Mann v. Griffith

Filing 12

MEMORANDUM AND ORDER: The Court denies Petitioner Brian Mann's petition under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody. Doc. 1, 11. The Court denies Mann's 11 petition with prejudice. The Court will not issue a certificate of appealability. Signed by District Judge Stephen R. Clark on 3/25/21. (JAB)

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
BRIAN MANN,
Petitioner,
vs.
CINDY GRIFFITH,
Respondent(s).

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Case No. 4:18-cv-00228 SRC

Memorandum and Order
Brian Mann, Jerome Jones, and a third accomplice robbed a St. Louis wholesale grocery
store at gunpoint, and tragedy ensued. Doc. 6-7 at 4–5. Mann wore a camouflage jacket and
wielded a .45 caliber semiautomatic weapon against the store employees. Id. Approaching the
front counter, Mann took $1,000 from the clerk at the cash register and then pushed her to the
floor. Id. . When the store owner and office manager entered the room, the robbers shot and
killed them both. Id. Mann then turned to the clerk on the floor and shot her three times in the
legs. Id. The robbers escaped the scene by car, but the police arrested Mann and Jones within an
hour. Id.
A state-court jury found Mann guilty of two counts of first-degree murder, one count of
first-degree assault, one count of first-degree robbery, and four related counts of armed criminal
action. Doc. 6-7 at 4. The state court sentenced Mann to two consecutive sentences of life
without parole for first-degree murder, one life sentence for first-degree robbery, one twentyyear sentence for first degree assault, and an additional two life sentences and two twenty-year
sentences for armed criminal action. Id. Mann appealed his conviction to the Missouri Court of
Appeals, which affirmed. Mann remains incarcerated. Docs. 1, 11. Mann now petitions this

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Court under 28 U.S.C. § 2254 for writ of habeas corpus, alleging various errors by the state trial
court. Id. For the reasons discussed below, the Court denies Mann’s petition for writ of habeas
corpus.
I.

Facts and Background
The Missouri Court of Appeals described the pertinent facts as follows:
On the morning of May 12, 2008, Ms. Cross, the mother of Defendant’s [Mann’s]
one-year-old child, took Defendant’s child and her other child to a clinic for an
appointment. At the clinic, Ms. Cross received a call from Defendant, who asked
Ms. Cross to pick him up from his mother’s house. Ms. Cross drove to pick up
Defendant in a white Malibu that she had borrowed from her cousin. When she
arrived at Defendant’s mother’s house around 11:00 a.m., Defendant and his friend,
Jerome Jones, got in the white Malibu and drove Ms. Cross back to the clinic,
dropped her off, and left with the car.
At 12:30 p.m., Defendant, Mr. Jones, and a third man entered Rock Bottom
Wholesale Warehouse, a wholesale grocery store, brandishing firearms. Defendant
was wearing a camouflage jacket and was armed with a MAC-type semiautomatic
weapon equipped with a magazine holding up to thirty .45 caliber rounds of
ammunition. As the men approached the front counter, Defendant grabbed nearly
$1,000 from Nimisha Patel, the clerk working the cash register. Defendant then
pushed Ms. Patel, who was visibly pregnant at the time, to the floor. The store
owner and office manager were in an office located behind the counter, and as they
opened the door to investigate the commotion, the three gunmen opened fire,
shooting the store manager nine times and the office manager eight times, killing
them both. Defendant then shot Ms. Patel in the legs three times while she was
lying on the floor. Another store employee, Mr. Gado, crouched behind the counter
near Ms. Patel, but was not shot.
A man standing across the street from Rock Bottom, James Politte, saw Defendant,
Mr. Jones, and the third man get into and leave in the white Malibu.
...
Five days later, on May 17, 2008, Mr. Gado, the Rock Bottom clerk, viewed two
live lineups and one photographic lineup at the police station. The first live lineup
included Defendant, and Mr. Gado identified him as the man who “robbed Rock
Bottom, killed [the store owner and office manager], and shot Nimisha [Patel].”
The second live lineup included Mr. Jones, and Mr. Gado identified him. The
photographic lineup included Timothy Boykins, but Mr. Gado did not identify Mr.
Boykins, and Mr. Boykins was not charged.

