UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 09-2303


ERIC D. LYNN,

                Plaintiff - Appellee,

           v.

EDWARD TARNEY;    RICHARD    FALLIN;   RUSSELL   HAMILL;   WILLIAM
WHELAN,

                Defendants - Appellants.



Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Peter J. Messitte, Senior District
Judge. (8:08-cv-02591-PJM)


Argued:   October 26, 2010                 Decided:   December 23, 2010


Before DUNCAN, AGEE, and DAVIS, Circuit Judges.


Reversed by unpublished per curiam opinion.


ARGUED: Patricia Prestigiacomo Via, COUNTY ATTORNEY’S OFFICE,
Rockville, Maryland, for Appellants. Terrell Roberts, ROBERTS &
WOOD, Riverdale, Maryland, for Appellee. ON BRIEF: Marc P.
Hansen, Acting County Attorney, Edward B. Lattner, Chief,
Division of Human Resources & Appeals, Silvia C. Kinch,
Associate County Attorney, COUNTY ATTORNEY’S OFFICE, Rockville,
Maryland, for Appellants. Christopher A. Griffiths, ROBERTS &
WOOD, Riverdale, Maryland, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

       This is an interlocutory appeal from the district court’s

denial of qualified immunity to four law enforcement officers.

       Appellee Eric Lynn was convicted after a non-jury trial in

state court of the murder of a drug dealer; the victim was

fatally shot in the course of an illegal narcotics transaction

that turned into a robbery. The sole state’s eyewitness to the

murder who testified at trial was a drug addict who had worked

for    several       years       as     a     paid       informant      in     narcotics

investigations. The eyewitness/informant had been present in the

apartment      where    the    murder       occurred      and   first     reported      the

murder to law enforcement. Lynn’s trial counsel knew that the

eyewitness was a drug addict and a paid informant and indeed, he

knew that she had arranged the very meeting at which the murder

occurred.

       Lynn’s conviction was affirmed on direct appeal, but in

post-conviction proceedings, the state courts granted Lynn a new

trial, finding that he was deprived of his Sixth Amendment right

to the effective assistance of counsel. The deficiency in the

performance     of     defense    counsel         that    prompted   the      finding    of

ineffective     assistance        was       counsel’s     failure    to      obtain,    and

employ    at    trial,    an     accumulation            of   impeachment      evidence,

including evidence that the eyewitness/informant was being paid

by    investigators      for     her    assistance        and   cooperation      in     the

                                              2
murder investigation and not simply for her past assistance in

numerous narcotics investigations. Upon the retrial ordered by

the    state     courts,    Lynn    was     represented        by    successor    counsel

armed with detailed impeachment evidence, including information

concerning the amount and timing of cash payments that had been

made   to    the    eyewitness/informant           throughout        the   investigation

and prosecution of the murder case. Lynn was acquitted of all

charges by a jury.

       Proceeding under 42 U.S.C. § 1983 and state law, Lynn sued

Appellants,        detectives      Edward    Tarney,         Richard    Fallin,   Russell

Hamill and William Whelan of the Montgomery County, Maryland

police department, the law enforcement officers who had made (or

were aware of) the payments to the eyewitness/informant during

the    investigation        and    prosecution         of    the    murder     case.   Lynn

alleged      that     the    detectives’         failure       to    disclose     to    the

prosecutor handling the murder case that the detectives were

paying      the      eyewitness/informant              for     her      assistance      and

cooperation in the murder case deprived him of his due process

right to a fair trial, resulting in his wrongful conviction.

Appellants moved for summary judgment on the ground of qualified

immunity at the close of discovery; the district court concluded

that Appellants were not entitled to qualified immunity.

       In   this     interlocutory        appeal       from    the     district   court’s

denial      of     qualified      immunity,       we    conclude        that    the    fact

                                             3
detectives paid the eyewitness/informant for her assistance in

the    murder       case   (and    not   simply       for   her    assistance        in   past

narcotics       investigations)          was       readily     available        to    Lynn’s

defense counsel throughout the pretrial period leading up to

Lynn’s trial. As the state post-conviction court emphatically

found, Lynn’s counsel simply failed to take the steps he needed

to    take     to    obtain       information        and    evidence     concerning       the

payments (and other impeachment evidence). Thus, as a matter of

law, Appellants did not violate Lynn’s due process right to a

fair    trial       and    we,     accordingly,        reverse     the    order      of   the

district court.

