Opinion
Case No. CV00-380-S-EJL
September 16, 2002
ORDER
Pending before the Court in this habeas corpus action is Respondent's Motion for Summary Judgment. Having reviewed the record, the Court finds that the parties have adequately presented the facts and legal arguments in the briefs and record and that the decisional process would not be significantly aided by oral argument. Therefore, in the interest of avoiding further delay, the Court shall decide this matter on the written motions, briefs and record without oral argument. D. Id. L. R. 7.1(b). Accordingly, the Court enters the following Order.
I. BACKGROUND
Avelar was originally tried and convicted of one count of delivery of a controlled substance in 1991, arising from a 1989 incident under surveillance by the Idaho Bureau of Narcotics. That conviction was reversed on appeal in 1993. On retrial, Avelar was again found guilty and sentenced to ten years imprisonment, with two years fixed. Avelar's conviction was ultimately affirmed by the Idaho Supreme Court on direct appeal in State v. Avelar, 129 Idaho 700, 931 P.2d 1218 (1997).
In 1997, Juan (or John) Nunez, an informant/witness for the State who had testified at both trials, was convicted of misuse of public funds, conspiracy, and violation of the state sales tax law, which acts had occurred in the course of his work as an informant. Some of the offenses had occurred prior to the second trial in Avelar's case, although the convictions occurred after trial. The prosecution did not inform Avelar of Juan Nunez's suspected criminal activities, either before or after the trial.
Avelar used these facts as the basis for a claim that the prosecution had committed a Brady violation in a Motion to Dismiss, or, in the Alternative, a Motion for a New Trial. The trial court denied the Motion. On April 2, 1999, the Idaho Supreme Court affirmed the denial of the Motion in State v. Avelar, 132 Idaho 775, 979 P.2d 648 (1999). State's Exhibit CA. The Idaho Supreme Court denied Avelar's Petition for Rehearing on July 7, 1999. The United States Supreme Court denied Avelar's Petition for Writ of Certiorari on November 29, 1999.
Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194 (1963) (State must disclose potentially exculpatory evidence to defendants).
Avelar next filed the federal Habeas Corpus Petition in the instant matter, claiming that the prosecution withheld evidence under Brady, in violation of his Fifth and Fourteenth Amendment due process rights. Specifically, Avelar claims that Juan Nunez should have disclosed his own collateral bad acts to Avelar for impeachment purposes because although Nunez was a government informant/witness at the time of the investigation, he was also a police officer at that time and at the time he testified at Avelar's trials, and, as such, his suppression should have been imputed to the prosecution.
II. MOTION FOR SUMMARY JUDGMENT
A. Standard of Review
The Federal Rules of Civil Procedure apply to habeas corpus actions except where application of the rules would be inconsistent with established habeas practice and procedure. Rule 11, Rules Governing Section 2254 Cases. Accordingly, summary judgment motions are appropriate in habeas corpus proceedings where there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Blackledge v. Allison, 431 U.S. 63, 80-81, 97 S.Ct. 1621, 1632-33 (1977).
Avelar's habeas corpus petition was filed on July 6, 2000, after the effective date of the Anti-Terrorism and Effective Death Penalty Act (AEDPA), April 24, 1996. As a result, the Petition is subject to the provisions of AEDPA, which amended 28 U.S.C. § 2254, heightening the standard for obtaining habeas corpus relief
In order to obtain federal habeas corpus relief from a state court judgment, a petitioner must prove facts "showing that he is in custody in violation of the Constitution, laws and treaties of the United States." 28 U.S.C. § 2241, et seq. More specifically, a petitioner must show that the state court's adjudication of the claim on its merits either:
1. resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
2. resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.28 U.S.C. § 2254(d)(1)-(2).
