Argued: March 20, 2019
from the United States District Court for the Middle District
of North Carolina at Greensboro. Catherine C. Eagles,
District Judge. (1:16-cv-00539-CCE-LPA)
Theodore Lau, DUKE UNIVERSITY SCHOOL OF LAW, Durham, North
Carolina, for Appellant.
Clarence Joe DelForge, III, NORTH CAROLINA DEPARTMENT OF
JUSTICE, Raleigh, North Carolina, for Appellee.
Theresa A. Newman, DUKE UNIVERSITY SCHOOL OF LAW, Durham,
North Carolina; G. Christopher Olson, Raleigh, North
Carolina, for Appellant.
H. Stein, Attorney General, OFFICE OF THE ATTORNEY GENERAL OF
NORTH CAROLINA, Raleigh, North Carolina, for Appellee.
A. Newirth, THE INNOCENCE PROJECT, INC., New York, New York;
Breon S. Peace, Matthew Aglialoro, Willam Segal, CLEARY
GOTTLIEB STEEN & HAMILTON LLP, New York, New York, for
Amicus The Innocence Project, Inc. Brandon L. Garrett, L.
Neil Williams Professor of Law, DUKE UNIVERSITY SCHOOL OF
LAW, Durham, North Carolina; Mark D. Harris, Adam W. Deitch,
PROSKAUER ROSE LLP, New York, New York, for Amici Curiae.
NIEMEYER, THACKER, and RICHARDSON, Circuit Judges.
RICHARDSON, CIRCUIT JUDGE:
Wallace Long is serving two life sentences after a North
Carolina jury convicted him of rape and burglary in 1976.
Long has filed a second application for a federal writ of
habeas corpus. In it, he claims that a state post-conviction
court unreasonably applied Brady v. Maryland, 373
U.S. 83 (1963), when evaluating evidence disclosed to him for
the first time thirty years after his trial. The district
court disagreed and granted the state's motion for
affirm. Although Long shows the state court's summary
conclusion misstated the burden of proof for Brady
claims, that error does not entitle Long to habeas relief. To
overcome the required deference to state courts, Long must
show that each reason supporting the state
court's decision is objectively wrong beyond any
possibility for fairminded disagreement. Wetzel v.
Lambert, 565 U.S. 520, 525 (2012); Harrington v.
Richter, 562 U.S. 86, 102 (2011). Here, the state court
found "the cumulative [e]ffect of any [new evidence]
with any value is so minimal that it would have had no
impact on the outcome of the trial." J.A. 1359
(emphasis added). This reasonable finding adequately supports
the state court's decision that any newly disclosed
evidence falls short of the kind of materiality that
The 1976 burglary, rape, and investigation
April 25, 1976, at around 9:30 p.m., a man entered the home
of 54-year-old (now deceased) widow Sarah Bost in Concord,
North Carolina. He put a knife to her throat and demanded
money. When Mrs. Bost could not find money in her purse, the
man became angry, cursed her, threw her to the ground, ripped
her clothes off, beat her, and raped her. The man repeatedly
ordered Mrs. Bost not to look at his face, but she defied him
in hope that she could identify her attacker if she survived.
the assault, the phone rang and startled the man. He pulled
up his pants and went out the front door. Mrs. Bost ran
unclothed out the back door to her neighbor's house. Once
there, she told her neighbor that an African-American man had
just raped her. The neighbor brought Mrs. Bost inside and
called the police.
Police Department officers investigated the attack. They
gathered evidence from the scene and interviewed Mrs. Bost,
who told them that she was "attacked and raped by a
black male wearing a leather coat, toboggan, and 
gloves." J.A. 1429. She described her attacker as around
five foot five inches to five foot nine inches tall, with a
"slender build and slim hips" and a thin mustache.
J.A. 1428; see also J.A. 200-1, 305. She also said
that he wore blue jeans and used "correct [E]nglish and
at times spoke very softly" with no noticeable accent.
