Stevens v. Carlin (286 F. Supp. 3d 1092, 2018)

Table of Contents

Background...1099

Habeas Corpus Standard of Law...1105

Discussion...1109

1. Clearly-Established Law...1109

2. In Denying Claim 1, the Idaho Court of Appeals Unreasonably Applied Brady v. Maryland, Kyles v. Whitley , and Bagley v. United States ...1110

A. Assuming Post-Release and Post-Embalming Removal of the Eyes, the State Court's Conclusion that the Evidence Was Not in the Government's Possession or Control Was Unreasonable...1110

B. Assuming Post-Release and Post-Embalming Removal of the Eyes, the State Court's Implied Conclusion that the Evidence Was Not Impeaching Was Unreasonable...1112

3. On De Novo Review, Petitioner Is Entitled to Habeas Relief on His Brady Claim...1114

A. The Court Need Not Defer to the Idaho Post-Conviction Court's Factual Finding that C.W.'s Eyes Were Removed Before Release and Embalming...1114

i. The evidence presented in state court...1114

ii. The state post-conviction court's finding of pre-release and pre-embalming removal...1122

iii. The factual finding that C.W.'s eyes were removed at the autopsy was unreasonable in light of the evidence presented to the state court, and thus this Court need not apply the presumption of correctness...1126

B. The Prosecution Failed to Disclose Material Impeachment Evidence to the Defense...1129

Conclusion...1131

BACKGROUND

Following a jury trial in the Fourth Judicial District Court in Ada County, Idaho, Petitioner was convicted of the first-degree murder of C.W., the eleven-month-old son of Petitioner's girlfriend. The following facts are taken from Petitioner's state court proceedings:

On the afternoon of December 27, 1996, [C.W.] sustained a serious head injury while in the care of Stevens, the child's mother's boyfriend. The child died the next day after he was declared brain dead and removed from life support. Stevens claimed the head injury was the result of an accidental fall down the stairs, but the State contended the head injury occurred after Stevens violently shook the child and slammed the child's head onto the edge of a bathtub. Stevens was charged with murder in the first degree for killing the child during the course of committing an aggravated battery, Idaho Code §§ 18-4001, 18-4002, 18-4003(d).

Stevens v. State , 156 Idaho 396, 327 P.3d 372, 378 (Idaho Ct. App. 2013) ( Stevens II ).

C.W. died from a head injury, but the State and Petitioner had vastly different versions of how C.W. sustained that injury. "Stevens argued the cause of the injury was accidental, asserting [Stevens] fell asleep and awoke approximately twenty minutes later to the sound of 'thumps or a thud' and discovered the child lying at the bottom of the stairs not moving. After attempting to rouse the child and administer cardiopulmonary resuscitation (CPR), Stevens called 911 approximately five minutes later." Id. at 379.

The State's theory of the case was that "Stevens had been physically abusing the child since July, and on December 27, he was in the bathroom with the child, got frustrated with the child, violently shook the child, and then slammed the child's head against the side of the bathtub. The State further contended that Stevens then waited over half an hour to call 911." Id. The prosecution offered four types of evidence to support that theory: "(1) evidence that Stevens gave inconsistent accounts of what happened on December 27; (2) evidence that the child had been abused over the prior six months; (3) evidence that a child could not receive as severe a skull fracture as suffered by the child from a fall down stairs; and (4) evidence that the child had been shaken on December 27." Id.

As explained by the state district court during post-conviction proceedings, the first three types of evidence were highly controverted at trial. The first type of evidence, Petitioner's allegedly inconsistent statements, was of limited significance:

First, the State claimed that Stevens gave different accounts of where he began CPR on [C.W.]. However, one of the individuals the State cited to specifically said he did not remember Stevens saying where CPR was started. At an interview on December 27, Stevens said that he began CPR in the kitchen, but gave [C.W.] a few breaths on the way from the bedroom to the kitchen. Second, the State claimed that Stevens gave inconsistent accounts of how many thumps he heard [when he awoke]. However, Stevens has maintained from the very beginning that he was not sure how many sounds he heard. Third, the State claimed that Stevens never told the police that [C.W.] had vomited in the bathtub the night before, and thus he had no explanation for why there was vomit in the bathtub. However, in an interview at St. Alphonsus on December 27, Stevens told Detectives that he was up with [C.W.] the night before because he was sick and "projectile vomiting."

(State's Lodging C-11 at 2360 (internal citations omitted).) Petitioner also informed the police that C.W. had thrown up the morning of December 27. (State's Lodging A-9 at 1192-93.) Projectile vomiting was not unusual for C.W., who was undergoing a course of medical treatment for this reflux problem; sometimes the treatment would help, and sometimes it would not. (Id. at 682-85.)

The State also "claimed that Stevens never told the police he removed [C.W.'s] shirt and shoes even though [C.W.'s] shirt and shoes were removed by the time the paramedics got there." (State's Lodging C-11 at 2360.) However, Petitioner did state that he had removed the shirt while he was attempting to revive C.W. in the master bedroom and that "the only reason he did not disclose this fact earlier was that the police had never asked about it."

(Id. ) Petitioner also stated that C.W. was wearing his shoes as Petitioner attempted to revive him but did not explain why he was not wearing shoes when the paramedics arrived. (Id. ) It is unclear how Petitioner's failure to affirmatively state when and where he removed the shoes is actually inconsistent with the fact that C.W. was not wearing shoes when the paramedics saw him.

