The opinion
In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 03-1299
MICHAEL A. NEWELL,
Petitioner-Appellant,
v.
CRAIG HANKS,
Respondent-Appellee.
____________
Appeal from the United States District Court for the
Southern District of Indiana, Terre Haute Division.
No. TH 97-127-C-M/F—Larry J. McKinney, Chief Judge.
____________
SUBMITTED MAY 29, 20031—DECIDED JULY 10, 2003
____________
Before FLAUM, Chief Judge, and BAUER and EVANS,
Circuit Judges.
FLAUM, Chief Judge. In 1990 Michael Newell was con-
victed of dealing cocaine, in violation of IND. CODE § 35-48-
4-1, and sentenced to 30 years in prison. Newell timely filed
a petition in the federal district court for a writ of habeas
corpus under 28 U.S.C. § 2254, see Newell v. Hanks, 283
F.3d 827 (7th Cir. 2002), but the district court denied the
1
After examining the briefs and the record, we find that oral
argument is unnecessary in this case; accordingly, the appeal is
submitted on the briefs and the record. See Federal Rules of
Appellate Procedure 34(a); Circuit Rule 35(f).
2 No. 03-1299
petition following an evidentiary hearing on the merits.
Newell obtained a certificate of appealability and now
challenges the district court’s decision to deny him post-
conviction relief. We affirm.
I. BACKGROUND
A jury convicted Newell of dealing cocaine after hear-
ing evidence at trial that a man named Fred Wells, act-
ing at Newell’s behest and driving Newell’s truck, delivered
a bag of cocaine to undercover police officer Richard
McGee and confidential informant Brad Foote. The pros-
ecution’s case against Newell consisted almost entirely of
the testimony of officer McGee and the transcript and
recording of a telephone call between Newell and Foote
in which the men planned the sale and delivery of cocaine
which led to Newell’s arrest. Newell testified in his defense
that he neither owned nor possessed the cocaine that
Wells sold to Foote. Newell explained that Wells worked
for him on his farm and therefore had access to his truck.
Newell also testified that he thought Wells was going out
to get a pizza that night, not to deliver cocaine. Though
Newell called them both to the stand, neither Wells nor
Foote testified at Newell’s trial; Wells invoked his Fifth
Amendment right against self-incrimination (he too had
been charged with selling cocaine), and Foote was al-
legedly nowhere to be found.
In the course of litigating his post-conviction appeals,
Newell discovered that the prosecution had deposed Wells
shortly after his arrest and gave him a lower bond and
partial immunity in exchange for his testimony against
Newell. In this 1989 pre-trial deposition, Wells stated
that Newell had asked him to sell cocaine to Foote and
that he made the delivery in Newell’s truck as a favor to
Newell. Wells also stated that he actually gave the co-
caine to Foote, not McGee, although McGee was present
during the exchange. The prosecution never told Newell
No. 03-1299 3
about Wells’s deposition or its deal with him, either in
advance of or in response to Newell’s formal requests for
discovery. When Newell deposed Wells in 1996 in con-
nection with his post-conviction appeal, Wells stated
that the cocaine he had sold to Foote belonged not to
Newell, but to someone else. Wells also stated that the
prosecution told him he would be treated more favorably
with respect to the charges against him if he took the
Fifth at Newell’s trial.
Newell also discovered during his post-conviction proceed-
ings that the prosecution had made a deal with Foote
to secure his cooperation in the case, and that the pros-
ecution knew of Foote’s whereabouts during Newell’s trial.
Newell had attempted numerous times to locate Foote
before his trial, but was unsuccessful. When Newell asked
the prosecution for information about Foote’s location, it
not only denied having any such knowledge, but even
told the jury that Foote could not be located and his life
had been threatened by a known associate of Newell.
Years later, at an evidentiary hearing before the district
court, Foote admitted that he knew McGee planned to
testify falsely at trial about who actually received the
cocaine from Wells. Foote also revealed that the prosecu-
tion had given him money to leave town before the trial
and told him his assistance in Newell’s case was no
longer needed.
Newell now contends he is entitled to habeas relief on two
grounds: first, because the prosecution’s suppression of
exculpatory evidence, namely its pre-trial deposition of
Wells and its alleged deal with him to invoke his Fifth
Amendment privilege at Newell’s trial in exchange for
leniency, violated Newell’s due process rights under the
Fourteenth Amendment; and second, because the pros-
ecution’s deliberate interference with Newell’s access to
Foote violated his Sixth Amendment right to compulsory
process.
4 No. 03-1299
II. DISCUSSION
Newell is entitled to habeas relief only if he can prove
that he is in custody “in violation of the Constitution or
laws of the United States.” 28 U.S.C. § 2254(a). Though
Newell filed his petition for relief after the enactment of
the Antiterrorism and Effective Death Penalty Act of
1996 (“AEDPA”), his claims were never adjudicated by a
state court; therefore, AEDPA’s more deferential standard
of review, under which we deny habeas relief unless the
state court judgment is either “contrary to or an unreason-
able application of clearly established federal law,” does
not apply to this case. See Hardaway v. Young, 302 F.3d
757, 762 (7th Cir. 2002); Ouska v. Cahill-Masching, 246
F.3d 1036, 1046 (7th Cir. 2001). Instead, we review the
district court’s findings of fact for clear error and its con-
clusions of law de novo. Moffatt v. Gilmore, 113 F.3d 698,
701 (7th Cir. 1997).