                                              I.

                                              A.

       We set forth the facts in the light most favorable to Lynn.

First, however, we state with clarity certain aspects of the

summary      judgment       record    that     the    parties     adduced    before       the

district court and now before us. What plainly is not disputed

is     that,    as        described      within,       using      governmental        funds,

detectives      made       cash    payments    to     the    eyewitness/informant           on

several occasions throughout the investigation and prosecution

of the murder case at issue. Nor is it disputed that during the

period of the eyewitness/informant’s cooperation in the murder

case (May through November 1994), she provided no assistance in

any     narcotics          investigations.           Nevertheless,        all        of   the

                                               4
Appellants,         the     assistant       state’s          attorney        who    originally

prosecuted         Lynn,    and    the     eyewitness/informant               herself,       have

unwaveringly         asserted       that       the    cash       payments      made    to    the

eyewitness/informant           during      her       assistance      and     cooperation       in

the murder case were not in consideration for her assistance and

cooperation in the murder case. Rather, Appellants have insisted

that    the   payments        were    for       the    eyewitness/informant’s               prior

assistance and cooperation in completed and on-going narcotics

investigations        (and,       perhaps,      her    future      cooperation         in    such

investigations).

       Lynn vigorously takes a contrary position. Lynn’s analysis

of the summary judgment record emphasizes several features of

the direct and circumstantial evidence surrounding the payments

to the eyewitness/informant: (1) the manner and timing of the

payments, which largely coincided with significant investigative

activity      in    the    murder    case;       (2)       the   lack   of    any     on-going,

contemporaneous work by the eyewitness/informant on behalf of

the    narcotics      detectives         who    were       her   “handlers”        during     the

pendency of the murder case; and (3) the opaque if not scanty

documentary record memorializing the payments. From this mosaic,

Lynn makes a more than plausible argument that a reasonable fact

finder     could          conclude       that        the     payments        made      to     the

eyewitness/informant during mid- to late 1994 were, at least in



                                                5
part,       in    consideration                for     her    continuing        assistance         and

cooperation in the prosecution of Lynn in the murder case.

        We agree that in this regard, Lynn has generated a genuine

dispute      of    fact.       We    thus       adopt       Lynn’s     interpretation         of    the

summary judgment record on the issue of whether a reasonable

fact        finder        could           find         that      the      payments          to     the

eyewitness/informant during May through November 1994 were in

consideration for her assistance and cooperation in the murder

case.    Nevertheless,              as     we       make    clear    within,    even       accepting

Lynn’s       assertion         that        a        reasonable       finder     of     fact       could

reasonably conclude that the payments were (at least in part)

for the eyewitness/informant’s assistance and cooperation in the

murder case, that fact is not material to the issue of qualified

immunity;         the    outcome         of     this       appeal    is   the   same       whether    a

finder of fact agreed with Appellants or Lynn on this issue.

                                                      B.

       On    May        25,    1994,       Montgomery          County,      Maryland        homicide

detectives Edward Tarney and Richard Fallin were assigned to

investigate the murder of Ephraim Hobson that occurred earlier

that day. They learned that their colleague, narcotics detective

Russell      Hamill,          had     a       confidential          informant        who    had    had

previous contact with Hobson and who had, in fact, witnessed the

murder. Hamill spoke to the informant, Cassandra McRoy, known as

“Sandy,”         who     had        been        a    confidential         informant         for    the

                                                       6
Montgomery County Police Narcotics Division for more than three

years,     and    arranged         her    interview        by    homicide      detectives.

(Hamill was the detective who worked with Sandy most frequently,

although narcotics detective William Whelan also had frequent

contact with her.)