With its second type of evidence, the State attempted to show that Petitioner had been abusing C.W. However, this testimony also was strongly disputed:

First, the State presented the testimony of various individuals who stated they almost always saw [C.W.] with bruising on his body. These opinions indicated the bruising looked like it was caused by abuse. Stevens countered this with the testimony of various individuals who said [C.W.] had normal bruising for a child of his age, including the testimony of [C.W.'s] pediatricians. Second, the State presented the testimony of several individuals who had heard Stevens call [C.W.] names such as Mr. shitty diapers, little asshole and little maggot. These individuals testified they did not think Stevens was joking when he used these names. Stevens contends that these names were used in jest, and [C.W.'s mother] admitted that she had also used the nickname Mr. shitty diapers to refer to [C.W.]. Third, the State presented instances of specific injuries [C.W.] sustained while on Stevens' watch. Mr. Stevens gave various explanations for how these injuries had occurred. Fourth, the State presented evidence that [C.W.] did not start getting bruises until he moved in with Stevens. Stevens' explanation for this was that [C.W.'s] bruising coincided with the point in [C.W.'s] life when he became mobile. Finally, the State argued Stevens failed to present any evidence that[ ] "anybody is responsible for bruises other than what occurred on the defendant's watch." However, at least six different witnesses testified they had seen [C.W.] fall and bruise himself. Stevens also showed that no one, including [C.W's mother], had ever seen him hit or spank [C.W.].

(Id. at 2360-61 (internal citations omitted).)

The third type of evidence presented by the State involved C.W.'s skull fracture. The State's theory was that C.W. "could not have received his skull fracture from a fall down the stairs," but-again-there was conflicting expert testimony on this issue:

First, the State claimed that [C.W.'s] fracture was diastatic, which means that the edges of the fracture are wide apart. The State's expert Dr. Smith testified that "considerably more force" is required to produce a diastatic fracture. However, two of the State's other witnesses, including the Doctor who performed [C.W.'s] autopsy, testified the fracture did not appear to be diastatic. Second, the State called a physicist, Dr. Saami Shaibani, who testified it would have been physically impossible for [C.W.] to get this fracture in this precise location from a fall down the stairs. However, another witness for the State testified that [C.W.] would only have to hit his head "somewhere in that area" not necessarily at any particular point on the skull to create this fracture.

(Id. at 2361 (alteration omitted).) The State called five experts who testified that C.W. could not have gotten the skull fracture from falling down the stairs, partly based on the length of the skull fracture as measured at autopsy, which was between eight and nine centimeters. Petitioner called three experts who testified the fracture was, in fact, consistent with C.W. falling down the stairs. (Id. )

As can been gleaned from this review of the first three types of evidence presented by the State at trial, what exactly happened to C.W. was the subject of much dispute, and there was evidence to support both the State's and Petitioner's versions of events. Therefore, as the state post-conviction court later acknowledged, the evidence that C.W. had shaken-baby syndrome "was the most important evidence in the State's case because it was direct evidence that [C.W.] was battered on December 27, which was a necessary element of the State's first degree murder charge." (Id. ) Without the evidence of violent shaking, "it is unlikely the State would have been able to prove its first degree murder charge." (Id. at 2361-62.)

However, this evidence also was contested, and scientific evidence was presented that supported each version of what happened to C.W. For example, there was blood present between the two hemispheres of C.W.'s brain. One state expert testified that this blood "could not be explained by a fall down the stairs," but a different state expert testified "that a severe fall down the stairs could possibly explain this type of injury." (Id. at 2362.)

The State also presented evidence that C.W. had "subarachnoid hemorrhaging and subdural hematomas." (Id. ) Several of the State's expert witnesses testified that these injuries were consistent with shaken-baby syndrome. But two of the State's experts also testified that "intracranial pressure can cause subarachnoid hemorrhages and subdural hematomas," which was consistent with Petitioner's account of C.W.'s injuries. (Id. ) C.W. also had retinal hemorrhaging. The evidence established that such hemorrhaging "can be a red flag for shaken baby syndrome," but several of the prosecution's own experts "admitted that intracranial pressure and subarachnoid hemorrhaging can also cause retinal hemorrhaging." (Id. )

The most crucial scientific evidence as to whether C.W. was shaken was offered by State's expert Dr. Brooks Crawford, an ophthalmologist who testified regarding his examination of C.W.'s eyes. Several months after C.W.'s death, his eyes were sent to Dr. Crawford for analysis. (State's Lodging C-27.) Dr. Crawford testified that C.W. "had hemorrhaging in over 30% of his eyes, hemorrhaging in both eyes, and no hemorrhaging in the equatorial region"-occurrences which Dr. Crawford explained are "rarely seen in cases involving only blunt trauma." (State's Lodging C-11 at 2362.)

Dr. Crawford testified that he could "think of no other way to explain the findings , this constellation of findings that we have here, except for violent shaking. There's no other explanation for it. " (State's Lodging A-9 at 789 (emphasis added).) However, as later noted by the post-conviction court, Dr. Crawford's own pathology report seems to contradict at least one of these findings. (State's Lodging C-11 at 2362 ("Dr. Crawford's Eye Pathology Report appears to indicate that [C.W.'s] right eye did have hemorrhaging in the equatorial region.").)

