NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 06a0235n.06
                             Filed: April 4, 2006

                                           No. 04-2405

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT


JOSEPH EDMUND PUERTAS,                                )
                                                      )
       Petitioner-Appellant,                          )
                                                      )
v.                                                    )
                                                      )   ON APPEAL FROM THE UNITED
WILLIAM OVERTON, Director, Michigan                   )   STATES DISTRICT COURT FOR THE
Department of Corrections, NICK                       )   EASTERN DISTRICT OF MICHIGAN
LUDWICK, Warden, Egeler Reception and                 )
Guidance Center, and MICHAEL                          )
BOUCHARD, Sheriff, Oakland County,                    )
                                                      )
       Respondents-Appellees.                         )




       Before: MERRITT, MOORE and SUTTON, Circuit Judges.

       SUTTON, Circuit Judge. In this habeas action, Joseph Puertas challenges his Michigan

state-court convictions for one count of operating a criminal enterprise and six counts of delivering

less than 50 grams of cocaine. The district court denied the petition. Because the resolution of

Puertas’s constitutional claims by the state courts was not contrary to, and did not amount to an

unreasonable application of, Supreme Court precedent, we affirm.

                                                 I.

       In 1997, when police suspected Puertas of selling drugs from his Oakland County, Michigan

bowling alley, the Megabowl, they hired an informant to confirm their suspicions. Working with
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Puertas v. Overton, et al.

the Michigan State Police, members of the Oakland County Sheriff’s Department hired Joseph

Sweeney to purchase cocaine from Puertas at the bowling alley.

       At Puertas’s state-court trial, police and Sweeney testified that between August 19 and

November 18, 1997, Sweeney completed six controlled buys of cocaine from Puertas or his co-

defendant. Before each buy, the officers searched Sweeney to ensure that he did not possess any

drugs and watched him during his encounters with Puertas. After the sixth buy, police executed

search warrants for 12 locations associated with Puertas. Although the investigators involved in

these coordinated searches did not seize any drugs, two drug-detecting dogs alerted to nine different

safes owned by Puertas. Officers and experts testified at trial that the dogs were most likely alerting

to a lingering odor from drugs that recently had been removed from the safes. The officers also

recovered $1.9 million in cash and property during the searches. Based on this evidence, the jury

convicted Puertas of operating a criminal enterprise and of selling cocaine.

       Puertas appealed to the Michigan court of appeals. While that appeal was pending, he

obtained a copy of a state police report investigating allegations of public corruption stemming from,

among other law-enforcement activity, the police investigation of him. The report details interviews

with officers involved in the Puertas investigation and other law-enforcement agents who had

contact with those officers. It concludes that the allegations of public corruption in connection with

the Puertas investigation were unfounded. Although not all of the information in the report directly

concerns Puertas, parts of it concern the credibility of some of the participants in the Puertas

investigation and parts of it contain statements from several of the witnesses in his case. Ruling that




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the prosecution had a duty to give Puertas the report before or during trial, the trial court set aside

Puertas’s conviction and granted him a new trial.

        On appeal, the Michigan court of appeals reversed the decision to grant a new trial and

affirmed Puertas’s convictions. People v. Puertas, Nos. 224173, 224286, 

(Mich. Ct. App. Sept. 27, 2002). The Michigan Supreme Court denied Puertas’s motion for leave

to appeal. People v. Puertas, 

(Mich. 2003).

        On June 23, 2003, Puertas filed this habeas petition. The district court denied the petition

but granted a certificate of appealability on all issues. Puertas v. Overton, 

(E.D.

Mich. 2004).

                                                   II.

        Under the Anti-Terrorism and Effective Death Penalty Act (AEDPA), we may grant a habeas

petition if the state court’s adjudication of the claim “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.” 28 U.S.C. § 2254(d)(1); see Williams v. Taylor, 

,

405 (2000). If “a claim has not been adjudicated on the merits in State court proceedings and has

not been procedurally defaulted, we look at the claim de novo rather than through the deferential

lens of AEDPA.” Hill v. Mitchell, 

, 313 (6th Cir. 2005) (internal quotation marks and

citation omitted).




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                                                 A.

       Puertas first argues that the prosecution violated its duty under the Due Process Clause and

Brady v. Maryland, 

(1963), when it failed to provide him with the state police report.

To demonstrate a Brady violation, (1) “[t]he evidence at issue must be favorable to the accused,

either because it is exculpatory, or because it is impeaching;” (2) “that evidence must have been

suppressed by the State, either willfully or inadvertently;” and (3) “prejudice must have ensued.”

Strickler v. Greene, 

, 281–82 (1999). “There is no Brady violation where a defendant

knew or should have known the essential facts permitting him to take advantage of any exculpatory

information, or where the evidence is available . . . from another source, because in such cases there

is really nothing for the government to disclose.” Coe v. Bell, 

, 344 (6th Cir. 1998)

(internal quotation marks omitted).

       The Michigan court of appeals held that Puertas satisfied the first element of a Brady claim

because the state police report had impeachment value. Puertas, 

, at *2 (“[T]he

report may fairly be characterized as having impeachment value to the defense as it relates to the

credibility of some of the key players in the Megabowl investigation.”). No one disputes that

conclusion. As to the second element of a Brady claim, the Michigan court of appeals held that the

prosecution did not “suppress” the report because it did not have it. “[T]he prosecutor,” the court

held, does not have “a duty to learn of all evidence favorable to the defense known to anyone in the

course of government work.” 

Rather, the prosecutor’s duty is “limited to learning of all

evidence favorable to the defense known by government actors working on the same case.” 

state police investigation did not take place on behalf of the Oakland County prosecutor,

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the court held that “it is unreasonable to impute to the prosecutor or the Sheriff’s Department

possession of the work product resulting from the State Police’s public corruption investigation.”

the third element of a Brady claim, the court concluded that Puertas and his co-defendant

“failed to demonstrate that they exercised reasonable diligence to obtain” the report, 

that “[h]ad the complete report rested in the defense’s possession all along, a different

result might be considered a possibility, but not a ‘reasonable probability,’” as case law requires,

n.8.