In Newell’s case, we find no fault with either the dis-
trict court’s factual findings or its legal conclusions. The
district court, in a thorough and well-reasoned opinion,
explained that Newell was not entitled to relief because
he had not suffered a violation of his constitutional rights
resulting from the prosecution’s suppression of exculpa-
tory evidence and its interference with Newell’s access to
a key witness. Acknowledging that some prosecutorial
misconduct occurred in Newell’s case, the court neverthe-
less decided it was not materially prejudicial and did not
justify issuing a writ of habeas corpus. We agree.
First, we reject Newell’s argument that the prosecu-
tion violated his due process rights by suppressing the
evidence relating to Wells’s pre-trial deposition and tes-
timonial arrangements with the prosecution. Under Brady
v. Maryland, 373 U.S. 83, 87 (1963), the prosecution has
an obligation to disclose exculpatory or impeaching evi-
dence that is material to the case. Importantly, the pros-
No. 03-1299 5
ecution’s failure to satisfy this obligation amounts to
a constitutional violation only if the defendant did not
receive a fair trial, i.e., a trial resulting in a verdict
worthy of confidence, due to the absence of the suppressed
evidence. See Kyles v. Whitley, 514 U.S. 419, 434 (1995). In
other words, a “true Brady violation” consists of (1) evi-
dence favorable to the defendant (2) that is suppressed
by the prosecution, (3) resulting in material prejudice to
the defendant. Strickler v. Greene, 527 U.S. 263, 281-82
(1999).
With respect to Wells’s pre-trial deposition, the district
court correctly concluded that no Brady violation occurred
because Wells’s testimony was not favorable to Newell.
Wells stated in his 1989 deposition that as a favor to
Newell he drove Newell’s truck to deliver Newell’s cocaine
to a man Newell had just spoken to on the phone, Brad
Foote. Though Newell tries to rely on Wells’s later testi-
mony that the cocaine belonged to someone other than him,
that particular evidence did not surface until Wells’s 1996
deposition and was not available to Newell at his trial in
1989. The only part of Wells’s 1989 testimony that is
favorable to Newell is the fact that Wells actually gave
the cocaine to Foote; since McGee testified at trial that
he, and not Foote, took delivery of the cocaine from Wells,
this evidence could have been used to impeach McGee.
However, the rest of Wells’s deposition testimony unequiv-
ocally implicates Newell in the crime of dealing cocaine, and
we fail to see how Newell could have been materially
prejudiced by its absence.
Next, Newell alleges that the prosecution committed a
Brady violation by suppressing the existence of its two
testimonial deals with Wells, one to elicit his pre-trial
testimony discussed above and one to encourage him to
invoke his Fifth Amendment right not to testify at
Newell’s trial. Following the evidentiary hearing, the
district court agreed with Newell that the prosecution had
6 No. 03-1299
made one deal with Wells in which he agreed to testify in
a deposition against Newell in exchange for a lower bond
and partial immunity. But the district court found the
evidence of a deal with Wells to encourage him to invoke
his Fifth Amendment right at Newell’s trial “equivocal”
and therefore concluded that the second deal never ex-
isted. Since the evidence in the record is ambiguous on
this issue, we cannot say that the district court’s finding
was clearly erroneous. See United States v. Charles, 238
F.3d 916, 918 (7th Cir. 2000). Moreover, Wells had every
right to invoke his Fifth Amendment privilege at Newell’s
trial since he faced criminal charges stemming from the
same incident; without proof that the prosecution made
him do it, there can be no constitutional violation associ-
ated with his refusal to testify.
Last, Newell claims that the prosecution’s interference
with Foote, in denying knowledge of his whereabouts
and insinuating to the jury that his absence was due to
a threat by Newell, violated his Sixth Amendment right
to compulsory process, in particular his right to present
witnesses in his defense. But to establish a violation of
this right, a defendant must show more than the mere
absence of a witness at trial, he also “must at least make
some plausible showing of how [the absent witness’s]
testimony would have been both material and favorable
to his defense.” United States v. Valenzuela-Bernal, 458
U.S. 858, 867 (1982). Though Newell has established that
the prosecution, by sending Foote out of state, giving him
money to leave, and not disclosing his location when
directly asked to do so, interfered with Newell’s ability
to use Foote as a witness, Newell has not shown how
this misconduct prejudiced him at trial.
Had Foote testified at trial, it is difficult to see how his
testimony would have been at all favorable to Newell.
According to the record as it has been developed, Foote
presumably would have testified that he spoke with Newell
No. 03-1299 7
on the phone about arranging the purchase of cocaine, that
he met Wells to buy the cocaine after this conversation
with Newell, and that to his knowledge the cocaine he
bought from Wells came from Newell. At best, Foote
could have testified that he, and not McGee, received the
cocaine from Wells; but as we stated earlier in discussing
the suppression of Wells’s testimony, the absence of this
one piece of impeaching evidence does not render Newell’s
trial constitutionally infirm. Nor on this record does the
absence of Foote as a witness at Newell’s trial justify
habeas relief.
III. CONCLUSION
Though Newell has established some prosecutorial
misconduct in connection with his case, he has failed to
show that the misconduct prejudiced him materially or
violated his federal constitutional rights. We therefore
affirm the decision of the district court denying his peti-
tion for a writ of habeas corpus.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—7-10-03