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Thereafter, Defendant’s case was set for a jury trial. Prior to trial, the trial court
overruled Defendant’s motion to suppress evidence of Mr. Gado’s identification of
Defendant. The trial court also sustained the State’s motion in limine to exclude
evidence of the absence of the victims’ blood and DNA on the pants and shoes
Defendant was wearing when he was arrested. Finally, the trial court sustained the
State’s motion in limine to exclude evidence pertaining to Mr. Boykins, including
his participation in the pretrial lineup, his physical description, a pair of gloves with
his DNA found in the white Malibu, and Defendant’s acquaintance with Mr.
Boykins from the neighborhood.
At trial, the State called Ms. Patel, Mr. Gado, Mr. Politte, Officer Allen, Officer
Shrum, Officer Henkhaus, and Ms. Cross. The state also introduced the
surveillance video from Rock Bottom, depicting a man matching Defendant’s
physical characteristics wearing a camouflage jacket with two other men entering
the store, taking money from Ms. Patel, and shooting the store owner, office
manager, and Ms. Patel. Additionally, the state introduced evidence that Ms. Cross
had told police, and later the prosecutor in an oral statement, that Defendant was
wearing a camouflage jacket like the one on the man in the surveillance footage
when she picked him up forty-five minutes prior to the shooting and robbery at
Rock Bottom.
After the State rested, the defense called Defendant’s mother, Beverly Mann, and
Defendant. Both Defendant and his mother testified in support of Defendant’s alibi
that he was at his mother’s house during the incident at Rock Bottom.
At the close of the evidence, the jury found Defendant guilty on all eight counts.
The trial court sentenced Defendant as a prior and persistent offender to five life
sentences, two without the possibility of parole, and three twenty-year sentences.
Doc. 6-7 at 2–3. Mann appealed his convictions to the Missouri Court of Appeals, which
affirmed. State v. Mann, 347 S.W.3d 615 (Mo. App. E.D. 2011). Mann appealed to the
Missouri Supreme Court, but the Court denied transfer. Doc. 1, 11. Mann filed a Missouri Rule
29.15 post-conviction relief motion, which the motion court denied without an evidentiary
hearing. Doc. 6-17 at 2. He appealed this decision, and the Missouri Court of Appeals affirmed
the motion court’s denial of post-conviction relief on the merits. Id. Mann now seeks habeas
corpus relief in this Court pursuant to 28 U.S.C. § 2254.

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II.

Standard
“A state prisoner who believes that he is incarcerated in violation of the Constitution or

laws of the United States may file a petition for writ of habeas corpus in federal court pursuant to
28 U.S.C. § 2254.” Osborne v. Purkett, 411 F.3d 911, 914 (8th Cir. 2005). Federal habeas
review exists only “as ‘a guard against extreme malfunctions in the state criminal justice
systems, not a substitute for ordinary error correction through appeal.’” Woods v. Donald, 575
U.S. 312, 315 (2015) (per curiam) (quoting Harrington v. Richter, 562 U.S. 86, 102-03 (2011)).
Accordingly, “[i]n the habeas setting, a federal court is bound by the AEDPA [the Antiterrorism
and Effective Death Penalty Act] to exercise only limited and deferential review of underlying
state court decisions.” Lomholt v. Iowa, 327 F.3d 748, 751 (8th Cir. 2003) (citing 28 U.S.C. §
2254). For a federal court to grant an application for a writ of habeas corpus brought by a person
in custody by order of a state court, the petitioner must show that the state court’s adjudication
on the merits:
(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). A determination of a factual issue made by a state court is presumed
to be correct unless the petitioner successfully rebuts the presumption of correctness by clear and
convincing evidence. Id. at § 2254(e)(1).
A state court’s decision is “contrary to” clearly-established Supreme Court precedent “if
the state court either ‘applies a rule that contradicts the governing law set forth in [Supreme
Court] cases’ or ‘confronts a set of facts that are materially indistinguishable from a decision of
[the] Court and nevertheless arrives at a result different from [the] precedent.’” Penry v.
Johnson, 532 U.S. 782, 792 (2001) (citing Williams v. Taylor, 529 U.S. 362, 405–406 (2000)).
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An unreasonable application of clearly established Supreme Court precedent occurs where the
state court identifies the correct governing legal principle but unreasonably applies that principle
to the facts of the case. Ryan v. Clarke, 387 F.3d 785, 790 (8th Cir. 2004). Finally, a state court
decision may be considered an unreasonable determination of the facts “only if it is shown that
the state court’s presumptively correct factual findings do not enjoy support in the record.” Id.
III.

