Opposition Brief — Noah Nagy, Warden, Petitioner v. Jimmy Baugh

Supreme Court briefMay 15, 2023

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No. 22-607

IN THE

NOAH NAGY, WARDEN,

Petitioner,

JIMMY BAUGH,

Respondent.

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Sixth Circuit

BRIEF IN OPPOSITION

Christopher J. McGrath

Counsel of Record

CHRISTOPHER J. MCGRATH,

PLLC

503 South Saginaw Street

Suite 715

Flint, MI 48502

(810) 238-8540

mcgrathtph@aol.com

QUESTION PRESENTED

Given the State’s egregious violation of Brady v.

Maryland, 373 U.S. 83 (1963), did the Sixth Circuit

correctly hold that Jimmy Baugh is entitled to federal

habeas relief?

TABLE OF CONTENTS

QUESTION PRESENTED ........................................... i

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

INTRODUCTION ........................................................ 1

STATEMENT OF THE CASE..................................... 2

REASONS FOR DENYING THE WRIT................... 11

The Court should not grant plenary review ....... 11

II. There is no basis for summarily reversing

the judgment of the Sixth Circuit ....................... 12

A. The Sixth Circuit correctly held that

Mr. Baugh satisfies the requirements

for federal habeas relief ................................ 14

B. Summary reversal is particularly

inappropriate here because there is an

independent ground for affirming the

Sixth Circuit’s judgment ............................... 24

C. This case does not warrant this Court’s

intervention as a matter of its

supervisory role ............................................. 26

CONCLUSION .......................................................... 27

iii

TABLE OF AUTHORITIES

Cases

Page(s)

Bernard v. United States,

141 S. Ct. 504 (2020) ........................................... 24

Brady v. Maryland,

373 U.S. 83 (1963) ..... i, 1, 2, 7-11, 13, 21-22, 24-26

Braxton v. United States,

500 U.S. 344 (1991) ............................................. 12

Ciminelli v. United States,

598 U.S. ___ (2023) (No. 21-1170) ....................... 27

City & County of San Francisco v. Sheehan,

135 S. Ct. 1765 (2015) ......................................... 26

Goodman v. Lukens Steel Co.,

482 U.S. 656 (1987) ............................................. 26

Graver Tank & Mfg. Co. v. Linde Air Prods. Co.,

336 U.S. 271 (1949) ............................................. 26

House v. Bell,

547 U.S. 518 (2006) ............................................. 15

Jackson v. Stovall,

467 Fed. Appx. 440 (6th Cir. 2012) ..................... 17

Kyles v. Whitley,

514 U.S. 419 (1995) ....................................... 11, 22

LeGrone v. Birkett,

571 Fed. Appx. 417 (6th Cir. 2014) ..................... 26

Long v. Hooks,

972 F.3d 442 (4th Cir. 2020) ......................... 24, 25

Magwood v. Patterson,

561 U.S. 320 (2010) ............................................. 24

Mooney v. Holohan,

294 U.S. 103 (1935) ............................................. 17

Murphy v. Collier,

139 S. Ct. 1475 (2019) .................................... 26-27

Panetti v. Quarterman,

551 U.S. 930 (2007) ............................................. 24

People v. Baugh,

705 N.W.2d 29 (Mich. 2005) .................................. 6

People v. Baugh,

No. 247548, 2004 WL 2412692 (Mich. Ct.

App. Oct. 28, 2004) (per curiam) ........................... 6

People v. Burrel,

235 N.W. 170 (Mich. 1931) .................................. 20

People v. Turner,

336 N.W.2d 217 (Mich. Ct. App. 1983) ............... 20

Sawyer v. Whitley,

505 U.S. 333 (1992) ............................................. 16

Schlup v. Delo,

513 U.S. 298 (1995) ............................................. 15

Scott v. United States,

890 F.3d 1239 (11th Cir. 2018) ........................... 25

Strickler v. Greene,

527 U.S. 263 (1999) ....................................... 21, 22

Taylor v. Riojas,

141 S. Ct. 52 (2020) ............................................. 12

United States v. Dominguez Benitez,

542 U.S. 74 (2004) ............................................... 22

In re Winship,

397 U.S. 358 (1970) ............................................. 15

Statutes

Antiterrorism and Effective Death Penalty Act

of 1996, Pub. L. 104–132, 110 Stat. 1214

(Apr. 24, 1996) ................................................. 8, 25

28 U.S.C. § 2244..................................................... 8, 14

28 U.S.C. § 2244(b)(2)(B) ...................... 2, 10, 14, 23-26

28 U.S.C. § 2244(b)(2)(B)(i) ............................... 8, 9, 14

28 U.S.C. § 2244(b)(2)(B)(ii) ............. 8, 9, 12-16, 19, 21

28 U.S.C. § 2254................................................... 14, 21

28 U.S.C. § 2254(d) ................................................ 2, 13

28 U.S.C. § 2254(d)(1) .......................................... 11, 22

28 U.S.C. § 2254(d)(2) ................................................ 23

Rules and Regulations

S. Ct. R. 10(a) ............................................................. 12

S. Ct. R. 15.2 ................................................................ 1

Other Authorities

McCormick, Charles, McCormick on

Evidence (6th ed. 2006) ........................................ 17

Scalia, Antonin & Bryan A. Garner, Reading

Law: The Interpretation of Legal Texts

(2012) .................................................................... 19

Shapiro, Stephen M., et al., Supreme Court

Practice (11th ed. 2019)........................................ 26

INTRODUCTION

This Court’s rules require that a respondent

identify any “misstatement of fact” that bears upon the

issue before the Court. S. Ct. R. 15.2. Petitioner

(hereafter “the State”) claims that it “has contended

throughout that Baugh was either the criminal

principal or an aider and abettor of the murder.”

Pet. 22. That is untrue. At no point in the trial did the

prosecution or any witness contend that respondent

Jimmy Baugh was anything other than the criminal

principal—that is, the person who planned the robbery

and shot the victim. Indeed, the State never argued

that Mr. Baugh aided or abetted the actual shooter

until this habeas proceeding, more than a decade after

Mr. Baugh’s conviction.

