Opposition Brief — Arthur Brown, Jr., Petitioner v. Texas

No. 17-7929

IN THE

Supreme Court of the United States

___________________________

ARTHUR BROWN, JR.,

Petitioner,

v.

STATE OF TEXAS,

Respondent.

___________________________

On Petition for Writ of Certiorari to the

Texas Court of Criminal Appeals

___________________________

RESPONDENT’S BRIEF IN OPPOSITION

___________________________

KEN PAXTON

Attorney General of Texas

JEFFREY C. MATEER

First Assistant Attorney General

ADRIENNE McFARLAND

Deputy Attorney General

For Criminal Justice

ERICH DRYDEN

Assistant Attorney General

Criminal Appeals Division

Counsel of Record

P.O. Box 12548, Capitol Station

Austin, Texas 78711-2548

(512) 936-1400

erich.dryden@oag.texas.gov

EDWARD L. MARSHALL

Chief, Criminal Appeals Division

Attorneys for Respondent

QUESTIONS PRESENTED

Arthur Brown, Jr. was convicted and sentenced to death for his

involvement in a quadruple homicide, along with Marion Dudley and Anthony

Dunson. The jury was permitted to convict Brown as a party to the offense.

At trial, the State presented evidence through a ballistics expert, Charles

Anderson, that several bullets found at the crime scene were fired from a

revolver associated with Brown. In the state courts below—Brown’s second

state habeas proceeding—Brown alleged that the State presented false

testimony via Anderson, in violation of due process. Brown presented evidence

from other ballistics experts undermining Anderson’s testimony. The trial

court believed Brown demonstrated a due process violation and recommended

habeas relief. It is not necessary under Texas law, as it is under federal

precedent, to show that the State knowingly presented false testimony.

Ultimately, the Texas Court of Criminal Appeals (CCA) denied relief holding

that Anderson’s testimony was not material in light of Brown’s clear

participation in the offense and the parties charge.

In finding that Anderson’s testimony was material, the state trial court

considered not only the ballistics evidence and eyewitness testimony, but also

testimony that one surviving eyewitness, Nicholas Cortez, provided in the

subsequent trials of Brown’s accomplices. Cortez’s testimony at those trials

was allegedly ambiguous regarding his identification of Brown as a

perpetrator. Brown now claims that the CCA did not account for this new

evidence and that, had the court done so along with the remaining evidence,

he would have been entitled to relief. Brown requests certiorari review arguing

that this Court should clarify its precedent and hold that newly discovered

postconviction evidence should be considered in resolving the materiality of

alleged false evidence. This history gives rise to three questions:

Can a petitioner demonstrate a violation of federal due process

without showing the State knowingly presented false evidence?

Are state and federal courts obligated to consider newly discovered

evidence not available at trial in assessing materiality, even where

federal precedent does not support this proposition?

Even if the Court could consider Cortez’s post-trial testimony,

would that render Anderson’s testimony material in light of the

clear evidence of Brown’s participation in the offense?

i

TABLE OF CONTENTS

QUESTIONS PRESENTED .............................................................................. i

TABLE OF AUTHORITIES ............................................................................ iii

BRIEF IN OPPOSITION ..................................................................................1

STATEMENT OF THE CASE...........................................................................3

I.

Facts of the Crime .........................................................................3

II.

Trial, Direct Appeal, and

Postconviction Proceedings .......................................................5

REASONS FOR DENYING CERTIORARI REVIEW ............................... 11

I.

Certiorari Review Should Be Denied due to Brown’s

Attempt to Circumvent Federal Precedent. ........................ 12

II.

In Assessing Materiality, Courts Generally Cannot

Consider Evidence Not in Existence at the Time a

Defendant Was Tried, and Brown Presents No Legal

Precedent Requiring Courts to Do So. .................................. 14

III.

In Any Event, Brown Fails to Demonstrate that the

Evidence in Question Is Material. .......................................... 22

IV.

A.

Brown was guilty as a party to the offence;

ballistics evidence is irrelevant. ................................... 22

B.

Brown’s argument about new postconviction

evidence calling into question his identity

lacks merit. ....................................................................... 25

Brown’s Claim Is Barred from Review.................................. 31

CONCLUSION ................................................................................................. 33

ii

TABLE OF AUTHORITIES

Cases

Banks v. Dretke, 540 U.S. 668 (2004).......................................................... 17, 18

In re Bolin, 811 F.3d 403 (11th Cir. 2016) ........................................................ 16

Brady v. Maryland, 373 U.S. 83 (1963) .......................................... 15, 16, 17, 22

Brown v. Thaler, 2011 WL 798391 (S. D. Tex. 2011) …………………………….25

Browning v. Trammell, 717 F.3d 1092 (10th Cir. 2013) .................................. 17

Ex parte Chabot, 300 S.W.3d 768 (Tex. Crim. App. 2009) ............................... 13

Danforth v. Minnesota, 552 U.S. 264, 266 (2008) ............................................ 33

Ex parte De La Cruz, 466 S.W.3d 855 (Tex. Crim. App. 2015) .......................... 9

District Attorney’s Office for Third Judicial Dist. v. Osborne,

557 U.S. 52 (2009) ........................................................................... 12, 15, 16, 17

Dudley v. Cockrell, No. H-01-1506 (S.D. Tex. 2002) ........................................ 30

Dudley v. Texas, 546 U.S. 1159 (Jan. 25 2006) ................................................ 30

Dunson v. State, No. 01-95-00821-CR, 1997 WL 732500

(Tex. App.–Houston [1st Dist.] 1997, pet. ref’d) .............................................. 30

Estelle v. McGuire, 502 U.S. 62 (1991) ............................................................. 12

Estrada v. Healey, 647 F. App’x 335 (5th Cir.), cert. denied,

137 S. Ct. 226 (2016) ......................................................................................... 16

Griffith v. Kentucky, 479 U.S. 314 (1987) ......................................................... 32

Jones v. Ryan, 733 F.3d 825 (9th Cir. 2013) .................................................... 17

Knox v. Johnson, 224 F.3d 470 (5th Cir. 2000) ................................................ 24

Makiel v. Butler, 782 F.3d 882 (7th Cir. 2015) ............................... 18, 19, 20, 21

In re Masterson, 638 F. App’x 320 (5th Cir. 2016) ........................................... 16

iii

Medina v. California, 505 U.S. 437 (1992) ....................................................... 16

Murray v. Girratano, 492 U.S. 1 (1989)............................................................ 11

Napue v. Illinois, 360 U.S. 264 (1959) ...................................................... Passim

Pennsylvania v. Finley, 481 U.S. 551 (1989) .............................................. 11, 12

Smith v. Phillips, 455 U.S. 209 (1982)........................................................ 13, 14

Teague v. Lane, 489 U.S. 288 (1989) ................................................. 3, 31, 32, 33

United States v. Agurs, 427 U.S. 97 (1976) .......................................... 14, 20, 21