Perhaps the most definitive testimony from Dr. Crawford involved macular or perimacular folds, which occur in the eye when the internal limiting membrane tears away from the retina, allowing "the vitreous to contract a little bit and produce this fold that then goes around the macular area." (State's Lodging A-9 at 775.) Dr. Crawford saw such folds in C.W.'s eyes. Although macular folds are not found exclusively in shaken-baby cases, Dr. Crawford testified that they are "very highly specific" to shaken-baby syndrome because it would take a rotational force like whiplash, rather than a translational force like a "straight blow to the head," to cause macular folding. (Id. at 776-77.) Dr. Crawford stressed that the folds almost always signal shaken baby syndrome, noting that there were only "two cases now in the world's literature of macular folds that were not seen in shaken baby syndrome." (Id. at 842; see also id. at 858 ("We know of at least one other case now or two cases now where a macular fold did occur in a person who did have a severe head injury.").)

Dr. Gregory Kent, an ophthalmologist who took photographs of C.W.'s eyes with a retinal camera while C.W. was still alive, testified that he did not see any macular folding. (Id. at 748, 754.) However, Dr. Kent went on to testify that the fact that he did not see the folds did not necessarily mean they did not exist, and that other techniques, such as a three-dimensional examination, might have been able to pick up injuries that were not visible from the retinal photographs. (Id. at 755.)

Petitioner countered Dr. Crawford's eye testimony with the testimony of Dr. Lawrence Thibault, a professor of bioengineering, neurosurgery, and orthopedic surgery specializing in head injuries. (Id. at 1556-59.) Dr. Thibault disagreed with Dr. Crawford that retinal hemorrhages could be caused by a rotational force or shearing force, an opinion that was based on Dr. Thibault's research on guinea pigs. (Id. at 1584-85.) He also testified that shaking could not cause macular folds in the eyes because "there's no force produced during shaking to give you that event." (Id. at 1586.) Petitioner also presented the testimony of forensic pathologist Dr. John Plunkett, who stated that short distant falls can cause retinal hemorrhaging and that with the injury that C.W. suffered, "there's a high probability that you are going to get retinal hemorrhage regardless of whether that injury was caused by a fall or someone picking him up and throwing him into a wall." (State's Lodging A-9 at 1961, 1973.) With respect to the macular folding seen by Dr. Crawford, Dr. Plunkett testified that macular folds can be found with different types of injuries and that "[n]o one knows" the significance of the presence of macular folds. (Id. at 1978-79.)

Petitioner was found guilty of first-degree murder. He was sentenced to life imprisonment without the possibility of parole.

While the case was on appeal, Petitioner filed a motion for a new trial, based on newly discovered evidence, under Idaho Criminal Rule 34. (State's Lodging A-3 at 56-57; see also State's Lodging A-5 at 435-39.) The judge in Petitioner's trial, who after the trial had been elected to a position as a justice of the Idaho Supreme Court, was then specially appointed to sit as a district trial judge to hear and decide Petitioner's motion for a new trial.

The newly discovered evidence "consist[ed] of, among other things, evidence that the child's eyes may have been damaged during embalming." Stevens II , 327 P.3d at 379. This evidence included (1) "a mortuary report indicating the child was embalmed prior to his eyes being removed for examination," id. ; (2) a 2003 investigative report by Detective Jim Miller (a) stating that he and another detective (his brother, Detective Joe Miller) both remembered C.W.'s eyes being removed a day or two after the autopsy, (b) noting that on the day after the autopsy the coroner informed Detective Joe Miller that the eyes had been removed, and (c) concluding that the eyes were most likely removed on December 30 or 31, 1996, after the body had been released to the funeral home and embalmed on December 29; and (3) affidavits by forensic experts contending the damage to the eyes seen by Dr. Crawford occurred after death as a result of the embalming, rather than by shaking while the child was alive.

After an evidentiary hearing, the court denied the motion, concluding that although the evidence strongly suggested that the eyes were removed after C.W.'s body was released to the funeral home and embalmed, "the evidence indicating the eye damage occurred after death ... was not newly discovered evidence because counsel could have discovered it with due diligence." Stevens II , 327 P.3d at 379. Thus, the evidence did not meet the standard for a new trial under Rule 34. The Idaho Supreme Court affirmed the conviction and the denial of Petitioner's motion for a new trial. State v. Stevens , 146 Idaho 139, 191 P.3d 217, 220 (2008) ( Stevens I ).

Petitioner then filed a petition for state post-conviction relief, asserting that the State failed to disclose evidence that the victim's eyes were removed after embalming, as required by Brady v. Maryland , 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and that Petitioner's trial counsel rendered ineffective assistance in several areas, including by failing to discover the evidence of post-release and post-embalming removal of C.W.'s eyes. In April 2011, the court held an evidentiary hearing on Petitioner's Brady claim. Following the hearing, the post-conviction court denied the petition. (State's Lodging C-11 at 2355-83; C-12.)

Petitioner appealed, and the Idaho Court of Appeals affirmed. The court held that Petitioner's Brady claim failed for the reasons that the undisclosed evidence of post-release and post-embalming removal was not exculpatory and was not in the possession or control of the government. Stevens II , 327 P.3d at 384-85. The court also rejected Petitioner's ineffective assistance of counsel claims, holding that Petitioner's counsel did not perform deficiently because, although counsel could have discovered the "date discrepancy" before trial, "the mere fact counsel did not discover it did not amount to deficient performance where counsel's investigation was otherwise reasonable." Id. at 391. The Idaho Supreme Court denied review. (State's Lodging D-12.)

Now, in his federal habeas corpus Petition, Petitioner raises these claims: (1) a due process claim under Brady , based on the prosecutor's failure to disclose evidence that the victim's eyes were removed after the body was released to the funeral home and embalmed; (2) a claim of ineffective assistance of trial counsel, based on counsel's failure (a) to discover the evidence regarding the timing of the removal of the victim's eyes, (b) to investigate reports that medication the C.W. was taking for his reflux problem could cause cardiac arrest, providing an additional reason why he might have fallen down the stairs, and (c) to consult with an expert regarding a scan of the victim's skull showing that the skull fracture was smaller than previously believed; and (3) a claim of ineffective assistance of direct appeal counsel, based on counsel's failure to challenge Justice Eismann's special appointment to hear Petitioner's motion for a new trial. (Dkt. 1.)