        Because the state court’s rejection of Puertas’s arguments under the third prong of the Brady

test does not unreasonably apply controlling Supreme Court precedent, we shall address only that

aspect of the state court of appeals’ decision and shall affirm the district court’s decision on that

ground alone. In particular, a state court could reasonably conclude that Puertas either knew the

substance of the report’s contents or knew enough to have discovered that information based upon

further inquiry. Approximately four months before Puertas’s October 1999 trial, local media

reported that the Michigan State Police had commenced a public-corruption investigation. See JA

371–75 (June 18, 1999 Oakland Press and Detroit Free Press articles). The newspapers reported

admissions by a former deputy of the Oakland County Sheriff’s Department, Kenneth Everingham,

that he had lied at Puertas’s preliminary examination (about conducting surveillance during some

of the controlled buys). 

alleged that Sergeant Kenneth Quisenberry, who led

the Puertas investigation, had fabricated portions of his reports. 

public-corruption

investigation closed and produced the report at issue on September 23, 1999, approximately 2 weeks

before the first day of Puertas’s trial. Puertas has failed to explain why public knowledge of the

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investigation and his own attorney’s knowledge of this conspicuously pertinent investigation, see

JA 372 (June 18, 1999 Oakland Press article quoting Puertas’s attorney’s comments on the

allegations), did not at a minimum provide him with inquiry notice to seek through pre-trial

depositions and other discovery all of the information contained in the report. See Spirko v.

Mitchell, 

, 610–11 (6th Cir. 2004) (rejecting Brady claim where defendant was “on

notice” that evidence existed and “[a] reasonable defendant would have pursued that inquiry”);

United States v. Corrado, 

, 538 (6th Cir. 2000) (rejecting a Brady claim where the

defendant “has made no showing that he would have been unable to identify, locate, and interview

these individuals through reasonable efforts on his own part”).

       Attempting to counter this conclusion, Puertas raises the following arguments. He first

points to the report’s value in attacking the testimony of the informant, Sweeney, the prosecution’s

lead witness. With the benefit of the report, he claims, “he would have called additional police

witnesses to comment on” Sweeney’s “lack of credibility.” Puertas Br. at 30. Although Puertas

does not specify whom he would have called or which portions of the report would have prompted

this action, statements by two officers in the report concern Sweeney’s credibility. Everingham

stated that he “personally did not believe that [Sweeney] was reliable enough to work this type of

investigation.” JA 136-e. And Lieutenant Bill Kuyck stated that “he was uncomfortable because

he has known [Sweeney] for some time and believes that [he] has no credibility.” JA 138. In

addition to claiming that he would have called additional witnesses (presumably Everingham and

Kuyck) had he been given the report, Puertas submits that the report would have made him “aware,”

Puertas Br. at 30, that during Sweeney’s interview with the investigating officer, Sweeney stated that

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“he was agreeable to anything that . . . Quisenberry or Deputy Gary Miller wanted to undertake.”

JA 141.

       Even without having the summaries of the interviews contained in the report in hand before

trial, the defense vigorously attacked Sweeney’s credibility at trial, exploring and attempting to

exploit these precise lines of impeachment. Sweeney admitted that he was addicted to drugs and

alcohol and that he had been convicted of two felonies involving dishonesty. Puertas, 

at 659. He testified that he told the police that he would do “whatever it took” to alleviate the

charges against his brother and that neither he nor his brother was ultimately prosecuted for their

involvement in drug crimes. 

Sweeney admitted that he had trouble with

his memory, that he became an informant for the money and that he bought drugs for personal use

after conducting buys for the police. 

deposition, preliminary examination

and trial testimony all indicated that he would do “whatever it took” to mitigate the charges against

his brother, see Sweeney Dep. at 237 (June 30, 1998) (“I just told them I would like to get [my

brother] off the hook, whatever it took.”); Prelim. Exam. Tr. at 53 (Dec. 29, 1997) (“I just told them

that . . . whatever it took, I’d help ‘em relieve my brother of a criminal record.”); JA 492 (trial

testimony: “I just told the police officers I would do whatever it took” “[t]o alleviate the charges”

against “[m]y brother.”), and because this testimony covered the same ground as Sweeney’s

statement in the report that he was “agreeable to anything” Quisenberry or Miller wanted, the state

court did not unreasonably reject this theory of prejudice. See 

(“[W]here

the defendant was aware of the essential facts that would enable him to take advantage of the




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exculpatory evidence, the government’s failure to disclose it did not violate Brady.”) (internal

quotation marks omitted).

       Nor was Puertas prejudiced by not having access to Everingham’s and Kuyck’s statements

in the report, as he had ample opportunities to elicit this information himself before trial. Not only

could Puertas have sought to depose these potential government witnesses prior to his criminal trial,

but he in fact did depose Everingham in connection with a government-initiated civil-forfeiture

action that arose from the criminal investigation. During this deposition, which occurred four

months before his criminal trial, and two days before the first newspaper articles about the

investigation, Everingham stated that he had “concerns” about the Puertas investigation and stated

that he had discussed the investigation with Kuyck. See Everingham Dep. at 14 (June 16, 1999);

With this deposition testimony in hand, plus the information later reported by local

newspapers about Everingham’s allegations, plus Puertas’s attorney’s knowledge of the state

investigation, Puertas not only knew that Everingham had “concerns” about the investigation but

also had ample opportunity to develop further support for this theory before trial had he wished.

       Puertas separately claims that the report would have made him “aware” that Sweeney “had

made a contrary statement as to who identified [Puertas] as a suspect.” Puertas Br. at 30. According

to the report, Sweeney said that the “decision to investigate” Puertas and his bowling alley “was

Deputy Miller’s idea.” JA 141. But at trial Sweeney testified that he first discussed investigating

Puertas with Quisenberry, not Miller, although when pressed he stated that he could not remember

if any other officer participated in that conversation. See Trial Tr. at 65–66 (Oct. 19, 1999).




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       In view of the many other ways in which the defense attacked Sweeney’s credibility, the

advantage that Puertas could have gained by contrasting Sweeney’s statement at trial (that

Quisenberry first identified Puertas as a suspect) with the statement in the report (that the decision

to investigate Puertas was “Miller’s idea”) arises only at the margins. Additional testimony from

police witnesses questioning Sweeney’s credibility would have been cumulative and accordingly

of slight value. See Byrd v. Collins, 

, 518–19 (6th Cir. 2000). The following cross-

examination of Sweeney at trial, at any rate, suggests that the defense already had some knowledge

of this statement:

       Q       Yesterday, you testified that you had a discussion about going into the
               Megabowl, right?
       A       Um hm. Yes.
       Q       The discussion you said was with Quizenberry [sic] alone, correct?
       A       Correct.
       Q       Miller was there, correct?
       A       I don’t remember if he was or not. . . .
       Q       You might have given a different answer at a different time?
       A       I don’t know. I mean I don’t remember.

