____________________
5
373 U.S. 83, 87 (1963); see also Bagley, 473 U.S. at 682.
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This concern is no hypothetical. In 1972, the Supreme Court took
down the death penalty nationwide in Furman v. Georgia. Several Justices
cited the danger of death sentences imposed arbitrarily and inflicted
irreversibly. 6 Their worries remain well-founded; a recent study
demonstrates that although death sentences comprise only 0.005 percent of
felony convictions in the U.S., capital cases account for 11 percent of all
successful Brady claims. 7
That is no surprise. Capital prosecutions “are emotional and high
stakes[, and] they may create tunnel vision and lead otherwise neutral
prosecutors and police to engage in aggressive tactics in an effort to convict
the defendant.” 8 So when the High Court later reinstated capital punishment
in Gregg v. Georgia, it emphasized that bolstered safeguards to contain
passion and impulse were essential to the return of the ultimate punishment
our justice system can provide. 9
These safeguards all reaffirm the jury as the ultimate decisionmaker.
In the return of capital cases, new precautions included bifurcated trials to
guide the jury’s discretion at guilt and sentencing, as well as individualized
sentencing schemes that help the jury weigh certain aggravating and
_____________________
6
408 U.S. 238 (1972); see, e.g., id. at 305 (Brennan, J., concurring) (“Death is
an unusually severe and degrading punishment[, and] there is a strong probability that it is
inflicted arbitrarily[.]”); id. at 309-10 (Stewart, J., concurring) (“[O]f all the people
convicted of rapes and murders . . . many just as reprehensible as these, the petitioners are
among a capriciously selected random handful upon whom the sentence of death has in fact
been imposed.”).
7
Brandon L. Garrett, Adam M. Gershowitz & Jennifer Teitcher, The Brady
Database, 114 J. Crim. L. & Criminology 185, 224 (2024).
8
Id. at 223.
9
428 U.S. 153 (1976).
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mitigating factors. 10 But again as these measures were not enough on their
own, the High Court also invoked Brady, reminding that its core protections
remain the foundation of any workable death penalty regime. In the very same
case that brought back capital punishment (Gregg), the Court explained:
If an experienced trial judge, who daily faces the
difficult task of imposing sentences, has a vital need for
accurate information about a defendant and the crime he
committed in order to be able to impose a rational sentence in
the typical criminal case, then accurate sentencing information is
an indispensable prerequisite to a reasoned determination of
whether a defendant shall live or die by a jury of people who may
never before have made a sentencing decision. 11
The Supreme Court has repeated this principle time and time again since
Gregg: without properly informed juries, our constitution cannot
countenance capital punishment. It is instructive that Jurek v. Texas, in
tandem with Gregg, cautioned that “[a] jury must be allowed to consider on
the basis of all relevant evidence not only why a death sentence should be
imposed, but also why it should not be imposed.” 12 In Banks v. Dretke, the
Court reminded that informants have dangerous power in death cases,
reviving a capital Brady claim because “[t]he jury . . . did not benefit from
customary, truth-promoting precautions that generally accompany the
testimony of informants.” 13 And as recently as Glossip v. Oklahoma in 2025,
the Court held that when the state lies by omission in a capital case, it casts a
_____________________
10
Carol S. Steiker & Jordan M. Steiker, Sober Second Thoughts: Reflections on Two
Decades of Constitutional Regulation of Capital Punishment, 109 Harv. L. Rev. 355, 366
(1995).
11
Gregg, 428 U.S. at 190 (emphasis added).
12
Jurek v. Texas, 428 U.S. 262, 271 (1976).
13
540 U.S. 668, 701 (2004).
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pall over any resulting execution. 14 Letting Holberg’s death sentence stand
cuts this sinew of the modern death penalty and forgives prosecutors for
reaching their hands into the jury room, a walk away from the principle that
allowed its return.
B.
Information about Kirkpatrick’s conflict of interest in Holberg’s case,
plus her other compensated informant work for the same law enforcement
team, is classic Brady evidence. “There are three components of a true Brady
violation: The evidence at issue must be favorable to the accused, either
because it is exculpatory, or because it is impeaching; that evidence must
have been suppressed by the State, either willfully or inadvertently; and
prejudice must have ensued.” 15 A Brady violation is material if it creates “a
‘reasonable probability’ of a different result” at trial or at sentencing 16—or,
in other words, when the suppression of evidence “‘undermines confidence
in the outcome of the trial’” 17 such that at least one juror might have voted
for a life sentence.
We must keep in mind well-established principles from the Supreme
Court: when a witness proves the defendant’s “eligibility for the death
sentence,” then impeachment evidence for that witness is material.18 That is
_____________________
14
604 U.S. 226, 246-52 (2025).
15
Strickler v. Greene, 527 U.S. 263, 281-82 (1999).
16
Kyles v. Whitley, 514 U.S. 419, 434 (1995) (quoting Bagley, 473 U.S. at 678).