      Detectives        Tarney      and    Fallin      met      with   Sandy      that    same

afternoon. She told them that she had taken two men to Hobson’s

apartment to purchase cocaine, and that one of the men had shot

Hobson while the two attempted to rob him. She said that she

recognized one of the suspects, “Eric,” as a local drug dealer

whom she had known for about three years. In her description of

“Eric,” Sandy described a man of considerably different height

and weight from the height and weight of Lynn, and she failed to

mention any facial hair, although Lynn had distinctive facial

hair at the time. Sandy did not know the second suspect.

      On    the    same      day    as    Sandy’s     interview        by   the    homicide

detectives, Tarney and Fallin, detective Hamill, the narcotics

detective    and       one   of    Sandy’s     handlers,        paid   Sandy      $140.   The

internal report documenting the payment described in detail the

information she provided to detectives about Hobson’s murder,

but   did        not     mention         any       other     drug      transactions        or

investigations.

      On May 30, 1994, detectives Tarney and Fallin showed Sandy

a photo array of offenders named “Eric,” from which she made a

                                               7
tentative identification of Lynn. Two days later, on June 1,

1994, detectives displayed to Sandy surveillance photos of Lynn.

Then, on June 21, 1994, the detectives took Sandy on a “roving

show up procedure” by automobile in Lynn’s neighborhood in their

continuing attempt to solidify Sandy’s identification of Lynn as

the    “Eric”    involved          in       the    Hobson      murder.      On     that      day,   the

detectives paid Sandy $200, $100 of which was paid by one of the

homicide        investigators                and     later       reimbursed            from     funds

controlled       by   the        narcotics         detectives.            The    internal      report

documenting       the       June       21,    1994       activity         and    related       payment

stated “synopsis of contact.” Detectives arrested Lynn six days

later on June 27, 1994, for the murder of Hobson.

       In the meantime, on June 17, 1994, the narcotics detectives

had    requested        additional            government        funds       from       the    Special

Investigations Division to be paid to Sandy. This request, for

$1250,    was    described             as    based       on    the    informant’s         “previous

assistance      and     .    .     .    continued         assistance            with   the    Special

Investigations        Division.”             J.A.       675.   One    thousand         dollars      was

approved by Captain Robert F. McKenna, Director of the Special

Investigations Division, on the same day. It is undisputed that

the narcotics detectives paid these funds to Sandy in several

installments.

       On July 22, 1994, Sandy testified before the grand jury.

That   day   she      received          another         payment      of    $200    for       “services

                                                    8
rendered.” J.A. 678. On September 28, 1994, the detectives took

Sandy to meet with the murder case prosecutor to prepare for

trial; the detectives paid her $100 “for services rendered in

the past.” J.A. 681. She was then paid the remaining balance of

the June 17 request — a sum of $500 — on December 6, 1994, nine

days after she testified at trial against Lynn. The internal

report documenting this transaction did not list a reason for

the payment.

       Lynn    was   represented      in   the    murder   case   by    David   M.

Simpson, Esq. In response to Simpson’s motion for discovery, the

prosecutor provided “open file” discovery beginning some time in

June   1994.    Simpson   was   not    provided     with   Sandy’s     full   name,

however, or with any information from which he could locate her.

Simpson later testified at Lynn’s post-conviction hearing that

he believed the prosecutor had an obligation to disclose Sandy’s

identity to him, but he acknowledged that he did not file a

motion    to    compel    disclosure       of    that   information.     He   also

testified that he did not believe that prosecutors ever filed a

motion    to    protect    or   keep       confidential     Sandy’s     identity.

Instead, Simpson agreed to let the prosecutor set up a meeting

between Sandy and himself.

       Thus, Simpson and the prosecutor arranged to have Simpson

and Sandy meet on the day of a scheduled status conference at

the courthouse, a few weeks prior to trial, to permit Simpson to

                                           9
interview her. Simpson expected that he would learn her identity

at   this    meeting          so    he    could    run    record     checks       and    further

explore      her        background.          He        admitted      that       during        these

discussions with the prosecutors “it came to [his] attention

that [Sandy] was an informant with the police, and . . . she was

a paid informant.” J.A. 163. Simpson acknowledged that Sandy’s

status      as     an    informant         was    significant        to     him    because      he

recognized that her credibility was the “lynchpin” of the case.

