Fifth Circuit Court Cases - Case Law and Opinions from the 5th Circuit Federal Court - Court of Appeals

	ROMINGER LEGAL
		Fifth Circuit Court of Appeals Opinions - 5th Circuit
					Need Legal Help?
					Need Legal Help?
LEGAL RESEARCH CENTER
LEGAL RESEARCH CENTER			LEGAL HEADLINES - CASE LAW - LEGAL FORMS	NOT FINDING WHAT YOU NEED? -CLICK HERE

This opinion or court case is from the Fifth Circuit Court or Appeals. Search our site for more cases - CLICK HERE

LEGAL RESEARCH

COURT REPORTERS

PRIVATE INVESTIGATORS

PROCESS SERVERS

DOCUMENT RETRIEVERS

EXPERT WITNESSES

Find a Private Investigator

Find an Expert Witness

Find a Process Server

Case Law - save on Lexis / WestLaw.

Legal News - Legal Headlines

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 91-3352
_____________________
LARRY HUDSON,
Petitioner-Appellant,
versus
JOHN P. WHITLEY, Warden,
Louisiana State Penitentiary, Et Al.,
Respondents-Appellees.
_______________________________________________________
Appeal from the United States District Court
for the Eastern District of Louisiana
_______________________________________________________
(December 10, 1992)
Before POLITZ, Chief Judge, WILLIAMS and DUHÉ, Circuit Judges.
PER CURIAM:
Larry Hudson is serving a life sentence in the Louisiana State
Penitentiary as a result of his December 2, 1967, conviction for
first degree murder. Pro se and in forma pauperis, he appeals the
district court's dismissal for abuse of the writ of this successive
federal habeas corpus petition. See Rule 9(b) of the Rules
Governing § 2254 cases. Maintaining his innocence throughout,
Hudson contends that his due process rights under Brady v.
Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), were
violated almost twenty-five years ago by the state's suppression of
crucial evidence favorable to the defense--namely evidence that the
state's only eyewitness, and linchpin of its case, originally

identified someone else as a participant in the armed robbery and
murder, and that person had been arrested.
Contrary to the district court, we conclude that Hudson had
good cause for failure to make his claim earlier. We remand to the
district court for its determination as to prejudice resulting from
his being unable to raise the critical issue earlier. Moreover, we
hold the district court should reconsider its alternative decision
dismissing Hudson's petition on the merits because of later case
developments. We remand for these purposes.
I. FACTS AND PRIOR PROCEEDINGS
In the early morning hours of May 15, 1967, Oscar Meeks, the
manager of a New Orleans service station, was held at gunpoint in
an attempted robbery. Frank Wilson, his assistant and the only
eyewitness, testified that three men entered the small, but well-
lighted office of the station where Meeks and Wilson were working.
One of the three men inquired as to the cost of repairing a flat
tire. When Meeks answered, one of the trio later identified by
Wilson as Hudson, drew a gun and demanded money. Meeks resisted,
and in the melee that followed, Meeks was pushed through the office
door and shot. Wilson testified that at this point he ran from the
office through a side door. He went about a block and a half but
then returned to the station. When he arrived, two of the robbers
had fled, and Meeks, wounded, was holding the other robber, later
2

identified as John Duplessis, at gunpoint. Meeks subsequently died
from the gunshot wound.1
In Hudson's motions filed prior to his 1967 first degree
murder trial, he sought disclosure of, among other things, the
number and identities of any persons arrested in connection with
the crime as well as the identity of any such persons released
after the investigation.2 Further, Hudson filed a "Motion for
Oyer" in which he sought "copies of police report of investigation
made in this case." The state refused to furnish any information
in response to Hudson's motions for bill of particulars as well as
his "Motion for Oyer."3
1 The only other state witness testified that he was walking
in the vicinity and heard some gunshots. However, he did not get
a clear view of the two men who fled the scene.
2 In his motions for bill of particulars, Hudson specifically
inquired:
6.
How many persons were arrested in
connection with the crime charged herein; and
give their names and addresses.
7.
Of the persons who were arrested for this
crime, any released after investigation? If
so, whom?
8.
Were any statements or confessions,
inculpatory or exculpatory, written or oral,
given to the police by any co-defendants that
implicated the defendant, Larry Hudson? If
so, by whom and when?
9.
Disclose herewith any and all evidence
held by the police or the district attorney's
office which may be favorable to the
defendant.
3 The Louisiana Supreme Court ultimately held that the bill
of particulars motions were too broad, seeking state's evidence
which in essence was an attempt at pretrial discovery which, with
3