Because the Idaho Supreme Court issued its opinion in this matter on April 2, 1999, the Court relies upon United States Supreme Court precedent which existed at that time to review the Idaho Supreme Court's decision. In Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196-97 (1963), the United States Supreme Court held that "the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." In United States v. Bagley, 473 U.S. 667, 676, 105 S.Ct. 3375, 3380 (1985), the United States Supreme Court clarified that "impeachment evidence,. . . as well as exculpatory evidence, falls within the Brady rule." The Bagley decision also clarified that "evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." Id., 473 U.S. at 682, 105 S.Ct. at 3383. In other words, a "`reasonable probability' is a probability sufficient to undermine confidence in the outcome." Id. In Kyles v. Whitley, 514 U.S. 419, 437, 115 S.Ct. 1555, 1568 (1995), the United States Supreme Court held that impeachment evidence known only to the police but unknown to the prosecutor was subject to Brady disclosure.
B. The Idaho Supreme Court's Decision
The Idaho Supreme Court rejected Avelar's Brady claim in the following three paragraphs of its opinion in State v. Avelar, 132 Idaho 775, 781, 979 P.2d 648, 654 (Idaho 1999):
Avelar argues that he is entitled to a new trial because the state failed to disclose the illegal acts of John Nunez, one of the principal witnesses against Avelar, in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Nunez was a police informant who helped to set up the police operation that resulted in Avelar's conviction. Nunez was a confidential informant and not a police officer during the investigation of the case against Avelar, however, he subsequently became a police officer, and was a police officer at the time of Avelar's second trial, Following Avelar's conviction, Nunez was convicted of a variety of criminal activity relating to his work on the drug task force. Nunez's criminal activity took place while he was a police officer and prior to Avelar's second trial. Avelar contends that the prosecution should have disclosed Nunez's criminal activity because it would have assisted Avelar's counsel in undermining Nunez's credibility at trial. Based upon the newly discovered evidence of Nunez's criminal activity, Avelar argues that he is entitled to a new trial under I.C.R. 34. We disagree.
The duty of disclosure enunciated in Brady is an obligation of not just the individual prosecutor assigned to the case, but of all the government agents having a significant role in investigating and prosecuting the offense. State v. Gardner, 126 Idaho 428, 433, 885 P.2d 1144, 1149 (Ct.App. 1994). However, a prosecutor is not required to disclose "evidence the prosecutor does not possess or evidence of which the prosecutor could not reasonably be imputed to have knowledge or control." US. it MacFarlane, 759 F. Supp. 1163, 1168 (W.D.Pa.1991). The trial judge found that the prosecution was not actually aware of Nunez's illegal activity, and this finding is not challenged on appeal. Consequently, Avelar must show that the knowledge of Nunez's activities can be imputed to the prosecution.
We hold that knowledge of Nunez's criminal activity may not be imputed to the prosecution on the facts of this case. Although Nunez was subsequently hired as a police officer, he was merely a paid informant at the time of the investigation, and was acting in that role when he testified at trial. Possession of information held in the minds of government witnesses is generally not imputed to the prosecution unless that information was discovered by police or prosecutors. See US. v. Wilson, 116 F.3d 1066, 1082 (5th Cir. 1997) (police not required to investigate government witness' mental state). Consequently, any information that Nunez possessed about his own ongoing criminal activity can not be imputed to the prosecution, and the prosecution did not suppress information in violation of Brady.
Wilson was later vacated and reheard en banc on a Bailey issue, which is not relevant to Avelar's case. (In Bailey v. United States, 516 U.S. 137, 116 S.Ct. 501 (1995), the Supreme Court held that 18 U.S.C. § 924(c)(1) requires evidence sufficient to show active employment of a firearm by the defendant, not mere possession or intended use.)
C. Disputed Material Facts
Avelar disputes Respondent's allegation in his Statement of Material Facts that "[i]n fact, Homolka gave Petitioner $4500 and Petitioner gave Homolka the cocaine. After a review of the state court record, the Court shall consider the facts as stated in the record rather than as characterized by Respondent.
D. Discussion of the Idaho Supreme Court's Decision
The Idaho Supreme Court narrowed the Brady issue significantly. Because the trial judge had found that the prosecution was not actually aware of Nunez's illegal activity, and that was not contested on appeal, the Idaho Supreme Court analyzed only whether knowledge of Nunez's activities could be imputed to the prosecution. The Idaho Supreme Court determined that Nunez's activities could not be imputed to the prosecution because he was a paid informant or mere witness at the time of the investigation and was acting in that role when he testified at trial, notwithstanding the fact that he was subsequently hired as a police officer. Avelar contests this determination on the basis of § 2254(d)(1) and (2).