J.A. 163.

      Remarkably,             despite       Simpson’s         acknowledgement            of     the

critical importance of effectively attacking Sandy’s credibility

in his representation of Lynn in the murder case, Simpson did

not meet or speak with her until the day of the trial. 1 The

planned meeting between Simpson and Sandy on the day of the

status conference did not take place because Sandy failed to

appear. Simpson and the prosecutor then arranged for Simpson and

Sandy to meet about a week later. That meeting also did not take

place,      this    time       because      Simpson       failed     to     appear       for    the

meeting.         Simpson           then     spoke        to    the        prosecutor          about

rescheduling,           but    they       were    unable      to   find     a     date   due    to

Simpson’s “very tight calendar.” J.A. 168. Instead, they agreed


      1
        Indeed, the state post-conviction court noted that
“Sandy’s testimony was the only piece of evidence that connected
[Lynn] to the murder.” J.A. 258.


                                                  10
that Simpson would speak to Sandy on November 28, 1994, the

first day of trial, prior to any proceedings. Despite the fact

that   Simpson      had    not    interviewed    the   sole    eyewitness         whose

“testimony was the only piece of evidence that connected [Lynn]

to the murder,” J.A. 258, he did not file any motions to compel

disclosure of her identity or any other information about her,

nor did he ask the prosecutor for any additional information. At

no time did he seek a postponement of the trial.

       On the day of trial, Sandy did not arrive on time for the

meeting with Simpson. Indeed, she was a reluctant witness and

only arrived after detectives arranged to locate her and bring

her into court. Despite the fact that he was again unable to

speak with Sandy, Simpson did not ask for a postponement or

continuance. Instead, he decided that he would simply proceed

with   a     pretrial     motions    hearing     without     speaking   to    Sandy

beforehand. During the hearing, Simpson questioned Sandy about

her status as a paid informant. She testified that she had been

a paid informant for Detective Hamill for over three years. When

Simpson asked her whether she had been paid for her cooperation

in the murder case, she answered no. Simpson asked no further

questions regarding her status as a paid informant or the cases

she    had    worked      on.    Despite   his   admitted     knowledge      of    the

importance     of   Sandy’s      credibility,    and   the    fact   that    he     now

knew, as well (from her testimony at the suppression hearing)

                                           11
that Sandy worked as a paid informant for law enforcement while

also    collecting       fees   from   drug    dealers      for   arranging    drug

transactions, Simpson determined that he did not need to speak

to Sandy any further after the motions hearing and before the

trial. He then proceeded directly to trial without asking for a

postponement,       continuance,       or      any     additional     information

regarding       Sandy,    her   history     with     law   enforcement,   or   the

amount, timing, or reasons for the payments made to her.

       At the hearing on Lynn’s post-conviction petition in 2000,

Simpson testified as follows, in part, about his thinking and

decision-making in connection with his representation of Lynn:

            A: . . . I would have liked to talk to her, but
       since she was there for the motion, I was going to at
       least do the motion first and then get into, if I
       needed to talk to her more before we actually started
       the trial. But once we got done with the suppression
       hearing, I didn’t need to talk to her anymore.

               Q: That was the determination you made?

               A: Absolutely.

            Q: Based on what you got from her out of the
       suppression?

               A: Absolutely.

            Q: Now the suppression for her only revolved
       around her identification [of Lynn as a participant in
       the murder].

               A: That’s right.

       . . .



                                          12
           Q: Did you receive any information from                the
      State’s Attorney about her during the hearing?

              A: Not that I recall.

      . . .

           Q: Now, either before, during or after the
      suppression motion, did you bring to Judge Ruben’s
      attention that you had this informal agreement to
      resolve discovery about her, that you had had that
      informal agreement that it not take place?

              A: After the motion?

              Q: Or during it or before.

           A: No. We didn’t have any – I didn’t, I didn’t
      think it was necessary at that point.

