Wyman Castleberry v. ANTHONY J. BRIGANO, Warden

*The Honorable William J. Haynes, Jr., United States District Judge
for the Middle District of Tennessee, sitting by designation.
1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2003 FED App. 0398P (6th Cir.)
File Name: 03a0398p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
WYMAN CASTLEBERRY,
Petitioner-Appellant,
v.
ANTHONY J. BRIGANO,
Warden,
Respondent-Appellee.
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No. 02-3433
Appeal from the United States District Court
for the Southern District of Ohio at Columbus.
No. 00-01122—George C. Smith, District Judge.
Argued: October 24, 2003
Decided and Filed: November 12, 2003
Before: DAUGHTREY and GILMAN, Circuit Judges;
HAYNES, District Judge.*
2 Castleberry v. Brigano No. 02-3433
_________________
COUNSEL
ARGUED: Stephen P. Hardwick, PUBLIC DEFENDER’S
OFFICE, Columbus, Ohio, for Appellant. M. Scott Criss,
O F F IC E OF THE ATTOR N E Y G E NE R A L,
CORRECTIONS LITIGATION SECTION, Columbus, Ohio,
for Appellee. ON BRIEF: Stephen P. Hardwick, PUBLIC
DEFENDER’S OFFICE, Columbus, Ohio, for Appellant. M.
Scott Criss, OFFICE OF THE ATTORNEY GENERAL,
CORRECTIONS LITIGATION SECTION, Columbus, Ohio,
for Appellee.
_________________
OPINION
_________________
RONALD LEE GILMAN, Circuit Judge. Wyman
Castleberry was convicted in an Ohio state court of
aggravated murder and aggravated robbery. After exhausting
his state court remedies, Castleberry petitioned the district
court for a writ of habeas corpus. He argued that the
prosecution withheld the following evidence in violation of
Brady v. Maryland, 373 U.S. 83 (1963): (1) a statement by
the victim describing his assailant in a way inconsistent with
Castleberry’s appearance, (2) a statement to detectives
indicating that the prosecution’s key witness had been
plotting to rob the victim, and (3) statements by neighbors of
the victim describing suspicious individuals in the vicinity of
the shooting who did not match Castleberry’s appearance.
The district court denied the writ. For the reasons set forth
below, we REVERSE the judgment of the district court and
GRANT Castleberry a conditional writ of habeas corpus that
will result in the vacation of his conviction and sentence
unless the state of Ohio commences a new trial against him
within 90 days after this judgment becomes final.

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No. 02-3433 Castleberry v. Brigano 3
I. BACKGROUND
The charges against Castleberry arose from the shooting of
Jose Soriano, resulting in Soriano’s death several months
later. Following a mistrial in July of 1991, a second jury trial
commenced in February of 1992 and concluded nine days
later. Castleberry was sentenced to life with parole eligibility
after twenty years, plus three years of additional incarceration
for the use of a firearm.
The following facts are based upon the summary provided
by the Ohio Court of Appeals in its de novo review of the
final order by the state trial court denying Castleberry’s
petition for post-conviction relief:
On March 29, 1990, detectives David Morris and Sharon
Ceckitti were dispatched to Soriano’s apartment, which was
located across the street from Jason's Bar and near a grassy
area where people from the neighborhood often gathered.
Soriano could not be interviewed at the scene due to his
wound. From the time of the shooting until Soriano’s death
several months later, there were no significant leads in the
case. Morris eventually interviewed Soriano’s parents,
however, which led to his contacting Kenneth “Chief”
Thomas.
Detectives Morris and Ceckitti interviewed Thomas at the
Orient Correctional Institution in September of 1990, where
he was incarcerated as the result of a conviction for receiving
property stolen from apartments adjacent to Soriano’s.
Morris testified that “right off the bat he [Thomas] said
Wyman Castleberry did it.” According to Morris, Thomas
“did not make any requests prior to the interview,” but the
detective later received a request from Thomas’s attorney to
write a letter to a judge on Thomas’s behalf. Morris
acknowledged that he wrote the letter and that Thomas was
granted early release from prison.