1. Avelar's § 2254(d)(1) Argument
Avelar asserts that the Idaho Supreme Court's decision was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States. To prevail under § 2254(d)(1), Avelar must show that the state court was "wrong as a matter of law," Williams v. Taylor, 529 U.S. 362, 385, 120 S.Ct. 1495, 1509 (2000), in that it "applie[d] a legal rule that contradicts our prior holdings" or that it "reache[d] a different result from one of our cases despite confronting indistinguishable facts." Ramdass v. Angelone, 530 U.S. 156, 165-66, 120 S.Ct. 2113, 2119-20 (citing Williams v. Taylor). Or, Avelar can prevail by showing that the Idaho Supreme Court was "[objectively] unreasonable in applying the governing legal principle to the facts of the case," or "was unreasonable in refusing to extend the governing legal principle to a context in which the principle should have controlled," Ramdass v. Angelone, 530 U.S. at 166, 120 S.Ct. at 2120 (citing Williams v. Taylor), but Avelar cannot prevail under the unreasonable application clause "simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly." Williams, 529 U.S. at 411, 120 S.Ct. 495.
Avelar has not identified any United States Supreme Court case which compels his desired result. That is, no case imputes to the prosecutor for Brady purposes knowledge of a hired informant/government witness's own collateral had acts, where the informant himself did not perform investigatory acts and where he was employed by a law enforcement entity that did not perform investigatory work on the case at issue.
Kyles makes it clear that the prosecutor is to be "held accountable under Bagley and Brady for evidence known only to police investigators and not to the prosecutor." 514 U.S. at 438, 115 S.Ct. at 1568. However, it is not clear under Kyles that Nunez would be deemed a police investigator simply by virtue of him being a law enforcement officer, when his role was limited to that of witness. Respondent also points out that no United States Supreme Court case has confronted the issue of whether a police investigator is required to give up his Fifth Amendment right against incrimination in order to make a Brady disclosure.
Case law from lower courts is helpful to assess the objective reasonableness of the decision in this case. The Idaho Supreme Court's decision is in line with the opinions of other jurists who have considered whether Brady applies in similar factual contexts, that is, when the officer with the undisclosed information did not have control and authority in the investigation. See, e.g., United States v. Rosner, 516 F.2d 269, 280-81 (2d Cir. 1975), Stano v. Dugger, 901 F.2d 898, 906-07 (11th Cir. 1990) (Edmondson, J., concurring). While these cases are pre- Kyles, their facts are analogous to Avelar's case, and thus, they remain instructive on the question of reasonableness under Brady. Likewise, the Eleventh Circuit recently confronted a somewhat similar situation after Kyles, and decided similarly to the Idaho Supreme Court, in Moon v. Head, 285 F.3d 1301, 1309 (11th Cir. 2002).
"We think, therefore, that in the circumstances of the case, the circumstances (1) that Leuci was an investigative informant rather than an investigator with authority to arrest in that status, or to direct investigations, (2) that the government could not have known his secret past, (3) that the matters about which he lied did not concern any consideration promised him, and (4) that the perjury involved solely his own misconduct in other situations convince us that his perjury should not be attributed to the prosecution, but must be measured by the standards applicable to government witnesses generally."
In his concurring opinion, Judge Edmondson wrote: "I doubt that every peace officer in Florida is a member of every Florida prosecutor's prosecution team. And I doubt that a police officer who testifies as a prosecution witness or simply cooperates with a prosecutor automatically becomes part of the prosecution team. If information actually unknown to a prosecutor is to be imputed to the prosecutor, I suspect that some element of control or supervision on behalf of the prosecution must exist so that the police officer is truly at' agent of the prosecutor. To hold otherwise is not to follow Brady, but to extend it substantially." This case was remanded for a determination of these issues.