To be sure, the State’s opening argument and the

judge’s jury instructions contained boilerplate

language on “aiding and abetting.” But the jury heard

evidence of only one theory for Mr. Baugh’s guilt: that

Mr. Baugh was the shooter. And that theory rested

entirely on the testimony of one witness—Robert

Kwasniewski.

More than a decade after the trial, Mr. Baugh

discovered a statement that the State had concealed.

In that statement, Kwasniewski admitted to being the

shooter.

Now, faced with the consequences of its violation

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

accepts the possibility that Kwasniewski lied at trial

when he claimed that Mr. Baugh shot the victim. But

the State insists that it can save the original

conviction with a new theory: Maybe Kwasniewski

was the shooter, and Mr. Baugh is guilty of aiding and

abetting him because he drove the car in which

Kwasniewski arrived and left the scene. Yet the

State’s new theory not only squarely contradicts its

earlier one, but it again rests on the testimony of

Kwasniewski. And the State provides no basis for

concluding that Kwasniewski ever told the truth about

what happened.

The Sixth Circuit correctly held that, faced with

Kwasniewski’s contradictory statements, a factfinder

would have reasonable doubt as to Mr. Baugh’s guilt.

Mr. Baugh therefore met the standard under 28 U.S.C.

§ 2244(b)(2)(B) for pursuing his Brady claim on federal

habeas. Because Mr. Baugh also satisfied the standard

for habeas relief under 28 U.S.C. § 2254(d) with

respect to that Brady claim, he is entitled to a new

trial. If the State really believes its newfound aiding

and abetting theory, it can pursue that theory at a new

trial. What the State cannot do is defend its original

conviction on that basis.

Nothing about this factbound case warrants this

Court’s review.

STATEMENT OF THE CASE

1. On December 3, 2001, Craig Landyczkowski

was shot with a .22 caliber handgun. Pet. App. 2a. The

assailant then fled the scene in a Jeep. Id.

Landyczkowski died a few minutes later. Id.

2. The following day, respondent Jimmy Baugh

and several other men—Ricky Sailes, Lafayette

Dearing, and Robert Kwasniewski—were arrested for

an unrelated offense. Pet. App. 3a. Police found a .22

shell casing in Kwasniewski’s pocket. Id.

Three of the men later gave statements to Detroit

Police Detective JoAnn Miller that bore upon the

Landyczkowski homicide. Pet. App. 3a, 9a.

First, Mr. Baugh told Detective Miller that he had

taken no part in the robbery or the shooting. Pet. App.

23a. Rather, Kwasniewski had accosted the victim and

then shot him. Id. Mr. Baugh said that he had been in

the backseat of the Jeep, which Lafayette Dearing had

been driving. Id. 4a.

Second, Ricky Sailes told Detective Miller about a

conversation at which he claimed Kwasniewski,

Baugh, and Dearing had been present. Pet. App. 10a.

The bulk of Sailes’ statement focused on his account of

what Kwasniewski had said. Id. 9a-10a. According to

Sailes, who used Kwasniewski’s nickname “Scottie”

throughout his statement, Kwasniewski had bragged

about shooting Landyczkowski and had said that Mr.

Baugh had been driving the Jeep. Id. 9a. Sailes also

identified Kwasniewski’s gun as a .22, the same type

of gun used in Landyczkowski’s murder. Id. In

response to Detective Miller’s final question, asking

whether Mr. Baugh had said anything, Sailes claimed

that “Jimmie said Scottie shot the guy and he drove

off.” Id. 10a. Neither Sailes nor Detective Miller

clarified to whom the “he” referred. 1

Third, Kwasniewski gave a statement to Detective

Miller in which he said he drove the Jeep, but claimed

that Mr. Baugh had shot and killed Landyczkowski.

Pet. App. 3a.

Kwasniewski has many aliases, including Scottie Trent,

Robert Kwanniewski, and Lucky. For consistency, all references

to “Kwanniewski” in quotations have been replaced with

“Kwasniewski” without indicating as such.

3. Initially, the State charged both Mr. Baugh and

Kwasniewski with first-degree felony murder. Pet.

App. 4a. The only evidence at their preliminary

hearing consisted of their respective statements to

Detective Miller. Id. 4a-5a. Mr. Baugh’s statement

placed him in the backseat as a bystander to the

robbery and shooting. Id. 5a. Because the State could

use each statement only against its declarant, the

court recognized that the State lacked probable cause

to hold Mr. Baugh. Id. 4a-5a. It therefore dismissed

the charges against him without prejudice. Id. 5a.

Kwasniewski, however, had said he was the

driver. Pet. App. 3a. The court therefore found

probable cause to bind him over for trial. Id. 5a.

The State subsequently offered Kwasniewski a

plea deal. Pet. App. 5a. If Kwasniewski agreed to

testify against Mr. Baugh, he would receive several

benefits. First, by pleading guilty to second-degree

murder, he would escape a mandatory life sentence for

felony murder. Id. 6a-7a. Second, he would have three

unrelated charges dismissed. ECF No. 10-7, PgID.38586. Finally, his sentence for the Landyczkowski

homicide would run concurrently with a separate

carjacking sentence, meaning that he would in effect

serve no additional time for his role in killing

Landyczkowski. ECF No. 36-1, PgID.1749; ECF No.

38-1, PgID.1784; Pet. App. 47a. The State conditioned

the plea deal on Kwasniewski testifying that Mr.

Baugh had shot Landyczkowski. Pet. App. 47a.

Kwasniewski accepted the plea deal. He was released

from prison in May 2022. Pet. App. 6a n.2. 2

Citations to the record before the district court refer to the

ECF number and pagination.

Armed with this agreement, prosecutors then

recharged Mr. Baugh with first-degree felony murder.

Pet. App. 6a.

