Arthur L. Armstrong v. JACK MORGAN, Warden

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RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2004 FED App. 0185P (6th Cir.)
File Name: 04a0185p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
ARTHUR L. ARMSTRONG,
Petitioner-Appellant,
v.
JACK MORGAN, Warden,
Respondent-Appellee.
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No. 02-6374
Appeal from the United States District Court
for the Middle District of Tennessee at Nashville.
No. 99-00265—William J. Haynes, Jr., District Judge.
Argued: December 4, 2003
Decided and Filed: June 18, 2004
Before: KENNEDY, MARTIN, and MOORE, Circuit
Judges.
_________________
COUNSEL
ARGUED: C. Douglas Thoresen, FEDERAL PUBLIC
DEFENDER’S OFFICE, Nashville, Tennessee, for Appellant.
David H. Findley, OFFICE OF THE ATTORNEY
GENERAL, Nashville, Tennessee, for Appellee.
ON BRIEF: C. Douglas Thoresen, FEDERAL PUBLIC
DEFENDER’S OFFICE, Nashville, Tennessee, for Appellant.
2 Armstrong v. Morgan No. 02-6374
David H. Findley, OFFICE OF THE ATTORNEY
GENERAL, Nashville, Tennessee, for Appellee.
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OPINION
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BOYCE F. MARTIN, JR., Circuit Judge. Arthur
Armstrong appeals the denial of his petition for a writ of
habeas corpus following his state court convictions for
robbery, rape, kidnaping and crimes against nature. For the
reasons stated below, we AFFIRM.
I.
Armstrong’s convictions arise from his participation in the
abduction, rape and robbery of a young woman on the night
of February 11, 1977. The victim testified that she was
abducted by two men as she was exiting her vehicle. During
much of the overnight ordeal, the victim’s eyes were taped,
but at times the tape loosened and she was able to see the
identity of her abductors. The victim alleged that one of her
abductors–later identified as Armstrong–had told her to call
him “Nate.” The testimony at trial indicated that “Nate” was
one of Armstrong’s nicknames. Upon her release the
following morning, the victim reported the incident to the
police. The victim identified Ronny Harris, Armstrong’s co-
defendant, as one of the perpetrators. Harris later pleaded
guilty to abduction and robbery. The victim also made a
photographic identification of Armstrong as the second
abductor. Armstrong was indicted for armed robbery, rape,
kidnaping and two counts of crimes against nature.
At Armstrong’s jury trial, identification was a hotly
contested issue. Specifically, Armstrong attempted to cast
doubt on the victim’s identification because her initial
identification did not make reference to Armstrong’s
prominent gold teeth and because her eyes were taped during

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No. 02-6374 Armstrong v. Morgan 3
1On the objection of the prosecution to the termin ology of “mask,”
the reference was changed to “tape.”
most of the ordeal. The trial testimony indicates that the
defense attorney questioned the victim regarding the kind of
adhesive that was used over her eyes and whether more than
one strip of tape covered her eyes. Indeed, at one point the
defense attorney referred to the tape covering the victim’s
eyes as a “mask.”1 Another factor used to cast doubt on the
victim’s identification of Armstrong was that Armstrong’s co-
defendant denied that Armstrong had any involvement in the
crimes. Additionally, Earline Harris House, Harris’s sister
and Armstrong’s girlfriend at the time, testified that
Armstrong was with her on the night of the incident and that
during this visit her brother, Harris, by himself, brought the
victim to her house and took her into his bedroom. Harris
essentially testified that Armstrong could have had no
involvement in the crimes committed against the victim
because Armstrong was never in the presence of the victim.
The evidence at trial, however, also demonstrated that the
victim’s necklace and a tennis racket, which the perpetrators
stole, were recovered from Armstrong’s possession. The jury
convicted Armstrong on every count contained in the
indictment, and the conviction was affirmed on direct appeal.