Discussion
Mann asserts four grounds for relief in his habeas petition. Docs. 1, 11. In his first

ground, Mann claims that the trial court erred in precluding him from introducing evidence
regarding the absence of the victims’ blood and DNA on his clothing and shoes. Id. In his
second ground, which he combines with the first ground in his petition, Mann claims that the
trial court erred by excluding evidence and argument about a third party’s involvement in the
offense. Id. In his third ground, he claims that the trial court erred by failing to exclude
evidence of an eyewitness identification at a lineup the police conducted without his counsel
present. Id. In his fourth ground, Mann claims that the trial court erred by failing to exclude
evidence of a witness’s prior statement that the State did not disclose before trial. Id.
A.

Ground one

Mann challenges the trial court’s decision to exclude evidence that his clothing and shoes
did not have the victims’ blood or DNA on them. Id. Mann argued on direct appeal that the trial
court’s decision violated his due process right to “a meaningful opportunity to present a complete
defense.” Crane v. Kentucky, 476 U.S. 683, 688 (1986). The Missouri Court of Appeals denied
his claim, explaining that Mann had not shown that the evidence was logically and legally
relevant and observing that “the due process clause . . . does not require the admission of
irrelevant evidence.” Doc. 6-7 at 7 (citing State v. Boyd, 143 S.W.3d 36, 40 (Mo. App. W.D.

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2004)); see also U.S. v. Scheffer, 523 U.S. 303, 309 (1998) (“[S]tate and federal rulemakers have
broad latitude under the Constitution to establish rules excluding evidence from criminal trials.
Such rules do not abridge an accused’s right to present a defense so long as they are not
‘arbitrary’ or ‘disproportionate to the purposes they are designed to serve.’” (internal citations
omitted)). As a threshold matter, the Court finds that the Missouri Court of Appeals adjudicated
Mann’s claim “on the merits” within the meaning of § 2254(d). See Johnson v. Williams, 568
U.S. 289, 301 (2013).
Because the Court of Appeals adjudicated his claim on the merits, Mann cannot obtain
habeas relief under § 2254(a) unless the decision was either “contrary to, or involved an
unreasonable application of, clearly established Federal law” under § 2254(d)(1), or “was based
on an unreasonable determination of the facts in light of the evidence presented in the State court
proceeding” under § 2254(d)(2). Mann argues that the Court of Appeals’ ruling “was based on
an unreasonable determination of the facts” under § 2254(d)(2) because “the circumstances of
the crime would logically suggest that the killers would have blood on them.” Doc. 7 at 19–20.
The Court disagrees.
The Court of Appeals affirmed the trial court’s exclusion of the evidence because Mann
failed to establish its relevance to the case during his offer of proof. Doc. 6-7 at 7–8. In
Missouri, evidence must be logically and legally relevant to be admissible: “[e]vidence is
logically relevant if it tends to make the existence of any fact more or less probable than it would
be without the evidence, or if it tends to corroborate evidence which itself is relevant and bears
on the principal of the case,” and “[e]vidence is legally relevant if its probative value outweighs
its cost⸺prejudice, confusion of issues, misleading the jury, undue delay, waste of time or
cumulativeness.” State v. Barriner, 111 S.W.3d 396, 400-01 (Mo. banc 2003).

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During his offer of proof, Mann demonstrated that there was blood on the filing cabinets,
desk area, and floor near the bodies of two of the victims but that Mann’s clothing had no blood
or DNA from the victims on it. Doc. 6-7 at 8. Mann claimed that the absence of the victims’
blood or DNA on his pants and shoes was relevant because if he had committed the crime, his
clothing would have had traces of the victims’ blood or DNA. Id. But the video evidence on the
record indicated that the man in the camouflage jacket did not enter the room where the
photographs depicted blood on the floor. Doc. 6-6 at 26–33. Mann also failed to present
evidence to the trial court that the perpetrator in the video must have had the victims’ DNA and
blood on his clothes based solely on his proximity to the victims. Doc. 6-7 at 8. The Court of
Appeals concluded that the trial court did not abuse its discretion because Mann had not shown
that “given the proximity to the shooter and the victims, the shooter would have the victims’
DNA and blood on his clothes.” Id.
The factual findings of the Court of Appeals are “presumptively correct” and they also
“enjoy support in the record.” See Ryan, 387 F.3d at 790. Nothing in Mann’s petition or the
state-court records suggests that the Court of Appeals’ ruling was “based on an unreasonable
determination of the facts.” See § 2254(d)(2). Accordingly, the Court denies the first ground in
Mann’s petition for habeas relief.
B.