Trial Tr. at 65 (Oct. 19, 1999).

       Puertas next claims that he could have used information in the report to attack the credibility

of Quisenberry’s testimony in three ways. First, he “would have known, and offered as evidence,”

Puertas Br. at 30, information in the report that one of the commanders of the investigation, Mark

Menghini, said that Quisenberry “conducted a sloppy investigation and cut too many corners” and

believed that Sweeney “was not very good and all the purchases were conducted by the informant

with no undercover involvement,” JA 136-a. Second, Puertas says that Quisenberry’s statement in

the report that “he did not keep dailies or notes on each transaction” amounted to new evidence.

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JA 133. Third, while Sweeney testified at trial “that he was paid $50 for the first transaction and

$40 for the fourth,” Puertas Br. at 31, the report notes that Quisenberry said that Sweeney’s payment

“would range from $150 to $200 each time” he completed a controlled buy from Puertas, JA 133.

This discrepancy, Puertas suggests, shows that Quisenberry might have “ke[pt] the extra $100 or

$150 on those two occasions” and that he “was using a phony drug investigation in order to

supplement his pay.” Puertas Br. at 31–32.

       Here too, however, Puertas already knew this information or knew enough about the topic

to obtain more information through civil discovery in his forfeiture action. In his forfeiture

deposition, Everingham also stated that Menghini had expressed concerns about the case and about

Sweeney. In view of this testimony, Puertas had knowledge of Menghini’s concerns. And had he

wished to obtain additional information about those concerns, he could have interviewed Menghini

about Quisenberry, and that is particularly so in view of Everingham’s deposition statement that

Menghini “stood up and stated that in his 20 some years of service, he’s never sent an innocent man

to prison and he wasn’t about to start with this one.” Everingham Dep. at 15–16 (June 16, 1999).

The trial transcript also belies Puertas’s claim that he did not know that Quisenberry failed to keep

notes on each transaction. See Trial Tr. at 243 (Oct. 28, 1999) (during closing argument, Puertas’s

attorney stated that Quisenberry said, “I’m not going to take one note, okay? Not one note. . . . . I’m

never going to take a note as to what happened, unless there’s a deal”). And as to any discrepancy

between Sweeney’s and Quisenberry’s statements regarding Sweeney’s compensation, Puertas has

not explained why he could not have covered this pertinent topic in a pre-trial deposition of

Quisenberry or Sweeney, or during trial. Nor has he explained why this $100 to $150 discrepancy

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in pay does not at most reflect a confluence of Sweeney’s admittedly poor memory and

Quisenberry’s poor record-keeping.

        Puertas next argues that he would have challenged the search warrants in the case had he

known about Deputy Gary McClure’s statement in the report that when he first started working for

the Narcotics Enforcement Team, Miller told him “to add information to the search warrants to

flower them up” and “reportedly told [him] that judges expect police officers to lie.” JA 151. But,

in truth, Puertas deposed McClure prior to his trial, and these allegations surfaced at that time. See

McClure Dep. at 32–35 (July 1, 1998) (To strengthen the case for probable cause, “on more than one

occasion [Miller] . . . would tell me specifically to put in [affidavits supporting search warrants] that

there was short-term traffic . . . observed at a residence that . . . I was . . . investigating . . . [when]

I never did any surveillance . . . . And he said, ‘Put it in anyways. It’s all right. They expect that,

the judges expect that. That’s not a problem.’”). The defense then relied on these allegations while

cross-examining Miller during trial. See Trial Tr. at 103 (Oct. 14, 1999) (“Q: And there . . . have

been accusations that you committed perjury by a former narcotics enforcement team officer, too.

Is that correct?”).

        Puertas, finally, complains that he was prevented from “interview[ing] and call[ing]

witnesses who corroborated that overtime reports had been falsified in order to corroborate false

surveillance reports.” Puertas Br. at 30. Here, again, the record shows that Puertas knew about

these allegations before trial. See Everingham Dep. at 18–22 (June 16, 1999) (describing when

Quisenberry would tell him to fill out overtime slips for times he had not worked to create the

appearance that he had been present conducting surveillance on the Puertas investigation). And

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during trial, Puertas’s attorney raised the allegations when he cross-examined Quisenberry, see Trial

Tr. at 212–15 (Oct. 22, 1999) (asking Quisenberry about Everingham’s allegations), and mentioned

them during his closing argument, see Trial Tr. at 245 (Oct. 28, 1999) (“Mr. Everingham accuses

Mr. Quisenberry . . . on a couple of occasions . . . [of telling] them to fill out over time slips [to make

it appear as though] he was there on the surveillance.”).

        Our colleague raises an additional point that deserves consideration. As she sees it, Puertas

was nonetheless prejudiced because “the Report itself, apart from its contents, has independent

significance.” Dissent at 6. But Puertas has not made this argument. Perhaps because the report

itself rejects the allegations of police misconduct, Puertas premises his Brady prejudice claim not

on the report’s existence but on the contents of the report, namely the statements and interviews in

it that we have discussed above.

        But even if Puertas had made this argument, the logic behind the position is not self-

evident—that because the Michigan police “conducted an official investigation from which a Report

resulted,” “the allegations had some amount of credibility and gravity” even if the report ultimately

rejected the allegations. 

No evidence indicates what degree of “credibility and gravity” is

needed to prompt the Michigan state police department to commence an “official investigation” (or

whether the suggested distinction between “a general investigation” and “the official investigation,”

exists). And surely Puertas had sufficient information to develop this evidence, as his

attorney knew about the investigation. Why Puertas chose to focus on the contents of the report

rather than what it takes to start an official investigation is not in the record. But it hardly seems

unusual that the defense would choose a strategy that focused not on the existence of an

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investigation (which determined that there was no police misconduct) but on the contents of the

interviews contained in the report. Indeed, without the report in hand, Puertas was free to present

Everingham’s allegations to the jury, but the jury never learned that the investigation into these

allegations concluded that they were unfounded.