Walker v. Lockhart, 763 F.2d 942 (8th Cir. 1985) ...................................... 21, 22

Ex parte Weinstein, 421 S.W.3d 656 (Tex. Crim. App. 2014) ...................... 9, 10

Statutes and Rules

28 U.S.C. § 2254 ................................................................................................. 20

28 U.S.C. § 1257 ................................................................................................. 13

Tex. Code of Crim. Proc. art. 11.071 ............................................................. 7, 10

Sup. Ct. R. 10 ……………………………………………………………………........11

iv

BRIEF IN OPPPOSITION

Brown was found guilty of and sentenced to death for the murders of

Jessica Quinones, Jose Tovar, Frank Farias, and Audrey Brown. Brown had

two accomplices, Dudley and Dunson. Two survivors of the murders, Rachel

Tovar and Cortez, identified Brown as a major participant. Brown’s conviction

and sentence were affirmed on direct appeal, and his state and federal habeas

applications—which included a claim that the prosecution knowingly

presented false evidence via ballistics expert Anderson—were denied.

An

execution date was set but withdrawn at the agreement of the parties.

Eventually, the case was remanded to the trial court by the CCA to

address whether Anderson testified falsely or in a materially misleading

manner, in violation of due process. In this proceeding, Brown presented

evidence from other ballistics experts who disputed Anderson’s conclusions. As

a result, the trial court recommended that Brown be granted habeas relief. In

finding that Anderson’s allegedly false testimony was material, the trial court

relied not only on the additional trial evidence, which it found to be weak, but

also on testimony that surviving eyewitness Cortez provided in the subsequent

trials of Dudley and Dunson, where Cortez was supposedly ambiguous about

his identification of Brown.

The CCA declined to adopt the trial court’s

recommendation and denied habeas relief. The CCA held that Brown was

1

charged as a party to the offense and there was never any question about his

involvement due to the remaining evidence. Moreover, the trial evidence was

unclear regarding who fired the weapons; thus, it was not necessary to identify

the murder weapon or its connection to Brown. Consequently, Anderson’s

testimony was not material.

Brown now argues that the CCA failed to take into consideration Cortez’s

testimony in the subsequent trials of Dudley and Dunson, claiming that this

testimony undermines Cortez’s testimony at Brown’s trial. Brown claims that

this evidence combined with Anderson’s refuted testimony and the weakness

of the remaining evidence—namely Tovar’s testimony—demonstrates the false

testimony was material. He asks this Court for certiorari review to resolve

whether post-verdict evidence can be considered in assessing materiality.

Brown’s petition should be denied. First, under this Court’s settled

precedent, due process requires Brown to demonstrate that the State

knowingly presented false testimony. See Napue v. Illinois, 360 U.S. 264

(1959).

Brown not only fails to do so, he sidesteps this issue altogether.

Second, Brown asks this Court to consider Cortez’s post-trial testimony for

impeachment purposes even though his original trial testimony was not the

subject of Brown’s due process Napue claim. Brown cites no precedent in

support of his novel argument. Third, the case law demonstrates that courts

2

are not required to consider post-verdict evidence in these circumstances and

that they generally decline to do so. Fourth, this case presents a poor vehicle

for consideration of this issue because there is no doubt that Brown was a party

to this offense and both Anderson’s trial testimony and Cortez’s subsequent

testimony in Dudley’s and Dunson’s trials were not material. Finally, Brown’s

claim is barred under the non-retroactivity principle of Teague v. Lane, 489

U.S. 288 (1989). Thus, certiorari review should be denied.

STATEMENT OF THE CASE

I.

Facts of the Crime

The CCA summarized the facts of the crime as follows:

On the evening of June 20, 1992, at the Houston home of Rachel

Tovar, six people were shot, four of whom died. Rachel Tovar was

one of the survivors of the assault. In the hospital immediately

after the incident, Tovar gave a recorded oral statement in which

she stated that “Squirt” was one of the perpetrators and described

the van he and his friends were driving. She subsequently

identified [Brown] in a photospread. At trial Tovar identified

[Brown] as the man she had referred to as “Squirt.” Others also

testified that [Brown] was known as “Squirt.” Tovar further

testified that she and her husband had sold marijuana and cocaine

to [Brown] on several occasions. Tovar testified that on the day of

the offense [Brown] and his friends came to her house about 2:00

or 3:00 in the afternoon to discuss the purchase of some cocaine

and that they were driving a beige minivan. They left and

returned around 6:00 p.m., and then left again only to return to

the house a couple of hours later, at which time the shootings took

place. Tovar testified that [Brown] bound her and five others who

were in the house with strips of bedsheets [Brown] cut with a knife.

The bound individuals were then placed in various rooms

throughout the house. She heard gunshots from the other rooms

3

and then she was shot. Tovar testified that she did not know who

shot her, although she saw each of the three perpetrators with a

gun at various times during the assault.

The other survivor, Nicholas Cortez Anzures, testified that he had

gone to visit the Tovars’ at about 10:00 p.m. on the evening of the

murders. He stated that he drove to the Tovars’ house with some

friends who waited for him in the car outside. He knocked on the

door and was forced inside by [Brown] who was pointing a gun at

the head of one of the victims. Cortez was taken to a back room by

[Brown] and one of his cohorts, where he was bound and gagged.

Cortez testified he heard a woman scream and shots from the front

of the house. Then “the man with the chrome gun” and [Brown]

came into the room and the man with the gun shot Cortez and

another victim.

Candelario Hernandez testified that he drove with Cortez to the

Tovars’ house and waited in the car, expecting Cortez to return to

the car quickly so that they could proceed to a party they planned

to attend. Shortly after Cortez went inside Hernandez heard two

sets of shots coming from the house and observed two black men

exit the front door, get into a minivan, and drive away.

Rachel Tovar’s neighbor testified that he was sitting in his front

yard the night of the offense. He observed a van parked outside

the Tovars’ house and saw a black man going back and forth

between the van and the house and putting something in the van.

He further testified he heard three “popping sounds” and then the

van left.1 Shortly thereafter Rachel Tovar emerged from the house

injured and calling for help.

Still another person, Daniel Leija, testified to having been at the

Tovars’ house earlier in the evening and seeing [Brown] there. He

also testified that he had seen a van parked in front of the house.

His statement given to police following the offense stated that the van pulled

away and then he heard the popping sounds. At trial he stated that was not correct,

that he had heard the pops before the van left.