The Eleventh Circuit Court rejected Moon's argument that Kyles's language that "the individual prosecutor has a duty to learn of any favorable evidence known to others acting on the government's behalf" compelled the court to conclude that a Tennessee investigator who testified on behalf of the prosecution during sentencing was a part of Georgia prosecutor's team and subject to Brady disclosure. The court acknowledged that " Kyles does not, however, further define what exactly is meant by `acting on the government's behalf.'" 285 F.3d at 1308. In rejecting the argument, the court found "no evidence that Tennessee law enforcement officials and Georgia prosecutors engaged in a joint investigation of the DeJose incident." 285 F.3d at 1310.
In this matter, the Court finds no evidence in the record which indicates that Nunez, during the time he was merely an investigative witness and while he was a police officer, acted as a investigatory officer or had any control or authority in the actual investigation of Avelar's case. Nunez's own testimony identifying himself as a reserve patrol officer for the Buhl City Police Department and later as a Cassia County Sheriff's Office employee does not automatically mean that he was anything other than a witness in Avelar's particular case, which was investigated by the Idaho Bureau of Narcotics and the Twin Falls Police Department.
As a result of all of the foregoing, this Court concludes that the Idaho Supreme Court's decision was not an objectively unreasonable application of Brady, Bagley, or Kyles. Even if the Court decided the case erroneously, and Nunez's knowledge should have been imputed to the prosecution, Avelar is not entitled to relief on the basis of a merely erroneous, but not objectively unreasonable, stale court decision. Given the differences in this case and Brady, Bagley, and Kyles, it cannot be said that to refuse to extend Brady to this circumstance was unreasonable. The Idaho Supreme Court's decision does not apply a legal rule that contradicts Brady, Bagley, or Kyles, but rather, it is in line with those cases. Consequently, Avelar is not entitled to habeas relief under § 2254(d)(1).
2. Avelar's § 2254(d)(2) Argument
Avelar also asserts that the Idaho Supreme Court's decision that Nunez was not part of the prosecution team "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding," warranting relief under § 2254(d)(2). In a habeas proceeding, a federal court is required to presume that the state court's determination of factual issues are correct under 28 U.S.C. § 2254(e)(2), and the petitioner bears the burden of rebutting the presumption of correctness by clear and convincing evidence. Id. For example, the Ninth Circuit granted relief under 28 U.S.C. § 2254(d)(2) where it found no evidence in the record supporting the state court's decision. Gunn v. Ignacio, 263 F.3d 965, 970 (9th Cir. 2001).
In this matter, the state court relied on the trial transcript to conclude that Nunez was a mere informant/witness and not part of the prosecution team during the investigation and trial. At the second trial in 1994, Nunez testified that he currently worked for the Cassia County Sheriff's Office and had worked there for approximately two years. He also testified that, in 1989, he was employed as a reserve with the Buhl Police Department, with Amalgamated Sugar, and as a confidential informant for the Idaho Bureau of Narcotics. As a confidential informant, he "would seek out any drug violators and looked to bureau agents and purchased narcotics or obtained information or gave them information so they could work cases." As a reserve officer, he went on patrol and assisted with violators.
Avelar points to nothing in the record which suggests that Nunez was working in his capacity as a reserve Buhl Police Officer during his work on the Avelar case. Avelar also points to nothing in the record suggesting that the Buhl Police Department played an important investigatory role in the Avelar case. Similarly, there is nothing in the record to show that, once Nunez became a Cassia County Sheriff's Office employee, he did any investigative work on the Avelar case, or that he did anything other than testify at the trial as an informant. There is also no evidence in the record that the Cassia County Sheriff's Office worked on the Avelar investigation between 1992 and 1994, when Nunez was employed there.
Rather, the chief investigatory unit on the Avelar case was the Idaho Bureau of Narcotics. Stuart Robinson, James Robinson, Gary Kaufman, Clark Rollins, and David Kynoch, who testified at Avelar's trial, were all employees of the Idaho Bureau of Narcotics. JoAnn Loveland, who performed surveillance on the Homolka-Nunez sale, was a police officer employed by the Twin Falls City Police Department.
In summary, Avelar has not shown that the Idaho Supreme Court's decision that Nunez was acting in the capacity of a witness rather than a police officer was based on an unreasonable determination of the facts in light of the evidence in the record. Consequently, Avelar is not entitled to relief under § 2254(d)(2).