J.A. 1428. An ambulance then took Mrs. Bost to a local
hospital, Mrs. Bost was examined by Dr. Monroe, a physician
specializing in gynecology. Dr. Monroe observed extensive
scratches, bruising, and lacerations from Mrs. Bost's
face to her legs. He also noted her "fingernails looked
like they had been traumatized, or nearly bent
backwards." J.A. 295. As part of a pelvic exam, Dr.
Monroe assembled a microscope slide of vaginal fluid that
revealed an "extremely high count of live, very active,
human spermatozoa." J.A. 296. Mrs. Bost remained at
the hospital for five days for observation and
after the rape, officers showed Mrs. Bost a photographic
lineup of thirteen male suspects, hoping she might identify
her attacker. She did not identify a suspect from these
photographs, which did not include a picture of Long.
than two weeks later, officers asked Mrs. Bost to go to the
local courthouse to observe the proceedings. The Concord
Police had learned about a similar burglary and rape in
Washington, D.C. In that case, the victim found Long's
Social Security card in her apartment after the attack. Based
on the card left behind, the Washington Metropolitan Police
sought Long, a Concord resident, for questioning.
asked Mrs. Bost to come to Court, officers informed Mrs. Bost
that the man who raped her may, or may not, be present in
court and that she should discretely notify them if she
identified him. The officers also told her that she may have
to come to court on two or more occasions. She was also asked
to bring a neighbor or friend and to wear a disguise. At
first reluctant, Mrs. Bost agreed.
Bost arrived at the courthouse on the morning of May 10,
1976, wearing a red wig and glasses. Accompanied by her
neighbor, she sat in the second row, while two officers sat
away from them. According to the officers, there were
"approximately 60 to 65 persons in the court room either
in the audience or persons on trial," with "12
adult black males in the general age group" of the
description given by Mrs. Bost. J.A. 1433. As Mrs. Bost
observed the proceedings, several cases were called involving
African-American men as defendants.
about a half hour, Ronnie W. Long's case was called.
Long, "wearing a medium brown leather coat, a l[ei]sure
shirt flowered, no hat, [and] dress pants," exited the
row of seats to the left side of the gallery and "walked
around to the defense table where he was readily visible by
Mrs. Bost." J.A. 1433. Mrs. Bost notified the officers
that she had identified her attacker, telling them that
"there was no doubt in her mind that this person Ronnie
W. Long was the person who entered her house." J.A.
1433; see also J.A. 314-15 ("I will never
forget his profile, the coloring of his skin . . . . Another
reason, his mannerisms and the way he walked. . . . I knew
his voice. . . . One thing I will never forget, the way he
talked to me. . . . Another way I identified him was the way
he carried himself."). Officers took her to the police
station, where she again identified Long in a photographic
Mrs. Bost identified Long as her rapist, the officers asked
him to come to the police station. Long drove himself to the
station, where he waived his rights and permitted a search of
his car. The search revealed a pair of black gloves over the
visor, a green toboggan under the driver's seat, and
several matchbooks. The officers seized these items, as well
as Long's leather jacket. One of the officers, Officer
Isenhour, took impressions of the bottoms of Long's
shoes. Long was arrested and charged with burglary and rape.
trial began in Cabarrus County Superior Court in September
1976. On the first day, Long's trial counsel moved to
suppress Mrs. Bost's courthouse and photographic
identifications, arguing that they were impermissibly tainted
by the officers' actions. After permitting the parties to
question Mrs. Bost outside the presence of the jury, the
court denied Long's motions.
case in chief, the State called Mrs. Bost along with her
examining physician and several law enforcement officers.
Mrs. Bost identified Long as her attacker, pointing to him in
the courtroom. Long's defense had several components.