At trial, the state presented only Wilson's testimony to
identify Hudson as the man who shot Meeks during the attempted
armed robbery. Wilson's alleged identification of Hudson was
contested at trial. During trial, Wilson testified that he had
identified Hudson at pretrial lineup held five days after the
crime. Yet, Officer Clement DeSala testified he was present at the
lineup but that Wilson did not make an identification at that time.
The state failed to disclose to Hudson prior to trial that Wilson
had been unable to pick him out of a live lineup.
Perhaps in an effort to assuage the anticipated damage, the
district attorney, a day before the trial, conducted a photographic
spread before Wilson. The state displayed two photographs to
Wilson, one was of Hudson and the other was of the co-defendant who
was tried with Hudson. There were no photographs of anyone not
implicated in the robbery. At trial, Wilson testified that when
asked if he recognized the men in the photographs, he replied that
he did. Further, Wilson made an in-court identification of Hudson.
Ultimately, Hudson was convicted of first degree murder by a
Louisiana jury and sentenced to death. His death sentence was
later commuted to life imprisonment. In 1969, the Louisiana
the exception of written confessions, generally was not permissible
in Louisiana. State v. Hudson, 253 La. 992, 221 So.2d 484, 491
(1969), cert. dismissed, 403 U.S. 949, 91 S.Ct. 2273, 29 L.Ed.2d
855 (1971). With regard to the "Motion for Oyer," the Court
concurred with the state, citing to the well-defined exception to
the Public Records Act in effect at the time, which exempted police
records from its provisions, as well as to Louisiana jurisprudence
which established as privileged all evidence relating to a pending
criminal trial in the possession of the district attorney or the
police. Id. at 492.
4

Supreme Court affirmed Hudson's conviction. State v. Hudson, 253
La. 992, 221 So. 2d 484, 492 (1969), cert. dismissed, 403 U.S. 949,
91 S.Ct. 2273, 29 L.Ed.2d 855 (1971). Consequently, Hudson began
his attempts at vindication in the state courts. On at least three
occasions, Louisiana courts denied Hudson habeas relief. See,
e.g., State ex rel. Hudson v. Henderson, 262 La. 314, 263 So.2d 48
(1972); State ex rel. Hudson v. Henderson, 294 So.2d 545 (La.
1974); State ex rel. Hudson v. Maggio, 337 So.2d 872 (La. 1976).
After properly exhausting his state remedies, Hudson sought
relief from the federal courts.4 In his first federal habeas
petition, Hudson claimed that he was serving an illegal sentence.
The district court dismissed that action without prejudice on
November 30, 1973. Hudson subsequently filed a notice of appeal
and a request for a certificate of probable cause which was denied.
On March 25, 1974, his appeal was dismissed. In his second habeas
petition, dated November 26, 1974, Hudson raised grounds of illegal
jury composition and denial of the right to confront witnesses. On
April 16, 1975, a United States Magistrate recommended dismissal.
Soon thereafter, the district court denied the relief sought; no
appeal was taken.
4 In its memorandum opinion, the district court set out the
history of Hudson's federal habeas petitions. The state papers
which accompany this case do not contain Hudson's federal habeas
proceedings and Hudson, pro se, does not provide a detailed history
of his previous federal filings in his current habeas petition.
Hudson does, however, adopt the district court's history in his
appellate brief. Further, the state generally agrees that Hudson
has not raised the claim now made in his petition in a previous
petition.
5