In July 1989, Armstrong filed a petition for post-conviction
relief with the state court, arguing that trial counsel was
ineffective for not challenging the photographic lineup and
for not filing any pretrial motions. This petition was denied
and the Tennessee Court of Criminal Appeals affirmed. The
Tennessee Supreme Court denied Armstrong’s appeal. In
June 1992, Armstrong filed a petition for habeas corpus relief
in the district court, which held that Armstrong had failed to
properly exhaust three out of his four claims for relief.
In April 1993, Armstrong filed a petition for state habeas
corpus relief which was denied. According to Armstrong, on
approximately August 27, 1993, his attorney discovered two
4 Armstrong v. Morgan No. 02-6374
2No tably, the district court opinion erroneously stated that the
supplemental report was dated “February 12, 1997.” The actual date of
the supplemental report was February 27, 197 7.
reports prepared by Officer Donzaleigh Heard on different
dates in February 1977,2 both of which contain statements
indicating that the victim never had the opportunity to see her
attackers clearly. Thus, Armstrong included in his appeal of
the denial of his state petition for habeas corpus relief an
allegation that the prosecution violated the disclosure
requirements under Brady v. Maryland, 373 U.S. 83 (1963).
The Tennessee Court of Criminal Appeals affirmed the
denial, but noted that Armstrong’s Brady violation claim
should be presented in a state post-conviction proceeding.
Thus, Armstrong filed for post-conviction relief with the state
court in September 1995. After an evidentiary hearing, the
state court denied Armstrong relief, crediting the testimony of
the prosecutor at the original trial, David Raybin, that he had
turned over all exculpatory evidence before Armstrong’s trial.
The Tennessee Court of Criminal Appeals affirmed and the
Tennessee Supreme Court declined review.
In March 1999, Armstrong, proceeding without the benefit
of counsel, filed a petition for a writ of habeas corpus with the
district court. Counsel was appointed in March 2000. In June
2002, Armstrong sought leave to file an amended petition for
habeas corpus relief, which was granted. It is the June 2002
petition that is at issue in the instant case. In this petition,
Armstrong argues that the state court erred in concluding that
no Brady violation occurred and that if the district court found
that the exculpatory materials were presented to Armstrong’s
original counsel, then his trial attorneys were constitutionally
ineffective. The district court, on September 30, 2002,
granted summary judgment in favor of Warden Morgan
concluding that Armstrong had procedurally defaulted his
ineffective assistance of counsel claim and that the state
court’s factual determination that Raybin disclosed the reports
to Armstrong’s counsel was entitled to the statutory

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No. 02-6374 Armstrong v. Morgan 5
presumption of correctness. See 28 U.S.C. § 2254(e)(1). This
timely appeal followed.
II.
Because Armstrong’s petition for habeas corpus review was
filed after the effective date of the Antiterrorism and Effective
Death Penalty Act of 1996, the Act governs this Court’s
review. Bowling v. Parker, 344 F.3d 487, 497 (6th Cir.
2003). Under the Act, this Court reviews “de novo the legal
conclusions of a district court denying habeas relief.” Id.
This Court, however, presumes that the state court’s factual
determinations are correct, “unless [they are] rebutted by clear
and convincing evidence.” Castleberry v. Brigano, 349 F.3d
286, 291 (6th Cir. 2003); 28 U.S.C. § 2254(e)(1). Pursuant to
the Act, we may not grant a writ of habeas corpus unless we
find that the state court’s decision: (1) “was contrary to, or
involved an unreasonable application of, clearly established
Federal law . . .” or (2) “was based on an unreasonable
determination of the facts . . . .” 28 U.S.C. § 2254(d)(1).
On appeal, Armstrong repeats his argument that the
prosecution failed to disclose Brady material–i.e, two police
reports containing material, exculpatory evidence. The first
report, taken by Officer Heard, contains seven pages, but
Armstrong claims to have received at the time of his trial only
one page of this report. This report contains statements that
the victim was blindfolded and never got a good look at her
abductors and that they stayed behind her during the ordeal.