Ground two

Mann challenges the trial court’s decision to exclude evidence of Timothy Boykins’s
involvement in the offense. Docs 1, 11. Mann wished to present this evidence of third-party
guilt to demonstrate that Boykins committed the crime, as well as diminish the reliability of the
eyewitness identification in the case. Id.; Doc. 6-7 at 20–21. Again, Mann argued in his direct

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appeal that the trial court’s exclusion of this evidence deprived him of “a meaningful opportunity
to present a complete defense.” Crane, 476 U.S. at 688.
The Missouri Court of Appeals did not directly address the constitutional issue here, but
it denied Mann’s claim of error because under Missouri law, evidence of another person’s
opportunity or motive to commit the crime is not admissible “without proof that such other
person committed some act directly connecting him with the crime.” Doc. 6-7 at 9–10 (citing
State v. Allen, 684 S.W.2d 417, 423 (Mo. App. E.D. 1984)). The Court finds that the Court of
Appeals adjudicated Mann’s claim on the merits, so the limits in § 2254(d) apply. See Johnson,
568 U.S. at 301 (“When a state court rejects a federal claim without expressly addressing that
claim, a federal habeas court must presume that the federal claim was adjudicated on the
merits—but that presumption can in some limited circumstances be rebutted.”); Richter, 562
U.S. at 99 (“When a federal claim has been presented to a state court and the state court has
denied relief, it may be presumed that the state court adjudicated the claim on the merits in the
absence of any indication or state-law procedural principles to the contrary.”).
Mann asserts that the Court of Appeals’ ruling was “contrary to . . . clearly established
Federal law,” citing Holmes v. South Carolina, 547 U.S. 319 (2006). Doc. 7 at 22. In Holmes,
the Supreme Court held that a state evidentiary rule that excluded evidence of third-party guilt
based solely on the strength of the prosecution’s case against the defendant was an
unconstitutional exclusion of exculpatory evidence under Crane, 476 U.S. at 688. See Holmes,
547 U.S. at 331 (“[T]he State Supreme Court applied the rule that ‘where there is strong
evidence of [a defendant’s] guilt, especially where there is strong forensic evidence, the
proffered evidence about a third party’s alleged guilt’ may (or perhaps must) be excluded.”).

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Mann wished to present evidence of Boykins’s participation in the lineup, Boykins’s
physical description, and gloves with Boykins’s DNA on them found in the white Malibu. Doc.
1, 11. According to Mann, this evidence would show that Boykins was the shooter in the
camouflage jacket and would diminish the reliability of the eyewitness identification because the
witness identified Mann at the lineup but did not identify Boykins. Id.; Doc. 6-7 at 20-21. The
Missouri Court of Appeals found that Mann’s evidence was inadmissible under Missouri’s rule
on evidence of third-party guilt:
Defendant acknowledges that “[e]vidence that another person has an opportunity
or motive for committing the crime for which the defendant is being tried is not
admissible without proof that such other person committed some act directly
connecting him with the crime.” State v. Allen, 684 S.W.2d 417, 423 (Mo. App.
E.D. 1984) (quoting State v. Easley, 662 S.W.2d 248, 251-52 (Mo. Banc 1983));
see also State v. Nash, 339 S.W.3d 500, 513 (Mo. banc 2011). Defendant, however,
claims that his proposed evidence was admissible because “it was reasonable for
[a] juror to believe [Mr. Boykins] was involved in this case because there were
three robbers, . . . gloves found in the car had [Mr. Boykin’s] DNA in them, and he
was put in a lineup.” We disagree. The excluded evidence was insufficient to place
Mr. Boykins at Rock Bottom at the time of the shooting, and thus, it did not
“directly connect” Mr. Boykins with the crime. See, E.g., State v. Lloyd, 205
S.W.3d 893. 903 (Mo. App. S.D. 2006). Accordingly, the evidence of Mr. Boykins
was not admissible to show that he, and not Defendant, was the shooter, and
therefore, the trial court did not abuse its discretion in excluding evidence regarding
Mr. Boykins.
Doc. 6-7 at 9–10. Unlike the state court in Holmes, the Missouri Court of Appeals did not
exclude Mann’s evidence based on the strength of the prosecution’s case but because the
evidence did not “directly connect” Boykins with the crime. See id.
The Supreme Court observed in Holmes that rules limiting evidence of third-party
guilt “where it does not sufficiently connect the other person to the crime, as, for example,
where the evidence is speculative or remote” are “widely accepted” and were not at issue
in that case. Holmes, 547 U.S. at 327 (citing with approval Missouri’s third-party guilt
rule in State v. Chaney, 967 S.W.2d 47, 55 (Mo. 1998) (en banc)). In addition, the Eighth