On March 24, 1977, Hudson filed his third federal petition for
habeas corpus. He contended the inappropriate use of a
photographic lineup, the prosecutor's knowing use of perjured
testimony, the improper denial by the trial court of a motion to
sever, the improper admission of certain evidence, and the
ineffective assistance of counsel. On December 29, 1977, the
district court adopted the magistrate's recommendation that the
petition be dismissed with prejudice. This Court affirmed the
district court's dismissal. See Hudson v. Blackburn, 601 F.2d 785
(5th Cir. 1979), cert. denied, 444 U.S. 1086, 100 S.Ct. 1046, 62
L.Ed.2d 772 (1980).
We agreed with Hudson's assertion that the photographic
identification procedure employed was impermissibly suggestive
(where a day before trial Wilson was presented with only two
photographs in a photographic spread). We found, however, that
under the "totality of circumstances" present in the case, "there
was no substantial likelihood of misidentification." 601 F.2d at
788. Further, we also found that the conflict in testimony
regarding the lineup (in which Wilson failed to identify Hudson and
then testified otherwise) had a direct bearing on Wilson's
credibility, and was therefore, material evidence. We concluded,
however, that the error was harmless because the jury had been
adequately presented with the conflicting information. Id. at 789.

In 1984, the Louisiana Legislature amended its Public Records
Act, La. Rev. Stat. Ann. § 44:3 A(4), to provide that the initial
report of the investigating police officer or officers is a public
6

record and subject to disclosure regardless of its investigative
content. Subsequently, the effect of the amendment was suspended
by legislative resolution until August 31, 1986. See State v.
McDaniel, 504 So.2d 160, 161 (La. Ct. App. 1987). Pursuant to this
amendment, Hudson obtained copies of the police reports which
showed that Wilson, whose testimony constituted virtually the sole
evidence used to convict Hudson, initially picked a man named Larry
Jones from a photograph display as a participant in the attempted
armed robbery. The report also disclosed that Wilson was unable to
identify Larry Jones as one of the robbers after a physical lineup
was held.5 Subsequently, Hudson once again initiated state post-
conviction proceedings. His state application for relief ended
with the Louisiana Supreme Court's habeas petition denial on May
18, 1990. State ex rel. Hudson v. Butler, 561 So.2d 112 (La.
1990).
5 Although there are two relevant police reports, the
evidence that Hudson asserts is exculpatory is detailed in the
first report prepared by Sgt. Larry Vigurie. According to the
report, on May 15, 1967, the same day as the aborted robbery, a
photographic lineup identification by eyewitness Frank Wilson named
Larry Jones as one of the three robbers. This lineup was prompted
by John Duplessis' statement to the police during the initial
investigation that one of the participants was a male by the name
of Larry Jones. According to the report, the police collected
several photographs of "Larry Joneses" which were then shown to
Wilson who identified one of them as one of the suspects. The
Larry Jones identified was subsequently arrested. At the physical
lineup held the following day, however, Wilson was unable to
identify any of the men as a participant--not even Larry Jones.
Larry Jones was released and no mention was made of this lineup
during any of the proceedings. The Vigurie report further states
that after Meeks' death on May 17, Duplessis recanted his earlier
identification of a Larry Jones and implicated Hudson instead.
7

On January 10, 1991, Hudson filed this, his fourth, federal
habeas petition asserting that his due process rights under Brady
v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196-97, 10 L.Ed.2d
215 (1963),6 were violated by the state's suppression of the
evidence favorable to the defense contained in the police reports.
The district court dismissed Hudson's petition as successive under
Rule 9(b). Employing the abuse of the writ test applicable at the
time of its decision, the district court found that Hudson failed
to establish by a preponderance of the evidence that he had not
abused the writ. See Brown v. Butler, 815 F.2d 1054, 1057 (5th
Cir. 1987) ("[o]nce the 9(b), abuse of the writ, claim has been
raised either by the government or sua sponte, the burden then
shifts to the petitioner to answer the allegation and prove by a
preponderance of evidence that he has not abused the writ"); see
also Jones v. Estelle, 722 F.2d 159, 164 (5th Cir. 1983) (en banc),
cert. denied, 466 U.S. 976, 104 S.Ct. 2356, 80 L.Ed.2d 829 (1984).
The court found that "Hudson [had] ample opportunity
commencing with his first attempt at habeas corpus relief in 1973
to present to this Court the State's failure to provide allegedly
exculpatory information pursuant to the holding in Brady."
6 In Brady, the 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." To establish a Brady violation, the defendant
must prove the following: (1) that the prosecution suppressed
evidence, (2) that the suppressed evidence was favorable to the
accused, and (3) that the suppressed evidence was material either
to guilt or to punishment. United States v. Ellender, 947 F.2d
748, 756 (5th Cir. 1991).
8