1

4

[Brown’s] three sisters, Serisa Brown, Grace Brown and Carolyn

Momoh, were all called as witnesses for the State. At the time of

the offense, Serisa and her child and Carolyn and her two children

were living with Grace at Grace’s house in Houston. The sisters

all testified that [Brown] and three of his friends, Marion Dudley,

Tony Dunson, and Maliek Travis, came to Grace’s house in the

early morning hours of June 20th. [Brown] and his friends were

driving a tan minivan with Alabama plates. They left and

returned several times that day and evening. Sometime after

midnight that night [Brown] asked Serisa and Carolyn to drive the

van back to Tuscaloosa, Alabama for him the next morning.2 He

agreed to pay each of them $1,000 in return for driving the van. 3

Serisa and Carolyn took [Brown] to the airport the morning of June

21st and then the two women and their children left for Tuscaloosa

in the van. Upon arrival in Tuscaloosa, Carolyn spoke with Grace

by phone who informed Carolyn of a news report she had seen

pertaining to the murder of several persons and stating that a van

with Alabama plates was identified as having been at the scene.

Carolyn and Serisa turned the van over to [Brown] and his friends

in Tuscaloosa and collected their money. Carolyn and Serisa

eventually gave statements to Alabama authorities, and all three

of the sisters gave statements to the Houston police on June 26th.

Brown v. State, No. 71,817, slip op. at 31–33 (Tex. Crim. App. 1996) (emphasis

and footnotes in original).

II.

Trial, Direct Appeal, and Postconviction Proceedings

Brown was convicted and sentenced to death for the murders of Jessica

Quinones, Jose Guadalupe Tovar, Audrey Brown, and Frank Farias during the

2

[Brown’s] residence was in Tuscaloosa and his parents also lived there.

Serisa testified that the money was payment for delivering cocaine that was in

the van. Carolyn testified that she had no knowledge of drugs in the van.

3

5

same criminal transaction. CR 7, 485, 520–22, 526–27.4 The CCA affirmed

Brown’s conviction and sentence in an unpublished opinion, Brown v. State,

No. 71,817 (Tex. Crim. App.), and this Court denied Brown certiorari review.

Brown v. Texas, 522 U.S. 940 (1997).

Brown filed a state application for writ of habeas corpus in the trial court

on March 26, 1998. SHCR 2. The trial court submitted findings of fact and

conclusions of law recommending that Brown be denied relief. Id. at 281–307.

The CCA adopted the trial court’s findings and conclusions and denied Brown

habeas relief. Ex parte Brown, No. 26,178-02 at cover and Order.5

Brown then filed a federal petition for writ of habeas corpus in the

federal district court. Brown v. Thaler, No. 4:09-CV-00074 (S.D. Tex.), Docket

Entry (DE) 1. The Director filed an answer and motion for summary judgment.

DE 23.

The district court issued a memorandum and order granting the

Director’s motion for summary judgment, denying Brown’s petition, and

denying Brown a certificate of appealability (COA). DE 31 & 32.

“CR” refers to the clerk’s record of pleadings and documents filed with the court

during trial, followed by page number(s). “RR” refers to the state record of

transcribed trial proceedings, preceded by volume number and followed by page

number(s). “SHCR” refers to the state habeas clerk’s record of Brown’s first state

habeas proceeding, followed by page number(s).

4

Brown’s first postconviction filing was a petition for writ of mandamus.

Ex parte Brown, No. 26,178-01.

5

6

Next, Brown filed an application for a COA in the Fifth Circuit Court of

Appeals, but the Fifth Circuit denied Brown a COA. Brown v. Thaler, 684 F.3d

482 (5th Cir. 2012). Brown then filed a petition for writ of certiorari in this

Court, which this Court denied. Brown v. Thaler, 568 U.S. 1164 (2013).

On July 2, 2013, the convicting court entered an order scheduling

Brown’s execution for October 29, 2013. By agreement of the parties, the

convicting court withdrew Brown’s execution date to allow for the retesting of

ballistics evidence.6

Brown then filed a subsequent habeas application alleging multiple

grounds of prosecutorial misconduct and ineffective assistance of counsel. The

CCA determined that only one of Brown’s claims satisfied the requirements of

Texas Code of Criminal Procedure, Article 11.071, Section 5(a), and remanded

the case to the trial court for consideration of the following allegation: whether

the State’s ballistics expert Anderson “testified falsely or in a materially

misleading manner when he expressed his unequivocal opinion that the

6

While the execution date was pending, Brown filed a motion in the federal

district court for authorization of funding and appointment of a mitigation

investigator to assist in clemency proceedings. See DE 49. The district court denied

the motion. DE 51. Brown then appealed the district court’s ruling to the Fifth

Circuit. The appellate court affirmed the district court’s decision in a published

opinion. Brown v. Stephens, 762 F.3d 454 (5th Cir. 2014). This Court subsequently

denied Brown certiorari review. Brown v. Stephens, 135 S. Ct. 1733 (2015).

7

evidence bullets were fired from the two guns that the State recovered in

Alabama and tied to [Brown].” Ex parte Brown, No. WR-26,178-03, 2015 WL

6522854 (Tex. Crim. App. October 28, 2015) (order).

Following a hearing, the state trial court adopted Brown’s proposed

findings of fact and conclusions of law and recommended that Brown be

granted habeas relief. Ex parte Brown, No. 636535-B (351st Dist. Ct., Harris

County, Texas); Petitioner’s Appendix C.

On October 18, 2017, the CCA

declined to adopt the trial court’s recommendation and denied Brown habeas

relief. Ex parte Brown, No. 26,178-03, 2017 WL 4675396 (Tex. Crim. App.

2017); Petitioner’s Appendix A. In this opinion, the CCA held as follows:

[Brown] was convicted of murdering more than one person during

the same criminal transaction. The evidence at his 1993 trial

showed that six people were shot at the Houston home of Rachel

Tovar in June 1992. Four of those people—Jose Tovar, Frank

Farias, Jessica Quinones, and Audrey Brown—died. The two

survivors, Rachel Tovar and “Nico” Cortez, identified [Brown] and

Marion Dudley as their attackers. The State presented evidence

that a Smith & Wesson .357 Magnum revolver and a Charter Arms

.38 revolver were used in the commission of the offense. Firearms

examiner Charlie E. Anderson testified for the State that these

guns fired bullets that were recovered from the bodies of the

victims. Based on the witness testimony and the ballistics

evidence, the State argued that [Brown] shot Farias, Quinones,

and Brown with the Charter Arms.

**********

In his –03 application, [Brown] alleges within Claim A that

prosecutorial misconduct occurred at his trial when:

8

• State’s witness Charlie E. Anderson “testified falsely or

in a materially misleading manner when he expressed his

unequivocal opinion that the evidence bullets were fired

from the two guns that the State recovered in Alabama and

tied to [Brown].”

• The State “presented false identification testimony

through its witness Nicholas Cortez Anzures.”

• The State “failed to turn over favorable exculpatory

evidence that four armed black males driving a similar van

with Alabama license plates were boasting, only days after

the murders in this case, of committing murders in

Houston.”

In Claim B, [Brown] alleges that his trial counsel were ineffective

because they “failed to investigate or unreasonably narrowed the

scope of their investigation into substantial and compelling

mitigating evidence that would have given the jury a reason to

spare [his] life.”