First, he sought to impeach Mrs. Bost's testimony on the
grounds that cross-racial eyewitness identification is often
suspect. Second, the defense pointed to the lack of any
physical evidence tying him to the crime scene. Third, Long
introduced testimony about his whereabouts on the evening of
the crime to establish an alibi.
jury convicted Long of both burglary and rape. He was
sentenced to two life terms in prison, and his conviction was
affirmed on direct appeal by the Supreme Court of North
Carolina. North Carolina v. Long, 237 S.E.2d 728 (
Disclosure of new evidence
years that followed, Long filed unsuccessful post-conviction
petitions in state and federal court, including a 28 U.S.C.
§ 2254 federal habeas application. North Carolina v.
Long, 377 S.E.2d 228 (Mem.) ( N.C. 1989); Long v.
Dixon, Civ. No. C-89-278-S (M.D. N.C. May 3, 1990).
Then, in 2005, he moved in state court for location and
preservation of evidence, seeking any biological evidence to
use in DNA testing and the pieces of clothing recovered, such
as his black leather jacket and green toboggan. The judge
granted Long's motion, ordering the prosecution and law
enforcement to locate and preserve all evidence related to
order led to the disclosure of dozens of documents falling
into three groups: (1) State Bureau of Investigation forensic
reports documenting the testing of physical evidence; (2) the
Master Case File on the investigation; and (3) excerpts of
Mrs. Bost's medical records from her hospitalization.
Forensic test reports
State disclosed copies of reports and handwritten notes from
forensic tests conducted on evidence delivered to the lab by
Officer Isenhour. The reports revealed that analysts (1)
compared the single hair found at the crime scene with
Long's head and pubic hair samples and concluded that
they did not match, noting that no additional hairs were
found on Mrs. Bost's clothing, J.A. 1466; (2) examined
Long's leather jacket, gloves, and toboggan and did not
find any trace of paint or carpet fibers matching samples
taken from Mrs. Bost's home, J.A. 1454-55; (3) compared
five matchbooks from Long's car with three burned matches
recovered from the upstairs windowsill and found insufficient
evidence to conclude that they were linked, J.A. 1463; and
(4) compared a latent shoeprint recovered from the front
porch bannister of Mrs. Bost's home with the inked
impressions of Long's shoe bottoms, concluding that
Long's shoes could have made the shoeprint, but there was
insufficient information for a definite match, J.A. 1464. The
testing of the hair, clothing, and matchbooks was not
disclosed to Long's defense counsel before trial.
Master case file documenting evidence submitted for forensic
Master Case File contained two "Request[s] For
Examination of Physical Evidence," each written by
Officer Isenhour to document items of evidence he delivered
for forensic testing the day after Long's arrest. J.A.
first request listed the latent shoeprint taken from outside
Mrs. Bost's house and inked impressions of Long's
shoes. See J.A. 1465. It asked the forensic analysts
to "[e]xamine for identification from latent lift to
known shoe-bottom impressions." J.A. 1465.
second request listed 13 additional items of evidence
provided for forensic testing, including Long's leather
jacket, green toboggan, and leather gloves; paint and carpet
samples taken from the crime scene; samples of Long's and
Mrs. Bost's head and pubic hair; a "suspect hair
from the scene"; matchbooks from Long's car; burned
matches obtained from the upstairs windowsill; and Mrs.
Bost's clothing. J.A. 1454. It requested the examination
of Long's clothing "for the presence of paint and
fibers" and to compare any paint or fibers found with
the samples taken from Mrs. Bost's home. Id. It
also requested a forensic comparison of the hair found at the
scene (and any hairs found on Mrs. Bost's clothing) with
the hair samples taken from Long as well as a comparison of
the burned matches from the windowsill with the matchbooks
recovered from Long's car.
request was disclosed to Long's counsel before trial.
Moreover, at trial, Isenhour offered an incomplete picture of
the testing he had requested. While he testified to
delivering the shoeprints for testing, he also said that the
black leather jacket, the green toboggan, and black leather
gloves remained in his "custody and control" since
he received them from another officer during the
investigation. J.A. 415-16.