4. At Mr. Baugh’s trial, two witnesses testified

regarding his role in the crime.

First, Detective Miller told the jury about her

conversation with Mr. Baugh in which he had

identified Kwasniewski as the shooter and Dearing as

the driver. ECF No. 10-8, Pg.ID.697-98. Detective

Miller recounted that Mr. Baugh had placed himself in

the backseat as an uninvolved passenger. Id.

Second, in compliance with his plea agreement,

Kwasniewski testified that he drove the car and that

Mr. Baugh shot Landyczkowski. Pet. App. 5a-6a; ECF

No. 10-8, PgID.752, 758-60. The jury was not informed

that in return for this testimony, Kwasniewski would

effectively serve no time for his involvement in the

murder.

The State emphasized that it was “the People’s

position, in this particular case, that this crime was

committed by two people. Mr. Kwasniewski is the

driver and Mr. Baugh [w]as the actual shooter.” ECF

No. 10-10, PgID.948-49. From opening statement to

closing argument, the State insisted that “a major

portion” of the case “rest[ed] upon the testimony of

Robert Kwasniewski.” ECF No. 10-10 , PgID.948; see

also ECF No. 10-8, PgID.598; ECF No. 10-10,

PgID.945, 958, 961. The State presented no other

evidence that Mr. Baugh was the shooter. Although

the opening statement and jury instructions contained

boilerplate language on aiding and abetting, the State

presented no evidence whatsoever that Mr. Baugh was

the driver. ECF No. 10-8, PgID.599; ECF No. 10-10,

PgID.1014-15. Nor did the State present any evidence

of Mr. Baugh aiding and abetting the crime in some

other way. The State did not call Dearing as witness.

Nor did the State call Sailes as a witness or seek to

introduce any part of Sailes’ statement as evidence of

Mr. Baugh’s guilt. It did not turn over Sailes’

statement to Mr. Baugh’s counsel. Pet. App. 31a.

The jury found Mr. Baugh guilty of first-degree

felony murder, felon-in-possession, and use of a

firearm in commission of a felony. Pet. App. 8a & n.4.

The judge sentenced Mr. Baugh to a life sentence on

the murder conviction, two to five years’ imprisonment

for his felon-in-possession conviction, and a two-year

consecutive sentence for his felony firearm conviction.

Id. At his sentencing, Mr. Baugh reiterated the

statement he had given to Detective Miller: “I am not

the shooter. The shooter got away. The shooter is the

one who said I did the killing.” Id.

5. Mr. Baugh’s conviction and sentence were

affirmed on direct appeal, and the Michigan Supreme

Court denied review. People v. Baugh, No. 247548,

2004 WL 2412692 (Mich. Ct. App. Oct. 28, 2004) (per

curiam) (unpublished); People v. Baugh, 705 N.W.2d

29 (Mich. 2005); Pet. App. 8a.

Mr. Baugh’s initial state court postconviction

motion for relief from the judgment was denied. See

Pet. App. 8a. His first federal habeas petition, which

raised several claims about the trial unrelated to the

issue before this Court, was also denied, and the

district court declined to issue a certificate of

appealability. Id.

6. In 2015, Sailes mailed Mr. Baugh the statement

he had given to Detective Miller in 2002 in which he

had reported that Kwasniewski had confessed to

shooting Landyczkowski. Pet. App. 9a. Mr. Baugh

immediately contacted his original defense counsel,

James O’Donnell, to ask if O’Donnell had been aware

of Sailes’ statement. Id. 58a. Mr. O’Donnell replied

that he had no memory of having received it. Id. 59a.

With Sailes’ statement in hand—a statement that Mr.

O’Donnell and Mr. Baugh had never seen before—Mr.

Baugh filed a second motion for relief from judgment

in Michigan state court. Id. 12a. He proceeded pro se.

Id. 91a.

The state court denied Mr. Baugh relief under the

Michigan analogue to Brady v. Maryland. See Pet.

App. 102a. Without addressing whether the State had

wrongly concealed Sailes’ statement, the state court

concluded that the statement was “not of such a nature

as to render a different result on re-trial, as there was

other significant testimony proffered against the

defendant, as well as other independent indicia and

material evidence that was sufficient to prove the guilt

of the defendant.” Id. 103a. According to the court, Mr.

Baugh had been “convicted of first-degree felony

murder under a theory of aiding and abetting.” Id.

Thus, whether Mr. Baugh was the shooter (as

Kwasniewski testified at trial) or the driver (as

Kwasniewski told Sailes) would not matter. The judge

did not ask whether the new statement impeached

Kwasniewski’s trial testimony. Instead, the judge

assumed that one of Kwasniewski’s alternative

statements about the robbery and shooting had to be

true.

The Michigan Court of Appeals and the Michigan

Supreme Court declined review. Pet. App. 12a.

7. In 2018, the Sixth Circuit granted leave for Mr.

Baugh to file a “second or successive” habeas petition

on the grounds that he had made a prima facie

showing under 28 U.S.C. § 2244(b)(2)(B)(i)-(ii)—the

standard applicable to such petitions under the

Antiterrorism and Effective Death Penalty Act

(AEDPA). Pet. App. 91a-95a. The Sixth Circuit found

that Mr. Baugh’s application presented the “rare case

in which additional analysis by the district court is

warranted.” Id. 95a.

8. The district court then conducted that analysis.

It found that Mr. Baugh satisfied the first prerequisite

for relief under Section 2244(b)(2)(B)(i) because the

factual predicate for Mr. Baugh’s Brady claim could

not have been discovered previously. Pet. App. 57a61a. The court described the failure to turn over the

Sailes statement as one of “several” examples of

material the State had unfairly withheld from the

defense. Id. 71a.

The district court then turned to the question

whether Mr. Baugh had satisfied the second

prerequisite for relief under Section 2244: showing

that “but for constitutional error, no reasonable

factfinder would have found [him] guilty of the

underlying offense” in light of “the evidence as a

whole.” Id. § 2244(b)(2)(B)(ii). The court found that the

Sailes statement was favorable to Mr. Baugh within

the meaning of Brady and its progeny because it

contained evidence that “would have impeached”

Kwasniewski’s testimony at trial. Pet. App. 71a-72a.

