Dilosa v. Cain

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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m 00-31359
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DOUGLAS A. DILOSA,
Petitioner-Appellee,
VERSUS
BURL CAIN,
WARDEN, LOUISIANA STATE PENITENTIARY,
Respondent-Appellant.
_________________________
Appeal from the United States District Court
for the Eastern District of Louisiana
_________________________
January 9, 2002
Before JONES, SMITH, and DEMOSS,
Circuit Judges.
JERRY E. SMITH, Circuit Judge:
The State of Louisiana, through its warden,
appeals a judgment granting habeas corpus rel-
ief to Douglas DiLosa regarding his murder
conviction. Finding no error, we affirm.
I.
One day in 1986, police received a 911 call
from the DiLosa household and discovered
DiLosa tied up on the living room floor; his
wife was found, strangled, on a bed bound
with the same rope used to bind DiLosa. The
condominium had been ransacked with the
exception of the son’s room. DiLosa told the
police he awakened around 3:30 a.m. to noises
downstairs. When he investigated, he discov-
ered two black male intruders. DiLosa claims
they beat him unconscious, and the next he
knew he roused from this beating bound and
on the floor with the house in shambles. He
called out to his son, whom he instructed to
call 911. Only after reaching the hospital was
DiLosa told of his wife’s death.

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II.
In time, DiLosa was arrested based on evi-
dence contradicting his version of the events.
Investigators also had discovered possible mo-
tive evidenceSSDiLosa was out of work, his
unemployment benefits were about to run out,
a large payment was near due on the condo,
and his wife’s life was insured for a substantial
sum.
The prosecution’s argument at trial focused
on the absence of evidence of any other
perpetrator. The prosecution emphasized the
lack of any physical evidence of a black
intruder in the DiLosa household, noting, in
closing argument, “There was not one, not one
shred of black hair found in that residence.”
The state also drew attention to the want of
any evidence of intruders in the surrounding
neighborhood. Again, this point was stressed
during closing argument: “Did you hear any
evidence about any other houses that were hit
that night?”
Although some of the evidence was dis-
puted at trial, DiLosa was convicted of
murder. An intermediate appellate court
affirmed his conviction, and the Louisiana
Supreme Court refused his petition for writ for
certiorari.
DiLosa filed a first application for post-
conviction relief, which was denied. In his
second application, he argued that the state
had violated Brady v. Maryland, 373 U.S. 83
(1963), by failing to turn over material
evidence. When this claim reached the
Louisiana Supreme Court, it ordered a hearing
to determine whether DiLosa’a Brady claim
was based on facts not disclosed.
The evidence in question related to the
presence of hair of unknown type on the rope
around DiLosa’s wife’s neck and on the bed
where her body was discovered. Additional
evidence related to the presence of fingerprints
in the condo that could not be positively
identified. There was also evidence of another
attempted break-in at a nearby condo.
On remand, the trial court determined there
had been no Brady violation, because the un-
disclosed evidence did not “create a reasonable
possibility of a different result.” This
determination was affirmed by an appellate
court and the Louisiana Supreme Court.
DiLosa next filed a pro se 28 U.S.C. § 2254
petition, raising claims in addition to the al-
leged Brady violation. A magistrate judge
(“MJ”) recommended relief on the Brady claim
and on additional errors raised by DiLosa that
are not relevant to this appeal. The district
court sustained an objection to these additional
claims but granted DiLosa’s petition on the
Brady violation. The state appeals.1
III.
Our consideration of DiLosa’s appeal is
constrained by the highly deferential
framework of the Antiterrorism and Effective
Death Penalty Act (“AEDPA”), under which
the burden is on the habeas petitioner to
demonstrate that the state court decision “was
contrary to, or involved an unreasonable
application of, clearly established Federal law,
as determined by the Supreme Court of the
United States.” 28 U.S.C. § 2254(d)(1).2
1 No certificate of appealability is required, be-
cause the state is the appellant. FED. R. APP. P.
22(b)(3).
2 Because a Brady claim involves a mixed ques-
tion of law and fact, § 2254(d)(1) applies instead
(continued...)