The victim's medical records and biological
county hospital produced to the superior court judge 26 pages
of Mrs. Bost's medical records from her hospitalization
and medical examination hours after the rape. After in
camera review, the judge authorized the release of 11
pages of the records to Long's post-conviction counsel.
released records showed that Dr. Monroe collected biological
evidence of the rape in accordance with the hospital's
rape protocol: he prepared slides of live spermatozoa, took
two swabs of vaginal secretions that he placed in test tubes,
and obtained pubic combings. After the examination, the
records show that the hospital released pubic hair and one of
the test tubes to an officer after authorized by Mrs. Bost.
J.A. 1475-79. These records were not disclosed to Long's
defense counsel. Efforts to locate any biological evidence in
2007 were unsuccessful.
State post-conviction proceedings
receiving the new evidence, Long filed a Motion for
Appropriate Relief ("MAR") (North Carolina's
version of a habeas petition), raising (1) an allegation that
the state failed to disclose exculpatory material to the
defense in violation of the Due Process Clause, the North
Carolina Constitution, and Brady, and (2) a newly
discovered evidence claim under state law. After an
evidentiary hearing, the state court denied Long's
motion, finding that both of Long's claims failed. An
equally divided Supreme Court of North Carolina affirmed.
North Carolina v. Long, 705 S.E.2d 735 ( N.C. 2011).
the state denied relief, Long filed another federal habeas
application in 2012. But because he had failed to receive
pre-filing authorization from this court as required by the
Anti-Terrorism and Effective Death Penalty Act
("AEDPA"), Pub. L. No. 104-132, 110 Stat. 1214
(1996), the district court dismissed Long's application
for lack of jurisdiction. See Long v. Lancaster, No.
1:12-CV-119, 2012 WL 3151179, at *1 (M.D. N.C. Aug. 2, 2012).
Long neither appealed nor sought the necessary pre-filing
in 2015, Long participated in the North Carolina Innocence
Inquiry Commission's Postconviction DNA Testing
Assistance Program. Those efforts revealed 43 latent
fingerprints taken from the crime scene that had not been
disclosed. Testing excluded Long as the source of those
returned to federal court and requested pre-filing
authorization for a successive federal habeas application,
which we granted. See In re Ronnie Long, No. 16-295,
Dkt. 6 (4th Cir. May 24, 2016). Long then filed the
application at issue here. The district court at first
dismissed Long's application after finding that it
presented, along with the Brady claims, an
unexhausted claim involving the latent fingerprints taken
from the crime scene and disclosed in 2015. See Long v.
Perry, No. 1:16CV539, 2016 WL 7235779 (M.D. N.C. Dec.
14, 2016). We reversed and remanded to the district court,
finding that Long had "unequivocally disclaimed"
his latent fingerprint claim. Long v. Perry, 699
Fed.Appx. 260, 261 (4th Cir. 2017).
the fingerprint claim, Long's application relies solely
on his argument that "the MAR Order was contrary to, or
an unreasonable application of, the Supreme Court's
clearly established Brady jurisprudence with respect
to each of the three fundamental Brady
components." J.A. 46. The state moved for summary
judgment on procedural and merits grounds, and the matter was
referred to a magistrate. In a 66-page report and
recommendation, the magistrate found on the merits that the
state court's application of Brady to the newly
discovered evidence was reasonable. The district court
adopted the magistrate's report and recommendation and
granted summary judgment to the Respondent. Long timely
review the district court's decision de novo.
Muhammad v. Kelly, 575 F.3d 359, 367 (4th Cir.
2009). And we "examine [Long's] argument through the
dual lens of the AEDPA standard and the standard set forth by
the Supreme Court in Brady." Richardson v.
Branker, 668 F.3d 128, 144 (4th Cir. 2012).
