stating that a petitioner will prevail only if he “can show that the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict” (quoting Kyles, 514 U.S. at 435, 115 S.Ct. 1555) (internal quotation marks and citations omitted)
How later courts described this case
- stating that a petitioner will prevail only if he “can show that the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict” (quoting Kyles, 514 U.S. at 435, 115 S.Ct. 1555) (internal quotation marks and citations omitted)
- stating that the court had “no reason to believe that an undisclosed agreement was the true reason” that the prosecutor wrote a letter to the parole board on behalf of the witness where the prosecutor attested that no agreement existed and the petitioner was “[w]ithout evidence to the contrary”
- holding that evidence of a witness’s expectation of favorable treatment was not material where it merely would have bolstered an attack on credibility already made at closing
- reviewing a defendant’s claim that the government should have disclosed to the defense counsel notes of an interview with a witness that indicated that the witness expected early parole in exchange for the testimony given at trial under Brady
Written by the judges who cited it.
The opinion
KAREN NELSON MOORE, Circuit. Judge,
dissenting.
Although I agree fully with the primary dissenting opinion, I write separately to express my befuddlement regarding the reason for rehearing this case en banc. The text of Federal Rule of Appellate Procedure 35 is clear: “An en banc hearing or rehearing is not favored.” Fed. R.App. P. 35(a). Rule 35 limits the reasons for granting rehearing en banc to (1) ensuring “uniformity of the court’s decisions,” and (2) resolving “a question of exceptional importance.” Id. The text of our parallel circuit rule is clear as well: “A suggestion for rehearing en banc is an extraordinary procedure which is intended to bring to the attention of the entire Court a precedent-setting error of exceptional public importance or an opinion which directly conflicts with prior Supreme Court or Sixth Circuit precedent.” 6 Cir. R. 35(e) (emphasis added). And lest anyone think that a panel’s “getting it wrong” qualifies as a matter of exceptional public importance, our Rule notes that “[alleged errors ... in the facts of the case (including sufficient evidence), or errors in the application of correct precedent to the facts of the case, are matters for panel rehearing but not for rehearing en banc.” Id. (emphasis added).
After reading the panel’s decision and the parties’ supplemental briefs, I was uncertain why a majority of this court had agreed to rehear this case en banc. Nowhere did either of the parties identify any inconsistency of the panel’s decision with prior decisions of this court (or with Supreme Court decisions, for that matter). *251 Nor did the parties highlight any question of exceptional importance. To the contrary, the briefs reflected a rather pedestrian disagreement regarding whether Petitioner Bell had offered sufficient evidence to establish a tacit agreement.
I had hoped that oral argument would clarify my confusion. Certainly, I thought, either the advocates or my colleagues on the bench would highlight the exceptional importance of this case. I had believed that after oral argument, I would see clearly that this dispute was not just a question of whether record evidence supported the panel majority’s opinion, but instead a complicated legal question that required fourteen seasoned legal minds to resolve. Suffice it to say, I am disappointed.
The entire debate at oral argument — as in the briefs — centered not on whether a petitioner could premise a Brady violation on the prosecutor’s failure to disclose a tacit agreement. The State’s counsel conceded — both in its brief, Appellee’s Supp. Br. at 12, and at oral argument — that Brady and its progeny support such a rule. Instead, the parties disputed whether Bell’s evidence established such an agreement. In other words, the State argued that the panel had gotten the facts wrong — that the evidence was insufficient, notwithstanding the panel’s opinion. But as noted above, such an argument has no place before the en banc court. See 6 Cir. R. 35(c).
We do not convene en banc to exercise plenary review over panel decisions. Yet that is precisely what has happened here because the State has failed to identify either a conflict between the panel decision and binding precedent or a matter of exceptional public importance that this case raises. Because I believe that Federal Rule of Appellate Procedure 35(a) and Sixth Circuit Rule 35(c) preclude us from reviewing en banc the panel’s decision, I would DISMISS the petition for rehearing en banc as improvidently granted. I respectfully dissent on that basis. Having failed to convince my colleagues that we should dismiss the petition as improvidently granted, I join the primary dissent on the merits.