           Q: Okay. So you never brought it to Judge Ruben’s
      attention?

              A: No.

           Q: And did you ever ask for any relief before,
      during or after that hearing of the judge regarding
      discovery concerning Sandy?

              A: No. I didn’t ask for anymore [sic].

           Q: And at that hearing, did you ever learn her
      true name?

              A: Not that – no. I don’t – no.

J.A. 170-72 (emphases and alterations added).

      The state’s case at trial, which was to the court without a

jury, 2   consisted    of   the   testimony   of   four   law   enforcement


      2
       Simpson testified at the state post-conviction hearing
that based on his knowledge of the veteran trial judge’s
background in criminal cases, and the judge’s seeming skepticism


                                      13
officers, a firearms investigator, and Sandy. Sandy testified

that on May 25, 1994, she took Lynn and another man to Hobson’s

apartment   to    purchase   drugs.   While   Hobson    was    preparing    the

drugs for purchase, Lynn’s companion pulled a gun, pointed it at

Hobson and demanded money. Hobson pulled a gun and shots were

fired. On cross examination, Simpson’s inquiry into Sandy’s work

as an informant was limited to a question regarding whether she

was a paid informant, and for how long she had been one. Simpson

asked her no questions about the specifics of the payments made

to her during the course of the homicide investigation. Lynn was

convicted   the    following   day    and   subsequently      sentenced    to   a

total period of incarceration of life plus five years.

                                      C.

     After exhausting his direct appeal, Lynn filed a petition

for post-conviction relief in state court. On August 18, 2000,

the Circuit Court for Montgomery County granted post-conviction

relief, finding that Lynn was denied his Sixth Amendment right

to   the   effective   assistance     of    counsel    based    on   Simpson’s

inadequate investigation of Sandy’s background. On the state’s

appeal, the Court of Special Appeals of Maryland agreed that

Simpson’s failure to investigate Sandy’s background constituted


at Sandy’s testimony at the suppression hearing (e.g., according
to Simpson, she appeared to be under the influence of drugs), he
recommended to Lynn and Lynn acceded to his recommendation that
jury trial be waived.


                                      14
deficient performance under Strickland v. Washington, 

, 687-88 (1984), but determined that Lynn had not established

the second prong of a Strickland claim, i.e., prejudice, because

there was no showing that any additional significant impeachment

material   against   Sandy   existed.     See   

  court

remanded the case for further proceedings and directed the post-

conviction court to permit discovery.

     During    the   post-remand    proceedings,       counsel    for    Lynn

conducted extensive discovery and the state turned over Sandy’s

confidential   informant     file   and     control    log,    among    other

documents. The file revealed the specific dates and amounts of

the payments made to Sandy during the course of the homicide

investigation and prosecution. In light of the evidence produced

by Lynn after the remand, the circuit court determined that Lynn

had demonstrated Strickland prejudice. 3 Accordingly, the court


     3
       Importantly, and contrary to Lynn’s seeming suggestion
both before the district court and on appeal before us, the
state post-conviction court did not conclude that it was the
mere non-disclosure of the timing of the payments to Sandy that
prejudiced Lynn’s right to effective assistance of counsel.
Rather, the post-conviction court concluded that it was an
accumulation of undiscovered additional impeachment evidence
that prejudiced Lynn’s Sixth Amendment right. See J.A. 290-97
(setting forth post-conviction court’s findings that Strickland
prejudice arose from the following: (1) Simpson’s failure to
uncover a second theft conviction imposed on Sandy; (2) his
failure to uncover the fact that at the time of the first trial,
an arrest warrant for Sandy for violation of probation was
outstanding; (3) his failure to uncover the extent of Sandy’s
drug addiction, including her admission for in-patient substance


                                    15
again   granted   Lynn’s   petition,    vacated   his   conviction,   and

ordered a new trial. Upon the state’s appeal from the grant of

post-conviction relief, the Court of Special Appeals affirmed

the order of the post-conviction court.

