Case: 12-50800   Document: 00512408451     Page: 1   Date Filed: 10/16/2013




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                 Fifth Circuit

                                                                 FILED
                                                              October 16, 2013

                                 No. 12-50800                   Lyle W. Cayce
                                                                     Clerk

COLTON AARON PITONYAK

                                           Petitioner – Appellant
v.

WILLIAM STEPHENS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION; BILL PIERCE,

                                           Respondents – Appellees



                Appeal from the United States District Court
                     for the Western District of Texas


Before HIGGINBOTHAM, OWEN, and SOUTHWICK, Circuit Judges.
PATRICK E. HIGGINBOTHAM, Circuit Judge:
      Colton Pitonyak was convicted of first-degree murder for the death of
Jennifer Cave, who was killed in his apartment by a gunshot in the early
morning hours of August 17, 2005. Pitonyak filed a federal habeas petition
alleging that the prosecution violated Brady v. Maryland, 

 (1963), by
failing to disclose an alleged jailhouse confession to the murder by Laura Hall.
The district court denied relief and we granted a certificate of appealabilty
(“COA”). With the benefit of oral argument, we deny the State’s motion for
reconsideration of the COA and affirm the judgment of the district court.
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                                        I.
A.
        Jennifer Cave’s dismembered body was discovered the evening of August
18, 2005, in the bathtub of Colton Pitonyak’s apartment. She had been killed in
the early morning hours of the previous day by a single gunshot that passed
through her right arm, right lung, and aorta, causing her death within fifteen
seconds. Her head and both hands had been severed from her body and were
found in a black plastic garbage bag that lay on the floor next to the bathtub. A
second bullet was fired post-mortem through the severed neck up into the skull,
and there were twenty-nine post-mortem stab wounds on the face, chest, and
hand.
        Several days later, Mexican police apprehended Pitonyak and Laura Hall
at a hotel in Piedras Negras, Mexico, and turned them over to U.S. Marshals on
the international bridge. In 2007, a jury convicted Pitonyak of first-degree
murder and sentenced him to fifty-five years of imprisonment. At a separate
trial later that year, a jury convicted Hall of hindering apprehension and
tampering with physical evidence by mutilating Cave’s body. She received a
ten-year sentence.
        Pitonyak and Cave met in the summer of 2004 and became good friends.
Pitonyak and Laura Hall met in the spring of 2005. Hall was “in love with” or
“obsessed” with Pitonyak. Although he did not reciprocate those feelings, they
had sexual relations about once per week through the spring and summer of
2005. Pitonyak, initially a stellar scholarship student at the University of Texas,
had been struggling academically since he began seriously abusing drugs and
alcohol in 2003. He also occasionally sold drugs, mostly to University of Texas
students. As payment for a drug debt, Pitonyak had acquired a Smith & Wesson
SW380 pistol. He later sold the pistol before reacquiring it as collateral for
loaning his car to a friend of Hall’s on August 13, 2005.

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      Around 6:00 p.m. on August 16, 2005, Pitonyak called Cave because he
had not seen her in a while, and he wanted to know what she was doing. Cave
returned his call around 9:00 p.m. She was excited because she had been offered
a job at a law firm that was to begin the next day. She wanted to go downtown
to get a drink and something to eat. Pitonyak had been drinking vodka steadily
since 5:00 p.m. and had also taken several Xanax pills. Pitonyak testified that
he recalled going to a restaurant with Cave and ordering drinks, but that he
remembers nothing else until the following morning.
      Later that night, several of Cave’s friends talked to Cave and Pitonyak at
a bar on Sixth Street in downtown Austin. Close to midnight, the group left to
go to a different bar across the street. Pitonyak and Cave trailed behind as they
closed their tab. They were last seen at the door of a second bar before they
abruptly left without entering and walked down the street shortly after
midnight.
      No one who encountered Pitonyak and Cave that night gave any hint of a
problem or argument between them, and several witnesses testified it was clear
the two were not out on a date. Michael Rodriguez, a friend of Cave’s, testified
that he called her at 10:30 p.m. Cave told him she was going to hang out with
Pitonyak, who was “having some issues.” Cave and Rodriguez exchanged two
text messages at 11:47 p.m. and 11:54 p.m. He also spoke with her twice more
that night, once around midnight and once at 1:05 a.m. Rodriguez testified that
on the call at midnight, Cave “basically said that [Pitonyak] was a little upset,
basically mentioned something about the only people that could help him were
people that were in jail.” Cave “didn’t sound like she was in any kind of problem
or issue.” Rodriguez last spoke with Cave by phone at 1:05 a.m. as Cave walked
with Pitonyak towards her car. On that call, Cave indicated that Pitonyak was
upset because he lost his phone and she was going to help him find it. She told
Rodriguez that Pitonyak had just tried to break the window of a car and that he