       No less importantly, no Supreme Court authority supports this theory. See 28 U.S.C.

§ 2254(d)(1). The only case mentioned by the dissent, Strickler, involved documents that contained

new, valuable information for the defense. 

(“The exculpatory material that

petitioner claims should have been disclosed before trial includes documents prepared by [a

prosecution witness], and notes of interviews with her, that impeach significant portions of her

testimony.”); 

(Because the “notes taken by [the detective] during his interviews with [the

witness], and letters written by [the witness] to [the detective]” “cast serious doubt on [the

witnesses’s] confident assertion of her ‘exceptionally good memory’” in her trial testimony, “the

content of the documents is critical.”) (emphasis added); 

–75 & nn.8–10 (describing the

content of the suppressed materials and identifying the information that the defense did not have at

trial and that conflicted with the witness’s trial testimony and otherwise cast doubt on her

credibility). And Strickler did not involve a witness that the defense had already deposed. See 

n.27 (noting that the witness “refused to speak with defense counsel before trial”). Puertas,

by contrast, did not stand to gain any additional help from the contents of the report. In the absence

of Supreme Court authority supporting such a theory, this AEDPA claim necessarily fails.




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                                                   B.

        Puertas separately contends that the state court of appeals unreasonably applied Supreme

Court precedent in denying his prosecutorial-misconduct claim. To prove prosecutorial misconduct,

Puertas must show that the challenged remarks infected his trial with such unfairness that his

resulting conviction was a denial of due process. See 

. “To constitute a denial

of due process, the misconduct must be so pronounced and persistent that it permeates the entire

atmosphere of the trial.” 

marks omitted).

        Puertas first claims that the prosecutor improperly argued facts not in evidence when he

suggested that Puertas had planted a bag of harmless white powder that officers discovered in one

of Puertas’s safes and that he did so as “a dig from that man who knew [the police] were coming.”

JA 624. The next day, Puertas moved for a mistrial based in part on this statement, arguing that it

improperly implied that Puertas was a drug dealer and had been tipped off about the search. The

trial court ruled the statement was not “grounds for a mistrial” and noted that “[t]he jury is instructed

that if the attorneys argue something that isn’t in evidence, they can’t consider it.” JA 643. Even

“[a]ssuming that this reference to [Puertas’s] motive for placing the powder in the safe was an

unreasonable and improper inference drawn from the evidence,” the court of appeals held that the

“comment does not warrant relief because a special instruction would have cured any prejudice to

defendants.” Puertas, 

, at *14.

        As an initial matter, the state court of appeals did not unreasonably apply Supreme Court

precedent in holding that Puertas was not prejudiced by the comment for two reasons: first, because

the court gave a general instruction at the close of evidence reminding jurors to consider only

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properly admitted evidence, Trial Tr. at 22 (Oct. 29, 1999); and second, to the extent that Puertas

felt

such a general instruction was insufficient, he could have, but did not, request a special curative

instruction to mitigate the effects of the statement. Moreover, “prosecutors must be given leeway

to argue reasonable inferences from the evidence,” 

(internal quotation marks

omitted), and the evidence supported the inferences that the prosecutor drew. Evidence in the record

established: that Puertas sold cocaine to Sweeney; that drug-detecting dogs alerted to the safes

owned by Puertas; that during the searches of nine safes and other property owned by Puertas, $1.9

million in cash and property was found; and that the day manager of the bowling alley testified that

she never saw white powder in the safe and that she kept her white exercise supplement (the

suspected source of the bag of harmless white powder) in a desk drawer, not in the safe.

       Puertas next claims that the prosecutor violated his Fifth (and Fourteenth) Amendment right

not to take the stand by commenting on his silence. See Griffin v. California, 

, 615 n.5

(1965). After closing arguments, in the midst of an exchange between the attorneys concerning a

defense objection, Puertas blurted out “He’s done it from the start. They lied—.” JA 627. The

prosecutor apparently then asked Puertas’s attorney “something along the lines of is Mr. Puertas

going to testify[?]” JA 641. The court reporter did not transcribe this comment and Puertas’s

attorney says he did not hear it. But his attorney claimed that someone from the audience heard the

comment and brought it to his attention later that day. Puertas then moved for a mistrial, claiming

that the comment was audible on a tape of the proceedings and that the jury must have heard it.




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       The trial court denied the motion, expressing doubt that the jury ever heard the comment and

noting that the jury instructions properly explained Puertas’s constitutional right to remain silent.

The state court of appeals agreed, reasoning that the admission by Puertas’s counsel that he did not

hear the statement supported the trial court’s conclusion that the jury likely did not hear it either.

“In any event,” it noted, “we assume as we must that the jury instructions remedied the error to the

extent one or more jurors heard the comment.” Puertas, 

, at *14.

       The state courts did not unreasonably apply Supreme Court precedent in reaching this

conclusion. Both before and after this comment allegedly was made, the trial court instructed the

jurors that they may not draw negative inferences from Puertas’s failure to testify. Even if the jury

did hear the comment, which seems unlikely in view of the trial court’s ring-side observations of

the incident, the instructions properly mitigated any risk that the statement would affect the jury’s

verdict. See Richardson v. Marsh, 

, 211 (1987).

       Puertas next claims that the prosecutor improperly denigrated the defense when, in his

closing, he said that the defense presented a case made up of “haze and smoke” and tried to distract

the jury with “sound and fury,” “bombastic antics” and “smoke and haze and innuendo and

insinuation,” accusing the defense of presenting evidence “designed to distract you from the truth

in this case.” Puertas Br. at 42–43. While prosecutors may not make “unfounded and inflammatory

attacks on the opposing advocate,” United States v. Young, 

, 9 (1985), the Michigan court

of appeals noted that “[n]one of these prosecutorial comments drew any defense objections” and

held that Puertas had forfeited this claim, Puertas, 

, at *14.




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        Having failed to object to the comments during trial, Puertas violated Michigan’s rule that

defendants must preserve their claims for appellate review by raising them in the trial court and thus

has procedurally defaulted the claim. Seymour v. Walker, 

, 549–50 (6th Cir. 2000)

(“[If] a habeas petitioner fails to obtain consideration of a claim by a state court . . . due to a state

procedural rule that prevents the state courts from reaching the merits of the petitioner’s claim, that

claim is procedurally defaulted and may not be considered by the federal court on habeas review.”).