E. Discussion of Whether the Evidence Was Favorable and Material
Because it determined that no suppression occurred, the Idaho Supreme Court did not reach the other two prongs of the Brady test, that the evidence be both favorable and material. Therefore, in the alternative, the Court considers the two remaining prongs independently.
Under Bagley, witness credibility evidence is deemed favorable to the defendant, which satisfies the second prong of Brady. The third prong of Brady is whether the evidence of Nunez's bad acts was material. Evidence is material "only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." Bagley, 473 U.S. at 682, 105 S.Ct. at 3383. In other words, "[t]he question is not whether the defendant would more likely than not have received a different verdict with the evidence, but whether in its absence he received a fair trial." Kyles, 514 U.S. at 434, 115 S.Ct. at 1566 (citing Bagley, 473 U.S. at 678, 105 S.Ct. at 3381).
In Bagley and Kyles, the Supreme Court identified four specific aspects of materiality important for district courts to consider. First "a showing of materiality does not require demonstration by a preponderance that disclosure of the suppressed evidence would have resulted ultimately in the defendant's acquittal." Kyles, 514 U.S. at 434, 115 S.Ct., at 1566 (citations omitted). Second, the Court emphasized that, rather than being a "sufficiency of the evidence test," the test for materiality is a showing that the undisclosed favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict. Id., 514 U.S. at 435, 115 S.Ct. at 1566. Third, "once a reviewing court applying Bagley has found constitutional error, there is no need for further harmless-error review." Id. Fourth, the undisclosed evidence "must be considered collectively, not item by item." Id., 514 U.S. at 436, 115 S.Ct. at 1567.
Each time the United States Supreme Court has confronted a Brady issue, including in Brady itself, the potential the suppressed evidence had to undermine confidence in the, jury was quite apparent. In Brady, the prosecution failed to disclose a statement of Brady's codefendant, wherein the co-defendant admitted to having actually killed the victim, because this information could have been deemed significant by the jury when considering whether to sentence Brady to life or death for his role in the murder. 373 U.S. at 84-86, 83 S.Ct. at 1195-96. In Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763 (1972), the government failed to disclose an alleged promise to its key witness that he would not be prosecuted if he testified for the government. The key witness was Giglio's alleged co-conspirator; the co-conspirator was the only witness linking Giglio with the crime. The Giglio Court articulated the high standard for materiality in its recognition that, "[w]hen the `reliability of a given witness may well be determinative of guilt or innocence,' nondisclosure of evidence affecting credibility falls within this general rule." 405 U.S. at 154, 92 S.Ct. at 766 (internal citation omitted).
In Bagley, the prosecution withheld evidence that the two principal witnesses implicating Bagley in the crime were induced to testify by a promise that they would be rewarded if the case ended in a manner satisfactory to the government. 473 U.S. at 683, 105 S.Ct. at 3384. The Court noted that "[t]his possibility of a reward gave O'Connor and Mitchell a direct, personal stake in respondent's conviction." Id.
In Kyles, the prosecution did not disclose statements from eyewitnesses who identified Kyles as the killer. The Court stated that
[d]isclosure of their statements would have resulted in a markedly weaker case for the prosecution and a markedly stronger one for the defense. To begin with, the value of two of those witnesses would have been substantially reduced or destroyed.514 U.S. at 441, 115 S.Ct. at 1569.
In Avelar's case, the key issue is whether Nunez's credibility issue could have put the whole case in such a different light as to undermine confidence in the verdict. Nunez was the government informant who bought drugs from Homolka. The government wanted to find out the identify of Homolka's supplier. Nunez obtained information from Homolka about his supplier and gave it to the government. The information Nunez obtained from Homolka and provided to the government about Homolka's supplier was tested when the government set up a videotaped surveillance to capture Homolka purchasing cocaine from his supplier on videotape. Nunez was involved in the final part of the surveillance as a witness when he tried to buy cocaine from Homolka.