The second report, also taken by Officer Heard, noted that the
victim “did not get a good look at her assailants,” and that
having the victim “look at mug shots would have been
useless.” As discussed, Armstrong claims that he had not
received these reports until 1993, when he requested a copy
of his police file. We now analyze the merits of these very
serious allegations of Brady violations.
Brady held that “the suppression by the prosecution of
evidence favorable to an accused upon request violates due
6 Armstrong v. Morgan No. 02-6374
process 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. The Supreme Court has since
held that material, exculpatory evidence must be disclosed
even absent the defendant’s request. See United States v.
Agurs, 427 U.S. 97 (1976). Evidence is “material” 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). On appeal, the parties appear to agree that Brady
required the disclosure of these reports.
A Brady violation, however, only occurs if the prosecution
failed to disclose the evidence to the defense. The state court,
after conducting an evidentiary hearing on the issue,
determined that the evidence was indeed disclosed to defense
counsel before Armstrong’s trial. This decision was based
upon the testimony of David Raybin, the original prosecutor
in the case, who testified that he had disclosed this
information to the defense. Upon review of Armstrong’s
federal petition for habeas corpus relief, the district court
afforded the state court’s finding on this ground the statutory
presumption of correctness. See Brown v. Davis, 752 F.2d
1142, 1147 (6th Cir. 1985) (“factual findings of the state court
are presumed to be correct” on federal habeas review).
On appeal, Armstrong argues that the district court erred in
finding that he had failed to rebut by clear and convincing
evidence the state court’s factual determination that Raybin
had provided Armstrong with the police reports.
Alternatively, Armstrong argues that the district court erred
in affording the state court’s factual determination that
Raybin had provided Armstrong with the police reports the
statutory presumption of correctness.
We first address Armstrong’s argument that the district
court erred in finding that he had not rebutted by clear and
convincing evidence the state court’s factual determination
that Raybin had provided Armstrong with the police reports.

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No. 02-6374 Armstrong v. Morgan 7
3Armstrong also argues that there is evidence that Rayb in misled the
defense about the content of the p olice re ports. Specifically, Armstrong
contends that Raybin told defense counsel that he had a statement from
the victim indicating that one of her abductors took off the tape on her
eyes while she ate, so she w as able to see clearly the abductor’s identity,
but that this statement was not mentioned in the reports. Armstrong
argues that the absence of any notation in the police reports about this
statement demonstrates that the prosecution engaged in a practice of
withholding evidence from his defense. The attorney’s full statement,
however, was that he remembered Raybin telling him that “he had a
statement - - or a least I remember him telling m e . . . .” This full
statement explains the absence of such a statement in the po lice rep ort;
that is, the testimony leaves open the possibility that Raybin did not
actually have an official statement from the victim on this point.
Mo reover, while we reject the factual basis of this argume nt, we also note
that it is of no legal consequence to Armstrong’s Brady claim, as the
statement was not withheld from the d efense, nor exculpatory.
In support of his argument, Armstrong points to: (1) the trial
testimony of Officer Heard indicating that her only
involvement in the investigation of the case was that she took
the initial description and report from the victim, when there
was evidence indicating that that was not, in fact, her only
involvement in the investigation of the case because she wrote
a supplemental report approximately two weeks after she took
the initial description and wrote the first report; and (2) the
1989 testimony of Raybin indicating that there was only one
piece of exculpatory evidence–“the sheet”–which Armstrong
argues is inconsistent with Raybin’s 1996 testimony that all
exculpatory evidence was disclosed and also demonstrates
that only one sheet of Officer Heard’s report was given to the
defense.3 We find these arguments unpersuasive.
First, regardless of whether Officer Heard’s testimony was
arguably inconsistent with the facts surrounding her
involvement in the case because there is evidence that she
was more involved in the case than she testified to, this is not
dispositive of the genuine issue involved on appeal –whether
Armstrong provided clear and convincing evidence to rebut
the state court’s factual determination that Raybin provided
8 Armstrong v. Morgan No. 02-6374
the defense with the exculpatory police reports. Simply put,
Officer Heard’s testimony and indeed her credibility, is
irrelevant to the issue of Raybin’s credibility and whether or
not he disclosed both of Officer Heard’s police reports to the
defense.