For the reasons that follow, the Court concludes that Petitioner is entitled to habeas relief on his Brady claim. Therefore, the Court need not address Petitioner's claims of ineffective assistance of counsel.

HABEAS CORPUS STANDARD OF LAW

It is "a fundamental precept of liberty" that a person is guaranteed freedom from unlawful restraint, and the writ of habeas corpus is "a vital instrument to secure that freedom." Boumediene v. Bush , 553 U.S. 723, 739, 128 S.Ct. 2229, 171 L.Ed.2d 41 (2008). Habeas relief is available to obtain release from state custody only when a federal court determines that the petitioner "is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a).

Congress has placed limits upon the availability of such relief described in § 2254(d), as amended by the Anti-terrorism and Effective Death Penalty Act of 1996 ("AEDPA"). That statute constrains the issuance of a writ of habeas corpus to those instances where the state court's adjudication of the petitioner's claim

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d). This means that, in most cases, a federal district court will defer to the findings and conclusions of the state courts out of comity and respect for the important role the state courts play in adjudicating federal constitutional issues in state criminal cases. This concept is often referred to as "AEDPA deference." A federal habeas court reviews the state court's "last reasoned decision" in determining whether a petitioner is entitled to relief. Ylst v. Nunnemaker , 501 U.S. 797, 804, 111 S.Ct. 2590, 115 L.Ed.2d 706 (1991).

When a party contests the state court's legal conclusions, including application of the law to the facts, § 2254(d)(1) governs. That section consists of two alternative tests: the "contrary to" test and the "unreasonable application" test.

Under the first test, a state court's decision is "contrary to" clearly established federal law "if the state court applies a rule different from the governing law set forth in [the Supreme Court's] cases, or if it decides a case differently than [the Supreme Court] [has] done on a set of materially indistinguishable facts." Bell v. Cone , 535 U.S. 685, 694, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002). Under the alternative second test of "unreasonable application," the petitioner must show that the state court, although identifying "the correct governing legal rule" from Supreme Court precedent, nonetheless "unreasonably applie[d] it to the facts of the particular state prisoner's case." Williams (Terry) v. Taylor , 529 U.S. 362, 407, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). " Section 2254(d)(1) provides a remedy for instances in which a state court unreasonably applies [Supreme Court] precedent; it does not require state courts to extend that precedent or license federal courts to treat the failure to do so as error." White v. Woodall , --- U.S. ----, 134 S.Ct. 1697, 1706, 188 L.Ed.2d 698 (2014) (emphasis omitted).

Significantly, a federal court cannot grant habeas relief simply because it concludes in its independent judgment that a state court's decision is incorrect or wrong; rather, the state court's application of federal law must be objectively unreasonable to warrant relief. Lockyer v. Andrade , 538 U.S. 63, 75, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003) ; Bell , 535 U.S. at 694, 122 S.Ct. 1843. If fairminded jurists could disagree on the correctness of the state court's decision, then relief is not warranted under § 2254(d)(1). Harrington v. Richter , 562 U.S. 86, 102, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011). On that subject, the Supreme Court has emphasized that "even a strong case for relief does not mean the state court's contrary conclusion was unreasonable." Id. To be entitled to habeas relief under § 2254(d)(1), "a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Id. at 103, 131 S.Ct. 770.

Further, AEDPA deference is required even where the state court denied a petitioner's claim without expressly addressing it. In such a case, the federal court must "conduct an independent review of the record to determine what arguments or theories could have supported the state court's decision." Bemore v. Chappell , 788 F.3d 1151, 1161 (9th Cir. 2015) (internal quotation marks and alterations omitted). The court must then decide "whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a decision of the Supreme Court." Id. (internal quotation marks and alterations omitted).

The source of clearly established federal law must come from the holdings of the United States Supreme Court, but circuit court decisions may be persuasive authority for deciding whether a state court decision is an unreasonable application of Supreme Court precedent. Duhaime v. Ducharme , 200 F.3d 597, 600-01 (9th Cir. 2000). However, circuit law may not be used "to refine or sharpen a general principle of Supreme Court jurisprudence into a specific legal rule that th[e] Court has not announced." Marshall v. Rodgers , 569 U.S. 58, 64, 133 S.Ct. 1446, 185 L.Ed.2d 540 (2013).

As to the facts, the Supreme Court has instructed that "review under § 2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on the merits." Cullen v. Pinholster , 563 U.S. 170, 180, 131 S.Ct. 1388, 179 L.Ed.2d 557 (2011). This means that evidence not presented to the state court may not be introduced on federal habeas review if a claim was adjudicated on the merits in state court and if the underlying factual determinations of the state court were reasonable. See Murray v. Schriro , 745 F.3d 984, 999-1000 (9th Cir. 2014) ; ("After Pinholster , a federal habeas court may consider new evidence only on de novo review, subject to the limitations of § 2254(e)(2)."); Hurles v. Ryan , 752 F.3d 768, 778 (9th Cir. 2014) ("If we determine, considering only the evidence before the state court, that the adjudication of a claim on the merits ... was based on an unreasonable determination of the facts, we evaluate the claim de novo, and we may consider evidence properly presented for the first time in federal court.").

