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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
m 00-31359
_______________
DOUGLAS A. DILOSA,
Petitioner-Appellee,
VERSUS
BURL CAIN,
WARDEN, LOUISIANA STATE PENITENTIARY,
Respondent-Appellant.
_________________________
Appeal from the United States District Court
for the Eastern District of Louisiana
_________________________
January 9, 2002
Before JONES, SMITH, and DEMOSS,
wife was found, strangled, on a bed bound
Circuit Judges.
with the same rope used to bind DiLosa. The
condominium had been ransacked with the
JERRY E. SMITH, Circuit Judge:
exception of the son's room. DiLosa told the
police he awakened around 3:30 a.m. to noises
The State of Louisiana, through its warden,
downstairs. When he investigated, he discov-
appeals a judgment granting habeas corpus rel-
ered two black male intruders. DiLosa claims
ief to Douglas DiLosa regarding his murder
they beat him unconscious, and the next he
conviction. Finding no error, we affirm.
knew he roused from this beating bound and
on the floor with the house in shambles. He
I.
called out to his son, whom he instructed to
One day in 1986, police received a 911 call
call 911. Only after reaching the hospital was
from the DiLosa household and discovered
DiLosa told of his wife's death.
DiLosa tied up on the living room floor; his

II.
presence of hair of unknown type on the rope
In time, DiLosa was arrested based on evi-
around DiLosa's wife's neck and on the bed
dence contradicting his version of the events.
where her body was discovered. Additional
Investigators also had discovered possible mo-
evidence related to the presence of fingerprints
tive evidenceSSDiLosa was out of work, his
in the condo that could not be positively
unemployment benefits were about to run out,
identified. There was also evidence of another
a large payment was near due on the condo,
attempted break-in at a nearby condo.
and his wife's life was insured for a substantial
sum.
On remand, the trial court determined there
had been no Brady violation, because the un-
The prosecution's argument at trial focused
disclosed evidence did not "create a reasonable
on the absence of evidence of any other
possibility of a different result." This
perpetrator. The prosecution emphasized the
determination was affirmed by an appellate
lack of any physical evidence of a black
court and the Louisiana Supreme Court.
intruder in the DiLosa household, noting, in
DiLosa next filed a pro se 28 U.S.C. � 2254
closing argument, "There was not one, not one
petition, raising claims in addition to the al-
shred of black hair found in that residence."
leged Brady violation. A magistrate judge
("MJ") recommended relief on the Brady claim
The state also drew attention to the want of
and on additional errors raised by DiLosa that
any evidence of intruders in the surrounding
are not relevant to this appeal. The district
neighborhood. Again, this point was stressed
court sustained an objection to these additional
during closing argument: "Did you hear any
claims but granted DiLosa's petition on the
evidence about any other houses that were hit
Brady violation. The state appeals.1
that night?"
III.
Although some of the evidence was dis-
Our consideration of DiLosa's appeal is
puted at trial, DiLosa was convicted of
constrained by the highly deferential
murder. An intermediate appellate court
framework of the Antiterrorism and Effective
affirmed his conviction, and the Louisiana
Death Penalty Act ("AEDPA"), under which
Supreme Court refused his petition for writ for
the burden is on the habeas petitioner to
certiorari.
demonstrate that the state court decision "was
contrary to, or involved an unreasonable
DiLosa filed a first application for post-
application of, clearly established Federal law,
conviction relief, which was denied. In his
as determined by the Supreme Court of the
second application, he argued that the state
United States." 28 U.S.C. � 2254(d)(1).2
had violated Brady v. Maryland, 373 U.S. 83
(1963), by failing to turn over material
evidence. When this claim reached the
1 No certificate of appealability is required, be-
Louisiana Supreme Court, it ordered a hearing
cause the state is the appellant. FED. R. APP. P.
to determine whether DiLosa'a Brady claim
22(b)(3).
was based on facts not disclosed.
2 Because a Brady claim involves a mixed ques-
The evidence in question related to the
tion of law and fact, � 2254(d)(1) applies instead
(continued...)
2