     The state elected to retry Lynn. Lynn’s second trial began

on October 24, 2007, this time before a jury. Evidence of the

specific payments made to Sandy was introduced by Lynn’s new

lawyer (together with the raft of other impeaching evidence).

Lynn was acquitted by the jury of all charges.



                                  II.

     This § 1983 damages action was timely removed to federal

district court from the Circuit Court for Prince George’s County

on October 3, 2008. On December 5, 2008, the district court

issued an order dismissing all counts of the complaint except

Lynn’s claim for deprivation of due process against Appellants,

detectives Tarney, Fallin, Hamill and Whelan. At the conclusion

of discovery, the detectives filed a motion for summary judgment

on the sole remaining count, asserting that they did not violate



abuse treatment a mere four months before the May 1994 murder;
and finally, (4) his failure to uncover the specific timing of
the cash payments to Sandy during the pendency of the murder
case, about which the court stated: “[W]hether it could be
reasonably inferred that certain payments were recompense for
assistance and cooperation in the homicide case was a proper
impeachment issue.”).


                                  16
Lynn’s due process right to a fair trial and that they were

entitled     to    qualified          immunity.         At    a   hearing      on   October     20,

2009, the district court ruled from the bench that a jury could

find that the detectives had willfully and maliciously withheld

evidence      from       Lynn,    and     that      a        reasonable     law       enforcement

officer would have known that doing so was against the law.

Consequently, the district court concluded that the detectives

were not entitled to summary judgment.



                                             III.

      In this timely interlocutory appeal, over which we have

jurisdiction       pursuant       to    28   U.S.C.           §   1291,   we    review    solely

legal issues, see Mitchell v. Forsyth, 

, 529 n.9

(1985); Johnson v. Jones, 

, 313 (1995), applying a

de novo standard, see, e.g., Johnson v. Caudhill, 

,

650   (4th    Cir.    2007).       Whether         an    asserted     factual         dispute    is

material to qualified immunity is also a legal determination

subject to de novo review. See, e.g., Elliott v. Leavitt, 

, 644 (4th Cir. 1996).

      When    evaluating          a    claim       of        qualified    immunity,       courts

consider two questions: (1) whether the facts alleged, taken in

the   light       most     favorable      to       the        plaintiff,       show    that     the

defendants’       conduct        violated      a    constitutional          right,       and    (2)

whether the right was clearly established. Saucier v. Katz, 533

                                               

, 200-01 (2001). These questions may be considered in

the order most appropriate for the specific case. Pearson v.

Callahan,   129    S.   Ct.    808,   818   (2009)   (“The   judges    of   the

district courts and the courts of appeals should be permitted to

exercise their sound discretion in deciding which of the two

prongs of the qualified immunity analysis should be addressed

first in light of the circumstances in the particular case at

hand.”).

     “Qualified immunity does not override the ordinary rules

applicable to summary judgment proceedings, nor does it give

special substantive favor to the defense.” Henry v. Purnell, 

, 333 (4th Cir. 2010) (internal quotations omitted),

pet. for rehearing en banc pend. However, Lynn still bears the

burden of projecting evidence from which a jury could reasonably

conclude that the detectives violated his right to due process.

Cf. Carr v. Deeds, 

, 608 (4th Cir. 2006) (“[T]he

burden on the moving party may be discharged by showing-that is,

pointing out to the district court-that there is an absence of

evidence    to    support     the   nonmoving   party's   case.”)     (quoting

Celotex Corp. v. Catrett, 

, 325 (1986)).




                                       18
                                             IV.

                                              A.

       We conclude that this case properly may be disposed of at

the first step of the Saucier analysis, that is, on the issue of

whether Lynn has projected sufficient probative evidence which,

if believed by the fact finder, would establish that Appellants

deprived      him   of    his      due    process    right     to   a   fair   trial.    We

indulge several assumptions favorable to Lynn. First, we assume

that    the     outcome       of   Lynn’s     second      trial,    acquittal     on    all

counts, resulted in whole or in part from his new counsel’s use

of the evidence showing the specific dates the detectives made

cash payments to Sandy. Second, we assume that if the detectives

had    volunteered       to     the      murder    case   prosecutor,      and   if    that