On October 28, 2015, we remanded the cause for the trial court to

consider one claim: [Brown’s] allegation that Anderson gave false

or misleading testimony at his trial. When the ballistics evidence

was re-tested by two other firearms examiners, Ed Love, Jr. and

Donna Eudaley, they did not identify the Smith & Wesson and the

Charter Arms as the guns used in the commission of this offense.

Love eliminated the Charter Arms and was inconclusive about the

Smith & Wesson. Eudaley was inconclusive about both of the

guns. After holding a hearing in which Anderson, Love, and

Eudaley testified, the trial court adopted [Brown’s] proposed

findings of fact and conclusions of law and recommended that relief

be granted on the remanded claim. We disagree.

In order to be entitled to post-conviction habeas relief on the basis

of false evidence, [Brown] must show by a preponderance of the

evidence that (1) false evidence was presented at his trial and

(2) the false evidence was material to the jury’s verdict. See Ex

parte De La Cruz, 466 S.W.3d 855, 866 (Tex. Crim. App.

2015), citing Ex parte Weinstein, 421 S.W.3d 656, 659, 665 (Tex.

9

Crim. App. 2014). We review factual findings concerning whether

a witness’s testimony is false under a deferential standard, but we

review de novo the ultimate legal conclusion of whether such

testimony was “material.” See Weinstein, 421 S.W.3d at 664.

We note at the outset that none of the experts were certain what

type of ammunition was used in the shootings, and both Love and

Eudaley acknowledged the possibility that different ammunition

could lead to different results. But even if we assume the falsity

of Anderson’s testimony about his ballistics testing results, which

were confirmed prior to trial by secondary examiners Donald Davis

and Raymond Klien, [Brown] has not shown that this evidence was

material at guilt/innocence or punishment. The jury was

authorized to convict [Brown] of capital murder as a party to the

offense. And the State presented evidence that [Brown], at the

very least, intended to kill the victims or anticipated that a human

life would be taken. For example, the surviving witnesses

observed [Brown] holding victims at gunpoint, tying them up with

bedsheets, and verbally threatening to kill them. After the offense,

[Brown] quickly left Houston on a plane and paid his sisters to

drive his van back to Alabama. One of his sisters told police that

[Brown] admitted to her that he had shot and killed “six

Mexicans.” She also testified at trial that she owned a Charter

Arms .38 revolver that went missing after [Brown] had been in

Houston.

Under the circumstances presented in this case, [Brown] is not

entitled to relief on the remanded claim. Based upon our own

review, we deny relief on [Brown’s] claim that the State engaged

in prosecutorial misconduct by presenting Anderson’s ballistics

testimony at trial.

We have also reviewed [Brown’s] remaining claims of prosecutorial

misconduct (contained within Claim A) and ineffective assistance

of counsel (Claim B). With regard to these claims, we find that

[Brown] has failed to satisfy the requirements of Article 11.071,

§ 5(a). Accordingly, we dismiss these claims as an abuse of the writ

without reviewing the merits.

Petition, Appendix A at 1–5 (footnote omitted).

10

REASONS FOR DENYING CERTIORARI REVIEW

The questions Brown presents for review are unworthy of the Court’s

attention. Supreme Court Rule 10 provides that review on writ of certiorari is

not a matter of right, but of jurisdictional discretion, and will be granted only

for “compelling reasons.” Brown advances no such special or important reason

in this case, and none exists. Brown’s claims were thoroughly adjudicated by

the state court, and the CCA properly denied relief.

compelling reason to reconsider that decision.

Brown presents no

Indeed, the certiorari

jurisdiction provided by Rule 10 is primarily concerned with resolving issues

implicating federal law. Sup. Ct. R. 10(b) & (c). Brown’s petition fails in that

regard because he is contesting the CCA’s application of state law to the facts

of his case, which is inadequate to warrant certiorari review. Indeed, as

explained

below,

Brown

attempts

to

sidestep

federal

law—Napue’s

requirement that a petitioner show the prosecution knowingly presented false

evidence—in requesting certiorari review.

Ultimately, Brown’s complaint about the manner in which the CCA

resolved his habeas proceeding does not warrant review because states are not

constitutionally required to provide collateral proceedings, nor “to follow any

particular federal role model in these proceedings.” Murray v. Girratano, 492

U.S. 1, 13 (1989) (O’Connor, J., concurring); see also Pennsylvania v. Finley,

11

481 U.S. 551, 557 (1989) (states have no obligation to provide collateral review

of convictions). And where a State allows for postconviction proceedings, “the

Federal Constitution [does not] dictate[] the exact form such assistance must

assume.” Finley, 481 U.S. at 555, 557, 559; cf. Estelle v. McGuire, 502 U.S. 62,

67–68 (1991) (“federal habeas corpus relief does not lie for errors of state law”)

(internal quotation marks and citation omitted). As this Court has explained,

“Federal courts may upset a State’s postconviction procedures only if they are

fundamentally inadequate to vindicate the substantive rights provided.” Dist.

Attorney’s Office for Third Judicial Dist. v. Osborne, 557 U.S. 52, 69 (2009).

The state court proceedings in Brown’s case were more than adequate;

he is merely displeased with the final result. Certiorari review is not merited

on this basis.

And although Brown contends that a circuit split exists

regarding the consideration of evidence discovered after trial when assessing

materiality, an examination of the cases he cites demonstrates Brown’s

argument is at best misleading. Thus, Brown’s petition should be denied.

I.

Certiorari Review Should Be Denied due to Brown’s Attempt to

Circumvent Federal Precedent.

Fatal to Brown’s underlying Napue claim is his attempt to sidestep a

requirement under federal law: that he show the prosecution obtained his

conviction via false evidence “known to be such by representatives of the State.”

Napue, 360 U.S. at 268 (emphasis added). Texas law does not require a

12

petitioner to make this showing. See Ex parte Chabot, 300 S.W.3d 768, 771–

72 (Tex. Crim. App. 2009). But to invoke a federal issue, Brown must do so.

In exercising its authority under 28 U.S.C. § 1257(a), the Court has made

clear that it holds “no supervisory power over state judicial proceedings and

may intervene only to correct wrongs of constitutional dimension.” Smith v.

Phillips, 455 U.S. 209, 221 (1982). Here, that necessarily requires a showing

that the State knowingly presented false testimony under Napue. Brown’s

petition, however, focuses exclusively on materiality and merely assumes that

he has met the remaining prongs of Napue.

The evidence clearly shows

otherwise. Anderson’s ballistics testimony may have ultimately proven to be

inaccurate—at least in the eyes of the trial court—but that alone fails to

demonstrate that the prosecution knowingly presented false testimony. And

it is evident the State could not or should not have known the evidence was

false or misleading given that two other ballistics experts verified Anderson’s

results prior to trial.

Brown presents no evidence to the contrary.

