00-1558 Newell v. Hanks

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“Rule 11 of the Rules Governing Section 2254 Cases in the United States District Courts provides that ‘[t]he Federal Rules of Civil Procedure, to the extent that they are not inconsistent with these rules, may be applied, when appropriate, to petitions filed under these rules.’ The sec. 2254 rules do not consider whether an amended petition can relate back to the filing date of the original; Rule 15(c) of the civil-procedure rules therefore governs.

“The state’s case depended almost entirely on officer McGee’s testimony that Wells told him that he got the cocaine from Newell. Had Wells testified that he did not make that statement and that the cocaine was not even Newell’s, the state would have been left with only the phone conversation to link Newell to the charged transaction (assuming Wells would have been found credible). Thus, if Newell can prove his allegations, we believe that he might also be able to show a reasonable probability that the result of his trial would have been different if the suppressed evidence had been disclosed, which makes that evidence material for Brady purposes.

“Newell may also be able to establish a due process claim based on state interference with defense access (sometimes couched as a Sixth Amendment right to compulsory process). It is well-settled that substantial government interference with a defense witness’s free and unhampered choice to testify violates the defendant’s due process rights. Here, by offering to dismiss the cocaine charge pending against Wells if he did not testify in Newell’s defense, the prosecutor effectively hampered Wells’s free choice to testify at trial and thereby infringed Newell’s right to have Wells give evidence in his favor. And Wells’s absence at trial might have been material to the defense for the same reasons discussed above in the Brady analysis.”

Vacated and remanded.

Appeal from the United States District Court for the Southern District of Indiana, McKinney, J., Flaum, J.