Puertas never argues that this is not a consistently enforced procedural-default rule, but he does ask

us to excuse his default and to view the failure to object as a strategic decision designed to avoid

drawing attention to the prosecutor’s remarks. But we may excuse a petitioner’s procedural default

only if he meets the exacting cause-and-prejudice standard or demonstrates that a fundamental

miscarriage of justice will occur if we fail to consider the federal claim. Coleman v. Thompson, 

, 749–50 (1991). Because defense counsel could have objected to these comments outside

of the jury’s presence (eliminating the strategic dilemma) and because a timely cautionary

instruction presumably would have been effective, see 

, Puertas has not

established cause for his failure to object. And because Puertas has not submitted any new and

reliable evidence of actual innocence, he has not shown a miscarriage of justice. Willis v. Smith, 

, 746 (6th Cir. 2003).

        Puertas next argues that the prosecution made an improper civic-duty argument when it said

the following during its closing argument:

        After this case is done and then you are able to go home and talk to your loved ones
        about what the case was about or your neighbors or whoever it is and you get there
        and you’re in your backyard and you’re leaning over the fence and you’re talking to

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       your neighbor and you say, yep, I just got done with this jury duty and we had this
       very interesting case. It was a drug case and a racketeering case and a conspiracy
       case and the Prosecutor had the actual person who bought the drugs from the two
       defendants and he had officers who actually witnesse[d] the transactions happen and
       they had $106,000—.

JA 626.

       Generally speaking, a prosecutor has a “duty to refrain from improper methods calculated

to produce a wrongful conviction.” Viereck v. United States, 

, 248 (1943). But

“[u]nless calculated to incite the passions and prejudices of the jurors, appeals to the jury to act as

the community conscience are not per se impermissible.” United States v. Emuegbunam, 

, 406 (6th Cir. 2001). Because the Michigan court of appeals did not discuss this claim when

Puertas raised it there, we review the claim de novo. Like the district court, we agree that these less-

than-pointed remarks appealed “more to the jury’s common sense than to the jury’s fear of

community safety” and did not rise to the level of remarks designed to incite prejudice in a jury.

Puertas, 

at 666. Any prejudice, moreover, was cured when the trial court sustained

Puertas’s objection to the comments and instructed the jury not to consider them in reaching its

verdict. See 

.

                                                   C.

       Puertas also objects to the trial court’s failure to instruct the jury about missing evidence.

Prior to trial, Puertas requested copies of affidavits prepared in support of search warrants involving

controlled buys by Sweeney in an unrelated investigation before he began working on the Puertas




                                                 - 18 -
No. 04-2405
Puertas v. Overton, et al.

investigation. When the prosecution was unable to locate the affidavits, Puertas asked the trial court

“for some kind of instruction to the jury” on the missing affidavits. JA 516. Although the trial court

denied Puertas’s request, it told Puertas he could “argue about it to the jury.” JA 612.

        A state-law challenge to an allegedly defective jury instruction faces a stiff burden. The

claimant must show that the flawed instructions “so infected the entire trial that the resulting

conviction violates due process.” Cupp v. Naughten, 

, 147 (1973). In reviewing this

claim, the Michigan court of appeals noted that in light of the generality of Puertas’s request (for

“some kind of instruction”), the trial court “acted within its discretion in declining to give an

undefined jury charge regarding the prosecutor’s inability to produce affidavits from unrelated cases

that are sought only for impeachment purposes.” Puertas, 

, at *12.

        The court of appeals did not unreasonably apply Naughten in reaching this conclusion.

Because the missing evidence was at most tenuously connected to the case and because Puertas had

ample opportunities to cross-examine Sweeney and the police about Sweeney’s credibility, the state

appellate court could reasonably conclude that the trial court’s refusal to give the requested

instruction did not deprive Puertas of a fair trial.

                                                  D.

        Puertas, lastly, claims that the trial court improperly admitted evidence about the dog sniffs,

claiming that the evidence had little or no probative value and was highly prejudicial. He also

objects that the court rejected his request for a cautionary instruction about this evidence.

        During the searches of Puertas’s property, two drug-detecting dogs alerted to nine safes that

contained a substantial amount of U.S. currency but did not contain illegal drugs. At trial, two

                                                 - 19 -
No. 04-2405
Puertas v. Overton, et al.

forensic experts and two canine patrol officers testified about the training of the dogs and explained

that the dogs’ alerts indicated that narcotics recently must have been inside the safes. The trial court

rejected Puertas’s objection to this evidence and denied his request for a special limiting instruction

to the effect that the drug-sniffing-dog evidence has little value as proof and that he could not be

convicted on the basis of this evidence alone.

       A trial court’s error in applying state evidentiary law does “not rise to the level of [a] federal

constitutional claim[] warranting relief in a habeas action unless the error renders the proceeding so

fundamentally unfair as to deprive the petitioner of due process under the Fourteenth Amendment.”

McAdoo v. Elo, 

, 494 (6th Cir. 2004). The Michigan court of appeals held that the trial

court did not abuse its discretion in admitting the evidence and concluded that any risk of prejudice

from the evidence did not substantially outweigh its probative value.

       In attacking this ruling, Puertas argues that a considerable amount of United States currency

contains residue from controlled substances and that many recent court decisions acknowledge this

fact. At trial, however, the government’s experts testified that a properly trained dog will not alert

to the residue found on currency in general circulation. The experts explained that drug-detecting

dogs are not trained to alert simply to cocaine but to the odor of methyl benzoate, which dissipates

after two hours, making it unlikely that a dog would alert to the odor of the drug on currency unless

that currency recently had been in the presence of cocaine.

       The high degree of deference we accord state evidentiary decisions means that a claimant

generally will not be able to question “rulings regarding the admission or exclusion of evidence . . .

in a federal habeas corpus proceeding.” Cooper v. Sowders, 

, 286 (6th Cir. 1988).

                                                 - 20 -
No. 04-2405
Puertas v. Overton, et al.

Because Puertas had the opportunity to question the reliability of this evidence at trial and because

the challenged testimony addressed the reliability concerns that he raised, the state court of appeals’

resolution of this claim does not entitle Puertas to habeas relief.