AEDPA affords two avenues of relief for a
IV.
habeas petitioner in federal court: He must
A.
show that the state court construction was
DiLosa's habeas petition was granted based
either "contrary to" federal law or an
on the due process protections afforded a de-
"unreaso nable application" of it. To be
fendant under Brady's interpretation of the
"contrary to" federal law, the state court must
Fifth Amendment. Brady requires the state to
apply a rule that contradicts a rule laid down
"disclose evidence favorable to the accused
by the Supreme Court. Williams v. Taylor,
that, if suppressed, would deprive the
529 U.S. 363, 405 (2000).
defendant of a fair trial." United States v.
Bagley. 473 U.S. 667, 675 (1985).
A second avenue of relief is available where
the state court unreasonably applies federal
Under Brady, to establish that the state has
law. This inquiry involves asking "whether the
breached this duty, the defendant must show
state court's interpretation of clearly
that (1) the state withheld evidence, (2) the
established federal law was objectively
evidence is favorable to the accused, and
unreasonable." Id. Some of our recent cases
(3) the evidence is material to guilt or pun-
have fleshed out the meaning of "objectively
ishment. Bagley, 473 U.S. at 674. This duty
unreasonable."
extends to both exculpatory and impeachment
evidence. Id. at 676. Our inquiry here is nar-
To be unreasonable, the state court
row. Both parties agreeSSonly the third prong
application of federal law must be something
is at issue.
more than merely erroneous. Martin v. Cain,
246 F.3d 471, 476 (5th Cir.), cert. denied, 515
The Supreme Court has imposed four cri-
U.S. 1105 (2001). Our role under this inquiry
teria for determining whether evidence is
is not to determine whether the state court's
material. First, materiality does not require the
construction of federal law was merely wrong,
defendant to demonstrate by a preponderance
but whether it was wrong to the point of being
of the evidence that omitted evidence would
unreasonable.
have resulted in acquittal. Second, he need
not weigh the withheld evidence against the
We also have focused the subject of this in-
disclosed evidence to show he would have
quiry on the state court's ultimate conclusion,
been acquitted by the resulting totality. Third,
not on its reasoning process. Santellan v.
if evidence is found material, there is no need
Cockrell, 271 F.3d 190, 193 (5th Cir. 2001).
to conduct a harmless error analysis. Fourth,
We thus are faced with the questions of
the withheld evidence should be considered as
whether the Louisiana state court misapplied a
a whole, not item-by-item. Kyles v. Whitley,
federal standard and whether the state court's
514 U.S. 419, 434-37 (1995). The sum of
decision that DiLosa did not state a viable
these four guideposts means that to show a
Brady claim is an unreasonable legal
due process violation when the state withholds
conclusion.
evidence, a defendant need not prove that his
trial necessarily would have had a different
outcome; a lack of faith in the result is
2(...continued)
sufficient.
of � 2254(d)(2). Trevino v. Johnson, 168 F.3d
173, 184 (5th Cir. 1999).
3

B.
son testified to the absence of these marks the
The withheld evidence was contained in a
day before the murder.
supplemental police report and grand jury tes-
timony. There were four main categories of
A final piece of withheld evidence
withheld evidence. The first consisted of ref-
concerned statements by a taxi driver who was
erences to the presence of possibly non-cauca-
in the neighborhood in the early morning after
sian hair samples.
the murder. He stated he had seen two black
men exit the condo complex at 5:45 a.m. He
One of the detectives observed what he de-
also noted the driver, who looked "tense,"
scribed as "Negroid type hair" on the bed next
facing straight ahead, gripping the steering
to the victim's body. Warren, a forensic biolo-
wheel and driving very slowly.
gist, had advised one of the investigators that
"a hair of unknown origin, definitely not Cau-
V.
casian head or pubic hair was found on the
The state court exceeded the bounds of
rope around the victim's neck." Warren also
permissible application of federal law in two
had tested two hair strands from tape on the
distinct ways. First, it applied an incorrect le-
window where a pane of glass had been
gal principle in concluding there was no
removed. One of these was "animalistic or
material evidence for Brady purposes.
Negroid hair" that "had more animalistic
Second, its ultimate legal conclusion cannot be
characteristics."
squared with the command of Brady and its
progeny. The state court's legal conclusion
A second category of withheld evidence
was objectively unreasonable.
concerned fingerprint testing. The withheld
report refers to prints, found on the inside of a
A.
drawer, that could not be identified. The re-
One way a state court contravenes its duty
port also mentions partial fingerprints
to follow federal law is to fail to apply the
discovered on a pane of glass.
proper legal standard as announced by the Su-
preme Court. 28 U.S.C. � 2254(d)(1). As the
A third body of evidence related to the tes-
Court has elaborated by example:
timony of those present in a neighboring condo
the night of the murder. One of these
A state-court decision will certainly be
neighbors, Mrs. Warbritton, testified to
contrary to our clearly established
hearing a noise on her patio in the middle of
precedent if the state court applies a rule
the night. She also testified that she saw a
that contradicts the governing law set
shadow of a large dog or person that moved
forth in our cases. Take, for example,
from her sliding glass door to the patio gate
our decision in Strickland v.
and then to the street. There was further
Washington. If a state court were to
testimony, from her son and a friend who were
reject a prisoner's claim of ineffective
staying with her, that they found the patio gate
assistance of counsel on the grounds
open, despite being certain it was closed when
that the prisoner had not established by
they went to bed. One of the investigating
a preponderance of the evidence that the
officers later discovered pry marks on the door
result of his criminal proceeding would
to the Warbritton condo. Warbritton and her
have been different, that decision would
4