According to the court, even "[h]is subsequent obtainment of the
police report pursuant to a legislative amendment [could not] serve
as the basis for the granting of relief in light of the numerous
opportunities provided to him, even without knowledge of this
alleged exculpatory information, to present the underlying issue of
nondisclosure."
Alternatively, the court held that the claim
lacked merit. Specifically, the district court concluded that
although the information regarding Wilson's prior identification of
a suspect in a photographic lineup should have been disclosed to
the defense since it would have had a bearing on Wilson's
credibility and his ability to identify Hudson, the information
failed to overcome the materiality test enunciated in United States
v. Bagley, 473 U.S. 667, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985),7
and, thus would not have changed the outcome of the trial.
To support its reasoning, the district court looked to our
holding in Hudson's third federal habeas petition. Although we
found that the prosecution was under an affirmative duty to
disclose the controversy surrounding the pretrial identification,
we held that this breach of prosecutorial obligation did not
require reversal. Blackburn, 601 F.2d at 789. Relying upon our
finding on the prior nondisclosure issue in the third petition, the
7 The test for materiality is whether there is a "reasonable
probability that, had the evidence been disclosed to the defense,
the result of the proceeding would have been different. A
`reasonable probability' is a probability sufficient to undermine
confidence in the outcome." Bagley, 473 U.S. at 682, 105 S.Ct. at
3383.
9

district court held that reversal was unjustified on the evidence
in this petition.
Thus, the district court dismissed Hudson's fourth petition
with prejudice, holding that it was barred under Rule 9(b)8 and
alternatively, that his claims were meritless. Hudson was granted
a certificate of probable cause and appeals.
II. DISCUSSION
A. Basic Issues
Hudson contends that the district court abused its discretion
in dismissing his petition. He asserts that, contrary to the
court's determination, he could not have brought the Brady claim
earlier since he was unaware of Wilson's identification of and the
arrest of Larry Jones until he obtained a copy of the police
reports in 1988 in connection with a state post-conviction
proceeding.
The district court's decision to dismiss Hudson's petition
under Rule 9(b) lies within its sound discretion, and will be
reversed only for an abuse of that discretion. Schouest v.
8 Rule 9(b) provides that:
A second or succeeding petition may be
dismissed if the judge finds that it fails to
allege new or different grounds for relief and
the prior determination was on the merits, or
if new and different grounds are alleged, the
judge finds that the failure of the petitioner
to assert those grounds in a prior petition
constituted an abuse of the writ.
10

Whitley, 927 F.2d 205, 207 (5th Cir. 1991) (superseding Schouest v.
Smith, 914 F.2d 713 (5th Cir. 1990)).
In 1991, the Supreme Court decided McCleskey v. Zant, 111
S.Ct. 1454, 113 L.Ed.2d 517 (1991), on abuse of the writ which goes
substantially beyond simply requiring proof of a persuasive reason
for earlier failure to raise the issue. In McCleskey, the Court
held that the cause and prejudice test applicable to cases of
procedural default enunciated in Wainwright v. Sykes, 433 U.S. 72,
97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), is applied also "to determine
if there has been an abuse of the writ through inexcusable
neglect." McCleskey, 111 S.Ct. at 1470. Claims raised for the
first time on a second or subsequent habeas petition will be
dismissed as an abuse unless the petitioner can show cause for the
failure to raise the claim in an earlier habeas petition, but the
petitioner is also permitted to show prejudice resulting in a lack
of fundamental fairness in the trial. Nonetheless, even if the
petitioner cannot satisfy the cause and prejudice standard, courts
may still entertain a serial petition to prevent a "fundamental
miscarriage of justice." The "miscarriage of justice" exception
applies only to "extraordinary instances when a constitutional
violation probably has caused the conviction of one innocent of the
crime." Id.
McCleskey is applied retroactively. See Russell v. Collins,
944 F.2d 202, 205 (5th Cir.) (per curiam) (finding that "[a]s [the
McCleskey] standard applies here only to procedure in the habeas
review, retroactive application of the standard is not at issue"
11