A review of the trial transcript shows that Nunez, himself, did not testify about the information received from Homolka about the identity of his supplier, but that this information came second-hand from Stuart Robinson, a senior special agent for the Idaho Bureau of Narcotics, for the purpose of showing how the investigation of Avelar began. Robinson testified that "[Nunez] started questioning who Homolka was getting the cocaine from, and it came about that the person's name was Tony, that he lived in Buhl, that he was associated with a dairy, and that he was of some type of foreign descent, that he wasn't Caucasian and that he kind of talked with an accent." State's Exhibit A-3, Trial Transcript, at 138. Robinson testified that he next began to talk to the Twin Falls County Sheriff's Office to see if they could identify someone who fit the description, and subsequently "received information that there was a subject by the name of Antonio Avelar that was believed to be trafficking in controlled substances." Counsel for Avelar objected, and the court sustained the objection in part, instructing the jury that they were not to consider any information Robinson had "as to whether or not Mr. Avelar was dealing in drugs, only to show this officer's state of mind on this occasion." State's Exhibit A-3, Trial Transcript, at 138-39.
On direct examination, Nunez testified about the factual details of the purchase he made from Homolka. Nunez did not testify that Homolka had told him that his supplier was Buhl dairy farmer named Tony. Nunez had no direct knowledge of the 8:00 a.m. meeting between Homolka and his supplier and offered no testimony about it.
On cross-examination, counsel for Avelar asked Nunez whether he knew "Tony Avelar." Nunez testified that he had known Avelar since approximately 1983 or 1984, primarily from having seen him at Portuguese community celebrations at the Catholic Church. He also testified that he knew of a couple of Portuguese dairy farmers named Tony. He also testified that when he first heard about a Cuban dairy farmer from Buhl or Castleford, he thought about Tony Avelar. State's Exhibit A-3, Trial Transcript, at 175-187.
At this point, counsel could have impeached Nunez with the bad acts information had he known about it. The issue before the Court is whether such impeachment evidence had the potential to affect the outcome of the trial, but the Court need not consider whether it would have produced an acquittal. If Nunez's had been the only testimony in the case linking "Tony Avelar" or "Tony," the Buhl dairy farmer with a foreign accent, to the supplying of cocaine to Homolka, then the impeachment evidence about Nunez would be material. However, Nunez's testimony on cross-examination was hardly a definite identification, and it had a minor impact on the outcome of the trial, compared to other evidence unrelated to his testimony.
Homolka himself testified that he had met his current dealer, "Tony," and learned his telephone number in other drug transactions with other individuals. Homolka identified Tony as a man who wore plaid shirts, who had a beard a little bit longer than his own, and who wore a baseball cap. He stated that he had called Tony the day before the Nunez transaction to obtain the drugs for Nunez. He testified that Tony came to his house to deliver cocaine a little before 8:00 a.m. on September 26, 1989, and that he did deliver a package of cocaine on that date. Homolka testified that Tony drove a GMC pickup truck. He testified that, after he got the cocaine from Tony, he put it in a peanut can, and he later tried to sell that cocaine to Nunez. State's Exhibit A-3, Trial Transcript, at 103-28.
Mr. Kliegl, a private investigator hired by Avelar's counsel, testified that Homolka had told him that he came up with the name "Tony Avelar" as his drug supplier because narcotics agents told him that name. State's Exhibit A-4, Trial Transcript, at 276-77. Homolka's own testimony is consistent with Kliegl's insofar as Homolka testified that he never knew his drug supplier's last name, but knew him only by the first name, "Tony" until officers told him the last name "Avelar." State's Exhibit A-3, Trial Transcript, at 124-25.
In summary, Homolka's testimony clearly was that he had known his drug supplier's name was Tony before investigators suggested the last name "Avelar" to him, and that he had known Tony's phone number and used it to obtain the cocaine in question. He also clearly testified that Tony, the bearded man with the baseball cap, who came to his house about 8:00 a.m. on September 26, 1989, was the supplier of the cocaine. Homolka never said that his supplier was, in fact, Tony Avelar, and he testified that the defendant on trial did not look anything like his supplier, and that he had never seen the defendant before. (Apparently, at trial, Avelar no longer wore a thick beard.)
Stuart Robinson, the investigator, testified that he placed a pen register on Homolka's telephone, which registered which numbers Homolka called. The pen register showed that among the telephone numbers Homolka called around the date of the drug delivery was Antonio Avelar's number. State's Exhibit A-3, Trial Transcript, at 143.