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Circuit has since held that Missouri’s particular evidentiary rule is constitutional under
Holmes. Helmig v. Kemna, 461 F.3d 960, 966 n.3 (8th Cir. 2006) (“Helmig argues that the
Missouri evidentiary rule limiting evidence of third-party guilt is unconstitutional under
the Supreme Court's recent decision in Holmes v. South Carolina. We disagree. The Court
explicitly noted that Missouri’s rule is “widely accepted” and was not challenged in
Holmes.” (citations omitted)).
A state court’s decision is “contrary to” clearly established Supreme Court precedent “if
the state court either ‘applies a rule that contradicts the governing law set forth in [Supreme
Court] cases’ or ‘confronts a set of facts that are materially indistinguishable from a decision of
[the] Court and nevertheless arrives at a result different from [the] precedent.’” Penry, 532 U.S.
at 792. The Missouri Court of Appeals did neither. It applied Missouri’s rule restricting
evidence of third-party guilt because Mann’s evidence did not “directly connect” Boykins to the
crime. Doc. 6-7 at 10. And unlike the state court in Holmes, the Missouri Court of Appeals did
not rely on the weight of the prosecution’s evidence against Mann but only considered whether
the evidence on Boykins sufficiently tied him to the crime. See id. The Court holds that the
Court of Appeals’ decision was not “contrary to . . . clearly established Federal law.” See §
2254(d). Accordingly, the Court denies the second ground in Mann’s petition.
C.

Ground three

Mann argues that the trial court erred by failing to exclude Vidyasagar Gado’s testimony
at trial identifying Mann as the shooter in the camouflage jacket. Docs. 1, 11. Mann claims that
admission of Gado’s eyewitness identification violated his Sixth Amendment right to counsel
because Mann’s attorney was not present during the initial police lineup. Id.; see United States
v. Wade, 388 U.S. 218, 236-37 (1967). Mann raised this claim in his direct appeal, but the Court

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of Appeals did not address the claim on its merits because Mann had not adequately preserved
his claim for appellate review by failing to object to the evidence at trial. Doc. 6-7 at 6 (citing
State v. Pennington, 618 S.W.2d 614, 620 (Mo. 1981) and State v. Valentine, 584 S.W.2d 92, 97
(Mo. banc 1979)). The Court of Appeals expressly declined to review Mann’s claim for plain
error. Id.
The Court finds this ground for relief procedurally barred because Mann failed to
preserve the claim for review in the Missouri Court of Appeals. To preserve a claim for federal
habeas review, a state prisoner must present that claim to the state court and allow that court the
opportunity to address the claim. Moore-El v. Luebbers, 446 F.3d 890, 896 (8th Cir. 2006)
(citing Coleman v. Thompson, 501 U.S. 722, 731-32 (1991)). “Where a petitioner fails to follow
applicable state procedural rules, any claims not properly raised before the state court are
procedurally defaulted.” Id. The federal habeas court will consider a procedurally defaulted
claim only “where the petitioner can establish either cause for the default and actual prejudice, or
that the default will result in a fundamental miscarriage of justice.” Id. (citing Sawyer v.
Whitley, 505 U.S. 333, 338-39 (1992) and Abdullah v. Groose, 75 F.3d 408, 411 (8th Cir. 1996)
(en banc)). The procedural-default doctrine and its attendant cause and prejudice standard are
grounded in concerns of comity and federalism, and they apply alike whether the default in
question occurred at trial, on appeal, or on state collateral attack. See Murray v. Carrier, 477
U.S. 478, 490–92 (1986).
To demonstrate cause, a petitioner must show that “some objective factor external to the
defense impeded [the petitioner’s] efforts to comply with the State’s procedural rule.” Murray,
477 U.S. at 488. To establish prejudice, a petitioner must demonstrate that the claimed errors
“worked to his actual and substantial disadvantage, infecting his entire trial with error of