and, thus applying McCleskey), cert. denied, __ U.S. __, 112 S.Ct.
30, 115 L.Ed.2d 1112 (1991); Woods v. Whitley, 933 F.2d 321, 323
(5th Cir. 1991) (stating that "[a]lthough this case was decided by
the district court prior to the issuance of McCleskey, the
procedure the court followed and the result it reached comport with
that case").9 We apply the cause and prejudice standard in the
evaluation of this petition by Hudson.
B. Failure to Make Claim Earlier
The state must satisfy its initial burden of pleading an abuse
of the writ. This burden is satisfied if the state notes the
petitioner's prior writ history with clarity and particularity,
identifies claims which appear for the first time in the later
petition, and alleges abuse by the petitioner. To disprove the
state's claim of abuse, the petitioner must show cause for failing
9 Other Courts that have addressed this question have made
comparable determinations as to retroactivity. See, e.g., Harris
v. Vasquez, 949 F.2d 1497, 1512 (9th Cir. 1990) (finding that it
did "not believe the expression of the abuse of the writ standard
announced in McCleskey creates a new rule precluding its
application to pending cases"), cert. denied, __ U.S. __, 112 S.Ct.
1275, 117 L.Ed.2d 501 (1992); Andrews v. Deland, 943 F.2d 1162,
1172 n.7 (10th Cir. 1991) (stating that it would "apply McCleskey
to this case on collateral review, because McCleskey involves a
clarification of a procedural rule, not a change in substantive
law. It may therefore apply retroactively."), cert. denied, __
U.S. __, 112 S.Ct. 1213, 117 L.Ed.2d 451 (1992); United States v.
MacDonald, 778 F.Supp. 1342, 1357 (E.D.N.C. 1991) (holding that
McCleskey represents a "refinement of existing law rather than a
statement of new law" meriting retroactive application), aff'd,
1992 WL 115662 (4th Cir. June 2, 1992) (No. 91-6613). But see
Harris, 949 F.2d at 1541-43 (Reinhardt, J., dissenting) (stating
that
"[t]he
majority's
procedural
ruling
regarding
the
retroactivity of [McCleskey] is just plain wrong. . . . [A] proper
application of [Teague's] criteria would preclude the retroactive
application of [McCleskey]").
12

to raise the claim earlier. To establish cause, the petitioner
must show that some "external impediment, whether it be government
interference or the reasonable unavailability of the factual basis
for the claim, must have prevented petitioner from raising the
claim." In essence, "the question is whether petitioner possessed,
or by reasonable means could have obtained, a sufficient basis to
allege a claim in the first petition and pursue the matter through
the habeas process." McCleskey, 111 S.Ct. at 1472.
The state presents several contentions to bolster its
assertion that Hudson has failed to show justification under
McCleskey for his failure to present the claim earlier.10 Its
primary contention is that Hudson fails to establish cause because
the passage of the 1984 amendment to La. Rev. Stat. Ann. § 44:3 was
irrelevant. The state asserts that the amendment makes available
to a criminal defendant only the initial police reports whereas the
information that Hudson used to formulate his Brady claim is
contained in supplementary reports. Further, the state contends
10 At times, the state appears to mix an abuse of the writ
issue, which involves a claim raised for the first time in a
subsequent petition, with a successive petition issue, which
involves a claim which has been raised and reached on the merits in
an earlier habeas petition. See Sawyer v. Whitley, 945 F.2d 812,
815-16 (5th Cir. 1991), aff'd, 1992 WL 135565 (U.S. June 22, 1992)
(No. 91-6382). By way of example, the state refers to Hudson's
acknowledgement that a similar issue to that on appeal was taken to
the United States Supreme Court on direct appeal years ago though
the police reports which supported the suppression claim were, at
that juncture, unavailable. However, the state then sets out the
McCleskey standard which articulates a test for an abuse of the
writ assertion, and focuses exclusively on an abuse of the writ
theory. Further, the district court dismissed Hudson's contention
as an abuse of the writ. Consequently, we address Hudson's claim
as raising solely an alleged abuse of habeas issue.
13