Two separate statutory subsections govern a federal court's review of state court factual findings:

Factual determinations by state courts are presumed correct absent clear and convincing evidence to the contrary, § 2254(e)(1), and a decision adjudicated on the merits in a state court and based on a factual determination will not be overturned on factual grounds unless objectively unreasonable in light of the evidence presented in the state-court proceeding, § 2254(d)(2)....

Miller-El v. Cockrell , 537 U.S. 322, 340, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2010).

A court reviews a state court's factual determination pursuant to § 2254(d)(2) when a petitioner contests the reasonableness of that determination based on the state court record. Taylor v. Maddox , 366 F.3d 992, 999 (9th Cir. 2004), abrogated on other grounds as recognized in Murray , 745 F.3d 984 (9th Cir. 2014). Under subsection (d)(2), there are two methods generally used to challenge factual findings as unreasonable. "First, a petitioner may challenge the substance of the state court's findings and attempt to show that those findings were not supported by substantial evidence in the state court record. Second, a petitioner may challenge the fact-finding process itself on the ground that it was deficient in some material way." Hibbler v. Benedetti , 693 F.3d 1140, 1146 (9th Cir. 2012) (internal citations omitted).

Importantly, a "state-court factual determination is not unreasonable merely because the federal habeas court would have reached a different conclusion in the first instance." Wood v. Allen , 558 U.S. 290, 301, 130 S.Ct. 841, 175 L.Ed.2d 738 (2010). "The question under AEDPA is not whether a federal court believes the state court's determination was incorrect but whether that determination was unreasonable-a substantially higher threshold." Schriro v. Landrigan , 550 U.S. 465, 473, 127 S.Ct. 1933, 167 L.Ed.2d 836 (2007).

Under the second subsection dealing with state court findings of fact, 28 U.S.C. § 2254(e)(1), such factual findings are presumed to be correct, and the petitioner has the burden of rebutting this presumption by clear and convincing evidence. This standard "is demanding but not insatiable," and "deference does not by definition preclude relief." Miller-El v. Dretke , 545 U.S. 231, 240, 125 S.Ct. 2317, 162 L.Ed.2d 196 (2005) (internal quotation marks and alteration omitted).

The relationship between subsections (d)(2) and (e)(1) of § 2254 is not entirely clear. In Taylor v. Maddox , the Ninth Circuit held that "the presumption of correctness and the clear-and-convincing standard of proof [as set forth in § (e)(1) ] only come into play once the state court's fact-findings survive any intrinsic challenge [under § (d)(2) ]; they do not apply to a challenge that is governed by the deference implicit in the 'unreasonable determination' standard of section 2254(d)(2)." 366 F.3d at 1000. However, in Cullen v. Pinholster , the United States Supreme Court held that new evidence introduced in federal court "has no bearing" on a merits review of a state court's legal conclusions. 563 U.S. at 185, 131 S.Ct. 1388.

In Murray , the Ninth Circuit explained that the decision in Pinholster "eliminated the relevance of 'extrinsic' challenges when ... reviewing state-court decisions under AEDPA." 745 F.3d at 999. As a result, the interplay between § 2254(d)(2) and § 2254(e)(1) is unresolved. Id. at 1001 (noting that the Supreme Court has, in some cases, assumed that § (e)(1) merely qualifies § (d)(2) and that "we too have continued to struggle with the relationship between §§ 2254(d)(2) and (e)(1) when reviewing state-court factual findings under AEDPA"); see also Wood , 558 U.S. at 300, 130 S.Ct. 841 (declining to address the issue). To date, courts of precedent facing this dilemma have not found the differences between § 2254(d)(2) and § 2254(e)(1) determinative under the particular facts before those courts. See Wood , 558 U.S. at 304-05, 130 S.Ct. 841 ("Because the resolution of this case does not turn on them, we leave for another day the questions of how and when § 2254(e)(1) applies in challenges to a state court's factual determinations under § 2254(d)(2)."); Murray , 745 F.3d at 1001 ("[W]e do not believe the difference between our two lines of cases is determinative in this case, and thus we need not resolve the apparent conflict to decide this case.").

If a petitioner satisfies § 2254(d) -either by showing that the state court's adjudication of the claim was contrary to, or an unreasonable application of, Supreme Court precedent, or by establishing that the state court's factual findings were unreasonable-then the federal habeas court must review the petitioner's claim de novo. Hurles , 752 F.3d at 778. As in the pre-AEDPA era, a district court considering a habeas claim de novo may draw upon United States Supreme Court and circuit precedent, limited only by the non-retroactivity rule of Teague v. Lane , 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989).

However, if the factual findings of the state court are not unreasonable under § 2254(d)(2), then even on de novo review the Court must apply the presumption of correctness found in 28 U.S.C. § 2254(e)(1) to any facts found by the state courts. See Pirtle v. Morgan , 313 F.3d 1160, 1167-68 (9th Cir. 2002). Conversely, if a state court factual determination is unreasonable, the federal court is not limited by § 2254(e)(1) and may consider evidence outside the state court record, except to the extent that § 2254(e)(2) might apply. See Murray , 745 F.3d at 1000.