Consequently, there was no error of constitutional dimension.

Brown does not address this critical issue in his petition, apparently

hoping that exclusive focus on a new method for assessing materiality will

suffice. Although the CCA resolved the matter on that prong, Brown is not

permitted to leapfrog constitutional requirements now that he is before this

13

Court.

And to the extent he is asking the Court to provide supervisory

guidance over the state courts to assist them in analyzing due process claims

involving false evidence, the Court cannot accept his invitation. Phillips, 455

U.S. at 221.

II.

In Assessing Materiality, Courts Generally Cannot Consider

Evidence Not in Existence at the Time a Defendant Was Tried,

and Brown Presents No Legal Precedent Requiring Courts to Do

So.

Brown seeks certiorari review claiming that the CCA failed to take into

consideration evidence developed post-trial––Cortez’s subsequent testimony in

the trials of Brown’s accomplices––in resolving the materiality issue. Brown

states:

While this Court, in Agurs,[7] cautioned that materiality “must be

evaluated in the context of the entire record,” the Court did not

address what constituted the record a reviewing court is obligated

to review—whether it is limited to the trial record or if it extends

to the record developed in post-conviction proceedings.

Petition at 18 (emphasis in original). Brown then asserts: “This Court should

grant a writ of certiorari in this case to clarify what it meant by the ‘entire

record’ in Agurs.” Id. at 19.

An initial fault with Brown’s claim is that the evidence he states was not

considered—Cortez’s subsequent testimony when compared with his trial

7

United States v. Agurs, 427 U.S. 97 (1976).

14

testimony—was not even the subject of his Napue claim. Instead, Brown

argued that Anderson, the ballistics expert, provided false testimony and the

falsity was material.8 Thus, Brown is now claiming that the CCA’s failure to

consider evidence not subject to a constitutional challenge—indeed, evidence

completely outside the state court record and unavailable when Brown was

tried—nonetheless warrants certiorari review due to its alleged impact on the

materiality question. Brown cites no precedent for this novel proposition.

At any rate, courts have rejected the argument that post-verdict evidence

should be considered in assessing materiality, at least in the context of Brady9

allegations.

In Osborne, this Court declined to extend Brady to the

postconviction context, holding that “Brady is the wrong framework” for

assessing a petitioner’s “limited interest in postconviction relief.” 557 U.S. at

69.

Instead, the question is whether consideration of [petitioner’s]

claim within the framework of the State’s procedures for

postconviction relief “offends some principle of justice so rooted in

the traditions and conscience of our people as to be ranked as

fundamental,” or “transgresses any recognized principle of

fundamental fairness in operation.” Federal courts may upset a

State’s postconviction relief procedures only if they are

fundamentally inadequate to vindicate the substantive rights

provided.

As stated, Brown has never argued, and does not argue here, that Cortez

provided false testimony at trial.

8

9

Brady v. Maryland, 373 U.S. 83 (1963).

15

Id. (quoting Medina v. California, 505 U.S. 437, 446, 448 (1992)) (additional

citations omitted).

Since Osborne, federal appellate courts have routinely declined to

consider evidence that came to light after conviction and was not available

prior to or during trial.

In re Bolin, 811 F.3d 403, 409 (11th Cir. 2016)

(rejecting Brady claim under Osborne where the supposed violation occurred

years after defendant was convicted); Estrada v. Healey, 647 F. App’x 335, 338

(5th Cir.) (“Estrada cites no case law establishing a due process right to the

timely disclosure of exculpatory evidence discovered after his conviction, i.e.,

Salvador’s misconduct. Instead, he relies exclusively on the rule announced

in Brady that due process requires a prosecutor to disclose material,

exculpatory evidence to a defendant before trial. His argument is undercut by

the Supreme Court’s decision in [] Osborne, which explicitly declined to

extend Brady’s pre-trial protections to the post-conviction context.”) (citing

Brady and Osborne), cert. denied, 137 S. Ct. 226 (2016); In re Masterson, 638

F. App’x 320, 327–28 (5th Cir. 2016) (“Masterson points to no authority for the

proposition that a prosecutor has a duty to turn over subsequently

discovered information about a witness related to events that had not yet

occurred at the time of trial but would nevertheless, if a time machine were

available, be useful to impeach the witness’s credibility.”) (emphasis in

16

original) (citing Osborne); Jones v. Ryan, 733 F.3d 825, 837 (9th Cir. 2013)

(“even if the evidence Jones seeks were assumed to be material,

the Brady right of pretrial disclosure available to defendants at trial does not

extend to habeas corpus petitioners seeking post-conviction relief”).

For

instance, in Browning v. Trammell, the Tenth Circuit explained:

In the Brady context . . . it is inappropriate to consider evidence

developed post-verdict. To do otherwise would contradict Supreme

Court cases applying Brady by analyzing how withheld evidence

might have affected the jury in light of all other evidence it heard.

. . .If (as Osborne made clear) one’s Brady right is a pre-trial right,

then our analysis necessarily looks to what might have changed

had the Brady evidence been disclosed before trial—or at least

disclosed soon enough to give the defendant an opportunity to use

it at trial effectively. And if our analysis necessarily looks to what

might have changed had the Brady evidence been disclosed before

trial, then it would make no sense to account for evidence that

was not available before trial.

Accordingly, we confine our analysis of favorability and

materiality to the record before the state trial court. We therefore

cannot consider [accomplice’s] confession and guilty plea, nor can

we consider evidence Browning developed in post-conviction

proceedings that he believes favors his theory of the case.

717 F.3d 1092, 1104–05 (10th Cir. 2013) (emphasis in original).

The precedent Brown cites in support of his argument is unavailing.

First, he addresses Banks v. Dretke, 540 U.S. 668 (2004). In Banks, a preOsborne case, this Court held that the prosecution violated Brady by failing to

disclose to the defense that a State’s witness was coached by the prosecution,

despite the witness’s denials that he had talked to anyone prior to trial, and

17

that another witness was a paid informant. Id. at 675–705. In a footnote, this

Court mentioned that Vetrano Jefferson, a prosecution witness who testified

at the punishment phase that Banks struck him in the face with a pistol,

omitted that he appeared to have initiated the fight with Banks that led to his

injury. Id. at 699 n.17. This information came to light when Jefferson testified

on postconviction review. Id. Brown states: “[T]his Court took this information

into consideration in its assessment of materiality of the wrongfully withheld

evidence pertaining to [the paid informant] [Richard] Farr.” Petition at 18.

Brown’s statement is misleading. Jefferson’s omission was mentioned only in

the footnote, and in the materiality portion of the opinion, this Court focused

exclusively on the importance of Farr’s punishment phase testimony. 540 U.S.

at 698–703. Farr’s informant status was well-known to the authorities before

trial but was not disclosed. Banks does not stand for the proposition that

evidence that comes to light after trial but was unknown to the State may

result in a constitutional violation. Moreover, as discussed below, Cortez’s

subsequent testimony in the trials of Dudley and Dunson did not reveal that

he omitted details when he testified at Brown’s trial, only that his memory

appeared to fade over time.