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was urinating on a vehicle. Rodriguez testified that Cave “didn’t sound like she
was in trouble or anything,” and that “she said she was fine” and did not seem
intoxicated.
       Nora Sullivan, a good friend of Pitonyak’s whose apartment was
approximately 100 feet from his, testified that Pitonyak came to her apartment
for between 15 and 30 minutes shortly after 3:00 a.m. on Wednesday, August 17.
Pitonyak said he had lost his cell phone and asked to borrow Sullivan’s phone
to place two calls, at 3:27 and 3:28 a.m., to a friend named Evan Ray. Ray did
not answer the calls. Pitonyak then told Sullivan that he had been in a gunfight
with “some Mexican guys” at his apartment. According to Pitonyak’s story, the
Mexicans had fired five shots, and Pitonyak had returned two shots. Pitonyak
said one shot hit his sofa and implied one of the Mexicans had been hit.
Pitonyak asked if he had any blood on him, and Sullivan for the first time
noticed a small smear of what appeared to be blood on Pitonyak’s forearm.
However, Sullivan testified that she thought Pitonyak had made the story up
because she had not heard gunshots and could tell he had been drinking. She
described Pitonyak as intoxicated but “functioning fine, talking fine.” Pitonyak
then took a handgun out of his waistline and said he was unloading it as he took
the magazine out and put the gun back in his waistline. The two then smoked
a cigarette and had a beer together before Pitonyak returned to his apartment.
       Cell phone records show that Pitonyak called Hall at 5:59 a.m. and they
spoke for 13 minutes. Call records show they spoke again at 6:57 a.m. and 7:24
a.m.1 Pitonyak testified that some time on Wednesday morning, he “went back
to the bathroom to use the restroom and [Cave] was laying in the bathtub.” He


       1
         Hall and Pitonyak also exchanged text messages, but the timing of these messages
is disputed. Hall’s cell phone records show that Pitonyak texted Hall at 3:34 a.m.; Pitonyak’s
phone records from a different service provider show Pitonyak texted Hall at 5:34 a.m., not at
3:34 a.m. Pitonyak’s counsel did not resolve the discrepancy at trial, and the state habeas
court make a finding of fact adopting the times in Hall’s cell phone records.

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was “scared” and “panicked.” He “tried to call [Hall] back and tell her not to
come by,” but Hall “insisted.” Pitonyak testified that he recalled this phone call,
Hall’s arrival, and the events thereafter.
      When Hall arrived, she saw Cave’s purse on the ground and asked
Pitonyak “what was going on,” and Pitonyak took her to the bathroom and
showed her Cave’s body. Pitonyak and Hall discussed cutting up the body to get
rid of it. At 3:00 p.m., Pitonyak went to a hardware store with a shopping list
of supplies that Hall had written for him. Telling the shop owner that he needed
to cut up a turkey, Pitonyak purchased a hacksaw, shop towels, bathroom tissue,
latex gloves, dust masks, 55-gallon drum liners, ammonia, carpet cleaner, and
odor eliminator.
      That same afternoon, an attorney at the law firm that had hired Cave
called Cave’s mother, Sharon, to report that Cave had not shown up to work that
morning. When Sharon, too, was unable to reach Cave, she obtained from her
cell phone provider a list of calls made to and from Cave’s cell phone and began
calling the numbers on that list. Sharon talked to Rodriguez and learned that
Cave had last been seen with Pitonyak. Sharon also talked to Pitonyak, who
acknowledged that he had seen Cave the previous night, but claimed they had
parted ways downtown and that he did not know where she was. When Sharon
called again around 8:30 p.m., she told Pitonyak that police were on their way
to Pitonyak’s apartment. Pitonyak and Hall threw some clothes in a bag and left
the apartment. They stopped by Hall’s apartment to pick up a bottle of rum and
Hall’s clothes before driving south to Del Rio, Texas, where they crossed the
international border into Ciudad Acuna, Mexico, around 2:00 a.m. They checked
into a hotel there before traveling to another hotel in Piedras Negras, Mexico.
      The next day, Thursday, August 18, Sharon and her boyfriend Jim
Sedwick drove to Austin. The Austin Police Department informed them that
Cave’s car had been found parked at the apartment complex where Pitonyak