4 Castleberry v. Brigano No. 02-3433
Testifying for the prosecution, Thomas said that he went to
Jason’s Bar at 8:00 p.m. on the evening of the shooting with
his friend Carl “Skeeter” Gamble. He claimed to have seen
Castleberry, whom he says he knew from the neighborhood,
walk across the street toward the back of Soriano’s apartment
while holding a small gun, knock on the back door, and then
ask for “a bag of weed.” Thomas testified that he heard a
single gunshot a “couple seconds” after Soriano opened the
door and that he then saw Castleberry exit the apartment.
According to Thomas, Castleberry asked him to “say nothing
to nobody about what happened” when they saw each other
the next day at Jason’s Bar.
Parts of Thomas’s testimony were supported by the
testimony of other witnesses. One was Thomas’s friend
Gamble, who testified that he had been drinking with Thomas
at Jason’s Bar on the night of the shooting and that he saw
Castleberry at the bar. According to Gamble, Castleberry
“was talking about robbing the . . . dope man, the dude that
sells weed.” Gamble claimed that Castleberry had a gun with
him as “he walked up [to Soriano’s apartment,] . . . knocked
on the door[,] . . . and then . . . there was a fire off.” He said
that later, at Jason’s Bar, Castleberry told him that “the dude
tried to grab the gun and he shot it and the gun went off.”
Morris, in his testimony, said that when he first questioned
Gamble, “there was an indication that Gamble was not telling
the truth.” Gamble eventually “told the truth,” however, after
Gamble was told what Thomas had said to the detectives and
Gamble’s “father made a comment to his son.”
Another Jason’s Bar patron who supported Thomas’s
testimony was Thomas Bailey. Bailey took the stand to say
that he had heard a gunshot and, approximately one hour
later, Castleberry had said: “the guy tried to take the gun from
him and it went off.”
Still another prosecution witness supporting Thomas was
Orlando Wilborn, who testified that he, his brother Thomas
Wilborn, “Chief” Thomas, and Gamble had been drinking at

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No. 02-3433 Castleberry v. Brigano 5
his house on the evening of the shooting. He said that some
time after Thomas and Gamble left his house, he and his
brother went to Jason’s Bar. According to Orlando Wilborn,
he was standing near the bar when he heard a gunshot. He
said that he immediately ran to his car, where his brother, who
was already at the car, remarked: “[T]hose guys are crazy,
they tried to rob the weed spot.”
Wilborn’s brother, Thomas Wilborn, also testifying for the
prosecution, said that after getting a drink at Jason's Bar, he
went across the street to the grassy area to join a group of
about 15 to 20 people, and that Castleberry was standing
among them with a gun. He claimed that someone in the
group spoke of a “place where you buy marijuana.” At the
time he heard the gunshot, Thomas Wilborn said, he could see
both his roommate Lamont Martin and Thomas standing near
a wall in the grassy area.
Martin was the prosecution’s final witness. He claimed that
he saw Castleberry go behind the apartment complex across
the street while Martin, Gamble, and Thomas walked to the
front of the complex. According to Martin, he was on his
way “to see if he [Castleberry] was going to rob the dope
man” when he heard a gunshot and ran back to the bar.
Castleberry testified on his own behalf. He claimed that he
did not know Soriano, had never been to Soriano’s apartment,
never owned a firearm, and did not have one in his possession
on the night of the shooting.
Another defense witness was James Correy, who lived in
Soriano’s apartment complex. He said that on the night of the
shooting he heard a gunshot as he went to answer a knock at
his door by a man he identified only as “Albert.” Albert
pushed him back into the apartment, from where they
observed two men running between the apartments.
Castleberry’s mother also testified for the defense. She said
that on July 10, 1991 (during the first trial that was
6 Castleberry v. Brigano No. 02-3433
subsequently declared a mistrial), she overheard Thomas say
to someone in the hallway outside of the courtroom: “I don’t
know what good I can do when all I did was walk in and find
him.”
The conflicting testimony of the witnesses was the sole
evidence presented at trial. No physical or forensic evidence
was introduced to link Castleberry to the crime.