Indeed, in light of the Sailes statement, the court

found that it was “unlikely” that Mr. Baugh “was

Craig Land[yczkowski]’s shooter; everything—from

his eidetic recall of the shooting to the shell casing

found in his pocket—suggests Kwasniewski was the

shooter.” Id. 70a-71a.

Nevertheless, the district court denied relief

because it concluded that “the state decision did not

Brady-esque

unreasonably

apply

Michigan’s

standard.” Pet. App. 67a. The district court believed

that in the Sailes statement, Mr. Baugh “admitted to

being the driver,” id. 69a, and therefore could be found

guilty as an aider or abettor “of the same crime [the

jury] found him guilty of at trial.” Id.

Even so, the district court issued a certificate of

appealability. Pet. App. 43a. It recognized that Mr.

Baugh had made a substantial showing that the State

had violated his constitutional rights, id. 73a, and that

“it is less than clear whether a reasonable juror would

have found [Mr. Baugh] guilty as an aider and abettor

of Craig Land[yczkowski]’s murder,” id. 74a. “Surely,”

the district court concluded, “there is less confidence

in jury verdicts arising from courts that excuse

prosecutorial finagling.” Id.

9. The Sixth Circuit reversed. First, with respect

to the prerequisite for “second or successive” petitions

set out in Section 2244(b)(2)(B)(i), the Sixth Circuit

agreed with the district court that Mr. Baugh could not

have previously discovered Sailes’ statement through

due diligence. See Pet. App. 18a-22a.

Second, with respect to the prerequisite for

“second or successive” petitions set out in Section

2244(b)(2)(B)(ii), the Sixth Circuit held that, in light of

the particular Brady violation at issue here, a

reasonable factfinder could not have found Mr. Baugh

guilty beyond a reasonable doubt. Pet. App. 25a. The

Court stressed that the “state had a threadbare case

against Baugh with Kwasniewski’s testimony being

the only evidence that inculpated Baugh.” Id. Given

Kwasniewski’s confession to Sailes that he was the

shooter, the Sixth Circuit agreed with the district

court that the State’s theory at trial—that Mr. Baugh

shot Landyczkowski—could no longer provide a

sufficient basis for upholding Mr. Baugh’s conviction

beyond a reasonable doubt. Id. 23a.

The panel then determined that, “[e]ven if the

content of Sailes’s statement were admissible” for the

truth of the matters asserted, rather than merely as

impeachment evidence, Pet. App. 25a, the State’s posthoc theory—that Mr. Baugh, instead of being the

shooter, had aided and abetted Kwasniewski by

driving the Jeep—could not save the conviction. See

id. 22a-28a. The court viewed the Sailes statement in

light of other evidence undermining Kwasniewski’s

credibility. Id. 34a. It emphasized Kwasniewski’s

changing stories about the murder, the direct conflict

between his admission to Sailes that he was the

shooter and his testimony at trial, his plea agreement

conditioned on testifying that Mr. Baugh was the

shooter, and the fact that a .22 caliber shell casing was

found on his person. Id. 26a. The court thus concluded,

“[w]ith the state’s only witness lacking credibility and

so much uncertainty about Baugh’s role, if any, in the

murder of Land[yczkowski], no reasonable juror could

find beyond a reasonable doubt that Baugh is guilty of

first-degree felony murder.” Id. 27a-28a.

Having found that Mr. Baugh satisfied the two

prongs of Section 2244(b)(2)(B), the court of appeals

then turned to the merits of Mr. Baugh’s Brady claim.

It held that the Michigan state court had

unreasonably applied clearly established federal law

in analyzing the Brady violation. Pet. App. 33a; see 28

U.S.C. § 2254(d)(1). Under this Court’s precedent, the

question in a Brady case is whether in the absence of

the concealed evidence, the defendant “received a fair

trial, understood as a trial resulting in a verdict

worthy of confidence.” Pet. App. 33a (quoting Kyles v.

Whitley, 514 U.S. 419, 434 (1995)). The “question is

not whether the defendant would more likely than not

have received a different verdict with the evidence.”

Id. (emphasis added.) But that latter standard was

what the Michigan state court had used. It had asked

whether there would have been “a different result.”

Pet. App. 34a. Because the state court had “held

Baugh to a higher standard than what is required for

relief,” its conclusion was an unreasonable application

of Brady. Id. Here, Mr. Baugh did not receive a trial

whose verdict was “worthy of confidence” because the

State wrongfully deprived him of the ability “to

properly impeach the state’s star witness.” Id.

REASONS FOR DENYING THE WRIT

The Sixth Circuit’s decision in this case does not

warrant this Court’s intervention. First, this case

involves the application of settled law to a unique set

of facts. The court of appeals’ analysis does not conflict

with the law in any other circuit. Second, the court of

appeals’ analysis was correct and thus this case is not

an appropriate candidate for summary reversal.

The Court should not grant plenary review.

The State does not even try to argue that this case

satisfies the traditional criteria for certiorari. The

answer to the Question Presented turns entirely on

whether the statement the State unconstitutionally

concealed “further inculpated Baugh as an active

participant in the murder,” Pet. i. That question poses

no issue of law, let alone an issue of law that meets

any of the Court’s stated criteria for granting review.

To the contrary, it is an entirely factbound question.

Because the answer to the question “turns entirely on

an interpretation of the record in one particular case,”

it offers “a quintessential example of the kind that

[this Court] almost never review[s].” Taylor v. Riojas,

141 S. Ct. 52, 55 (2020) (Alito, J., concurring).

Tellingly, the State does not argue that the Sixth

Circuit’s interpretation of Section 2244(b)(2)(B)(ii)

“conflict[s] with the decision of another United States

court of appeals.” S. Ct. R. 10(a). The State points to

no circuit in which it contends that the court of appeals

would have denied Mr. Baugh relief. Thus, this case

does not implicate the “principal purpose” for which

this Court uses its certiorari jurisdiction: “to resolve

conflicts among the United States courts of appeals

and state courts concerning the meaning of provisions

of federal law.” Braxton v. United States, 500 U.S. 344,

347 (1991).