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lived. That evening, Sharon, Sedwick, and Cave’s sister Vanessa drove to
Pitonyak’s apartment. After police told them they were unable to help, Sharon
and Sedwick unlocked a window to Pitonyak’s apartment through a chip in the
glass. Sedwick opened it and climbed into the apartment. When he went into
the bathroom, he discovered Cave’s dismembered body in the bathtub. The
family immediately called the police, who arrived at the scene shortly thereafter.
      After four days, Mexican police apprehended Hall and Pitonyak in Piedras
Negras, Mexico, where they had absconded after fleeing the United States.
Authorities turned them over to U.S. Marshalls at the border. Deputy United
States Marshall Vincent Bellino testified that when he told Pitonyak he was
being arrested, Pitonyak said, “If this is a murder charge, then I know exactly
what this is about.”
B.
      There was no testimony at trial from witnesses who could describe the
actual events that took place in Pitonyak’s apartment on the night of the
murder. Pitonyak denied firing the shot into Cave’s decapitated head and
stabbing and dismembering the body; he implied that Hall alone had done so.
But Pitonyak accepted sole responsibility for Cave’s death, while painting an
extensive picture of drug and alcohol abuse to show he could not have had the
requisite intent for first-degree murder. Pitonyak testified:
            Q: Do you have any recollection of the circumstances surrounding
            [Cave’s] death?
            A: I have no idea what happened that night.
            Q: Who killed her?
            A: I did.
            Q: Are you certain of that?
            A: Yes, sir.
            Q: How can you be certain?
            A: Everything points to it. Because I can’t think of any other thing
            that happened.
            Q: Why would you have ever killed [Cave]?


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            A: I don’t know. There is no way it would have been on purpose.
            Q: There is no way you would do it on purpose.
            A: Never.
            Q: Well, we have all kicked this around. Do you have any reason to
            believe that [Hall] came over there and shot and killed [Cave]?
            A: No, sir.
            Q: Do you think there is any possibility that happened?
            A: No, sir.
      Forensic evidence showed the two bullets found in Cave’s body were from
the Smith & Wesson SW380 pistol that belonged to Pitonyak and was later
found in his car. Three cartridge casings fired from that pistol were found in
Pitonyak’s apartment: two on the coffee table and one in the bathtub under
Cave’s body. Besides the two bullets found in Cave, the third bullet was never
found.
      DNA tests showed that neither Pitonyak nor Hall could be excluded as the
source of DNA evidence on the grip, slide, and magazine of the gun. DNA on the
handle of a machete found in the dishwasher and on two dust masks found on
the sink counter in the bathroom was consistent with that of Cave and Pitonyak,
but not Hall. A blood stain on a green washcloth was consistent with the DNA
profile of Pitonyak but neither Hall nor Cave. A blue towel found on the coffee
table in Pitonyak’s apartment was not stained with blood but contained both
Pitonyak’s and Hall’s DNA. DNA testing of a faucet knob from Pitonyak’s
apartment was consistent with Cave and Pitonyak, but not Hall. Blood stains on
a pair of men’s blue jeans found in Pitonyak’s apartment were consistent with
Pitonyak’s DNA, and Cave’s blood was found on a pair of grey men’s briefs. A
pair of red sweat pants tested positive for blood and contained trace evidence
consistent with Hall’s DNA. Only Cave’s DNA was found on the blade of a
hacksaw found lying on her chest; the handle was not tested.
      Hall did not testify as a witness for either the defense or the prosecution.
Ryan Martindill, an acquaintance of Hall’s, testified that there was one night