The Ohio Court of Appeals noted that the following
additional facts were revealed at the hearing conducted on
Castleberry’s post-conviction petition:
During the course of canvassing the neighborhood and
conducting interviews, Detective Morris interviewed
Judy Thomas of 3413 Bexvie, Apartment B, located
diagonally from Mr. Soriano’s apartment. Ms. Thomas
told the police that at approximately 8:15 on the evening
of the shooting, she was watching television. When she
heard two men arguing outside, she looked out her
window and saw two thin black men, one of whom was
“tall” and the other was somewhat shorter. This
argument was taking place while the two men were
standing on a front porch shared by Mr. Soriano's
residence and a next door residence. According to Ms.
Thomas, one of the two men said, “You mother f . . . . . ,
I'll kick your ass.” The men stepped down to the
sidewalk area and looked over at Ms. Thomas, who
immediately closed her drapes. The police summary of
this interview was not provided to defense counsel.
The police also interviewed Suntina Neddles, who
resided at 3419 Bexvie, Apartment E, located just north
of Mr. Soriano’s apartment building. Ms. Neddles told
police that she was looking at the parking lot area out of
her upstairs window. She saw two male, black subjects
exit a car which had been between two buildings. She
believed that there were two other black males who
stayed inside the car. Soon thereafter, she heard what she

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No. 02-3433 Castleberry v. Brigano 7
thought was the sound of a gunshot. She did not see the
two men who had exited the car and walked between the
buildings. However, she did see the two men who had
stayed in the car (now parked in the lot) drive away from
the area. The police summary of this interview was
likewise never provided to defense counsel.
The police also interviewed Cerrie Clark, of 3407
Bexvie, Apartment A, located diagonally from the
Soriano apartment. Ms. Clark told the police that
between 8:00 and 8:30 p.m., she looked out of her front
window, facing the parking lot. She saw three male,
black subjects walking between the apartment buildings
on the east side of the complex. Minutes later, she heard
a car driving out of the parking lot at a high rate of speed.
Two days after Mr. Soriano was shot, Detectives Morris
and Ceckitti interviewed the victim at the hospital. Mr.
Soriano told the police that he did not know the identity
of the person who shot him. The victim described the
lone gunman as male, dark-black skin, who was 5'6" to
5'8", who had short hair and was clean-shaven. This
information from the victim himself regarding the
description of his assailant was never provided to defense
counsel. There was testimony at the [post-conviction]
hearing indicating that on the date of the shooting,
appellant wore a goatee and, thus, was not “clean-
shaven.”
The police interviewed James Johnson again in
September 1990. According to the statement he provided
to police (after the detectives informed him what “Chief”
had told them), Johnson told the detectives that he heard
Kenneth “Chief” Thomas plotting the robbery of
Soriano. This interview was never related to defense
counsel.
State v. Castleberry, 1999 WL 1009738, at *6-7 (Ohio Ct.
App. Nov. 9, 1999).
8 Castleberry v. Brigano No. 02-3433
After exhausting his remedies in the state courts,
Castleberry petitioned the district court for a writ of habeas
corpus on September 26, 2000. The Magistrate Judge issued
a Report and Recommendation to deny the petition on
May 30, 2001. Adopting the Report and Recommendation on
April 7, 2002 over Castleberry’s objection, the district court
later granted Castleberry’s motion for a certificate of
appealability. The present appeal followed.
II. ANALYSIS
A. Standard of review
Castleberry filed his petition for a writ of habeas corpus
after the effective date of the Antiterrorism and Effective
Death Penalty Act of 1996. Accordingly, we may not grant
habeas relief unless the state court’s decision either (1) “was
contrary to . . . clearly established Federal law, as determined
by the Supreme Court of the United States,” or (2) “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).
The Supreme Court explained these concepts in Williams
v. Taylor, 529 U.S. 362, 412-13 (2000), as follows:
Under the “contrary to” clause, a federal habeas court
may grant the writ if the state court arrives at a
conclusion opposite to that reached by this Court on a
question of law or if the state court decides a case
differently than this Court has on a set of materially
indistinguishable facts. Under the “unreasonable
application” clause, a federal habeas court may grant the
writ if the state court identifies the correct governing
legal principle from this Court’s decisions but
unreasonably applies that principle to the facts of the
prisoner’s case.