       Much the same holds true for Puertas’s argument that the trial court at a minimum should

have granted his request for a cautionary instruction about the evidence. Again, we may not grant

the writ simply because a jury instruction allegedly was incorrect under state law, Estelle v.

McGuire, 

, 71–72 (1991), and in this instance “[a]n omission, or an incomplete

instruction, is less likely to be prejudicial than a misstatement of the law,” Henderson v. Kibbe, 

, 155 (1977).

       While the state court of appeals concluded that the trial court should have given this

instruction, it concluded that the omission did not warrant a new trial because it did not result in a

miscarriage of justice. In view of the jury instructions that were given, the court reasoned, the jury

had no basis for relying on the dog-sniff evidence alone to convict Puertas, and this evidence merely

corroborated the “very powerful evidence” of six controlled buys of illegal narcotics. See Puertas,

, at *11 (“An essential element to the charge of delivering cocaine is evidence

of the intent to deliver. This evidence was established through the evidence of narcotic sales at the

Megabowl, as demonstrated by the controlled buys executed by Sweeney. Likewise, the crime of

operating a criminal enterprise is not established merely by evidence of possession of illegal

narcotics and large amounts of cash. Rather, the prosecution was required to prove that [Puertas

was] employed or associated with the Megabowl and knowingly participated in the affairs of the

Megabowl through a ‘pattern of racketeering activity’ as that term is defined by Mich. Comp. Laws

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No. 04-2405
Puertas v. Overton, et al.

§ 750.159f(c). This pattern of racketeering activity was established by the evidence of multiple sales

of narcotics from behind the business counter of the Megabowl.”) (footnote omitted). The state

court

of appeals did not unreasonably apply Supreme Court precedent in reaching this conclusion.

                                                 III.

        For these reasons, we affirm.




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No. 04-2405
Puertas v. Overton, et al.

       KAREN NELSON MOORE, Circuit Judge, dissenting.                       This case addresses the

prosecution’s outrageous failure to turn over to the defendant, Joseph Puertas, a report, completed

weeks before trial, detailing an official investigation made by the State Police of allegations of local

police misconduct in their investigation of Puertas. The prosecution’s withholding of such vital

information, which goes to the legitimacy of the state’s case against Puertas, cannot be justified here.

The majority denies Joseph Puertas habeas relief on his claim of state suppression of evidence under

Brady v. Maryland, 

(1963), because it concludes that the Michigan Court of Appeals

did not unreasonably apply Supreme Court precedent in deciding that Puertas failed to show

prejudice, the third element of a Brady claim.1 Because I believe that the Michigan Court of

Appeals unreasonably determined that Puertas has not satisfied the second and third elements of

Brady, I respectfully dissent.

       The majority agrees with the conclusion of the Michigan Court of Appeals that Puertas

“failed to demonstrate that [he] exercised reasonable diligence to obtain the Michigan State Police

public corruption investigative report,” in particular because there was media coverage about the

investigation of Oakland County Deputy Sheriff Kenneth Everingham’s allegations of police

misconduct.2 People v. Puertas, No. 224173, 

, at *5 (Mich. Ct. App. Sept. 27,


       1
        A successful Brady claim must satisfy the following three elements: “[t]he evidence at
issue must be favorable to the accused, either because it is exculpatory, or because it is
impeaching; that evidence must have been suppressed by the State, either willfully or
inadvertently; and prejudice must have ensued.” Strickler v. Greene, 

, 281-82
(1999).
       2
         Although the majority classifies this aspect of the Brady analysis — whether a defendant
could have independently accessed the information contained in the Brady material — as part of
the third element’s prejudice inquiry, it is better viewed as part of the inquiry under Brady’s
                                                 - 23 -
No. 04-2405
Puertas v. Overton, et al.

2002). Specifically, the majority concludes that Puertas either had knowledge of the contents of the

Michigan State Police investigative report (“Report”), which memorialized the results of the

investigation of Everingham’s allegations, or that he had sufficient knowledge to have found the

information contained therein with additional efforts. Majority Opinion (“Maj. Op.”) at 5.

       The conclusion on this point by both the majority and the Michigan Court of Appeals

erroneously conflates several separate elements relating to Everingham’s accusations of misconduct

— the accusations themselves, a general investigation into the accusations, the official investigation

done by the Michigan State Police, information that happened to be in the Report, and the fact that

the Report existed and that particular information was contained in the Report — each of which has

independent significance. Comments by Puertas’s trial attorney reported in The Oakland Free Press

indicate that Puertas knew about some of the allegations of police misconduct related to the

investigation of Puertas. However, even if it could be shown that Puertas knew of the allegations

and of some investigation into the allegations, it does not follow that he knew about the official

investigation conducted by the Michigan State Police and that a Report containing the results was

produced.3


second element — whether the prosecution suppressed the evidence. The prosecution can only
suppress evidence that is “wholly within [its] control,” and thus if a defendant knew enough to
have taken advantage of the evidence or could have accessed the evidence from another source,
it is the second element of Brady that has not been met. See Coe v. Bell, 

, 344 (6th
Cir. 1998).
       3
         The article quoting Puertas’s trial attorney was published on June 18, 1999. See Stephen
W. Huber, Ex-Deputy Says He Lied About Seeing Drug Sale, The Oakland Press, June 18, 1999,
at A-1, A-12. That article indicates that Puertas knew about some of Everingham’s allegations.
Although this article and another later-published article mention an investigation into the
allegations, and thus Puertas could be charged with knowledge of an investigation, see id.; L.L.
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No. 04-2405
Puertas v. Overton, et al.

       Independent knowledge of some of the information that happened to be contained in the

Report is not the equivalent, for Brady purposes, of knowledge that a Report was issued and that

certain claims could be substantiated by the Report. The fact that the Michigan State Police

conducted an official investigation from which a Report resulted indicates that the allegations had

some amount of credibility and gravity. Although Puertas knew about some of the information

included in the Report, that an official investigation was conducted and a Report was issued lends

credence to the possibility that Puertas was set up and that the charges against him were entirely

fabricated. Puertas’s knowledge of some of the contents of the Report, including problems with the

credibility of the informant Joseph Sweeney, discrepancies in testimony, and irregularities related

to his own investigation that are documented in the Report, and his reliance on this information at

trial, is not dispositive of whether Puertas was prejudiced by not having access to the Report.