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that summer when Hall stayed the night at Martindill’s apartment and then
asked him in the morning to drive her to her car. Martindill’s recollection of the
date of that night was uncertain. In his affidavit given nine days after the
murder, Martindill stated that a Detective Walker had asked him whether Hall
stayed at Martindill’s apartment on August 16. Martindill said he did not
remember her doing so, and that while Hall did stay on his couch one night, he
did not recall what day it was. At Pitonyak’s trial, Martindill testified that he
did not remember the date, but he “believe[s]” it was the night of the 16th and
morning of the 17th. He testified that on the night Hall stayed over, he and Hall
were drinking and watching TV before Martindill fell asleep around midnight
to 1:00 a.m. He slept on one couch while Hall slept on the other. Martindill
slept through the night before Hall awoke him around 7:00 a.m. and asked him
to drive her to her car because Pitonyak “had called her and she wanted to go
hang out with him.” Martindill did so.
      Javier Rosales, who worked at a restaurant with Hall in 2006, testified
that Hall had told him she had helped cut up a human body, and that she
“masterminded” the escape to Mexico. Rosales testified that Hall did not provide
any specific details regarding the murder itself.
      A jury found Pitonyak guilty of first-degree murder and sentenced him to
fifty-five years in prison. Pitonyak appealed. The state appellate court affirmed
Pitonyak’s conviction and sentence. Pitonyak v. State, 

 (Tex.
App.—Austin [3d Dist.] 2008, pet. ref’d). The Texas Court of Criminal Appeals
(“TCCA”) denied his subsequent petition for discretionary review.
C.
      Pitonyak then filed an application for post-conviction review in state court.
Ex parte Pitonyak, Application No. WR-73,118-01 (Nov. 25, 2009). As relevant
here, he asserted a claim pursuant to Brady v. Maryland, 

 (1963),
based on a notation in Hall’s jail file. Pitonyak argued that the prosecution had

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violated Brady when it failed to disclose that notation to defense counsel. The
notation stemmed from Hall’s imprisonment in the Travis County Jail after
police arrested her in late August 2005. A jail counselor, Carrie Hoffman, made
the following notation as “Remarks” in Hall’s jail file on September 16, 2005:
                  IM went to mediation instead of coming to group. Will
            reschedule for next week. IM’s Olena Grayson and Christie
            Freeman stated during group that IM Hall confessed to the murder
            of Jennifer Cave. “That whore deserved to die. She was just a
            dancer anyway.” Stated that IM Hall is “acting crazy” on purpose.
      Additionally, under “Prescription,” Hoffman noted “Call IM’s lawyer.”
Both appeared on the same page in Hall’s jail file under a tab labeled “Medical”
and a sub-tab labeled “Treatment.”
      The state trial court recommended that the TCCA reject Pitonyak’s Brady
claim. It made findings of fact that evidence at Pitonyak’s trial “strongly
supported the conclusion that he had killed Cave.” It also concluded that as a
matter of law, (1) Pitonyak failed to establish that “a mental health professional
employed by a county jail has a duty to disclose potentially exculpatory
information learned within the scope of a mental health relationship;” and (2)
“[i]f Hall made the alleged statement that she committed this offense, and it had
been disclosed to the defense, its admission would have had no reasonable
impact on this trial given the statement’s context, lack of detail or corroboration,
and the weight of the other evidence.”
      Pitonyak filed objections to the trial court’s recommended findings. The
TCCA adopted the trial court’s findings and denied relief “without [a] written
order on [the] findings of [the] trial court without [a] hearing.” Ex parte
Pitonyak, Application No. WR-73,118-01, at cover (Jan. 13, 2010).
      Pitonyak then filed a timely petition under 28 U.S.C. § 2254 for federal
habeas relief in the district court. The district court denied Pitonyak’s petition
with prejudice and denied Pitonyak a COA.             Pitonyak v. Thaler, Final