II. There is no basis for summarily reversing the

judgment of the Sixth Circuit.

Unable to make out any serious claim for plenary

review, the State asks this Court for summary

reversal, suggesting that the Sixth Circuit’s decision is

so plainly incorrect that it warrants that

extraordinary remedy. The State is deeply mistaken.

The State’s attack on the Sixth Circuit’s decision

depends on its assertion that Robert Kwasniewski’s

contradictory statements provide “strong alternative

theor[ies] of guilt.” Pet. i. They do no such thing. The

State seems to think that if Kwasniewski lied at trial

about Mr. Baugh being the shooter, then he must have

been telling the truth to Ricky Sailes when he alleged

that Mr. Baugh aided and abetted him in committing

the murder by driving the Jeep. But that simply does

not follow: If Kwasniewski lied about Mr. Baugh being

the shooter, what evidence is there that he told the

truth about Mr. Baugh being the driver—as opposed

to being an uninvolved backseat passenger? If even the

State recognizes that Kwasniewski was an unreliable

witness, his irreconcilable accounts cannot support

finding Mr. Baugh guilty beyond a reasonable doubt.

Accordingly, the Sixth Circuit correctly held

under 28 U.S.C. § 2244(b)(2)(B)(ii) that no reasonable

factfinder would have found Mr. Baugh guilty given

the combination of the trial record and the Brady

violation. And when it comes to that Brady violation,

the State does not challenge the Sixth Circuit’s

holding that the Brady violation entitled Mr. Baugh to

habeas relief under 28 U.S.C. § 2254(d). Moreover,

regardless of how this Court answers the Section

2244(b)(2)(B)(ii) question, the Court should not

summarily reverse the judgment of the Sixth Circuit,

given the strong argument that Mr. Baugh should not

have been required to satisfy the “second or

successive” gatekeeping provision at all. Finally, the

Sixth Circuit’s decision here does not call for an

exercise of this Court’s supervisory power.

A. The Sixth Circuit correctly held that Mr.

Baugh satisfies the requirements for

federal habeas relief.

The Sixth Circuit correctly held that Mr. Baugh

satisfies the requirements for federal habeas relief

under both 28 U.S.C. § 2244 and 28 U.S.C. § 2254.

1. Mr. Baugh satisfies both prongs of the Section

2244(b)(2)(B) standard that applies to whether an

individual can pursue a claim in a “second or

successive” habeas petition. The State does not contest

the finding of the district court, affirmed by the Sixth

Circuit, that Mr. Baugh satisfied the first prong by

showing that the predicate for his claim “could not

have been discovered previously through the exercise

of due diligence.” 28 U.S.C. § 2244(b)(2)(B)(i); see Pet.

App. 57a, 21a-22a. And rightly so: Mr. Baugh’s claim

rests on the statement by Ricky Sailes that the State

concealed from Mr. Baugh and his trial counsel. After

receiving the statement, Mr. Baugh timely sought

postconviction relief. Id. 60a-61a.

The State challenges only the second prong—

namely, the Sixth Circuit’s holding that, when the

trial record is viewed in light of the Sailes statement,

“but for constitutional error, no reasonable factfinder

would have found the applicant guilty of the

underlying offense.” 28 U.S.C. § 2244(b)(2)(B)(ii). This

challenge fails.

2. The State begins by asserting that a showing of

“actual innocence” is required to prevail on a “second

or successive” habeas petition. Pet. 22, 26. But this

suggestion is incorrect. The “actual innocence”

showing is required when a petitioner seeks to

advance claims that would otherwise be barred by a

state procedural default rule. See House v. Bell, 547

U.S. 518, 522 (2006); Schlup v. Delo, 513 U.S. 298, 31922 (1995). By contrast, Section 2244(b)(2)(B)(ii) asks

not whether the habeas petitioner is actually innocent,

but rather whether “no reasonable factfinder would

have found the applicant guilty of the underlying

offense.” The standard for guilt is, of course, “proof

beyond a reasonable doubt.” In re Winship, 397 U.S.

358, 364 (1970). Thus, if the combination of the

evidence presented at trial and Ricky Sailes’

statement would create reasonable doubt in the mind

of any reasonable factfinder, then Mr. Baugh has

satisfied Section 2244(b)(2)(B)(ii).

3. The district court and the Sixth Circuit

correctly found that there is now reasonable doubt

whether Mr. Baugh shot Craig Landyczkowski. The

State acknowledges that this was the only theory for

Mr. Baugh’s guilt that it advanced at trial. “The jury

heard two competing theories at trial: the

prosecution’s theory that Baugh was the shooter, and

Baugh’s own story, that he was an innocent backseat

passenger.” Pet. 20.

The sole support for the State’s theory was the

testimony of Robert Kwasniewski. See ECF 10-10,

PgID.945, 948, 958, 961. The State does not deny that

the Sailes statement has powerful impeachment

value, since Kwasniewski’s confession to Sailes that he

was the shooter squarely contradicts his trial

testimony about Mr. Baugh. What is more, after the

evidentiary hearing, the district court declared that,

based on its “review of the record, it is unlikely that

Petitioner

[Jimmy

Baugh]

was

Craig

Land[yczkowski]’s shooter; everything—from his

eidetic recall of the shooting to the shell casing found

in his pocket—suggests Lucky [Kwasniewski] was the

shooter.” Pet. App. 70a-71a.

The State argues that impeachment evidence “will

seldom, if ever, make a clear and convincing showing

that no reasonable juror would have believed the heart

of [the witness’s] account of petitioner’s actions.”