The second case Brown cites is Makiel v. Butler, 782 F.3d 882 (7th Cir.

2015). This case is also not on point. There, the petitioner alleged that he was

18

denied compulsory process because the trial court refused to permit a witness,

Anderson, to testify that three other boys were responsible for a robbery and

murder. Id. at 908. However, the court acknowledged this was an unusual

case because, following trial, Anderson recanted his proffered trial testimony

at a hearing and said that he made up the story about the other boys in

retaliation for them bullying him.

Id.

Further, the police attempted to

corroborate Anderson’s original story before Makiel’s trial but were unable to

do so. Id. As a result, the state court held that Anderson’s testimony was not

material to the verdict. Id.

In federal court, Makiel claimed that the state court unreasonably

applied clearly established federal law when it rejected his compulsory process

claim. Makiel argued that the state court should have ignored Anderson’s

recantation and focused only on the materiality of the original proffer. Id. The

Seventh Circuit stated:

The question presented by these unusual facts is whether the state

court unreasonably applied clearly established federal law when it

measured materiality in light of the entire record rather than

looking only at the trial record. In other words, when a court

determines whether the excluded testimony is material, is it free

to consider post-trial developments that bear directly on the

reliability of the testimony, or must it confine its review to the

record at the time the trial court excluded the evidence?

Id. at 908-09. The court did not resolve this question. Rather, the Seventh

Circuit held that “because no Supreme Court decisions clearly establish that a

19

court

considering

materiality

is

barred

from

considering

post-trial

developments that bear directly on the reliability of the excluded testimony,”

Makiel could not satisfy the deferential standard of 28 U.S.C. § 2254. Id. at

909. Although the court addressed Agurs in support of its holding, the court

explained:

Agurs instructed courts to evaluate the omission of the evidence

“in the context of the entire record.” Agurs said this in a case

where there had been no significant post-trial developments

bearing on the reliability of the omitted evidence. It is possible,

then, that the Court meant “the entire trial record but nothing

beyond that” when it said “entire record.” But this possibility does

not clearly establish that a court should never consider post-trial

developments that bear directly on the reliability of the excluded

evidence in measuring materiality.

Id.

More importantly, the court’s reasoning for considering Anderson’s

recantation was tied to the “interest of justice” and “countervailing public

interests.” Id. Specifically:

Consider for a moment the extraordinary scenario that Makiel

contends would be mandated by the federal Constitution. He says

the state or federal courts should have vacated his conviction and

ordered a new trial so that he could call Anderson to testify about

the story he told back in 1990, which is (1) uncorroborated by

any other evidence, (2) disavowed by Anderson himself as a

troubled boy’s misguided effort to get back at other boys who had

bullied him, and (3) implausible on its face. Even if Anderson’s

original statements might somehow have been squeezed into

evidence after the recantation, a new trial for that purpose would

have been a strange farce, at least if the truth is supposed to

remain important in a criminal trial.

20

Id. at 909–10. The court concluded that the state court’s decision was not

unreasonable where the petitioner’s claim rested on “a partial presentation of

the facts.” Id. at 910.

Makiel does not support Brown’s request for an extension of Agurs.

First, the decision was confined to the unusual facts of the case. The court did

not hold that consideration of post-verdict evidence is required under this

Court’s precedent, only that the state court’s decision was not unreasonable

given this particular set of circumstances.

Second, Anderson’s proffered

testimony was the subject of Makiel’s compulsory process claim. On the other

hand, Brown’s Napue claim was directed at Charles Anderson, the ballistics

expert, not Cortez’s testimony. Makiel does not hold that consideration of the

entire record includes new evidence unavailable at trial and not subject to

constitutional challenge. Third, Cortez testified at Brown’s trial and identified

him as a perpetrator. And as discussed below, Cortez did not recant his

testimony in the subsequent trials or completely fail to identify Brown; rather,

his recall was less than ideal. In this regard, Brown’s claim is misleading.

Fourth, for the reasons addressed below, Cortez’s testimony was not material.

The final case Brown cites is Walker v. Lockhart, 763 F.2d 942 (8th Cir.

1985). But this case, involving Walker’s conviction for murdering a police

officer, is not on point because it involved the State’s suppression of a

21

transcript where an accomplice, Kumpe, indicated that he might have been the

one to shoot the officer. Id. at 945–46, 955–61. Although the evidence was not

turned over to the defense until years after Walker was convicted, the

transcript had been in the State’s possession for decades and before Walker

was tried. In other words, the case involved a typical Brady claim, not an

allegation that newly discovered evidence elicited post-trial was material.

In sum, the precedent does not support Brown’s allegation that Cortez’s

subsequent trial testimony can be considered in resolving materiality

pertaining to his Napue claim. Therefore, certiorari review should be denied.

III.

In Any Event, Brown Fails to Demonstrate that the Evidence in

Question Is Material.

A.

Brown was guilty as a party to the offense; ballistics

evidence is irrelevant.

Ultimately, Brown’s claim fails because, as the CCA determined, the

flaws in the ballistics evidence are not material. Napue, 360 U.S. at 269 (in

order to violate due process, false testimony must be material to the outcome).

The lack of identification of Brown as a triggerman does not alter his role in

the crime because he was charged as a party to the offense. And it was clear

he was a party.

Brown’s sister, Carolyn Momoh, testified that a Charter Arms .38 was

missing from her home after Brown last visited her. 36 RR 148. Tovar testified

22

that she saw both Dunson and Brown brandishing a .38 revolver at different

points during the crime. 31 RR 196–97. And Anderson testified that a Charter

Arms .38 matching several of the bullets recovered from the victims was found

in Alabama. 33 RR 198–206. But this evidence was merely circumstantial.

There was no testimony that Momoh’s missing gun was in fact the murder

weapon. Brown was not in possession of the gun at the time it was located in

Alabama; it was found near the body of Marcus Hill, who was murdered in

Alabama, and the gun remained in Alabama in connection with that murder

case.

33 RR 198–206.

Further, Anderson testified that there are many

thousands of Charter Arms .38 revolvers in the United States. 33 RR 315.

Moreover, although Cortez identified Dudley as the man who shot him

and Jose Tovar, 31 RR 80–82, no one was able to identify who shot the

remaining victims. Because this issue was not crystal clear, and because there

were several perpetrators, the jury was instructed that it could find Brown

guilty of capital murder as a party to the offense if he acted “with intent to

promote or assist the commission of the offense.” CR 473–74. Thus, although

the State argued that Brown shot three of the victims, 39 RR 132, it was not

necessary for the jury to reach that conclusion to return a verdict of “guilty.”