AEDPA, a federal court "shall entertain" a habeas
application for a person in state custody "in violation
of the Constitution or laws or treaties of the United
States." § 2254(a). Although a violation of federal
law is necessary for a writ to issue, it is not
sufficient-"AEDPA demands more," Harrington v.
Richter, 562 U.S. 86, 102 (2011), "consistent with
the respect due state courts in our federal system,"
Miller-El v. Cockrell, 537 U.S. 322, 340 (2003).
State courts "possess sovereignty concurrent with that
of the Federal Government . . . and are thus presumptively
competent to adjudicate claims arising under the laws of
the United States." Tafflin v. Levitt, 493 U.S.
455, 458 (1990). Recognizing this "foundational
principle of our federal system," AEDPA "erects a
formidable barrier to federal habeas relief for prisoners
whose claims have been adjudicated in state court."
Burt v. Titlow, 571 U.S. 12, 19 (2013).
properly respects the central role of state courts by
limiting the "federal courts' power to issue a writ
to exceptional circumstances." Richardson, 668
F.2d at 138. In our review, we must remain ever mindful that
state courts "are the principal forum for asserting
constitutional challenges to state convictions, [and] that
habeas corpus proceedings are a guard against extreme
malfunctions in the state criminal justice systems, not a
substitute for ordinary error correction through
appeal." Id. at 132 (quoting Richter,
562 U.S. at 103) (internal quotation marks omitted).
ADEPA's deferential framework, we may grant relief for a
habeas claim adjudicated on the merits in state court for
only two reasons. See § 2254(d). If the state
decision turns on a factual determination, that determination
must be "objectively unreasonable in light of the
evidence presented in the state-court proceeding."
Miller-El, 537 U.S. at 340; § 2254(d)(2).
Otherwise, the earlier state decision must have been contrary
to or involve an unreasonable application of, clearly
established federal law. § 2254(d)(1); see Virginia
v. LeBlanc, 137 S.Ct. 1726, 1728-29
(2017). Here, the applicable federal law consists
of the rules for determining whether the state violated a
defendant's Fourteenth Amendment Due Process rights under
state violates Brady when the prosecution fails to
disclose material evidence favorable to a criminal
defendant. 373 U.S. at 87; Kyles v. Whitley, 514
U.S. 419, 432 (1995). Evidence is material if it creates a
"reasonable probability of a different result,"
Kyles, 514 U.S. at 434, thus "undermin[ing]
confidence in the outcome of the trial." United
States v. Bagley, 473 U.S. 667, 678 (1985). It is not
enough for the withheld evidence to create the
possibility of a different verdict; a different
result must be reasonably probable. Strickler v.
Greene, 527 U.S. 263, 291 (1999); United States v.
Agurs, 427 U.S. 97, 109-10 (1976); see also
Richter, 562 U.S. at 112 ("The likelihood of a
different result must be substantial, not just
The state court's conclusions
on the evidence before it, the state court made the following
"conclusion of law":
As to the cumulative [e]ffect of the items of evidence the
defense alleges they did not receive, this court finds, based
on the findings of fact and conclusions of law stated herein,
that the contents of several of the items the defense alleges
they did not receive were fully addressed in front of the
jury; that other materials contained in reports were more
favorable to the State's case than the defendant's;
and that any remaining matters that were not presented to the
jury were of little or no value to the case as a whole;
and that the cumulative [e]ffect of any items with any
value is so minimal that it would have had no impact on the
outcome of the trial.
J.A. 1358-59 (emphasis added). The court's determination
compels a specific outcome under Brady: if evidence
has no impact on the trial outcome, then it must
leave no reasonable probability of a different
result. On this basis, the state court's decision that no
Brady violation occurred adheres to controlling
Supreme Court precedent. See Strickler, 527 U.S. at
Long instead asks us to scrutinize the summary conclusions of
the state court. Pet'r's. Br. 26 (citing J.A. 1359
¶17). After determining the evidence would have "no
impact," the state court "in summary" writes:
The Defendant has failed to prove by a preponderance of the
evidence that his due process rights have been violated under
Brady, in that he has not shown by a preponderance
of the evidence that the claimed evidence was withheld by the
state, that it was exculpatory, or that the result likely
would have been different with the claimed evidence.