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AEDPA affords two avenues of relief for a
habeas petitioner in federal court: He must
show that the state court construction was
either “contrary to” federal law or an
“unreaso nable application” of it. To be
“contrary to” federal law, the state court must
apply a rule that contradicts a rule laid down
by the Supreme Court. Williams v. Taylor,
529 U.S. 363, 405 (2000).
A second avenue of relief is available where
the state court unreasonably applies federal
law. This inquiry involves asking “whether the
state court’s interpretation of clearly
established federal law was objectively
unreasonable.” Id. Some of our recent cases
have fleshed out the meaning of “objectively
unreasonable.”
To be unreasonable, the state court
application of federal law must be something
more than merely erroneous. Martin v. Cain,
246 F.3d 471, 476 (5th Cir.), cert. denied, 515
U.S. 1105 (2001). Our role under this inquiry
is not to determine whether the state court’s
construction of federal law was merely wrong,
but whether it was wrong to the point of being
unreasonable.
We also have focused the subject of this in-
quiry on the state court’s ultimate conclusion,
not on its reasoning process. Santellan v.
Cockrell, 271 F.3d 190, 193 (5th Cir. 2001).
We thus are faced with the questions of
whether the Louisiana state court misapplied a
federal standard and whether the state court’s
decision that DiLosa did not state a viable
Brady claim is an unreasonable legal
conclusion.
IV.
A.
DiLosa’s habeas petition was granted based
on the due process protections afforded a de-
fendant under Brady’s interpretation of the
Fifth Amendment. Brady requires the state to
“disclose evidence favorable to the accused
that, if suppressed, would deprive the
defendant of a fair trial.” United States v.
Bagley. 473 U.S. 667, 675 (1985).
Under Brady, to establish that the state has
breached this duty, the defendant must show
that (1) the state withheld evidence, (2) the
evidence is favorable to the accused, and
(3) the evidence is material to guilt or pun-
ishment. Bagley, 473 U.S. at 674. This duty
extends to both exculpatory and impeachment
evidence. Id. at 676. Our inquiry here is nar-
row. Both parties agreeSSonly the third prong
is at issue.
The Supreme Court has imposed four cri-
teria for determining whether evidence is
material. First, materiality does not require the
defendant to demonstrate by a preponderance
of the evidence that omitted evidence would
have resulted in acquittal. Second, he need
not weigh the withheld evidence against the
disclosed evidence to show he would have
been acquitted by the resulting totality. Third,
if evidence is found material, there is no need
to conduct a harmless error analysis. Fourth,
the withheld evidence should be considered as
a whole, not item-by-item. Kyles v. Whitley,
514 U.S. 419, 434-37 (1995). The sum of
these four guideposts means that to show a
due process violation when the state withholds
evidence, a defendant need not prove that his
trial necessarily would have had a different
outcome; a lack of faith in the result is
sufficient. 2(...continued)
of § 2254(d)(2). Trevino v. Johnson, 168 F.3d
173, 184 (5th Cir. 1999).

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B.
The withheld evidence was contained in a
supplemental police report and grand jury tes-
timony. There were four main categories of
withheld evidence. The first consisted of ref-
erences to the presence of possibly non-cauca-
sian hair samples.
One of the detectives observed what he de-
scribed as “Negroid type hair” on the bed next
to the victim’s body. Warren, a forensic biolo-
gist, had advised one of the investigators that
“a hair of unknown origin, definitely not Cau-
casian head or pubic hair was found on the
rope around the victim’s neck.” Warren also
had tested two hair strands from tape on the
window where a pane of glass had been
removed. One of these was “animalistic or
Negroid hair” that “had more animalistic
characteristics.”
A second category of withheld evidence
concerned fingerprint testing. The withheld
report refers to prints, found on the inside of a
drawer, that could not be identified. The re-
port also mentions partial fingerprints
discovered on a pane of glass.
A third body of evidence related to the tes-
timony of those present in a neighboring condo
the night of the murder. One of these
neighbors, Mrs. Warbritton, testified to
hearing a noise on her patio in the middle of
the night. She also testified that she saw a
shadow of a large dog or person that moved
from her sliding glass door to the patio gate
and then to the street. There was further
testimony, from her son and a friend who were
staying with her, that they found the patio gate
open, despite being certain it was closed when
they went to bed. One of the investigating
officers later discovered pry marks on the door
to the Warbritton condo. Warbritton and her
son testified to the absence of these marks the
day before the murder.
A final piece of withheld evidence
concerned statements by a taxi driver who was
in the neighborhood in the early morning after
the murder. He stated he had seen two black
men exit the condo complex at 5:45 a.m. He
also noted the driver, who looked “tense,”
facing straight ahead, gripping the steering
wheel and driving very slowly.
V.
The state court exceeded the bounds of
permissible application of federal law in two
distinct ways. First, it applied an incorrect le-
gal principle in concluding there was no
material evidence for Brady purposes.
Second, its ultimate legal conclusion cannot be
squared with the command of Brady and its
progeny. The state court’s legal conclusion
was objectively unreasonable.
A.
One way a state court contravenes its duty
to follow federal law is to fail to apply the
proper legal standard as announced by the Su-
preme Court. 28 U.S.C. § 2254(d)(1). As the
Court has elaborated by example:
A state-court decision will certainly be
contrary to our clearly established
precedent if the state court applies a rule
that contradicts the governing law set
forth in our cases. Take, for example,
our decision in Strickland v.
Washington. If a state court were to
reject a prisoner’s claim of ineffective
assistance of counsel on the grounds
that the prisoner had not established by
a preponderance of the evidence that the
result of his criminal proceeding would
have been different, that decision would