Pet. 26 (quoting Sawyer v. Whitley, 505 U.S. 333, 349

(1992)). But this is a case in which it does. First,

Sawyer turned on whether a habeas petitioner could

satisfy the actual innocence standard, not the Section

2244(b)(2)(B)(ii) standard. See 505 U.S. at 336.

Moreover, in Sawyer there was “undisputed evidence”

of the defendant’s guilt, beyond the evidence at issue

in the habeas petition. See id. at 350. Here, by

contrast, the wrongly withheld statement impeaches

the State’s only witness. And the statement does more

than impeach the star witness—it also exculpates Mr.

Baugh with respect to the only theory for his guilt

presented to the jury.

The State makes no effort to rehabilitate

Kwasniewski’s trial testimony that Mr. Baugh was the

shooter and Kwasniewski the driver. And the State

provides no basis to believe that a reasonable

factfinder would buy, beyond a reasonable doubt, a

theory that the State no longer fully supports.

4. Instead, the State changes course. It insists the

conviction can now be sustained on the theory that,

even if Mr. Baugh was only the driver, he was guilty

of aiding and abetting the shooter, who now turns out

to be Kwasniewski. In embracing this theory, the

State implicitly concedes that Kwasniewski lied at

trial. This concession leaves the State with no truthful

witness to support its prosecution.

Put another way, the Sixth Circuit correctly

recognized that the impeachment of Kwasniewski

undermines the State’s new theory, too. The State

cannot support its new theory solely on the testimony

of a discredited witness. And that is what

Kwasniewski is. “The impeaching value of a prior

inconsistent statement comes not from the fact that

the prior statement is true and the later statement is

false, but from the very fact of the inconsistency.”

Jackson v. Stovall, 467 Fed. Appx. 440, 444 (6th Cir.

2012) (citation omitted). Indeed, “talking one way on

the stand and another way previously . . . rais[es] a

doubt as to the truthfulness of both statements.” Id.

(quoting McCormick on Evidence § 34) (emphasis

added). 3

The core problem with the State’s either/or theory

is that it rests on two contradictory assertions from the

same witness: Kwasniewski’s statement that he

himself was the driver and Baugh was the shooter;

and Kwasniewki’s statement that he himself was the

shooter and Baugh was the driver. No reasonable

factfinder could convict Mr. Baugh on this level of

uncertainty. Only Schrödinger could make both these

theories true at once.

Ignoring this problem, the State argues that if one

theory is not true, then the other must be. Wrong. In

this case, both theories could be untrue. Mr. Baugh

has consistently maintained throughout this case that

What is worse, if the State’s embrace of the Baugh-asdriver theory is not newfound, then the State knowingly

presented perjured testimony at Mr. Baugh’s trial when it elicited

Kwasniewski’s testimony that Kwasniewski was the driver and

Mr. Baugh the shooter. This raises its own constitutional

difficulties. See Mooney v. Holohan, 294 U.S. 103, 112-13 (1935).

he was neither the driver nor the shooter, but was

simply an otherwise-uninvolved backseat passenger. 4

5. So the State pivots again. Now, rather than

claiming that anything Kwasniewski says about Mr.

Baugh’s involvement can support the conviction, it

argues that Mr. Baugh himself confessed to being

involved. Pet. 18 (claiming that “Sailes said both

Kwasniewski and Baugh told him” that Mr. Baugh

was the driver). But as the Sixth Circuit correctly

recognized, this pivot cannot eliminate reasonable

doubt as to Mr. Baugh’s guilt.

This purported confession rests on a single line at

the end of the Sailes statement, which reads as

follows: When Detective Miller asked Sailes, “Did

Jimmie say anything” while Kwasniewski was

recounting how he had shot Landyczkowski, Sailes

replied, “Jimmie said Scottie shot the guy and he drove

off.” Pet. App. 83a.

But this single line in Sailes’ statement does not

claim to be a direct quotation of Mr. Baugh. Moreover,

Sailes never identified the person to whom “he” refers,

and the pronoun “he” has an ambiguous antecedent—

it could refer to either person in the sentence. But it is

most naturally read as referring to Kwasniewski.

After all, a relative pronoun or demonstrative

The State’s “logic,” Pet. 20, might conceivably make sense

had this been a case where its star witness was a third party who

was able to say nothing more than that he had seen the shooting,

had seen only two men at the scene, and could identify those two

men as Kwasniewski and Mr. Baugh. Such a witness might have

been unsure which of them had been the shooter and which of

them had been the driver. But Kwasniewski obviously was not

uncertain as to which role he played. The State’s “logic” is thus

inapposite.

adjective “generally refers to the nearest reasonable

antecedent.” Antonin Scalia & Bryan A. Garner,

Reading Law: The Interpretation of Legal Texts 144

(2012).

And of course, as the Sixth Circuit recognized, Mr.

Baugh has consistently denied that he was the driver.

Pet. App. 4a. In fact, in his statement to Detective

Miller, which was admitted at trial, Mr. Baugh

identified Lafayette Dearing as the driver. Id. It is

hard to see how a jury could use this single sentence

in the Sailes statement to find Mr. Baugh guilty

beyond a reasonable doubt. 5

The State’s own actions reinforce the Sixth

Circuit’s conclusion. As that court explained, if Sailes’

statement “was such strong evidence that Baugh was

guilty of felony murder, the State would have called

Sailes to testify and further implicate Baugh in the

murder. Instead, the prosecutor made no mention of

Sailes’s statement.” Pet. App. 31a. The fact that the

State concealed Sailes’ statement at trial suggests

that, not only did it know that this statement would

impeach its sole eyewitness, but the State also knew it

did not have enough evidence to convict Mr. Baugh for

aiding and abetting.

6. The State’s attack on the Sixth Circuit’s Section

2244(b)(2)(B)(ii) holding has yet another problem.

Even if one were to accept the State’s novel theory that

At the evidentiary hearing in the district court, Mr. Baugh

testified that he did not recall Sailes asking him whether he had

been the driver. Pet. App. 255a. To be sure, Mr. Baugh

acknowledged that he might have told Sailes something along

those lines in order to “shut him up,” but he testified, consistent

with his statement to Detective Miller, “I was in the backseat of

that Jeep.” Id.