J.A. 1359 (citations omitted). As the Petitioner argues, this
summary conclusion incorrectly articulates
Brady's burden of proof. Brady requires
that the defendant show that there is a reasonable
probability that a jury would find him innocent, given the
new evidence. It does not require "demonstration by a
preponderance that disclosure of the suppressed evidence
would have resulted ultimately in the defendant's
acquittal." Kyles, 514 U.S. at 434. Because the
state court's conclusion imposed a preponderance burden,
it directly contradicts Supreme Court
inaccuracy alone does not make the state court's decision
unreasonable. If another ground provided by the state court
can sustain its decision, this error is "beside the
point." Wetzel v. Lambert, 565 U.S. 520, 524
(2012); cf. Woodford v. Visciotti, 537 U.S. 19,
23-24 (2003) (inconsistent descriptions of the burden of
proof did not make the state court's decision
unreasonable under AEDPA). In Wetzel, the Supreme
Court held that we may only disturb the state court's
judgment if "each ground supporting the state
court decision is examined and found to be
unreasonable." 565 U.S. at 525. Because the state
court's no impact conclusion is "sufficient" to
reject Long's claim, "it is irrelevant that the
court also invoked [an improper] ground." Parker v.
Matthews, 567 U.S. 37, 42 (2012); see also
Littlejohn v. Trammell, 704 F.3d 817, 831 (10th Cir.
dissent asserts Wetzel applies only if a proper
reason for the state court's decision can be
"isolated from" another improper reason so as to be
entirely "separate." Dissent at 30, 32. This
mandate goes too far-the Supreme Court tells us when this
kind of an 'adequate and independent' examination is
necessary. See Coleman v. Thompson, 501 U.S. 722,
732-33 (1991). And in Wetzel, the grounds supporting
the Pennsylvania Supreme Court's decision were not so
isolated as the dissent here demands. There, the
petitioner-convicted of murder, robbery, and other offenses
at trial-argued the Commonwealth violated Brady when
it failed to disclose a police "activity sheet"
that supposedly identified another participant in the
robbery. Wetzel, 565 U.S. at 521. According to
petitioner, the activity sheet was exculpatory and would have
impeached one of the Commonwealth's primary witnesses.
Id. at 521-22. The state court disagreed, finding
that the activity sheet was "'not exculpatory or
impeaching' but instead 'entirely
ambiguous.'" Id. at 524 (citations
omitted). "Moreover," the state court continued,
the contents of the activity sheet would be cumulative to
other impeachment evidence. Id. These rationales
supporting the state court's conclusion were neither
"isolated from" one another nor entirely
separate-on the contrary, both turned on an assessment of the
contents of the activity sheet. See Commonwealth v.
Lambert, 884 A.2d 848, 855-56 (Pa. 2005).
the Supreme Court held that the Third Circuit erred when it
granted the writ based on its disagreement with the state
court's assessment of the impeachment value of the
activity sheet. Wetzel, 565 U.S. at 523. As the
Supreme Court explained, if the state court reasonably found
the activity sheet to be ambiguous, then the court's
conclusion about the impeachment value of the sheet did not
matter. Id. After all, an "ambiguous"
document is neither exculpatory nor impeaching.
the unqualified conclusion that the new evidence has 'no
impact' logically precedes the erroneous preponderance
determination. Wetzel teaches that if the 'no
impact' conclusion-which alone is sufficient to reject
Petitioner's argument-is reasonable, "whatever [the
state] courts had to say" in another conclusion "is
beside the point." 565 U.S. at 524. And in our
deferential review of state court reasoning, see
Richter, 562 U.S. at ...