Substantiating these suggestions regarding shortcomings in the investigation of Puertas with the

official Report by the Michigan State Police would have lent them much greater weight with the

jury, and thus the prosecution’s failure to disclose the Report was prejudicial. See Strickler v.

Greene, 

, 284-85 & n.26 (1999) (distinguishing between the fact that interviews had

occurred and the contents of those interviews, on the one hand, and that documents relating to these

interviews had been produced, on the other).

       The majority agrees with the conclusion of the Michigan Court of Appeals that Puertas had



Brasier, Oakland Drug Case Tests Police Claims on $5 Million, Detroit Free Press, Oct. 8, 1999,
at 1B, it is not clear from the record when the Michigan State Police began its official
investigation. Moreover, as discussed at greater length in the main text, knowledge of the
investigation is not equivalent to knowledge of the resulting Report for Brady purposes.
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No. 04-2405
Puertas v. Overton, et al.

sufficient knowledge to have accessed the Report through “reasonable diligence” because local

media articles reported on Everingham’s allegations and the resulting police investigation. Maj. Op.

at 5-6; Puertas, 

, at *5. However, in the context of an analysis of whether cause

had been shown to overcome procedural default, the Supreme Court rejected this same inferential

leap. See 

. The Court held that “a letter published in a local

newspaper” containing statements from a witness that made it clear that she had been interviewed

several times by a particular detective was insufficient to alert the defendant to the existence and

suppression of records relating to those interviews. 

case, although the investigation and Report were completed on September 23, 1999,

the Report itself came to light only after Puertas’s conviction, when, pursuant to requests made

under the Freedom of Information Act, 5 U.S.C. § 552, a newspaper obtained copies of the Report

and made them available to the defense. This belies the contention of the Michigan Court of

Appeals that the Report would have been available to Puertas were it pursued with “reasonable

diligence.” Puertas, 

, at *5. Moreover, Puertas did in fact make a motion for

additional discovery, which was granted on June 10, 1998. Puertas should not have been expected

to “scavenge for hints of undisclosed Brady material,” Banks v. Dretke, 

, 694-95

(2004), because he reasonably relied on the discovery order, which directed the prosecution to turn

over to Puertas “[a]ny and all statements of interviews conducted by the prosecution and/or any

investigating police agency from the beginning of the investigation until trial . . . whether in the

possession of the Oakland County Prosecutor’s Office or any of the police investigating agencies.”

Joint Appendix at 113 (Order Granting Motion for Additional Discovery) (emphasis added).

                                               - 26 -
No. 04-2405
Puertas v. Overton, et al.

        The Supreme Court has repeatedly held that a defendant can reasonably rely on the

prosecution’s representation that it has disclosed all Brady evidence, and that once the prosecution

confirms this representation, the defendant is under no further duty to investigate additional Brady

materials. See 

(acknowledging reasonable reliance on the state’s

assertion that it would disclose all Brady material); 

(recognizing

reasonable reliance on the prosecution’s open-file policy). Like the defendants’ reasonable reliance

on the assertion in Banks and the open-file policy in Strickler, Puertas reasonably relied on the state

trial court’s order that the prosecution turn over to him materials like the Report in question. That

the prosecution was under this continuing obligation by order of the court to disclose such materials

confirmed Puertas’s reasonable reliance, thereby relieving him of the responsibility of inquiring

about additional Brady materials. Cf. 

(“[I]t was . . . appropriate for [the

defendant] to assume that his prosecutors would not stoop to improper litigation conduct to advance

prospects for gaining a conviction.”); 

(noting “[t]he presumption, well

established by tradition and experience, that prosecutors have fully discharged their official duties”

(quotations omitted)). Puertas had no reason to suspect that a Report had been issued, and, even if

he did, he would have reasonably relied on the prosecution to comply with the court order to turn

over such materials. See 

; 

.

        Given that knowledge of the Report does not flow from knowledge of the allegations and the

investigation, that Puertas did not neglect to act with “reasonable diligence” in failing to discover

the Report, and that the fact of the Report itself, apart from its contents, has independent significance

in terms of prejudice, the majority’s explanations regarding what Puertas either knew or should have

                                                 - 27 -
No. 04-2405
Puertas v. Overton, et al.

known about the contents of the Report are insufficient to refute the materiality of the Report. We

review the conclusion of the Michigan Court of Appeals that the Report was not material, a mixed

question of law and fact, to assess whether it was an “unreasonable application” of the Supreme

Court’s governing standard on materiality — whether “there is a reasonable probability that, had the

evidence been disclosed to the defense, the result of the proceeding would have been different,”

Kyles v. Whitley, 

, 433 (1995). See 28 U.S.C. § 2254(d)(1); Joshua v. DeWitt, 

, 436 (6th Cir. 2003); Lancaster v. Adams, 

, 429 (6th Cir. 2003). The reasonable-

probability standard is met “when the government’s evidentiary suppression ‘undermines confidence

in the outcome of the trial.’” 

(quoting United States v. Bagley, 

,

678 (1985)).

       As discussed earlier, although Puertas may have raised a variety of impeaching and

exculpatory information at trial that was contained in the report, including the lack of credibility of

the informant, Joseph Sweeney, and other problems with the investigation, Puertas did not, because

he could not, rely on the fact that this information was credited by an official investigation by the

Michigan State Police, which would have greatly enhanced the value of this information.4 Only if

Puertas had knowledge of and access to the Report could he have presented the pertinent parts of



       4
        The majority’s explanation of one discrepancy is particularly unsatisfying. Sweeney, the
informant, testified at trial that on several occasions he was paid $50 to $160 less than what
Sergeant Kenneth Quisenberry of the Oakland County Sheriff’s Department told the Michigan
State Police that Sweeney was paid for each drug transaction. The majority states that this “at
most reflect[s] a confluence of Sweeney’s admittedly poor memory and Quisenberry’s poor
record-keeping.” Maj. Op. at 11. However, Puertas should have had this information available
to him both for impeachment purposes and to suggest that Quisenberry’s motives were tainted by
financial interest.
                                                - 28 -
No. 04-2405
Puertas v. Overton, et al.

the Report so that the impeaching evidence could be accorded the proper weight by the jury. In

particular, the Report confirms inconsistencies regarding how Puertas was identified as a suspect,

which constitutes powerful exculpatory evidence because it supports the theory that Puertas was set

up and that the charges against him were completely manufactured. It is unreasonable for the

Michigan Court of Appeals to fail to acknowledge that the Report by the Michigan State Police

(confirming the incredibility of the informant, the sloppy work of the local police, and the

discrepancies in the local officers’ statements) would have far greater influence than the defense

attorney’s mere suggestion of the same evidence.