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Judgement, No. A-10-CV-081-LY (W.D. Tex. July 10, 2012). It adopted in full
the Report and Recommendation of Magistrate Judge Pitman, who concluded
that the undisclosed notation was not material under Brady, and it denied relief
“for the reasons stated [in the Report].” Pitonyak v. Thaler, Order on Report
and Recommendation, No. A-10-CV-081-LY (W.D. Tex. July 10, 2012).
Specifically, the district court rejected Pitonyak’s objections to the Magistrate
Judge’s factual findings. It denied the petition for a COA because it concluded
reasonable jurists could not debate the denial of Pitonyak’s petition on the
merits.
      Pitonyak timely appealed and moved for a COA. This Court granted
Pitonyak a COA with respect to his Brady claim. The State’s motion for
reconsideration was carried with the case.
                                      II.
      At the threshold, we deny the State’s motion to reconsider our grant of a
COA in this case. To appeal the district court’s denial of his habeas petition,
Pitonyak must obtain a COA pursuant to the Anti-Terrorism and Effective
Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C. § 2253(c)(1)(A). A COA may
only issue if the petitioner demonstrates that “jurists of reason could disagree
with the district court’s resolution of his constitutional claims or that jurists
could conclude the issues presented are adequate to deserve encouragement to
proceed further.” Miller-El v. Cockrell, 

, 327 (2003). Pitonyak’s
Brady claim meets this threshold standard. Accordingly, we deny the State’s
motion for reconsideration and reach the merits of Pitonyak’s appeal.
                                      III.
      To prevail on a Brady claim, the appellant must show Brady’s three
components: “The 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

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                                  No. 12-50800

must have ensued.” Strickler v. Greene, 

, 281-82 (1999). We are
persuaded that on the facts here the state court was not unreasonable in
concluding that the evidence was not suppressed within the meaning of Brady
because the prosecution’s Brady obligation did not extend to Counselor Hoffman.
Accordingly, we affirm the district court and deny relief.
      As relevant here, 28 U.S.C. § 2254(d) bars this Court from granting an
application for a writ of habeas corpus with respect to any claim that was
adjudicated on the merits by a state court unless the state court adjudication
“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). “A federal court may not
overrule a state court for simply holding a view different from its own, when the
precedent from [the Supreme] Court is, at best, ambiguous.”            Mitchell v.
Esparza, 

, 17 (2003). In conducting its inquiry, “a habeas court must
determine what arguments or theories supported or . . . could have supported[]
the state court’s decision; and then it must ask whether it is possible fairminded
jurists could disagree that those arguments or theories are inconsistent with the
holding in a prior decision of [the Supreme] Court.” Harrington v. Richter, 

, 786 (2011). In other words, to obtain relief, Pitonyak must show that
the state court’s ruling was “so lacking in justification that there was an error
well understood and comprehended in existing law beyond any possibility for
fairminded disagreement.” Id. at 786-87. This review, moreover, is “limited to
the record that was before the state court that adjusticated the claim on the
merits.” Cullen v. Pinholster, 

, 1398 (2011).
      With respect to Pitonyak’s Brady claim, Kyles v. Whitley, 

, 437
(1995), held that Brady requires the “individual prosecutor [] to learn of any
favorable evidence known to the others acting on the government’s behalf in the
case, including the police.” Although the Supreme Court acknowledged that

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covered parties sometimes fail to inform a prosecutor of all they know, it
explained that “procedures and regulations” must be established to effectuate
the prosecutor’s burden to learn. Id. at 438 (quotations omitted). Under the
facts of that case, the Court held that the prosecutor’s Brady duty extended to
evidence “known only to police investigators” that had gathered evidence and
interviewed witnesses in the investigation against the defendant. Id. at 428-30,
437-38.
      Here, it was not unreasonable for the state court to determine that
Supreme Court precedent is uncertain as to whether a mental health
professional is encompassed within the Brady fold. Hoffman was not involved
in investigating or preparing the case against Pitonyak. Although the affidavit
of J.W. Thompson states that the “Travis County Sheriff’s Office assists in
homicide investigations when it finds possibly incriminating evidence at the
jail,” there is no evidence in the record that jail mental health professionals
communicated to police any information learned within the scope of mental
health services, in this case or any other. Indeed, Hoffman’s additional notation
to call Hall’s lawyer–not the prosecutor–regarding Hall’s self-incriminating
statements suggests that she was not working on the prosecutor’s behalf in this
case. Of course, the Brady duty falls on the prosecutor to learn incriminating
information in the hands of covered third parties, not on third parties to
communicate it. Kyles, 514 U.S. at 437-38. But these facts are relevant to
determining whether Hoffman in fact was acting on the prosecutor’s behalf in
Pitonyak’s case, as required by the clearly established precedent in Kyles. This
evidence provides a reasonable basis for the state court’s conclusion that
Pitonyak failed to demonstrate Hoffman was acting on the government’s behalf
in her provision of mental health services within the jail.
      The Pitonyak and Hall investigations were so intertwined as to leave us
uncertain whether, had Hoffman’s notation in Hall’s jail record tended to