that the 1984 amendment to Louisiana's Public Records law
notwithstanding, Hudson could have "pressed this claim in his first
federal habeas petition filed in 1973." According to the state,
federal
constitutional
principles
as
well
as
Louisiana
jurisprudence would have supported disclosure of any Brady evidence
irrespective of the amendment.
We respond to the state's arguments on three grounds. First,
and most critically, taking the state's police report labeling
argument to its logical progression, the reporting officer or
officers could simply defeat the purpose of the statute by
including only selected, non-probative information in the initial
report. The remainder, more substantive and perhaps exculpatory
information, could then be included in subsequent supplemental
reports. See, e.g., State v. Shropshire, 471 So.2d 707, 708-09
(La. 1985) (the New Orleans Police Department's entitling its first
report by the officers investigating a complaint an "incident
report" rather than an "initial report" constitutes mere labeling
and does not remove the report from the statute's scope).
Second, the amended public records provision defines an
initial report as including, among other things, "[t]he name and
identification of each person charged with or arrested for the
alleged offense." La. Rev. Stat. Ann. § 44:3(A)(4)(b)(ii)
(emphasis added). Thus, under the literal wording of the statute,
Hudson was entitled to the information which supports his claim
since he, in essence, sought the identification of a person
arrested for the alleged offense.
14

Nonetheless, we find that Hudson was entitled to the
information regardless of the police report. The state contended
that the amendment is irrelevant. We agree but for a wholly
different reason. The state asks us to ignore the pivotal fact
that it suppressed Brady evidence despite repeated attempts by
petitioner to obtain such evidence. Regardless of the statute, the
state was obligated to disclose this evidence favorable to the
defense.11
We conclude that Hudson has successfully met McCleskey's cause
requirement. Regardless of the diligence and reasonableness Hudson
utilized in his prior habeas petitions, "external impediment[s]"
existed. McCleskey, 111 S.Ct. at 1472. Crucial factors external
to his defense, "the reasonable unavailability of the factual basis
for the claim" as well as "government interference" (by the state's
nonfeasance), prevented him from discovering the claim he now
raises.
11 As to the state's contention that federal and state
constitutional jurisprudence would have supported disclosure of any
Brady evidence irrespective of the Public Records law, and thus he
could have pressed this claim in his first habeas petition filed in
1973, we first note, as set out above, Hudson's repeated futile
attempts for access to exculpatory information before the trial
through his motions for bill of particulars and his "Motion for
Oyer." Further, the state asserts that the Louisiana trial court
had the power to order the production of such evidence. But Hudson
made many unsuccessful pleas to the state court. Finally, as to
the specific claim that Wilson's initial identification of another
suspect and his subsequent arrest could have been ferreted out by
Hudson runs into Hudson's poignant contention that he "is not
clairvoyant."
15

C. Showing of Prejudice
The state never reached the prejudice inquiry, McCleskey's
second requirement. According to the state, Hudson lacked cause
for its failure to raise the nondisclosure claim in his three prior
federal habeas petitions. So under McCleskey, it contends that we
need not consider whether Hudson would be prejudiced by his
inability to raise the alleged disclosure violation at such a late
date. Since we find that Hudson has demonstrated sufficient cause,
we must remand to the district court to consider prejudice.
D. Merits
The district court alternatively ruled that absent the
applicability of Rule 9(b), Hudson's grounds for relief were
meritless. In its determination, the district court conceded that
the information concerning Wilson's prior identification of Larry
Jones should have been disclosed since it bore on Wilson's
credibility and ability to identify Hudson. Nonetheless, it
concluded that the information was not sufficiently material under
Bagley, and would not have changed the trial's outcome.
To establish that evidence falls within the purview of Brady,
a petitioner must establish that the evidence was (1) suppressed,
(2) favorable, and (3) material. Cordova v. Collins, 953 F.2d 167,
171 (5th Cir. 1992). Brady's third factor, materiality, may now be
impacted by the heightened awareness of the prejudice issue
emphasized by McCleskey. McCleskey is procedural only, but a
finding of prejudice under it makes it at least more difficult to
16