Clark Rollins, another investigator who was doing ground surveillance in the investigation, testified that, on September 26, 1989, early in the morning, he followed a man in a brown pickup which left Antonio Avelar's residence. He identified him as the same man in Avelar's driver's license photo, and testified that Avelar was wearing a beard and a baseball cap.
Gary Kaufman, a special agent, testified that he began air surveillance of Antonio Avelar's residence about 7:38 a.m. He watched Mr. Avelar leave his home and enter the road to David Homolka's residence. At that point, he stopped following Avelar. At all times, he testified, he was in contact with ground surveillance, and Avelar had been followed without any break in the surveillance.
David Kynoch, a special agent with the Idaho Bureau of Narcotics, testified at trial that he took videotape footage at Homolka's home, beginning at 8:03 a.m. on the date at issue. He testified that he saw the truck which had been described as Avelar's pull up to the residence, and he saw Homolka give something to Avelar and Avelar give something that looked like a white package to Homolka. The video tape was shown to the jury. State's Exhibit A-4, Trial Transcript, at 224-237. The video tape was not made available to this Court.
Avelar testified at trial, in part, as follows:
Defendant's counsel: And did he [Homolka] call your house on September 25th?
Avelar: Yes, he did. He called and I wasn't around. My wife answered the phone. And he called, I guess one or two or three times. I was outside working. And then a friend of mine arrived and he heard that he called again. . . . [hearsay objection interjected]
Defendant's counsel: Did you get a message —
Avelar: Yes, I did.
Defendant's counsel: — that he called'?
Avelar: Yes, I did.
Defendant's counsel: And what did your wife tell you the message was?
Avelar: She told me that David, a guy named David Homolka called asking if I want oat hay or not because we have talked that before [sic] in the bar. He asked me if I needed some hay.
Defendant's counsel: He had some oat hay for sale?
Avelar: He didn't have hay for sale, but he knew somebody that had some oat hay for sale.
Defendant's counsel: And was it over there close to his house?
Avelar: It was about an eighth of a mile close to his house.
Defendant's counsel: So did you go over there and look at the oat hay?
Avelar: Yes, I did.
Defendant's counsel: And have you seen this video?
Avelar: Yes, I did.
Defendant's counsel: And is that your pickup with you driving in that video?
Avelar. That morning it was. I went there and he gave me an address on a piece of paper, that I didn't have a paper and he wrote on this piece of paper. (Indicating).
State's Exhibit A-4, Trial Transcript, at 283-85.
After this testimony at the second trial, which was five years after his arrest,
Avelar produced the alleged note, and testified that he had just found the note clipped to his pick-up truck visor, despite a police search of the vehicle some five years earlier.
After having testified that his supplier known to him only as "Tony" delivered the cocaine to him around 8:00 that morning, Homolka testified briefly on cross-examination as follows:
Defendant's counsel: Did you ever talk to Tony about oat hay?
Homolka: Oat hay?
Defendant's counsel: Yes.
Homolka: Yes, on several occasions.
Defendant's counsel: Did you have some oat hay or know of some oat hay that was for sale?
Homolka: Yes. I worked at Amalgamated Sugar and I could get it cheaper than they were selling it in the newspaper and stuff. And we had talked about it several times. That happened to be when he showed up that morning the opportunity in the conversation the night before, I guess, that he was supposed to look at.
State's Exhibit A-3, Trial Transcript, at 129. When Avelar's testimony about the oat hay is paired with Homolka's testimony about the drug delivery and the oat hay, it is clear that Homolka's "Tony" was Tony Avelar.
In light of all of the foregoing evidence, it is unlikely that any evidence of Nunez's bad acts would have had a significant effect on the outcome of this matter. Although some evidence was presented at trial that Homolka had told Nunez that his suppler was a foreign dairy farmer from Buhl named Tony, and Nunez testified that he had thought of Tony Avelar when he heard this information, there was other strong, independent evidence presented at trial that Tony Avelar was Homolka's supplier. The surveillance video was a critical piece of evidence which the jury viewed. The officers testified that they followed Avelar's truck to the scene. One officer testified that the man driving Avelar's truck was Avelar as he appeared in his driver's license photo (taken when Avelar had a thick beard). At least one officer testified that the man in Avelar's truck gave Homolka a white package. Homolka testified that "Tony" gave him a package of cocaine that morning. Homolka also testified that the cocaine from this transaction was the cocaine he later tried to sell to Nunez.
