Habeas Petitioner's Brady Claim Not Defaulted, Sent To District Court for Further Review

LeBere v. Abbott, 2013 WL 5663866 (0/18/13) (Col.) (Published) - A habeas petitioner procedural win. The petitioner's Brady claim was not procedurally defaulted due to a state court's ruling in a post-conviction proceeding that the Brady issue had been resolved on direct appeal where the Brady issue had not actually been resolved on direct appeal. The decision is determined by Cone v, Bell, 556 U.S. 449 (2009). As in Cone, the state court's finding that an issue has already been decided indicates the issue has been exhausted and is ripe for federal review and not defaulted. The Tennessee rule implicated in Cone was similar to the rule implicated in this case: a defendant is not allowed to raise a new legal theory based on old facts it raised previously. In this case the petitioner had raised the recantations of a state witness on direct appeal but did not raise Brady until the post-conviction proceedings, alleging an officer induced the lies at trial. But the state court did not rely on that forfeiture rule. It just said the issue was already decided. The 10th notes the irony that had the state court invoked the forfeiture rule the petitioner would be defaulted. But now the petitioner gets the issue decided in federal court and the review is probably de novo because the state courts have not actually addressed the issue.