find lack of materiality under Bagley, although we recognize that
the two evaluations are not identical. Inasmuch as the district
court did not have the benefit of McCleskey when it ruled, we
remand its decision on the merits as well.
III. CONCLUSION
We conclude that the district court erred in its determination
that Hudson's habeas petition was barred under Rule 9(b) for
failure to raise the critical issue at an earlier time. We remand
for the court to decide whether the requisite prejudice was shown
to justify granting the writ as against the Rule 9(b) assertion.
Further, we remand for the court to reconsider its alternative
dismissal of Hudson's petition on the merits.
REMANDED.
JERRE S. WILLIAMS, Circuit Judge, dissenting in part:
I can see no justification at all to remand this case to the
district court. It is true that the court did not consider the
issue of prejudice. But on this record the evidence concerning the
prejudicial nature of the faulty identification of the accused is
overwhelming. The government's case relied virtually entirely upon
the identification.
17

The majority of the Court remands the case for a consideration
of the issue of prejudice as it applies to the abuse of the writ
claim and also for the district court to reconsider its alternative
determination denying the writ. I evaluate those issues in my
conclusion that there should be no remand.
First, the issue of prejudice must be considered as it relates
to abuse of the writ for failure to make the claim at an earlier
time. Of course, I agree with the Court's conclusion that there
was good cause for failure to have raised the issue earlier. By
way of dissent, I then go on to show why I feel there is no need to
remand on this issue of prejudice.
Although Wainwright v. Sykes did not give "precise content" to
the definition of prejudice, 433 U.S. at 91, 97 S.Ct. at 2508,
later cases have interpreted the petitioner's burden of proving
actual prejudice as showing "`not merely that the errors at . . .
trial created a possibility of prejudice, but that they worked to
his actual and substantial disadvantage, infecting his entire trial
with error of constitutional dimensions.'" Murray v. Carrier, 477
U.S. 478, 494, 106 S.Ct. 2639, 2648, 91 L.Ed.2d 397 (1986) (quoting
United States v. Frady, 456 U.S. 152, 170, 102 S.Ct. 1584, 1596, 71
L.Ed.2d 816 (1982)) (emphases in original). Stated in another way,
"[s]uch a showing of pervasive actual prejudice can hardly be
thought to constitute anything other than a showing that the
prisoner was denied `fundamental fairness' at trial." Murray, 477
U.S. at 494, 106 S.Ct. at 2648. See also Sawyer v. Whitley, 945
F.2d 812, 816 (5th Cir. 1991) ("[p]rejudice requires a showing of

actual prejudice amounting to a denial of fundamental fairness"),
aff'd, U.S. , 112 S.Ct. 2514, 120 L.Ed.2d 269.
I must conclude that Hudson has also satisfied the prejudice
element. Wilson's identification and his credibility were
virtually the state's entire case against Hudson. In addition to
being unable to identify Hudson in a lineup, the state's only
eyewitness initially picked someone else as the third participant
from a photographic display, and this third person was arrested.
Wilson was then unable to identify the man in a live lineup. These
facts presented to the jury as the heart of the state's case would
have cast highly significant doubt upon the reliability of Wilson's
identification. Further, the suggestive photographic
identification merely intensified the serious consequences of the
state's nondisclosure. I conclude that the "fundamental fairness"
requisite obviously must fall in the face of significant
uncertainty.
The district court then alternatively ruled that absent the
applicability of Rule 9(b), Hudson's grounds for relief were
meritless. The Court remands for reconsideration of the merits.
I would resolve the question.
In its determination, the district court conceded that the
information concerning Wilson's prior identification of Larry Jones
should have been disclosed since it bore on Wilson's credibility
and ability to identify Hudson. Nonetheless, it concluded that the
information was not sufficiently material under United States v.
19