And even if the jury believed the State’s argument that Brown shot three of

the victims, that belief would have been based primarily on deductions from

23

the eyewitness testimony. Regardless of the State’s argument, 39 RR 130–32,

matching bullets to a particular gun did not conclusively establish who pulled

the trigger, particularly considering that the assailants were passing the

weapons around.

Thus, ballistics results do not obviate Brown’s role.

There was no

question that Brown was a major participant in the crime because he was

identified as such by three people, including two of the wounded victims. Tovar

testified that Brown tied up several of the victims and that she saw each of the

perpetrators brandishing a gun at various points during the crime. Cortez also

testified that he saw Brown pointing a gun at the head of one of the victims.

Further, as the Court of Criminal Appeals noted, Tovar had known Brown for

some time, Brown v. State, slip op. at 34; thus, this is not a case of mistaken

identity. Consequently, there was no question that Brown was a party to the

offense and could have anticipated that a human life would be taken. Any

evidence demonstrating that Anderson’s testimony was false would not have

impacted the jury’s verdict. See Knox v. Johnson, 224 F.3d 470, 478 (5th Cir.

2000) (even assuming witness lied about an issue, it had no bearing on the

defendant’s participation in the crime and, thus, was not material). In fact, on

direct appeal, the CCA conducted a harmless error analysis with respect to an

unrelated claim and did not mention Anderson’s testimony or the ballistics

24

evidence. Brown v. State, slip op. at 28–35. Simply put, this evidence was not

critical to the outcome.

The issue of materiality was litigated on both state and federal habeas

review when Brown previously claimed that Anderson’s testimony was false.

In rejecting Brown’s claim, the federal district court held as follows:

Even without the evidence connecting Brown to that particular

weapon, the trial testimony amply confirmed his role in the crime.

True, one victim pointed to Brown’s co-defendant as a shooter, but

the police were never able to identify who fired all of the shots.

Testimony from three individuals—including a surviving victim

who saw Brown hold a pistol to the head of another—confirmed

that Brown was a major participant in the robbery/murders. There

was no serious question about Brown’s identity as a party to the

offense. Given the law-of-the-parties instruction, the evidence

amply allowed for Brown’s conviction without linking him to the

recovered firearms. Eyewitness testimony confirmed that Brown

intended that the victims be killed. Proving the ballistics

testimony false would not measurably alter the jury’s

consideration of Brown’s role in the murder.

Brown v. Thaler, 2011 WL 798391, *19 (S.D. Tex. 2011). The new habeas

evidence undermining Anderson’s testimony is likewise not material.

B.

Brown’s argument about new postconviction

evidence calling into question his identity lacks

merit.

Brown now alleges that Cortez’s trial testimony and identification of

Brown is suspect given his testimony in the trials of Dudley and Dunson, both

of which occurred over a year after Brown’s trial. Brown argues that this new

factor, combined with the discrepancies in the ballistics evidence and the

25

weakness in the other evidence—specifically, Tovar’s testimony—warrants

certiorari review. Petition at 19–23. In other words, Brown appears to now

claim that this was essentially a case of mistaken identity. Even if this Court

could consider Cortez’s subsequent testimony—and it cannot—Brown’s

allegation fails for several reasons.

First, Brown’s argument that Tovar’s testimony lacked credibility

because of certain inconsistencies is flawed. Brown points to testimony from

Tovar where she initially said she did not know who the suspects were. 35 RR

104–05. But the fact remains that she identified both Brown and Dudley in

the hospital and that they were driving a van with Alabama license plates. 27

RR 85–86. HPD officers testified that Tovar was capable of relating to them

what happened. 35 RR 47–50, 73–74. Tovar described the crime in detail at

trial, 31 RR 173–227, and, importantly, she knew Brown. Tovar testified that

both Brown and Dudley had come over to her house six to seven times to buy

drugs prior to the murders. 31 RR 132–36. The notion that Tovar identified

the wrong person does not hold up to scrutiny.

Second, Tovar’s testimony was supported by additional trial evidence,

apart from Cortez’s. Daniel Leija testified that he was at Tovar’s home the

night of the offense but left before the crime. While he was there, he saw Brown

talking to Tovar. 30 RR 176–83. On cross-examination, he stated that he

initially identified someone else in a photo spread. 30 RR 238. But he did so

26

because Brown’s hair was not the same in the photo as it was when he saw

Brown. 30 RR 247. On re-direct examination, he testified that he was positive

Brown was the man he saw at Tovar’s house. 30 RR 248. Further, Serisa

Brown, Brown’s sister, testified that she lived with her sisters Carolyn and

Grace and that all the defendants––Brown, Dudley, and Dunson––showed up

at their house on the morning of June 20, 1992. Dudley had a stack of money,

and they asked her to drive the van back to Alabama for $3,000. 29 RR 29–72.

Grace and Carolyn provided similar testimony, and Carolyn testified that

Brown confessed to her that he “killed six Mexicans.” Additional testimony

revealed that the three perpetrators––Brown, Dudley, and Dunson––were

frequent associates.

Third, even if this Court could consider Cortez’s subsequent testimony

in the trials of Dudley and Dunson, this testimony does not actually benefit

Brown.

Brown has attached excerpts of the testimony to his petition as

Appendices D and E, but they are unhelpful to him. In Dudley’s trial, Cortez

stated that when he came into the Tovar’s house, he saw two black men with

guns, one chrome and the other black. Appendix D at 400–04. When asked

what the man he initially talked to looked like, Cortez said that it was dark

and he remembered that the man (Dudley) had a chrome pistol. Id. at 404.

The man with the chrome pistol shot him and another victim. Id. at 412. When

asked if he identified any persons in photo spreads when he was in the hospital,

27

Cortez said that he did not remember very well but he did recall pointing out

some photos and signing his name beneath them. Id. at 418. When asked if

the man he identified in the photo spread was the man with the chrome gun

(Dudley), Cortez said: “I don’t remember very well right now. If I pointed it

out, I think so.” Id. at 419. Then, outside the jury’s presence, the prosecution

asked Cortez if he remembered testifying at Brown’s trial. Cortez said he did

and that the defendant in the prior case (Brown) was not the one with the

chrome pistol. Id. at 421–22. Next, the defense questioned Cortez outside the

jury’s presence and asked him whether he remembered the person or the gun

when he was shot. Cortez said that he saw the person (Dudley) “just a little”

but that he placed more attention on the weapon. Id. at 424. Specifically: “I

couldn’t be sure of the person, but yes, the gun and the glove.” Id. at 425.

When questioned again apparently before the jury, Cortez said the man with

the black gun (Brown) was taller than him. And when asked about the man

with the chrome gun (Dudley), Cortez stated that he mainly noticed the gun

and the man’s glove and that the man was shorter, although he did look at him

“[a] little.” Id. at 439–40.