prosecutor had volunteered to Simpson that, by the time of the

first trial (in November 1994), Sandy had received the specific

cash payments delivered to her on May 25, 1994 (the date of the

murder), and thereafter on specific dates in June, July, and

September 1994, then the trial judge who conducted the non-jury

trial would likely have harbored a deeper skepticism as to the

reliability of Sandy’s identification of Lynn as a participant

in the robbery/murder of Hobson and, consequently, would likely

have harbored a reasonable doubt as to Lynn’s guilt. Finally, we

assume,    as    mentioned         earlier,       that    a   reasonable   fact   finder

could reasonably conclude that the cash payments the detectives

                                              19
made to Sandy from on and after the date of the murder to the

date of the trial were, in whole or in part, for her assistance

and cooperation in the murder investigation, and not merely in

consideration       for    her   assistance    and   cooperation     in    drug

investigations. Ultimately, none of these assumptions salvages

Lynn’s claim.

                                       B.

      The   Fourteenth     Amendment   prohibits     states   from   depriving

any   person   of    her   liberty   without   first   affording     her   “due

process of law” by means of a fair trial. 4 Cone v. Bell, 129 S.


      4
       We note that Lynn has insisted that his claim arises
directly under Brady v. Maryland, 

(1963), and its
progeny. As we describe in the text, the duty imposed by the
Brady doctrine is an obligation on prosecutors, rooted in the
due process clauses of the Fifth and Fourteenth Amendments, to
disclose exculpatory evidence (including impeachment evidence).
See 

(“We now hold 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.”) (emphasis added); Kyles v. Whitley,

, 437 (1995) (noting 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”). Semantics aside, it is clear that, in essence,
where a law enforcement officer “suppresses” favorable evidence
such that the prosecutor fails to learn of it, a violation of
the Brady doctrine by the prosecutor results.
     This court’s jurisprudence in respect to the cognizability
of Brady-type claims against law enforcement officers remains in
a state of uncertainty. Compare Jean v. Collins, 

,
658-63 (4th Cir. 2000) (Wilkinson, J., concurring in the denial
of rehearing en banc by an equally divided en banc court) with

(Murnaghan, J., dissenting from the denial of
rehearing en banc by an equally divided en banc court). This


                                       20
Ct. 1769, 1772 (2009). In Brady v. Maryland, 

(1963),

the Supreme Court held that “when a State suppresses evidence

favorable     to     an    accused    that       is    material    to     guilt    or    to

punishment,     the       State   violates       the    defendant's     right     to    due

process, ‘irrespective of the good faith or bad faith of the

prosecution.’” 

(quoting 

); see also United States v. Jeffers, 

,

573 (4th Cir. 2009); United States v. Wilson, 

, 380

(4th Cir. 1990). The Court’s opinion in Giglio v. United States,

,    154-55      (1972),    extended      the    Brady    doctrine      to

impeachment evidence.

      It is plain, however, that no due process violation is made

out if the allegedly withheld or suppressed evidence was readily

available to the defense. See 

(“[W]here

the   exculpatory         information       is    not    only     available       to    the

defendant but also lies in a source where a reasonable defendant

would have looked, a defendant is not entitled to the benefit of

the   Brady    doctrine.”);        see   also     Hoke    v.    Netherland,       

, 1355 (4th Cir. 1996).

      Here, we conclude as a matter of law that Lynn has not

satisfied his burden of projecting evidence from which a jury


case provides no necessity and thus no opportunity to clarify
that uncertainty, however, inasmuch as we conclude that under no
potentially applicable standard would a Brady-type damages claim
be made out by Lynn against Appellants.


                                            21
could reasonably conclude that the detectives denied Lynn his

due process right to a fair trial. Evidence of the detectives’

cash payments to Sandy between the date of the murder and the

commencement of trial was readily available to Simpson before

trial. 5

      The state agreed to make Sandy available to Simpson for an

interview several weeks before trial. Although Sandy failed to

appear for the first scheduled meeting, Simpson himself then

cancelled    a     subsequent   meeting     and   failed    to   reschedule   any

subsequent meeting, citing his busy schedule.