Avelar admits to having been at Homolka's at the date and time in question. lie produced no credible corroborating evidence for the reason he was there, other than a shred of paper, which he alleged had been pinned to his truck's visor for five years, despite a police search of the vehicle. Avelar did not bring in the farmer to testify that he, in fact, had oat hay for sale on the day in question. Avelar did not bring in his father and brother, who farmed with him, to testify that they needed oat hay for their cows on that date, as Avelar had stated. Avelar had no explanation why Homolka would have called him three or four times to follow-up with Avelar's expressed interest in Homolka's neighbor's oat hay, in which Homolka had no interest. If looking for oat hay was his true alibi, it is unlikely that Avelar would not have thought to produce the note containing the number of the oat hay farmer prior to five years after Avelar's initial arrest, and that Avelar would not have brought in a witness to back up his story. It seems more apparent that "oat hay" was a code word for cocaine.
At the most, Nunez's testimony that he "thought of Avelar" and Robinson's testimony about what Homolka had told Nunez was merely cumulative of evidence provided by many other independent witnesses and the videotape. Nunez was not in any way the principal witness in this matter in the identification of Avelar as Homolka's supplier or the principal witness that the cocaine Homolka received was that which he tried to resell to Nunez.
Nunez's testimony was not critical to the disputed facts in the case as the information suppressed in Brady, Giglio, Bagley, or Kyles. It was undisputed that Avelar was a Portuguese-born dairy farmer from Buhl. No other foreign-born dairy farmers from Buhl were suggested as the identity of Homolka's drug supplier. It was undisputed that Homolka called Avelar repeatedly near the date in question. It was undisputed that Avelar went to Homolka's residence at the date and time in question. Nunez's testimony shed no light on whether Avelar gave Homolka a package of cocaine or whether Homolka gave Avelar a note containing an oat farmer's telephone number. Nunez also could not testify about whether the cocaine received from Avelar was the cocaine allegedly sold to him.
Clearly, this is not a case in which the reliability of Nunez could have been "determinative of guilt or innocence," as in Giglio. The Seventh Circuit reached a similar result in United States v. Young, 20 F.3d 758 (7th Cir. 1994), where police had set up a drug purchase under surveillance involving the defendant. There, the defendant complained that a witness's full criminal history was not disclosed to him for impeachment purposes. One of the key factors the court considered in determining that the evidence was not material was that the witness "did not provide the critical evidence," in the case. 20 F.3d at 763. Rather, the critical evidence was provided by "tape recorded conversations, the surveillance videotape, and the testimony of the undercover and surveillance agents." Id.
Based upon the record in this matter, the Court concludes that Avelar received a fair trial without the suppressed evidence of Nunez's bad acts and that there is no reasonable probability that, had the evidence been disclosed, the result of the trial would have been different. Accordingly, the undisclosed evidence was not material, and therefore, no Brady violation occurred which would warrant a grant of habeas relief,
F. Conclusion and Instructions for Appeal
For the reasons set forth herein above, the Court concludes that Petitioner is not entitled to federal habeas corpus relief under any of the theories set forth in his Petition, Traverse or Brief. As a result, Respondent is entitled to summary judgment, and the Petition shall be dismissed with prejudice.
Should Avelar wish to appeal, he must file a request for a certificate of appealability with this Court within thirty (30) days after entry of this Order. See 28 U.S.C. § 2253(c); Fed.R.App.P. 22(b). When the denial or dismissal of a habeas corpus petition is based upon the merits of the claims in the petition, a district court should issue a certificate of appealability only where the appeal presents a substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c). To satisfy the "substantial showing" standard, a petitioner "must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong." Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 1604 (2000).
ORDER
NOW THEREFORE IT IS HEREBY ORDERED that Respondent's Motion for Summary Judgment (Docket No. 13) is GRANTED. Petitioner's Petition shall be dismissed with prejudice.