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No. 02-3433 Castleberry v. Brigano 9
A state trial court’s findings of fact must be accepted unless
rebutted by clear and convincing evidence. 28 U.S.C.
§ 2254(e)(1). In cases arising under § 2254, we accord
deference to the state appellate court’s “determination of what
the trial judge found.” Parker v. Dugger, 498 U.S. 308, 320
(1991).
Castleberry argues that evidence was withheld in violation
of Brady v. Maryland, 373 U.S. 83, 87 (1963) (holding that a
defendant’s due process rights are violated where the
government withholds evidence favorable to a defendant that
is “material either to guilt or to punishment”). “There are
three components of a true Brady violation: 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 must have ensued.” Strickler v.
Greene, 527 U.S. 263, 281-82 (1999). Favorable evidence is
material for Brady purposes “if there is a reasonable
probability that, had the evidence been disclosed to the
defense, the result of the proceeding would have been
different.” United States v. Bagley, 473 U.S. 667, 682 (1985);
see also Jamison v. Collins, 291 F.3d 380, 385 (6th Cir. 2002)
(“The prejudice (or materiality) element of a Brady violation
is established if there is a reasonable probability of a different
outcome of the trial had the Brady material been available.”).
For purposes of determining reasonable probability, “[t]he
question is not whether the defendant would more likely than
not have received a different verdict with the evidence, but
whether in its absence he received a fair trial, understood as
a trial resulting in a verdict worthy of confidence.” Kyles v.
Whitley, 514 U.S. 419, 434 (1995).
B. The state court’s decision is contrary to Supreme
Court precedent
The state appellate court rejected Castleberry’s petition for
post-conviction relief because it found that no single item of
withheld evidence was material: “The process which this
10 Castleberry v. Brigano No. 02-3433
appellate court must follow is to evaluate the individual bits
of information withheld to determine if the information was
beneficial to the defense and material to the guilt or innocence
such that the information should have been provided.”
Because the state court applied only an item-by-item
determination of materiality, the decision is contrary to the
Supreme Court’s decision in Kyles, 514 U.S. 419. The Court
in Kyles specified that the materiality of withheld evidence
may be determined only by evaluating the evidence
collectively. Id. at 436 (“The fourth and final aspect of . . .
materiality to be stressed here is its definition in terms of
suppressed evidence considered collectively, not item by
item.”); see also Schledwitz v. United States, 169 F.3d 1003,
1012 (6th Cir. 1999) (“[I]n determining whether undisclosed
evidence is material, the suppressed evidence is considered
collectively, rather than item-by-item, to determine if the
‘reasonable probability’ test is met.”); United States v. Frost,
125 F.3d 346, 383 (6th Cir. 1997) (stating that “courts should
evaluate the material effect of exculpatory evidence by
examining the evidence collectively, not item-by-item”).
Curiously, the state court proceeded to misstate the law
under Kyles even though it had previously noted that
Castleberry’s “arguments, considered collectively, contend
that the prosecution repeatedly violated the fundamental
discovery rules . . . and that the violations cumulatively
resulted in the lack of due process.” (Emphasis added.)
In its brief, the government acknowledges that the state
court performed only an item-by-item determination of
materiality: “Having explained why none of the withheld
evidence was either exculpatory or material, it should go
without saying that collectively, the evidence also falls short
of establishing a Brady violation.” (Emphasis added.) The
district court, too, noted that the state courts had examined
“each item of evidence individually,” but the district court
nevertheless concluded (without explanation) that it was “not
convinced that the cumulative effect of the excluded evidence
denied petitioner a fair trial.”

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No. 02-3433 Castleberry v. Brigano 11
Remarkably, in one paragraph of its opinion, the state court
of appeals appeared as though it would evaluate the withheld
evidence collectively:
Defense counsel and the jury never knew that Ms.