Cortez’s testimony at Dunson’s trial was even less helpful, and, if

anything, inculpatory. Cortez stated that he saw two black men with guns

when he entered the home. Appendix E at 151. He did not recall seeing anyone

else other than these two men. Id. at 152. When asked if he saw the man who

28

shot him, Cortez said: “I was able to see a little bit in the darkness.” Id. at 156.

He then stated that the person who let him into the house was the person he

testified against in the first trial (Brown), and the person who shot him was

the person he testified against in the second trial (Dudley). Id. at 156-57.

When asked what he told the police when they interviewed him, he stated:

“Just that there were, that there had been two people.” Id. at 160. He further

agreed that he used his hands to indicate two people because he speaks very

little English. Id. When asked if he signed his name under any photos shown

to him by the police and if he signed his name because he recognized them,

Cortez said, “Yes, because I believe more or less they told me to sign to whom

I thought I might recognize.” Id. at 169. When shown State’s Exhibit 76, a

photo spread, he said that he recognized his signature under Tovar’s signature.

Id. When shown State’s Exhibit 77, another photo spread, he stated that he

did not see his signature. Id. at 169-70. When asked if he was having a hard

time recognizing anyone, Cortez said “it is difficult.” Id. at 170. He then

acknowledged that it was hard for him to remember “which man did what in

the house that night” but that he did sign his name in both photo spreads. Id.

In sum, based on these excerpts, Cortez’s testimony at Dudley’s trial was

just as ambiguous with regard to Dudley as it was to Brown. And at Dunson’s

trial, Cortez seemed to identify the two men he saw in the house, Brown and

Dudley, although his recollection was not perfect. But he plainly stated that

29

he saw only two men.

More importantly, both Dudley and Dunson were

convicted. See Dudley v. Cockrell, No. H-01-1506 (S.D. Tex. 2002), Docket

Entry (DE) 26 (memorandum and order); Dunson v. State, No. 01-95-00821CR, 1997 WL 732500 (Tex. App.–Houston [1st Dist.] 1997, pet. ref’d) (finding

the evidence legally and factually sufficient to support Dunson’s conviction).

Dunson is serving a life sentence; Dudley was sentenced to death and executed

in 2006. This Court denied Dudley certiorari review and a stay of execution

shortly before his execution. Dudley v. Texas, 546 U.S. 1159 (Jan. 25 2006).

Both Dudley and Dunson were convicted even though, according to these

appendices, Cortez only vaguely recalled Dudley and did not identify Dunson

at all. Thus, Cortez’s testimony was not critical to these trials; likewise, it

could not have been material to Brown’s.10

Therefore, were this Court to adopt Brown’s argument and review

evidence elicited a year or more after Brown’s trial, the Court would have to

review all aspects of the evidence. In other words, if the Court considered that

Cortez had some difficulty recalling Brown in the latter trials, it must also

consider that Cortez had the same problem regarding Dudley and Dunson and,

One additional flaw with Brown’s claim is that his trial was the first of the

three. Dudley was tried more than a year after Brown, and Dunson was tried last.

It stands to reason that if Cortez had trouble with recall, it would have been hazier

in the latter two trials as more time elapsed since the crime. That does not render

his testimony in Brown’s trial necessarily suspect.

10

30

yet, they were both convicted. The Court would also have to take into account

that at Dunson’s trial, Cortez identified Dudley and Brown as the “two men”

he saw. Consequently, consideration of Brown’s new evidence not only fails to

benefit him, but arguably operates against his interests.

Given these factors, this case presents a poor vehicle for consideration

and adoption of the rule Brown seeks, contrary to his claim. As a result,

certiorari review is not warranted.

IV.

Brown’s Claim Is Barred from Review.

Brown’s conviction became final on October 20, 1997, when this Court

denied certiorari from direct appeal. Brown v. Texas, 522 U.S. 940. Hence, the

State’s interest in the finality of its conviction outweighs Brown’s interest in

the retroactive application of any new rule of constitutional law. See Teague,

489 U.S. at 309–10.

Brown does not address Teague in his petition, even though he is asking

this Court to adopt a new rule of constitutional law pertaining to the

assessment of materiality. And arguably he is doing the same by claiming a

violation of due process without demonstrating the State knowingly presented

false evidence.

The plurality’s analysis in Teague is, however, plainly

applicable to review of a state postconviction proceeding on certiorari; unless a

new constitutional rule falls within a Teague exception, the “new constitutional

rules . . . will not be applicable to cases which have become final before the new

31

rules are announced.” Id. at 310. And Teague defines a non-final case as one

“‘pending on direct review or not yet final.’” Id. at 305–06 (quoting Griffith v.

Kentucky, 479 U.S. 314, 328 (1987)). Brown’s conviction is final for purposes

of Teague, hence, any new constitutional rule recognized by this Court should

not be applicable to him.

Also, the rationale for Teague applies with equal force to this Court’s

review of a state postconviction proceeding. The Teague plurality criticized

earlier retroactivity implementations, noting that the “‘selective application of

new [constitutional] rules violates the principle of treating similarly situated

defendants the same.’” Id. at 304 (quoting Griffith, 479 U.S. at 323–24). To

avoid the inequity that disparate treatment engendered, the plurality

determined that, with two exceptions, it would “simply refuse to announce a

new rule in a given case unless the rule would be applied retroactively to the

defendant in the case and to all others similarly situated.” Id. at 316 (emphasis

added).

That limiting principle finds application here. The constitutional rule

Brown seeks would not benefit all similarly situated petitioners, petitioners

with final convictions who are pursuing state collateral review. Specifically,

whether or not Brown benefits from the new rule, other similarly situated

petitioners pursuing state postconviction review are unlikely to benefit

because the state courts are free to deny retroactive application of new rules

32

in their own postconviction proceedings. See Danforth v. Minnesota, 552 U.S.

264, 266 (2008) (holding that state courts are not bound by Teague and may

adopt their own nonretroactivity rules for postconviction proceedings).

Because a grant of certiorari in this Court would have the same impact

upon the finality of Brown’s conviction as a federal habeas appeal, the Court is

bound to consider the issues raised only in light of clearly established

constitutional principles dictated by precedent as of October 20, 1997. As a

result, certiorari review is not merited.

CONCLUSION

For these reasons, the Court should deny Brown certiorari review.

Respectfully submitted,

KEN PAXTON

Attorney General of Texas

JEFFREY C. MATEER

First Assistant Attorney General

ADRIENNE MCFARLAND

Deputy Attorney General

for Criminal Justice

EDWARD L. MARSHALL

Chief, Criminal Appeals Division

33

/s/ Erich Dryden_______________

*ERICH DRYDEN

Assistant Attorney General

Criminal Appeals Division

Texas Bar No. 24008786

Counsel of Record

P.O. Box 12548, Capitol Station

Austin, Texas 78711

Tel: (512) 936-1600

Fax: (512) 320-8132

e-mail address:

erich.dryden@oag.texas.gov

ATTORNEYS FOR RESPONDENT

34