       The Michigan Court of Appeals relies heavily on the evidence in the Report that it considers

unfavorable to Puertas (namely, that Everingham was an irresponsible employee with a gambling

problem and that the Report ultimately found his allegations to be unfounded) to determine that

Puertas was not prejudiced by the unavailability of the Report. The Michigan Court of Appeals was

unreasonable in reaching this conclusion. First, the state court should have recognized that the

Oakland County Sheriff’s Department (“the Sheriff’s Department”) had motives to downplay the

problems with its investigation of Puertas. In addition to a desire to preserve its integrity, the

Sheriff’s Department faced civil liability due to a lawsuit brought by Everingham and also stood to

reap financial benefits from the Puertas case due to the forfeiture of the assets involved. See L.L.

Brasier, Oakland Drug Case Tests Police Claims on $5 Million, Detroit Free Press, Oct. 8, 1999,

at 1B. Second, the fact that the Report ultimately concluded that Everingham’s allegations were

unfounded is not highly relevant to the Brady prejudice analysis because the evidentiary standard

used by the Michigan State Police to confirm such allegations is markedly different from the

                                               - 29 -
No. 04-2405
Puertas v. Overton, et al.

evidentiary standard required to convict Puertas. Although there may not have been sufficient

evidence for the State Police to conclude that misconduct occurred, the Report could, and in fact,

does, raise enough suspicions regarding the investigation of Puertas to create a reasonable doubt as

to his guilt. For these reasons, the suppressed evidence “put[s] the whole case in such a different

light as to undermine confidence in the verdict.” See 

. The Michigan Court

of Appeals acted unreasonably in applying the prejudice component of Brady.

       The majority affirmed the district court’s denial of Puertas’s Brady claim on the third

element and therefore found no need to discuss the other two elements.5 Because I believe, as

explained above, that Puertas has satisfied Brady’s third element, I will address the first two

elements. As the majority notes, there is no dispute that Puertas has satisfied the first element of his

Brady claim because the Report has both exculpatory and impeachment value.6 See 

.

       The Michigan Court of Appeals concluded that Puertas failed to satisfy the second element,

which requires that the evidence has been suppressed by the state, 

,

because “possession” of the product of the Michigan State Police investigation could not be imputed


       5
        As explained in note two above, the majority’s rejection of the claim on the ground that
Puertas knew the substance of Report or knew enough to discover it through further inquiry is
best understood as falling within the second element — whether the prosecution suppressed the
evidence.
       6
       Puertas contends that the Michigan Court of Appeals erroneously decided that
impeaching evidence is not favorable evidence under Brady. The district court correctly
concluded that the Michigan Court Appeals recognized both the proper significance of
impeaching evidence under Brady’s first element and that Puertas had satisfied this element of
Brady based on the Report’s impeachment value. Puertas v. Overton, 

, 658
(E.D. Mich. 2004).
                                                 - 30 -
No. 04-2405
Puertas v. Overton, et al.

to the prosecution or the Sheriff’s Department, Puertas, 

, at *5. The district

court erred in concluding that this decision was reasonable. Puertas v. Overton, 

, 659 (E.D. Mich. 2004).

       The Supreme Court has held that “the individual prosecutor has a duty to learn of any

favorable evidence known to the others acting on the government’s behalf in the case, including the

police.” 

. Supreme Court precedent does not require possession to trigger

the prosecutor’s duty to disclose, and in fact, holds quite the opposite. In Kyles, the Court expressly

rejected the state’s argument that it had no duty to disclose materials known only to the police and

not to the 

. In dismissing this suggestion, the Court stated that “[s]ince,

then, the prosecutor has the means to discharge the government’s Brady responsibility if he will, any

argument for excusing a prosecutor from disclosing what he does not happen to know about boils

down to a plea to substitute the police for the prosecutor, and even for the courts themselves, as the

final arbiters of the government’s obligation to ensure fair trials.” 

explained that

“‘procedures and regulations can be established to carry [the prosecutor’s] burden and to insure

communication of all relevant information on each case to every lawyer who deals with it.’” 

v. United States, 

, 154 (1972)). It is clear, then, that the Supreme Court

does not require actual knowledge, much less possession, of evidence, to satisfy the second element

of Brady. Because the Sheriff’s Office repeatedly interviewed individuals from the Oakland County

Prosecutor’s Office (“the Prosecutor’s Office”) in the course of its investigation of Everingham’s

charges, it is equally clear that the prosecution was aware of “favorable evidence known to the

others acting on the government’s behalf in the case.” 

.

                                                - 31 -
No. 04-2405
Puertas v. Overton, et al.

        The decision of the Michigan Court of Appeals that “the investigation by the State Police

was not taking place on behalf of the Oakland County Prosecutor[,]” and “may fairly be

characterized as being adverse to the Oakland County Sheriff’s Department,” Puertas, 

, at *5, is unreasonable because it fundamentally misunderstands the role of the prosecutor

as set forth by the Supreme Court. The prosecutor is “‘the representative . . . of a sovereignty . . .

whose interest . . . in a criminal prosecution is not that it shall win a case, but that justice shall be

done,’” 

(alterations in the original) (quoting Berger v. United States, 

, 88 (1935)). The Prosecutor’s Office, of course, has no interest in pursuing a conviction based

on fabricated charges or false evidence. Therefore, the Michigan State Police investigation,

conducted with the full cooperation and involvement of the Prosecutor’s Office, was conducted “on

the government’s behalf in the case” because it was aimed at preserving the integrity of Puertas’s

criminal prosecution. See 

-40. The prosecution’s withholding of this critical

document from Puertas reveals an indefensibly narrow view of its duty to disclose.

        For the foregoing reasons, the denial by the Michigan Court of Appeals of Puertas’s Brady

claim constituted an “unreasonable application of[] clearly established Federal law.” 28 U.S.C.

§ 2254(d)(1). Therefore, I would grant Puertas’s habeas petition on this basis. I respectfully dissent.




                                                 - 32 -