      Simpson then agreed to delay his interview of Sandy until

immediately prior to the suppression hearing on the first day of

trial.     Then,     when   Sandy   arrived       late     for   the   scheduled

interview, Simpson did not file any motions for disclosure or

request a continuance or postponement. Instead, he determined he

could simply question Sandy on the stand during the hearing. At

the   hearing,      Sandy   admitted   she    was   a    paid    informant,   but

Simpson did not ask Sandy anything about the payments she had


      5
       The finding of the state post-conviction court is wholly
unambiguous:
          This Court concludes that the duty to investigate
     in this case was breached, not only because of [the
     expert opinion testimony introduced by Lynn], but
     because common sense dictates that investigation of
     the sole witness in a first degree murder case is
     required.
J.A. 261.


                                       22
received or the cases she worked on for the police. Nor did he

examine detective        Hamill       about       the       types   of   cases     for   which

Sandy was paid, when the payments were made, or how much the

payments     were.     Then,       after    the       hearing,      Simpson       elected   to

proceed     directly    to     a    non-jury          trial    without    requesting        any

further discovery or information about Sandy, apparently hoping

he    had    accurately        read        the     presiding        judge’s       non-verbal

intimations that Sandy would be disbelieved. See supra p. 13

n.2. He never filed any motion to compel disclosure of Sandy’s

identity, and in fact he never learned her actual identity. Nor

did   he    request    documentation         of       the     payments    made     to    Sandy,

despite his appreciation that her credibility was the “lynchpin”

of Lynn’s case. J.A. 163. He recommended, and Lynn agreed to, a

non-jury trial.

      In light of these facts, it is indisputably clear that Lynn

was denied the effective assistance of counsel in consequence of

Simpson’s     failure    to    conduct           anything      close     to   a   reasonable

investigation in the murder case. Nevertheless, these facts do

not remotely suggest that the detectives’ acts and omissions

denied Lynn his right to a fair trial. Indeed, as the post

conviction      court     concluded,             it     was     the      accumulation        of

undiscovered additional impeachment evidence (including a second

theft conviction; the outstanding arrest warrant for Sandy for

violation of probation; and Sandy’s extensive drug use) that

                                             23
combined with Simpson’s failure to uncover the timing of the

cash        payments    during   the       pendency    of    the       murder   case    that

deprived Lynn of substantial justice. In short, Lynn has only

projected evidence sufficient to show that his Sixth Amendment

right       was   compromised        by    Simpson’s    deficient         performance    in

failing to uncover information that was both available to him

and    in     a   source     where    it    would    have    been      uncovered   by    any

reasonably competent lawyer. 6 

(finding no

due process violation where the defendant’s lawyer had access to

all of the allegedly withheld witnesses and would have learned

of them had he undertaken a reasonable investigation); 

(denying relief where defense counsel could have

obtained the exculpatory information by questioning a witness in

preparation for trial); Lugo v. Munoz, 

, 9-10 (1st

Cir.    1982)      (where     facts       are   available    to    a    diligent   defense

attorney,         no   due   process       violation   can    be       established)(cited

with approval in 

.).




        6
       Of course, our holding does not mean that a criminal
defendant cannot suffer the denial of a fair trial on two or
more distinct bases. We hold only that on the record before us,
as a matter of law, it was a Sixth Amendment deprivation, not a
Fourteenth Amendment deprivation, that inflicted injury, if any,
on Lynn.


                                                24
                                    V.

      In this §   1983 damages action, Lynn has failed to satisfy

his burden at the summary judgment stage to project evidence

from which a jury could conclude that Appellants violated his

due   process   right   to   a   fair    trial.   Instead,   he   has   only

projected evidence from which a jury could reasonably find that

his defense attorney probably committed professional malpractice

under state law. As he has failed to support his assertion that

Appellants violated his right to a fair trial, summary judgment

on the ground of qualified immunity should have been granted.

See 

. Accordingly, the order of the

district court is

                                                                  REVERSED.




                                    25