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constitutional dimensions.” United States v. Frady, 456 U.S. 152, 170 (1982). Lastly, in order
to assert the fundamental miscarriage of justice exception, a petitioner must “present new
evidence that affirmatively demonstrates that he is innocent of the crime for which he was
convicted.” Murphy v. King, 652 F.3d 845, 850 (8th Cir. 2011) (quoting Abdi v. Hatch, 450 F.3d
334, 338 (8th Cir. 2006)).
Mann argues that the Court should “be guided by the Eighth Circuit’s pronouncement
related to plain error review” in Bannister v. Armontrout, 4 F.3d 1434, 1445 (8th Cir. 1993)
(finding petitioner’s claim was not procedurally barred because plain-error review by the state
appellate court waived the procedural default). Doc. 7 at 23. Mann’s argument is unpersuasive
on two counts. First, the Court of Appeals declined to review Mann’s claim for plain error:
Although Defendant generally requests plain error review in the event his point is
unpreserved, he does not provide any support for an argument that the trial court’s
admission of Mr. Gado’s testimony was evident, obvious, and clear error resulting
in either a manifest injustice or a miscarriage of justice. See State v. Solis, 87
S.W.3d 44, 48 (Mo.App.W.D. 2002). We, therefore, decline to review for plain
error.
Doc. 6-7 at 6. Because the Court of Appeals never addressed the merits of Mann’s claim under
plain error, Bannister does not help Mann. See Bannister, 4 F.3d at 1445.
As importantly, even had the Court of Appeals conducted plain-error review, Bannister
lacks any precedential value. Clark v. Bertsch, 780 F.3d 873, 876-77 (8th Cir. 2015). Clark
determined that the rule in Hayes v. Lockhart, 766 F.2d 1247, 1253 (8th Cir. 1985) governs. See
id. Hayes held that a state’s discretionary plain-error review did not cure a procedural default, so
a federal court may only review defaulted claims upon a showing of cause and prejudice. 766
F.2d at 1253; Clark, 780 F.3d at 77; see also Waites v. Wallace, 2015 WL 4429754, at *3 (E.D.
Mo. 2015) (procedurally-defaulted claims that undergo plain error review by the state appellate
courts are now “unreviewable, absent cause and prejudice” (citing Clark, 780 F.3d at 876)).

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Even if the Court of Appeals had reviewed Mann’s claim for plain error, the Court still could not
review Mann’s procedurally-defaulted claim unless Mann showed cause and prejudice.
Mann presents no argument to excuse his procedural default, and the record contains no
indication that he can show the requisite prejudice to overcome a procedural bar, or that he is
actually innocent, so his claim is procedurally barred. See Cagle v. Norris, 474 F.3d 1090, 1099
(8th Cir. 2007) (because Petitioner failed to establish cause to excuse his procedural default, the
district court need not consider whether prejudice had been shown); see also Abdi, 450 F.3d at
338 (where Petitioner failed to present new evidence of actual innocence, the refusal to entertain
his procedurally defaulted claims will not result in a fundamental miscarriage of justice).
Accordingly, the Court denies the third ground in Mann’s petition.
C.

Ground four

Finally, Mann argues that the trial court erred by failing to exclude evidence of Senobia
Cross’s oral statement prior to trial that Mann was wearing the same camouflage jacket as the
shooter in the surveillance video. Docs. 1, 11. Cross testified at trial, claiming that she did not
remember what Mann was wearing on May 12, 2008. Doc. 6-5 at 61. She admitted that she told
police in a taped statement that Mann was wearing a camouflage jacket but explained to the jury
that the police had told her what to say. Id. The State impeached Cross through Detective
Donald Williams, who testified that Cross told him and the prosecutor in a second interview that
Mann was wearing the same camouflage jacket as the one that appears in the surveillance video
of the shooting. Id. at 61-62. Mann now claims that the State’s failure to disclose Cross’s
statement before trial violated his right to present a complete defense under the Sixth and
Fourteenth Amendments. Id.; Doc. 7 at 25–26.