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inculpate rather than exculpate Pitonyak for first-degree murder, procedures
and regulations would have ensured it was communicated to Pitonyak’s
prosecutor. But on the facts in the state habeas record, it was not unreasonable
for the state court to conclude that Hoffman’s notation falls outside the ambit of
the prosecutor’s Brady duty in his case against Pitonyak. Because the state
court reasonably could find that the evidence thus was not withheld within the
meaning of Brady, we deny Pitonyak’s claim.
      Even if our threshold determination on suppression is an insufficient basis
to dispose of Pitonyak’s claim, it fails on Brady’s prejudice prong. As Brady
makes clear, suppression by the government of evidence favorable to the accused
violates due process only “where the evidence is material either to guilt or to
punishment, irrespective of the good faith or bad faith of the prosecution.” 373
U.S. at 87. And, “evidence is material only if there is a reasonable probability
that, had the evidence been disclosed to the defense, the result of the proceeding
would have been different. A ‘reasonable probability’ is a probability sufficient
to undermine confidence in the outcome.” United States v. Bagley, 

,
682 (1985). Importantly, the materiality standard “is not a sufficiency of
evidence test,” and thus, “[a] defendant need not demonstrate that after
discounting the inculpatory evidence in light of the undisclosed evidence, there
would not have been enough left to convict.” Kyles, 514 U.S. at 434-35. Instead,
the defendant must show “that the favorable evidence could reasonably be taken
to put the whole case in such a different light as to undermine confidence in the
verdict.” Id. at 435.
      While the materiality of Hoffman’s notation presents a difficult question,
we cannot say that the state court was unreasonable in finding Hoffman’s
notation to be immaterial to Pitonyak’s guilt or punishment.
      There is substantial evidence that an alternate perpetrator defense would
not have succeeded. In addition to his amnesic admission of guilt, Pitonyak

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                                  No. 12-50800

testified that he did recall Hall arriving at his apartment the morning of August
17 after he found Cave’s body in his bathtub; that Hall asked why Cave’s purse
was in Pitonyak’s living room; and that he led her to the bathroom to show her
Cave’s body. Moreover, undisputed telephone records show that Pitonyak called
Hall at 5:59 a.m. and that they spoke again at 6:57 a.m. and 7:24 a.m.,
corroborating Pitonyak’s testimony that Hall was not present at the time of
Cave’s death.       Both the phone records and Pitonyak’s testimony in turn
corroborate the alibi evidence that Martindill presented, albeit with uncertainty
about the date, for Hall’s whereabouts the night of the murder and her arrival
at Pitonyak’s apartment around 8:00 a.m. the following morning. Additionally,
Pitonyak’s neighbor, Sullivan, recounted that Pitonyak, alone, knocked on her
apartment door at approximately 3:00 a.m. the night of the murder. She
testified that he told a rambling story about a gunfight with “some Mexicans” in
his apartment and that he had a smudge of blood on his arm. The state court
reasonably could interpret this evidence as showing that Pitonyak was alone
immediately following Cave’s death and made a transparent attempt to explain
away the sound of the gunshot that killed her, gunshots he claimed later he
could not recall.
      In light of this evidence, it was not unreasonable for the state court to
conclude that Pitonyak’s counsel would not have offered an alternate-perpetrator
defense at trial rather than seeking conviction on a lesser offense. Given the
jailhouse context of Hall’s confession and its lack of corroboration and detail, the
state court reasonably could have concluded that Hall’s statement could not
overcome the overwhelming problems with an alternate-perpetrator theory.
      On these facts, fairminded jurists of reason could conclude that Hall’s
“confession” is immaterial within the meaning of Brady because it would not
have cast the “whole case in such a different light as to undermine confidence in
the verdict,” Kyles, 514 U.S. at 435.

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                                   IV.
  We affirm the district court’s denial of Pitonyak’s federal habeas petition.




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