Bagley, 473 U.S. 667, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985), to
have changed the outcome.
In making its assertion, the district court appears to have
relied primarily on this Court's reasoning in our earlier decision
in Hudson v. Blackburn, 601 F.2d 785 (5th Cir. 1979), cert. denied,
444 U.S. 1086, 100 S.Ct. 1046, 62 L.Ed.2d 772 (1979). As suggested
above, in that case we addressed the state's failure to disclose to
Hudson prior to trial that Wilson had been unable to pick him out
of a live pretrial lineup. 601 F.2d at 789. This information was
in direct conflict with Wilson's trial testimony that he picked
Hudson out of the lineup. But we held that the error was harmless
since the jury was made aware of the conflict when an officer
present during the lineup testified that Wilson had failed to
choose Hudson. While we found established trial errors harmless in
Hudson's third habeas petition, our conclusion as to their harmless
quality was absent the closely related critical information now
disclosed in this proceeding. Further, the Bagley standard of
materiality was not in existence at the time this Court adjudicated
his third federal habeas petition.
The Brady violation asserted on this appeal was not disclosed
to the jury directly or indirectly in any way. In Brady v.
Maryland, 373 U.S. 82, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), the
Supreme Court found 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."
20

373 U.S. at 87, 83 S.Ct. at 1196-97. This is true as to
impeachment evidence as well as exculpatory evidence. Bagley, 473
U.S. at 676, 105 S.Ct. at 3380. To establish that evidence falls
within the purview of Brady, a petitioner must establish that the
evidence was (1) suppressed, (2) favorable, and (3) material.
Cordova v. Collins, 953 F.2d 167, 171 (5th Cir. 1992). "Suppressed
evidence is material `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. (quoting Bagley, 473
U.S. at 682, 105 S.Ct. at 3383).
Information contained in police reports may constitute Brady
material. See, e.g., Williams v. Whitley, 940 F.2d 132, 133 (5th
Cir. 1991); Lindsey v. King, 769 F.2d 1034, 1036 (5th Cir. 1985).
As to Brady's first element, the evidence was clearly suppressed.
As a result of the Louisiana law, Hudson did not have access to the
police reports at issue at least until late 1986.12 Further,
satisfying Brady's second criterion, there is no question that the
evidence is favorable.
As to Brady's third factor, the assessment of prejudice on the
merits, that factor may now be impacted to some extent by the
heightened awareness of the prejudice issue emphasized by the
McCleskey decision. McCleskey is procedural only, but a finding of
prejudice under McCleskey makes it at least somewhat more difficult
to find a lack of materiality under Bagley. The two evaluations
12 Hudson claims he did not obtain a copy of the police
reports until 1988.
21

clearly are not identical. If the withheld evidence at issue is
only one part of a substantial and strong body of proof against an
accused, the level of prejudice justifying examining the merits
would not necessarily be prejudicial to the level of justifying
granting the writ. But here the withheld evidence was the critical
part of the government's case, because the case was almost entirely
grounded on this identity testimony. It follows that the prejudice
required in finding materiality on the merits hinges on little more
than the requisite prejudice justifying consideration of the
merits.
I must conclude that the government's case was seriously
undermined by the withholding of evidence critical to
identification of the accused by the key witness. I find it
inescapable that the evidence withheld was highly material and its
unavailability to the defendant casts clear and controlling doubt
upon confidence in the outcome of the trial.
In view of the overriding importance of the faulty
identification testimony there is no valid reason at all to remand
the case to the district court. The record is complete. There is
no genuine issue left to decide. Prejudice is certain and the
merits are clear.
It appears to me to be a totally unjustifiable misuse of
judicial resources to send this case back instead of deciding it.
A serious waste of time and money are involved. I cannot conceive
on the record with which we are presented that in the future any
appellate court could uphold any decision other than that this
22

conviction must be set aside as fatally flawed. Because of the
serious misbehavior of the police, Hudson has amply demonstrated
that he has not yet had a fair trial. The writ should be granted
now.
23