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Mann cited the Fourth, Fifth and Fourteenth Amendments in his brief on direct appeal,
but he only argued a Brady challenge in his analysis. Doc. 6-5 at 60-62; see also Brady v.
Maryland, 373 U.S. 83 (1963). The Missouri Court of Appeals first held that the State had no
duty to disclose Cross’s oral statement under Missouri Supreme Court Rule 25.03 because Rule
25.03(A)(1) only required the prosecution to disclose “written or recorded statements” from
witnesses. Doc. 6-7 at 10–11. The Court of Appeals then briefly addressed Mann’s
constitutional claims:
We note that Defendant also states . . . that the trial court’s admission of evidence
of Ms. Cross’s statements violated his rights to due process, to present a defense,
and to a fair trial. In his argument, Defendant asserts that under Brady v. Maryland,
373 U.S. 83, 87 (1963), “[t]he Fifth and Fourteenth Amendments entitle a criminal
defendant to obtain material evidence relating to either guilt or punishment.”
Defendant’s reliance on Brady is flawed because to establish a Brady violation, a
defendant must first establish that the evidence at issue was favorable to the
defendant. State ex rel. Engel v. Dormire, 304 S.W.3d 120, 127 (Mo. banc 2010).
Ms. Cross’s statement to the prosecutor was harmful, not favorable, to Defendant.
Doc. 6-7 at 11. The Court finds that the Court of Appeals adjudicated Mann’s claim on the
merits, so the limits in § 2254(d) apply. See Johnson, 568 U.S. at 301.
As described above, § 2254(a) provides relief to state prisoners only for violation of the
Constitution, laws or treaties of the United States. Therefore, the Court addresses only Mann’s
claim that the State’s alleged discovery violation denied him his constitutional rights. The Court
will not address Mann’s state-law claim that the State violated Missouri Supreme Court Rule
25.03(A)(1) by not disclosing Cross’s oral statement before trial.
Mann does not revive his Brady claim in his habeas petition, instead simply arguing that
“[t]he impact of the nondisclosure of the statement denied petitioner his Sixth and Fourteenth
Amendment rights to present a complete defense to the charge.” Doc. 7 at 26. Because the
Court of Appeals adjudicated his constitutional claims on the merits, Mann cannot obtain habeas

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relief under § 2254 unless the decision was either “contrary to, or involved an unreasonable
application of, clearly established Federal law” or “was based on an unreasonable determination
of the facts in light of the evidence presented in the State court proceeding.” See § 2254(d).
Mann does not specify how the Court of Appeals’ ruling was “contrary to, or involved an
unreasonable application of, clearly established Federal law.” See id. He alleges that if the State
had disclosed Cross’s statement before trial, he could have more fully developed his crossexamination of her. Doc. 7 at 26. Mann broadly claims that the State’s actions deprived him of
his Sixth and Fourteenth Amendment right “to present a complete defense,” presumably
referring to Crane, 476 U.S. at 690 (“[T]he Constitution guarantees criminal defendants ‘a
meaningful opportunity to present a complete defense.’” (emphasis added)) and California v.
Trombetta, 467 U.S. 479, 485 (1984) (“Under the Due Process Clause of the Fourteenth
Amendment, criminal prosecutions must comport with prevailing notions of fundamental
fairness. We have long interpreted this standard of fairness to require that criminal defendants be
afforded a meaningful opportunity to present a complete defense.” (emphasis added)). But these
cases are inapposite; neither Crane nor Trombetta decided constitutional claims related to the
State’s late disclosure of inculpatory evidence.
In Crane, the Supreme Court held that a state court’s exclusion of exculpatory evidence
at trial deprived the defendant of his fundamental constitutional right to “a meaningful
opportunity to present a complete defense.” Crane, 476 U.S. at 690. Specifically, the Court held
that the trial court’s exclusion of evidence about the coercive circumstances of the defendant’s
confession deprived him of a fair opportunity to present a defense—whether under the Due
Process Clause of the Fourteenth Amendment or under the Compulsory Process or Confrontation
Clauses of the Sixth Amendment. Id.