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be “diametrically different,” “opposite in
character or nature,” and “mutually
opposed” to our clearly established
precedent because we held in Strickland
that the prisoner need only demonstrate
a “reasonable probability that . . . the re-
sult of the proceeding would have been
different.”
Williams, 529 U.S. at 405-06 (internal
citations omitted).
The state court applied a rule of law
contrary to that established by the Supreme
Court. Specifically, the court considered the
sufficiency of the evidence in light of its
potential to exculpate DiLosa instead of
through the lens of its confidence in the
verdict.
B.
The state court’s misstep was its use of an
analysis contrary to Kyles, i.e., incorrectly as-
suming that sufficiency of evidence is relevant
for Brady analysis. When discussing the hair
samples, the state court dismissed the potential
Brady materiality of statements concerning
possible non-caucasian hair samples, because
the forensic biologist had presented the only
“reliable evidence.”
Implicit in this language is the state court’s
evaluation of the existing inculpatory evidence
in light of the excluded, and potentially
exculpatory, evidence. It is not the role of a
court applying Brady to weigh the existing ev-
idence against the excluded evidence, but rath-
er to ask whether the excluded evidence
“could reasonably be taken to put the whole
case in such a different light as to undermine
confidence in the verdict.” Kyles, 514 U.S. at
435.
C.
Even aside from the state court’s use of a
legal rule contrary to Kyles, its ultimate legal
conclusion cannot be reconciled with Brady
and Kyles. The most obvious example is the
state court’s handling of two of the pieces of
alleged exculpatory evidence.
Two statements DiLosa claims support his
theory of the case were those made by War-
britton and her guests and those made by the
taxi driver. The statements of Warbritton and
her guests lend credibility to DiLosa’s story
about a robbery by two black men. The
statements by the taxi driver are not
necessarily inconsistent with those of the
Warbritton household or with DiLosa’s story.
The state court, however, dismissed the
Brady relevance of these statements by finding
them contradictory. We need not delve into
any possible inconsistency, which is up to the
jury to decide, because, as the MJ found, the
statements, in any event, were potentially
exculpatory and should have been disclosed.
The trial court’s conclusion is unsettling for
additional reasons. The hair and fingerprint
evidence, like the evidence of happenings in
the neighborhood, could have been used to
create reasonable doubt in a state case
premised almost entirely on circumstance.
The state’s case was built mostly on the in-
ferences of motive from the DiLosas’ poor fi-
nancial situation and the value of Mrs. Di-
Losa’s life insurance. The physical evidence
was based on inferences drawn from the lack
of physical evidence of potential intruders.
The witness evidence was premised on what
the neighbors did not see or hear.
Indeed, the prosecution presented the case
as a choice between two theories: Either Di-

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Losa murdered his wife for the life insurance
and covered it up, or there really were two
black intruders. The prosecution then refuted
the latter theory by pointing to the lack of phy-
sical evidence of anyone in the house except
DiLosa and the lack of evidence of intruders in
the neighborhood. The state thus based its
case on the non-existence of evidence it knew
existed.
In light of this, the excluded evidence po-
tentially pointing to intruders in the house, and
the statements of three witnesses pointing to
potential intruders in the neighborhood, leave
us with a definite conviction that the inclusion
of the evidence withheld from DiLosa
reasonably could undermine the confidence of
any reasonable jurist in the conviction. The
state court’s legal conclusion to the contrary is
not simply a misconstruction of Brady, but one
serious enough to be unreasonable. We
AFFIRM the judgment and order DiLosa
released if the state does not retry him within
120 days.

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