Second, at the 1989 hearing on Armstrong’s ineffective
assistance of counsel claim, Raybin essentially testified that
there was only one piece of evidence that he felt constituted
Brady material and that he had given the defense “the sheet.”
During this 1989 testimony, Raybin essentially testified that
he knew the standard under Brady for evaluating whether
information needed to be disclosed to the defense and that he
acted consistently with his disclosure duties. By viewing
Raybin’s testimony as a whole, one could argue that Raybin’s
testimony could be understood as an indication that he
disclosed only the one sheet description of the perpetrators
and nothing else, because he did not believe Brady required
any more than that disclosure.
We conclude, however, that this testimony merely reflects
Raybin’s own assessment of the relevant weight of the
evidence and not the amount of evidence that Rabyin
disclosed to the defense. Stated otherwise, even if Raybin
believed that only one piece of evidence was exculpatory, that
does not mean that he did not disclose more than that “one
sheet.” Indeed, even Armstrong’s own trial counsel testified
that Raybin had provided “open file” discovery. Thus, we do
not believe that Raybin’s 1989 testimony is inconsistent with
his 1996 testimony. In any event, even were we to conclude
that Raybin’s 1989 testimony was arguably inconsistent with
his 1996 testimony, such an inconsistency would not
constitute “clear and convincing” evidence to rebut the state
court’s determination that Raybin provided the defense with
copies of the police reports in question. Regardless of how
we interpret Raybin’s 1989 testimony and what implicit
assumptions can be made from that testimony, in 1996 he
testified clearly and directly that he gave the defense the
police reports that Armstrong alleges were withheld. Under

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No. 02-6374 Armstrong v. Morgan 9
these circumstances, Armstrong has not met his burden of
demonstrating clear and convincing evidence that the state
court’s factual determination was erroneous.
We next address Armstrong’s alternative argument that the
district court erred in applying the statutory presumption of
correctness to the state court’s factual determination that
Raybin had disclosed the police reports at issue. Armstrong
argues that because Raybin’s 1996 testimony was inconsistent
with his 1989 testimony and because the state court in making
its finding did not have the benefit of analyzing and
comparing Raybin’s 1989 testimony with the 1996 testimony,
the district court erred in relying upon the uninformed
findings of the state court. Additionally, Armstrong argues
that the state court’s determination is not entitled to the
statutory presumption of correctness because in making its
finding it did not have the benefit of two medical reports
containing notations that the victim’s eyes were taped,
thereby preventing her from seeing her abductors. Armstrong
argues that these reports were withheld from the defense and
discovered only after the state evidentiary hearing and that
these reports impeach Raybin’s testimony regarding the
amount of exculpatory material. We find this argument
unpersuasive.
First, as discussed, we cannot conclude that Raybin’s 1996
testimony was inconsistent with his 1989 testimony. Second,
given the fact that the same judge conducted both the 1989
and the 1996 evidentiary hearings and issued the
accompanying orders, it is highly doubtful, contrary to
Armstrong’s assertion, that the “findings of the [state] court
following the 1996 hearing would have been different” had it
considered the inconsistency of Raybin’s testimony. Finally,
regarding Armstrong’s argument that the medical reports
impeach Raybin’s credibility, we find no evidence to indicate
that the medical reports were withheld during the initial trial.
Rather, our review of the record indicates that the defense was
fully aware of such reports; indeed, these reports were
repeatedly referred to during the trial. See Joint Appendix
10 Armstrong v. Morgan No. 02-6374
(“J.A.”) at 627 (“The staff hospital emergency room record
was available to me . . . .”); J.A. at 628 (referring to the
second report taken by the staff physician three hours after the
initial report).
For the foregoing reasons, we AFFIRM the district court’s
denial of Armstrong’s petition of a writ of habeas corpus.

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