Mr. Baugh was the driver, that would not be enough

to sustain his conviction for felony murder. To convict

Mr. Baugh on the theory that he aided and abetted the

shooter—Kwasniewski—by driving the car, the State

would have to prove the statutory mens rea for aiding

and abetting, which it never attempted to do. Under

Michigan law, “knowledge that an offense is about to

be committed or is being committed is not enough to

make a person an aider or abettor; nor is mere mental

approval, passive acquiescence or consent sufficient.”

People v. Turner, 336 N.W.2d 217, 218-19 (Mich. Ct.

App. 1983) (citing People v. Burrel, 235 N.W. 170, 171

(Mich. 1931)).

All of the evidence that the State presented at

trial that went to Mr. Baugh’s state of mind was tied

to its theory that he was the shooter. To prove Mr.

Baugh’s state of mind, the State relied on

Kwasniewski’s testimony that the motive for the crime

was Mr. Baugh’s need for money to pay his rent. ECF

10-8, PgID.749-50. And the State elicited testimony

from Kwasniewski that Mr. Baugh was the only

person carrying a firearm, Id. at PgID.750.

Once the State abandons that testimony—which

it must do to contend that Kwasniewski was the

shooter—the remaining evidence would show, at most,

nothing more than that Mr. Baugh drove away from

the scene after Kwasniewski shot Landyczkowski. To

be sure, that evidence could potentially make Mr.

Baugh an accessory after the fact. But without

evidence that he either encouraged Kwasniewski to

rob Landyczkowski or performed some act that

enabled Kwasniewski to shoot Landyczkowski, Mr.

Baugh cannot be convicted of felony murder simply for

being on the scene. The State cannot cherry pick

snippets of Kwasniewski’s testimony while walking

away from its central claim—that Mr. Baugh was the

shooter, not the driver—to cobble together an aidingand-abetting mens rea.

The bottom line is that there are now three

theories of what happened: (1) Mr. Baugh was an

unwilling backseat passenger with Kwasniewski as

the shooter (supported by Det. Miller’s testimony

about Mr. Baugh’s statement); (2) Mr. Baugh was the

shooter with Kwasniewski as the driver (supported at

trial by Kwasniewski’s testimony); and (3) Mr. Baugh

was the driver with Kwasniewski as the shooter

(supported only by the Sailes statement, which was

wrongly concealed and never presented at trial). The

State oscillates between the second and the third. But

as the Sixth Circuit explained, “[w]ith the state’s only

witness lacking credibility and so much uncertainty

about Baugh’s role, if any, in the murder of

Land[yczkowski], no reasonable juror could find

beyond a reasonable doubt that Baugh is guilty of

first-degree felony murder.” Pet. App. 27a-28a. Thus,

Mr. Baugh has satisfied the requirement of Section

2244(b)(2)(B)(ii) and was entitled to maintain his

habeas action.

7. Beyond its argument about Section

2244(b)(2)(B)(ii), the State offers no additional basis

for reversing the Sixth Circuit’s judgment. In

particular, it does not argue that the Sixth Circuit

erred in finding a violation of Brady v. Maryland or

that the Sixth Circuit erred in its application of 28

U.S.C. § 2254.

a. The Sixth Circuit correctly held that Mr. Baugh

satisfied all three elements of a Brady claim. See

Strickler v. Greene, 527 U.S. 263, 281-82 (1999)

(setting out the elements).

First, the State does not dispute that, at the very

least, the Sailes statement contained favorable

impeachment evidence. Beyond that, the statement

could also have been used to exculpate Mr. Baugh with

regard to “the People’s position, in this particular

case”: that Mr. Baugh was “the actual shooter.” ECF

No. 10-10, Pg.ID 948.

Second, the State suppressed the statement. Pet.

App. 32a. Indeed, the State no longer contests

otherwise.

Third, the State’s concealment of the Sailes

statement prejudiced Mr. Baugh at trial. As this Court

has explained, the inquiry is whether, in the absence

of the concealed evidence, the defendant “received a

fair trial, understood as a trial resulting in a verdict

worthy of confidence.” Strickler, 527 U.S. at 289-90.

Because a reasonable factfinder would have had

reasonable doubts about Mr. Baugh’s guilt, see supra

at 15-21, a reviewing court would necessarily lack

confidence in the conviction.

b. The Sixth Circuit also correctly held that the

Michigan state court decision rejecting Mr. Baugh’s

Brady claim rested on “an unreasonable application of

clearly established Federal law” within the meaning of

28 U.S.C. § 2254(d)(1). See Pet. App. 34a. The Brady

inquiry “is not whether the defendant would more

likely than not have received a different verdict with

the evidence.” Kyles v. Whitley, 514 U.S. 419, 434

(1995) (emphasis added). Rather, it requires only a

“reasonable-probability” of a different result; a litigant

does not need to show that a different result would be

more likely than not. United States v. Dominguez

Benitez, 542 U.S. 74, 83 n.9 (2004). Thus, the state

court asked exactly the wrong question when it

demanded that Mr. Baugh show that the concealed

evidence would have “produce[d] a different result on

re-trial.” Pet. App. 104a. In doing so, the state court

“held Baugh to a higher standard than what is

required for relief” on a Brady claim. Id. 34a.

c. In addition, the Sixth Circuit’s decision was

correct because the state court’s adjudication involved

an “unreasonable determination of the facts,” 28

U.S.C. § 2254(d)(2). The state court believed that, in

addition to Kwasniewski’s testimony, there was “other

significant testimony proffered against the defendant,

as well as other independent indicia and material

evidence that was sufficient to prove the guilt of the

defendant.” Pet. App. 103a.