Neddles saw two men go in or near the building where
the victim was shot, and then saw a car leave
immediately after she heard the shot. Defense counsel
and the jury never knew that Ms. Clark could corroborate
Ms. Neddles’s recollections, including the physical
description of the “thin” subjects they saw. The jury and
defense did not know that “Chief” had allegedly
conspired to rob Mr. Soriano. The jury and defense did
not know the details of the victim’s description of his
assailant, particularly that he was clean-shaven; this was
contrary to evidence presented by appellant that he wore
a goatee at the time and did not have long hair.
State v. Castleberry, 1999 WL 1009738, at *7 (Ohio Ct. App.
Nov. 9, 1999). Despite this summary of the withheld
evidence, however, the state court never went beyond
evaluating the materiality of each individual item of evidence
separately. Kyles requires a different evaluation. The district
court, therefore, erred in determining that the state court
decision did not conflict with clearly established federal law,
as determined by the Supreme Court.
C. The state court’s decision involved an unreasonable
application of Supreme Court precedent
As the result of its de novo review of the state trial court’s
post-conviction proceedings, the state court of appeals
concluded that Castleberry’s trial produced an outcome
worthy of confidence. The state appellate court reached its
conclusion after applying a standard that has been rejected by
the Supreme Court, as discussed above. But even if the state
court had identified the correct legal standard and had
evaluated the evidence collectively, we conclude that it could
12 Castleberry v. Brigano No. 02-3433
not have reasonably believed that the outcome of
Castleberry’s trial was worthy of confidence under Brady.
In its de novo review, the state appellate court identified
three items of withheld evidence, which, had they been
evaluated collectively, strongly support the conclusion that
Castleberry’s trial did not produce an outcome worthy of
confidence. The first item of withheld evidence involved the
description of his assailant that Soriano gave to the detectives,
which differed from Castleberry’s appearance in terms of both
height and facial hair. Soriano said that his assailant was
“5'6" to 5'8", had short hair and was clean-shaven.” The state
court of appeals noted that “[t]here was testimony at the
[post-conviction] hearing indicating that on the date of the
shooting, [Castleberry] wore a goatee,” and that “[w]ritten
police records indicate that Mr. Castleberry is a male, black,
height 5'10", weight 170 pounds.” In addition, the state
appellate court noted that “a photograph of Wyman
Castleberry taken three weeks after the shooting shows
identification information of 5'9", 221 pounds, very dark
complexion with a moustache.”
Because Soriano was the sole witness to the actual
shooting, his description of the assailant would have been
highly relevant evidence for the jury to consider had it not
been withheld by the government. The state appellate court
offered a theory to account for the discrepancy between
Soriano’s description of his assailant and Castleberry’s
appearance: “Given Mr. Soriano’s occupation as a drug
dealer, Mr. Soriano may have had a motive to conceal what
he knew about his assailant from police, either through his
distrust of the police or out of a desire to extract his own
street justice at a later time.” Based largely on this
conjecture, the state court concluded that “[u]nder the
circumstances, we cannot say that police or prosecuting
attorneys knew that the description given by Jose Soriano was
inaccurate or that it described someone other than Wyman
Castleberry.” But whether “the police or prosecuting
attorneys knew that the description . . . was inaccurate or that

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No. 02-3433 Castleberry v. Brigano 13
it described someone other than Wyman Castleberry” is
irrelevant in determining whether evidence was withheld in
violation of Brady. Jamison v. Collins, 291 F.3d 380, 385
(6th Cir. 2002) (noting that whether the evidence was
withheld “intentionally or not” is irrelevant); Carter v. Bell,
218 F.3d 581, 601 (6th Cir. 2000) (“The [Brady] inquiry is
objective, independent of the intent of the prosecutors.”).
The second item of evidence withheld by the government
would certainly have undermined the credibility of Thomas,
the government’s key witness—a statement by Johnson that
“he heard Kenneth ‘Chief’ Thomas plotting the robbery of
Soriano.” By withholding this evidence, the government was
able to prevent the jury from learning that Thomas, because
he was an obvious potential suspect himself, had a motive to
point to Castleberry as the assailant. Impeachment evidence,
like exculpatory evidence, is subject to the disclosure under
Brady. Strickler v. Greene, 527 U.S. 263, 280 (1999) (“[T]he
duty [to disclose evidence] encompasses impeachment
evidence as well as exculpatory evidence . . . .”).