17
Id. (quoting Bagley, 473 U.S. at 678).
18
Strickler, 527 U.S. at 291, 294-95 (citing Kyles, 514 U.S. at 434). At base, this is
the same clearly-established Brady materiality standard, which Strickler simply applied in
context of a bifurcated capital trial.
Banks v. Dretke, 540 U.S. 668 (2004) also applied Strickler’s logic to address
conflicted witness testimony at capital sentencing. Although decided after Holberg’s
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common sense; when a witness account is “the only evidence that the jury
had before it” on the “predicates for capital murder,” discrediting that
account clearly creates a reasonable probability of a different result in a
capital case. 19
Under AEDPA, we ask whether fairminded jurists could disagree
that Kirkpatrick’s conflict of interest meets that standard. 20 “The federal
habeas court should not transform the inquiry into a subjective one by resting
its determination instead on the simple fact that at least one of the Nation’s
jurists has applied the relevant federal law in the same manner the state court
did in the habeas petitioner’s case.” 21 Otherwise, “[t]he ‘all reasonable
jurists’ standard would tend to mislead federal habeas courts by focusing
their attention on a subjective inquiry rather than on an objective one.” 22
To establish materiality, Holberg need not prove she would have
received a different sentence if Kirkpatrick’s conflict were disclosed. The
question is whether the jury’s vote for death was “a verdict worthy of
_____________________
conviction became final, see Teague v. Lane, 489 U.S. 288, 310 (1989), Banks broke no new
ground and illustrates how the principles of Brady and Strickler would apply to Holberg’s
case. See Banks, 540 U.S. at 700-02 (finding Brady violation when witness’s conflict of
interest was not disclosed, and explaining that “[t]he witness whose impeachment was at
issue in Strickler gave testimony that was in the main cumulative, and hardly significant to
one of the two predicates for capital murder: armed robbery . . . Most tellingly, the witness’
testimony in Strickler did not relate to the petitioner’s eligibility for the death sentence.”
(internal quotation marks and citations removed)).
19
Strickler, 527 U.S. at 293-94.
20
See Harrington v. Richter, 562 U.S. 86, 102-03 (2011) (describing AEDPA
standard).
21
Williams v. Taylor, 529 U.S. 362, 409-10 (2000) (O’Connor, J., writing for
the Court on this issue).
22
Id.
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confidence” despite the suppressed evidence. 23 Said another way,
materiality is not a sufficiency-of-the-evidence test. Even if “the record
contained ample, independent evidence . . . sufficient to support the findings
of vileness and future dangerousness that warranted the imposition of the
death penalty” apart from Kirkpatrick, 24 “none of the Brady cases has ever
suggested that sufficiency of the evidence (or insufficiency) is the
touchstone.” 25
C.
Holberg establishes suppression, favorability, and materiality.
First, on suppression, the state never disclosed its work with
Kirkpatrick. Texas denies it worked with Kirkpatrick at all in this case, so by
default, it makes no disclosure argument. And until now, Texas never
contested that it suppressed Kirkpatrick’s other contemporaneous informant
work. That is little surprise, as there is no evidence from the time of
Holberg’s trial to support disclosure.
In an affidavit ten years after Holberg’s conviction, her trial counsel
suggested that she discovered Kirkpatrick “provided [the State] truthful
information to solve other crimes” at some unstated point in time. 26 Judge
_____________________
23
Kyles, 514 U.S. at 434.
24
Strickler, 527 U.S. at 290.
25
Kyles, 514 U.S. at 435 n.8.
26
Counsel’s exact statement, purporting to justify why she never impeached
Kirkpatrick, read in relevant part: “If in fact Kirkpatrick is being manipulated, it is highly
probable that if an opinion was given by Voss-Tucker based on what she purports to be
Kirkpatrick’s reputation in the community the community would turn out to be prostitutes,
druggies and other criminals. The state in all likelihood would then call in law enforcement
officers to testify that Kirkpatrick has a reputation in the community for truth and veracity
because she has provided them truthful information to solve other crimes.”
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Oldham’s opinion treats this line as a trump card. But one cannot have it
both ways: Corporal Stallings, Kirkpatrick’s handler as an informant,
testified less than one month after Holberg’s trial that nobody knew
Kirkpatrick was an informant. Stallings’ contemporaneous promise, that
nobody else knew Kirkpatrick was an informant, directly contradicts
counsel’s self-serving affidavit a decade later that she somehow knew
Kirkpatrick was an informant.
Other evidence also suggests, overwhelmingly, that counsel did not
know Kirkpatrick’s informant status before trial. Counsel never cross-
examined Kirkpatrick about her relationship with the state, in Holberg’s case
or any other case, even though “[t]he use of informers, accessories,
accomplices, false friends, or any of the other betrayals which are ‘dirty
business’ may raise serious questions of credibility” that counsel could have
used to Holberg’s advantage. 27 And even if we credit counsel’s “strategic
This text is long and has been trimmed here. Open the source document for the complete record.