That is flatly untrue. Kwasniewski was the only

witness who testified about Mr. Baugh’s involvement

in the Landyczkowski homicide. As the Sixth Circuit

articulated, the “state had a threadbare case against

Mr. Baugh with Kwasniewski’s testimony being the

only evidence that inculpated Baugh.” Pet. App. 25a.

Because there was no other evidence to establish Mr.

Baugh’s guilt, the state court’s conclusion to the

contrary failed Section 2254(d)(2). 6

Moreover, the state court committed the same error as the

State in thinking that Mr. Baugh admitted to being the driver of

the car. See supra at 18-19.

B. Summary

reversal

particularly

inappropriate here because there is an

independent ground for affirming the Sixth

Circuit’s judgment.

The Sixth Circuit’s holding that 28 U.S.C.

§ 2244(b)(2)(B) poses no bar to relief here could also

be affirmed on the ground that in light of the nature of

Mr. Baugh’s claim, he should not have had to satisfy

Section 2244(b)(2)(B)’s gatekeeping standard for

“second or successive” habeas petitions in the first

place. The panel, bound by circuit precedent, was

compelled to assume that that standard applied here.

Pet. App. 17a. But if this Court were to conclude that

Mr. Baugh had not satisfied Section 2244(b)(2)(B)’s

gatekeeping standard, it still could not summarily

reverse without holding that that standard actually

applies to Mr. Baugh’s Brady claim. There is a strong

argument that it does not.

The restrictions on filing “second or successive”

petitions do not apply to every numerically second or

successive petition. See, e.g., Magwood v. Patterson,

561 U.S. 320, 332 (2010); Panetti v. Quarterman, 551

U.S. 930, 947 (2007) (“The statutory bar on ‘second or

successive’ applications does not apply” to claims

regarding an individual’s competency to be executed

“brought in an application filed when the claim is first

ripe.”). A significant number of judges—including two

on the panel here—have recently questioned the

treatment of Brady claims as “second or successive”

petitions. Often a petitioner “will have no way of

knowing he has a Brady claim” when he brings his

first habeas petition. Long v. Hooks, 972 F.3d 442, 487

(4th Cir. 2020) (Wynn, J., concurring). “Because of the

nature of a Brady violation, the petitioner often cannot

learn of such a violation at all, even when acting

diligently, unless and until the government discloses

it.” Scott v. United States, 890 F.3d 1239, 1250 (11th

Cir. 2018); see also Bernard v. United States, 141 S.

Ct. 504, 506 (2020) (Sotomayor, J., dissenting)

(explaining that applying the “second or successive”

petition rules to Brady claims would “reward[]

prosecutors who successfully conceal” their Brady

violations until after an inmate has filed an initial

habeas petition on other grounds).

Treating Brady claims as first habeas petitions

when filed upon a petitioner’s discovery of the

concealed evidence would be consistent with Congress’

reasons for passing AEDPA. A timely filed Brady

claim does not involve abuse of the writ because the

explanation for the second petition is malfeasance by

the state, rather than delinquency by the inmate.

Holding an inmate with a valid Brady claim to the

stringent standard of Section 2244(b)(2)(B) arguably

subjects him to “higher standards—through no fault of

his own.” Long, 972 F.3d at 487 (Wynn, J., concurring).

To be clear, the Court need not resolve this

question today. At this point, there is no split on

whether Section 2244(b)(2)(B) should govern Brady

claims. Pet. 14 n.6. But summary reversal would be

particularly inappropriate here because this Court

could not hold that Section 2244(b)(2)(B) bars relief

without also addressing the arguments that Section

2244(b)(2)(B) does not apply at all.

C. This case does not warrant this Court’s

intervention as a matter of its supervisory

role.

1. There is no “important and recurring

constitutional, statutory, jurisdictional, or procedural

problem” that would warrant this Court’s intervention

as a matter of its supervisory jurisdiction, Stephen M.

Shapiro et al., Supreme Court Practice ch. 4.17 (11th

ed. 2019). The State here does not point to any pattern

of Sixth Circuit decisions that fail to apply

Section 2244(b)(2)(B) properly. Nor could it. None of

the Sixth Circuit decisions to which the State points

(Pet. 29) involved a second or successive habeas

petition.

Even when it comes to Brady violations, the Sixth

Circuit denies second habeas petitions when those

violations do not undermine the heart of the

prosecution’s case. For example, in LeGrone v. Birkett,

571 Fed. Appx. 417 (6th Cir. 2014), the Sixth Circuit

denied habeas relief because “LeGrone’s guilt was also

established by two eyewitnesses.” Id. at 421.

2. At bottom, what the State seeks here is error

correction. For the reasons explained above, there is

no error to correct. But in any event, this Court does

not sit as “a court for correction of errors in

factfinding.” Goodman v. Lukens Steel Co., 482 U.S.

656, 665 (1987) (quoting Graver Tank & Mfg. Co. v.

Linde Air Prods. Co., 336 U.S. 271, 275 (1949)); see

also City & County of San Francisco v. Sheehan, 135

S. Ct. 1765, 1780 (2015) (Scalia, J., concurring in part

and dissenting in part) (“[W]e are not, and for well over

a century have not been, a court of error correction.”);

Murphy v. Collier, 139 S. Ct. 1475, 1480 (2019) (Alito,

J., dissenting) (“We do not generally grant review of

such factbound questions.”). Here, the State asks this

Court “to assume not only the function of a court of

first view, but also of a jury.” Ciminelli v. United

States, 598 U.S. ___ (2023) (No. 21-1170) (slip op. at

9). But as this Court recently affirmed, “[t]hat is not

[its] role.” Id.

Jimmy Baugh has already served more time than

the man the State now acknowledges may both have

fired the fatal shots and then lied about it at Mr.

Baugh’s trial. If the State now thinks that Mr. Baugh

should have been convicted for aiding and abetting the

actual shooter—a theory in complete contradiction to

the evidence it offered at trial—then the State should

have to prove that theory to an actual jury.

CONCLUSION

For the foregoing reasons, the petition for a writ

of certiorari should be denied.

Respectfully submitted,