The third area of withheld evidence identified by the state
appellate court involved witness accounts of suspicious
persons in the vicinity of the attack on Soriano:
Defense counsel and the jury never knew that Ms.
Neddles saw two men go in or near the building where
the victim was shot, and then saw a car leave
immediately after she heard the shot. Defense counsel
and the jury never knew that Ms. Clark could corroborate
Ms. Neddles's recollections, including the physical
description of the “thin” subjects they saw.
In addition, the government withheld a statement by Ms.
Thomas, a neighbor of Soriano, that on the night of the
shooting she heard one of the two men whom she saw arguing
on Soriano’s porch exclaim: “You mother f . . . . . , I'll kick
your ass.”
14 Castleberry v. Brigano No. 02-3433
These statements, given to detectives by three neighbors of
Soriano, point to a number of other possible suspects, and
among them might be the one described by Soriano as his
assailant. The state court, however, dismissed the statements
of the neighbors as having “no demonstrated ties to the
shooting.”
True enough, some of the testimony by the patrons at
Jason’s Bar on the night of the shooting would not have been
contradicted by the withheld evidence. The key question,
however, “is not whether the state would have had a case to
go to the jury if it had disclosed the favorable evidence, but
whether we can be confident that the jury’s verdict would
have been the same.” Kyles, 514 U.S. at 453.
In Kyles, the Court noted:
Not every item of the State's case would have been
directly undercut if the foregoing Brady evidence had
been disclosed. It is significant, however, that the
physical evidence remaining unscathed would . . . hardly
have amounted to overwhelming proof that Kyles was
the murderer. . . . The inconclusiveness of the physical
evidence does not, to be sure, prove Kyles’s innocence,
and the jury might have found the eyewitness testimony
. . . sufficient to convict . . . . But the question is not
whether the State would have had a case to go to the jury
if it had disclosed the favorable evidence, but whether we
can be confident that the jury’s verdict would have been
the same. Confidence that it would have been cannot
survive a recap of the suppressed evidence and its
significance for the prosecution.
Id. at 451, 453.
The same is true in the present case. As well-summarized
in Castleberry’s brief:

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No. 02-3433 Castleberry v. Brigano 15
The evidence, taken together, indicates that the State’s
star witness was involved with the crime and that Mr.
Soriano’s killer was shorter, thinner and more clean-
shaven than Mr. Castleberry. More specifically:
! A jury should be allowed to weigh the victim’s
withheld statement that his killer was a clean-shaven
man who was 5'6" to 5'8" against evidence that Mr.
Castleberry was 5'9" to 5'10" and wore a goatee at
the time of the crime.
! A jury should consider the importance of the
withheld testimony of three of the victim’s
neighbors who—collectively—observed two thin
men go in or near the building where the victim was
shot and say, “You mother f . . . . . , I’ll kick you
ass.” One of the witnesses then saw a car leave
immediately after she heard the shot. Mr.
Castleberry was 221 pounds at the time of the crime.
! Finally, a jury should be allowed to weigh the
credibility of the State’s star witness, Kenneth
“Chief” Thomas, against the withheld testimony of
a witness who told the police that “Chief” had
planned to rob the victim.
No reasonable court can have confidence in the decision
of a jury that did not hear this withheld evidence.
[Emphasis in original.] We agree. With this additional
evidence, there is certainly a “reasonable probability of a
different outcome of the trial had the Brady material been
available.” Jamison v. Collins, 291 F.3d 380, 385 (6th Cir.
2002).
III. CONCLUSION
For all of the reasons set forth above, we REVERSE the
judgment of the district court and GRANT Castleberry a
16 Castleberry v. Brigano No. 02-3433
conditional writ of habeas corpus that will result in the
vacation of his conviction and sentence unless the state of
Ohio commences a new trial against him within 90 days after
this judgment becomes final.

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