Generally, even if a petitioner succeeds in demonstrating a constitutional error in his conviction, he is entitled to federal habeas relief only if he also "can establish that [the error] resulted in 'actual prejudice.' " Brecht v. Abrahamson , 507 U.S. 619, 637, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993). Under the Brecht standard, an error is not harmless and habeas relief must be granted if the federal court has "grave doubt about whether a trial error of federal law had substantial and injurious effect or influence in determining the jury's verdict." O'Neal v. McAninch , 513 U.S. 432, 436, 115 S.Ct. 992, 130 L.Ed.2d 947 (1995) (internal quotation marks omitted). However, some types of claims "are analyzed under their own harmless error standards, which can render Brecht analysis unnecessary." Jackson v. Brown , 513 F.3d 1057, 1070 (9th Cir. 2008). Brady claims are in this category, and if a court has found a Brady violation, "it cannot subsequently be found harmless under Brecht. "

Kyles v. Whitley , 514 U.S. 419, 436, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995).

DISCUSSION

In Claim 1, Petitioner asserts that the prosecution failed to disclose, in violation of Brady v. Maryland , evidence that C.W.'s eyes were removed for examination after the victim's body was released to the funeral home and embalmed.

1. Clearly-Established Law

Under the Due Process Clause of the Fourteenth Amendment, the prosecution has a duty to disclose evidence favorable to the defense that is material to guilt or punishment, regardless of whether the defense has requested such evidence. Brady , 373 U.S. at 87, 83 S.Ct. 1194 ; United States v. Bagley , 473 U.S. 667, 676, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985). A meritorious Brady claim contains three essential components: (1) the evidence must be favorable to the accused, either because it is exculpatory or because it is impeaching; (2) the government must have withheld the evidence, either intentionally or inadvertently; and (3) the evidence must be material to guilt or punishment, i.e. , "prejudice must have ensued." Strickler v. Greene , 527 U.S. 263, 281-82, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999).

The duty to disclose favorable evidence applies "irrespective of the good faith or bad faith of the prosecution." Brady , 373 U.S. at 83, 83 S.Ct. 1194 ; see also Giglio v. United States , 405 U.S. 150, 154, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972) ("[W]hether the nondisclosure was a result of negligence or design, it is the responsibility of the prosecutor."). It applies not only to the prosecutor but also to the prosecution's agents, such as police officers. Kyles , 514 U.S. at 437, 115 S.Ct. 1555 (holding that evidence known only to the police, but unknown to the prosecutor, was subject to Brady disclosure). Thus, "the individual prosecutor has a duty to learn of any favorable evidence known to the others acting on the government's behalf in the case." Id. (emphasis added).

Favorable evidence can be exculpatory or impeaching. Exculpatory evidence is evidence tending to show the defendant did not commit the crime, while impeachment evidence is evidence that might have helped in conducting a cross-examination. Bagley , 473 U.S. at 677, 105 S.Ct. 3375. Brady requires disclosure of exculpatory or impeaching information , not just exculpatory or impeaching documents or other tangible things. See id. ("The constitutional error, if any, in this case was the Government's failure to assist the defense by disclosing information that might have been helpful in conducting the cross-examination.").

Undisclosed evidence is material under Brady , and its non-disclosure is prejudicial, if a reasonable probability exists that, had the evidence been disclosed, the result of the proceeding would have been different. "A 'reasonable probability' is a probability sufficient to undermine confidence in the outcome." Bagley , 473 U.S. at 682, 105 S.Ct. 3375. Exculpatory or impeaching evidence need not be evidence that would have produced an acquittal. Kyles , 514 U.S. at 434, 115 S.Ct. 1555 ("[A] showing of materiality does not require demonstration by a preponderance that disclosure of the suppressed evidence would have resulted ultimately in the defendant's acquittal (whether based on the presence of reasonable doubt or acceptance of an explanation for the crime that does not inculpate the defendant)."). Rather, the undisclosed evidence need only be such that, "if disclosed and used effectively, it may make the difference between conviction and acquittal." Bagley , 473 U.S. at 676, 105 S.Ct. 3375 (emphasis added). A court, in deciding whether undisclosed evidence is material, must assess the weight and force of the withheld evidence collectively, rather than item by item. Kyles , 514 U.S. at 433-34, 115 S.Ct. 1555.

As noted above, if a federal court determines that the three Brady elements have been met, the court need not conduct an additional prejudice analysis under Brecht. Kyles , 514 U.S. at 436, 115 S.Ct. 1555.

2. In Denying Claim 1, the Idaho Court of Appeals Unreasonably Applied Brady v. Maryland, Kyles v. Whitley , and Bagley v. United States

The Idaho Court of Appeals did not address the initial post-conviction court's finding that C.W.'s eyes were removed before the body was released and embalmed. Rather, the court assumed the eyes were removed post-release and post-embalming, and denied Petitioner's Brady claim nonetheless. Thus, for purposes of determining whether Petitioner has satisfied § 2254(d)(1), this Court will make the same assumption.

In at least two ways, the state court's decision was based on an unreasonable application of clearly-established federal law as determined by the United States Supreme Court.

A. Assuming Post-Release and Post-Embalming Removal of the Eyes, the State Court's Conclusion that the Evidence Was Not in the Government's Possession or Control Was Unreasonable

Without adopting the post-conviction court's finding that the eyes were removed before release and embalming of the body, the Idaho Court of Appeals determined that "the mortuary report was not in the prosecutors' (or their agents') possession or control and could not be reasonably imputed to them." Stevens II , 327 P.3d at 384. The court said that "the funeral home (which was clearly not a State agent) had sole possession of the report until ... 2003 when, responding to an inquiry" from Glen Elam, an "investigator for the public defender's office, the prosecutor requested the funeral home's files and forwarded them to the investigator and defense counsel." Id.