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And in Trombetta, the Supreme Court addressed the scope of the government’s duty to
“take affirmative steps to preserve evidence on behalf of criminal defendants.” Trombetta, 467
U.S. at 486. The Court held that the State had no constitutional duty to preserve breathalyzer
samples to introduce the results of breath-analysis tests at trial. Id. at 491. The Court observed
that it “has developed ‘what might loosely be called the area of constitutionally guaranteed
access to evidence’” under the Fourteenth Amendment Due Process Clause. Id. at 485 (quoting
United States v. Valenzuela–Bernal, 458 U.S. 858, 867 (1982)). The Court continued: “Taken
together, this group of constitutional privileges delivers exculpatory evidence into the hands of
the accused, thereby protecting the innocent from erroneous conviction and ensuring the integrity
of our criminal justice system.” Id. (emphasis added). The Court also noted that it previously
had “rejected the notion that a ‘prosecutor has a constitutional duty routinely to deliver his entire
file to defense counsel.’” Id. at 488 n.8 (quoting U.S. v. Agurs, 427 U.S. 97, 111 (1976)).
The State’s failure to disclose inculpatory evidence did not violate Mann’s clearlyestablished constitutional rights. Under Brady and its progeny, the government need not disclose
inculpatory evidence to the defendant before trial. See United States v. Miller, 698 F.3d 699, 704
(8th Cir. 2012) (“Brady is not a discovery rule, but a rule of fairness and minimum prosecutorial
obligation.”); United States v. Roach, 28 F.3d 729, 734 (8th Cir. 1994); United States v. Krauth,
769 F.2d 473, 476 (8th Cir. 1985). Brady requires the government “only to disclose evidence
favorable to the accused that, if suppressed, would deprive the defendant of a fair trial.” U.S. v.
Bagley, 473 U.S. 667, 675 (1985). Further, “[a]n interpretation of Brady to create a broad,
constitutionally required right of discovery ‘would entirely alter the character and balance of our
present systems of criminal justice.’” Id. at 675 n.7 (quoting Giles v. Maryland, 386 U.S. 66,
117 (1967) (dissenting opinion)).

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Further, the Sixth Amendment Confrontation Clause only “guarantees an opportunity for
effective cross-examination, not cross examination that is effective in whatever way, and to
whatever extent, the defense might wish.” Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986)
(emphasis in original) (quoting Delaware v. Fensterer, 474 U.S. 15, 20 (1985) (per curiam)).
Mann’s inability to prepare for the State’s impeachment of Cross did not deprive him of his Sixth
Amendment rights under the Confrontation Clause either.
The Missouri Court of Appeals’ ruling on Mann’s claim was not “contrary to,” nor did it
involve an “unreasonable application” of, clearly-established law as defined by the Supreme
Court, therefore it receives deference. See § 2254(d)(1). Cross’s statement was not exculpatory
evidence that the State would have to disclose under Brady, nor did the Court’s decisions in
Crane or Trombetta clearly establish a defendant’s constitutional right to access inculpatory
evidence before trial. Accordingly, the Court denies the fourth ground in Mann’s petition.
IV.

Certificate of Appealability
The Court finds Mann has not made a substantial showing of the denial of a

constitutional right, as is required before a certificate of appealability can issue. 28 U.S.C. §
2253(c); see also Cox v. Norris, 133 F.3d 565, 569 (8th Cir. 1997) (explaining that a “substantial
showing” is a showing the “issues are debatable among reasonable jurists, a court could resolve
the issues differently, or the issues deserve further proceedings”). Therefore, the Court will not
issue a certificate of appealability as to any claims raised in Mann’s § 2254 petition.
V.

Conclusion
The Court denies Petitioner Brian Mann’s petition under 28 U.S.C. § 2254 for Writ of

Habeas Corpus by a Person in State Custody. Doc. 1, 11. The Court denies Mann’s [11] petition
with prejudice. The Court will not issue a certificate of appealability.

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So Ordered this 25th day of March, 2021.

STEPHEN R. CLARK
UNITED STATES DISTRICT JUDGE

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