be "diametrically different," "opposite in
C.
character or nature," and "mutually
Even aside from the state court's use of a
opposed" to our clearly established
legal rule contrary to Kyles, its ultimate legal
precedent because we held in Strickland
conclusion cannot be reconciled with Brady
that the prisoner need only demonstrate
and Kyles. The most obvious example is the
a "reasonable probability that . . . the re-
state court's handling of two of the pieces of
sult of the proceeding would have been
alleged exculpatory evidence.
different."
Two statements DiLosa claims support his
Williams, 529 U.S. at 405-06 (internal
theory of the case were those made by War-
citations omitted).
britton and her guests and those made by the
taxi driver. The statements of Warbritton and
The state court applied a rule of law
her guests lend credibility to DiLosa's story
contrary to that established by the Supreme
about a robbery by two black men. The
Court. Specifically, the court considered the
statements by the taxi driver are not
sufficiency of the evidence in light of its
necessarily inconsistent with those of the
potential to exculpate DiLosa instead of
Warbritton household or with DiLosa's story.
through the lens of its confidence in the
verdict.
The state court, however, dismissed the
Brady relevance of these statements by finding
B.
them contradictory. We need not delve into
The state court's misstep was its use of an
any possible inconsistency, which is up to the
analysis contrary to Kyles, i.e., incorrectly as-
jury to decide, because, as the MJ found, the
suming that sufficiency of evidence is relevant
statements, in any event, were potentially
for Brady analysis. When discussing the hair
exculpatory and should have been disclosed.
samples, the state court dismissed the potential
The trial court's conclusion is unsettling for
Brady materiality of statements concerning
additional reasons. The hair and fingerprint
possible non-caucasian hair samples, because
evidence, like the evidence of happenings in
the forensic biologist had presented the only
the neighborhood, could have been used to
"reliable evidence."
create reasonable doubt in a state case
premised almost entirely on circumstance.
Implicit in this language is the state court's
evaluation of the existing inculpatory evidence
The state's case was built mostly on the in-
in light of the excluded, and potentially
ferences of motive from the DiLosas' poor fi-
exculpatory, evidence. It is not the role of a
nancial situation and the value of Mrs. Di-
court applying Brady to weigh the existing ev-
Losa's life insurance. The physical evidence
idence against the excluded evidence, but rath-
was based on inferences drawn from the lack
er to ask whether the excluded evidence
of physical evidence of potential intruders.
"could reasonably be taken to put the whole
The witness evidence was premised on what
case in such a different light as to undermine
the neighbors did not see or hear.
confidence in the verdict." Kyles, 514 U.S. at
435.
Indeed, the prosecution presented the case
as a choice between two theories: Either Di-
5

Losa murdered his wife for the life insurance
and covered it up, or there really were two
black intruders. The prosecution then refuted
the latter theory by pointing to the lack of phy-
sical evidence of anyone in the house except
DiLosa and the lack of evidence of intruders in
the neighborhood. The state thus based its
case on the non-existence of evidence it knew
existed.
In light of this, the excluded evidence po-
tentially pointing to intruders in the house, and
the statements of three witnesses pointing to
potential intruders in the neighborhood, leave
us with a definite conviction that the inclusion
of the evidence withheld from DiLosa
reasonably could undermine the confidence of
any reasonable jurist in the conviction. The
state court's legal conclusion to the contrary is
not simply a misconstruction of Brady, but one
serious enough to be unreasonable. We
AFFIRM the judgment and order DiLosa
released if the state does not retry him within
120 days.
6