The Idaho Court of Appeals expressly addressed only the mortuary report. It did not discuss any of the other evidence offered by Petitioner, including the 2003 recollections of Detective Jim Miller and Detective Joe Miller that C.W.'s eyes were removed at the funeral home after the body had been released from the hospital, and not at the time of the autopsy. This Court presumes, however, that the court of appeals considered all of the evidence other than the mortuary report and determined that it, also, was not in the State's possession or control. See Richter , 562 U.S. at 99, 131 S.Ct. 770 ("When a federal claim has been presented to a state court and the state court has denied relief, it may be presumed that the state court adjudicated the claim on the merits in the absence of any indication or state-law procedural principles to the contrary.").

In doing so, the Idaho Court of Appeals unreasonably applied Brady , Kyles , and Bagley. Brady requires disclosure of information , not just documents. Bagley , 473 U.S. at 677, 105 S.Ct. 3375. Here, that information was not limited to the mortuary report-it was the (assumed) fact that the eyes were removed after the body had been released from the hospital. If the eyes were removed after the body was released and embalmed, as the court of appeals stated it assumed, then that information was indeed within the State's control.

This Court agrees with the lower state post-conviction court that "if [C.W's] eyes were removed post-embalming then Dr. Slaughter [the pathologist] and/or Mr. Sonnenberg [the coroner] would have had knowledge of this fact." (State's Lodging C-11 at 2365.) As the pathologist who removed the eyes, Dr. Slaughter obviously knew where and when he removed them. Though Dr. Slaughter could not later remember when he removed the eyes, he was most certainly aware of where and when the eyes were removed at the time he removed them. The coroner, Mr. Sonnenberg, also knew the timing of the removal of the eyes because he informed a police detective on December 30, 1996, that C.W.'s eyes had been removed from his body. (State's Lodging A-4 at 325.)

As it did before the state post-conviction court, in this habeas proceeding "[t]he State does not dispute the logic of this argument. Instead, the State has chosen to argue that Dr. Slaughter and/or Mr. Sonnenberg did not have knowledge of this fact because [C.W.'s] eyes were in fact removed at autopsy." (Id. ) The State again does not dispute Petitioner's contention that, for purposes of Brady , the coroner's office is an arm of the government or that Dr. Slaughter was an agent of the coroner-and therefore "acting on the government's behalf." Kyles , 514 U.S. at 437, 115 S.Ct. 1555. (Dkt. 23 at 23; Dkt. 28 at 13-16.)

However, the Court need not decide whether Dr. Slaughter and Mr. Sonnenberg were agents of the prosecution, because-assuming post-release and post-embalming removal of the eyes-two police officers also knew that fact. In 2003, Detective Jim Miller and Detective Joe Miller both recalled that the eyes were removed at the funeral home after the body was released from State custody. Approximately eight years later, Jim Miller testified at the post-conviction hearing that he (at that later date) believed the eyes were removed at the autopsy. But his change of mind upon the subject-which apparently was not based on a new and different memory-does not call into question his or his brother's earlier independent recollections that were made of record in 2003.

These two police detectives were members of the government's investigative team, and no fairminded jurist could disagree with that conclusion. See Richter , 562 U.S. at 102, 131 S.Ct. 770. As such, their knowledge is part of what "the individual prosecutor has a duty to learn[,]" that is, "any favorable evidence known to the others acting on the government's behalf in the case, including the police. " (emphasis added) ). Kyles , 514 U.S. at 437, 115 S.Ct. 1555 Thus, assuming the eyes were removed sometime after the funeral home took possession of the body on December 29, 1996, Detectives Jim and Joe Miller were aware of that fact at the time. Hence, that information was within the possession or control of the prosecution's investigatory team.

For these reasons, the state court's conclusion that the State did not have possession or control of any of the evidence of post-embalming removal-not just the mortuary report-was based on an unreasonable application of Brady , Kyles , and Bagley. Stated simply, the Idaho Court of Appeals could not have reasonably concluded that the government did not have possession or control of the information while also assuming the eyes were removed after release and embalming. If the eyes were removed after release and embalming, then the memories of the two detectives were accurate. Therefore, at least two police officers "acting on the government's behalf" would have known the information. Kyles , 514 U.S. at 437, 115 S.Ct. 1555. Pursuant to Brady and its progeny, the prosecutor was required to discover, and then disclose, that information.

B. Assuming Post-Release and Post-Embalming Removal of the Eyes, the State Court's Implied Conclusion that the Evidence Was Not Impeaching Was Unreasonable

The Idaho Court of Appeals also held that the evidence of post-embalming removal was not favorable to Petitioner because, on its face, it was not exculpatory. Stevens II , 327 P.3d at 384 ("On the record we have before us, there is little to no basis upon which to conclude the prosecutor or other members of the investigative team would or should have had any reason to believe th[e] fact [that the eyes were removed post-embalming] constituted material exculpatory evidence, such that the evidence must be disclosed."). In addressing these issues, the court again assumed that "the eyes were removed post-embalming." Id. The court stated,

[I]t was not until Stevens obtained the opinion of several experts during the post-conviction proceedings that any inkling arose indicating the evidence was potentially exculpatory. This is distinguishable from evidence that a prosecutor and/or the investigative team can be reasonably expected to discern as exculpatory-such as a witness's statement identifying an alternate perpetrator than the defendant. Additional analysis, beyond the ken of the prosecutor and investigation team, was necessary in this case to reveal the exculpatory nature of the evidence in question. Under these circumstances, knowledge of the evidentiary significance of the embalming report and/or the timing of the removal of the child's eyes cannot reasonably be imputed to the prosecutor.

Id. at 385.

The state court did not address expressly whether the evidence was impeaching, only whether it was exculpatory. This Court presumes that the state court considered that question (see Richter , 562 U.S. at 99, 131 S.Ct. 770 ), and that the state court decided that the evidence of post-release and post-embalming removal was not impeaching for the same reason the state court decided that the evidence was not exculpatory, i.e. , because the prosecutor could not have known the evidence was impeaching.

That conclusion was objectively unreasonable for two reasons. First, Brady does not require that the exculpatory or impeaching character of the undisclosed evidence actually be known to the prosecutor. Instead, Brady and its progeny require only that the undisclosed evidence be favorable, material, and within the control of the prosecution or its agents. Importantly, the significance of any such undisclosed evidence remains, and "under Brady an inadvertent nondisclosure has the same impact on the fairness of the proceedings as deliberate concealment. 'If the suppression of evidence results in constitutional error, it is because of the character of the evidence, not the character of the prosecutor.' " Strickler , 527 U.S. at 288, 119 S.Ct. 1936 (quoting United States v. Agurs , 427 U.S. 97, 110, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976) ).

Second, the state court's conclusion was unreasonable even if Brady did require that the favorable character of the evidence actually be known to the prosecution or its agents. Accepting the court of appeals' assumption that the eyes were removed after the body had been released and embalmed, the impeaching character of that evidence was obvious before trial or, at the very latest, during trial.

Here, it is not only the (assumed) fact that the eyes were removed after embalming that would have been apparent to the members of the prosecution's investigative team-it is also the fact that the eyes were removed after the body had been released to the funeral home , which established a break in the chain of custody of the eyes. The evidence of post-release and post-embalming removal of the eyes is classic chain-of-custody evidence, and both police and prosecutors are well aware of the importance of establishing a chain of custody of evidence.

When Dr. Crawford first examined the eyes and concluded that the damage he saw was highly specific to shaken-baby syndrome, it would have been clear to any reasonably competent prosecutor or police officer that the eyes were very important pieces of evidence. The impeachment value of the evidence of post-embalming removal should have been obvious as soon as the prosecution was aware that the eyes might contain evidence of the cause of death. The importance of such evidence was further emphasized because two doctors examined the eyes and testified at trial, but only one of them observed macular folds in the eye tissue. Dr. Kent, who examined the eyes before C.W. died, testified that he did not see macular folding. Dr. Crawford, who (assuming post-embalming removal) examined eyes that had been removed after the body was released to the funeral home, testified that the folds did exist. The release and embalming of C.W.'s body was a potential reason for this discrepancy other than the possibility that Dr. Kent simply missed the presence of macular folds or did not have the right equipment to see them.

The child's eyes were out of the State's custody for at least a day between the release of the body and the assumed post-embalming removal of the eyes. This chain-of-custody anomaly is a reason for calling into question Dr. Crawford's findings because the condition of the evidence (the eyes) could have changed after the victim's death (and after Dr. Kent's examination), but before Dr. Crawford's examination. See Bagley , 473 U.S. at 677, 105 S.Ct. 3375 ("The constitutional error ... was the Government's failure to assist the defense by disclosing information that might have been helpful in conducting the cross-examination."). Therefore, because both Dr. Crawford and Dr. Kent were state witnesses, the impeaching character of the evidence should have been obvious to the prosecutor when she was constructing her case and preparing her witnesses for trial. At the very latest, the impeachment value of the evidence was clear during trial when the two doctors testified about their findings upon their respective examinations of the eyes.

For the foregoing reasons, the court of appeals unreasonably applied Bagley in ruling that the evidence of post-embalming removal, which the court assumed was true, was not impeaching. That evidence plainly "might have been helpful in conducting the cross-examination" of an expert testifying as to his examination of scientific evidence and conclusion as to the cause of death drawn from that evidence-here, Dr. Crawford's examination of C.W.'s eyes and his conclusions that C.W. was violently shaken. Bagley , 473 U.S. at 677, 105 S.Ct. 3375. Finally, the evidence became obviously impeaching, and therefore favorable to the defense, no later than Dr. Kent's and Dr. Crawford's trial testimony. The Court finds that no fairminded jurists would disagree. See Richter , 562 U.S. 86, 102, 131 S.Ct. 770

Having determined that the state court unreasonably applied clearly-established federal law, this Court will now analyze Petitioner's Brady claim de novo.

3. On De Novo Review, Petitioner Is Entitled to Habeas Relief on His Brady Claim

Even if a petitioner satisfies § 2254(d)(1) by showing that the state court unreasonably applied clearly-established federal law, a habeas court-in reviewing the claim de novo-must still presume any state court factual finding to be correct under 28 U.S.C. § 2254(e)(1) unless that finding is unreasonable under § 2254(d)(2). See Pirtle , 313 F.3d at 1167 ; Murray , 745 F.3d at 1000. The parties agree that this Court properly can review the factual finding of the state post-conviction court that C.W.'s eyes were removed before the body was released and embalmed, even though the Idaho Court of Appeals did not adopt that finding. (Reply, Dkt. 23 at 3-18; Sur-Reply, Dkt. 28, at 4-5.)

If this Court must defer to the post-conviction court's finding that the eyes were removed at the autopsy, before the body was released and embalmed, then Petitioner's Brady claim would fail because there would have been nothing for the prosecution to disclose and the evidence of post-embalming removal would not have been material. Therefore, the Court must first decide whether it is bound by that factual finding.

In making that decision, the Court is mindful that although a federal court in habeas must "give considerable deference to the state courts, 'AEDPA deference is not a rubber stamp.' " Garcia v. Long , 808 F.3d 771, 779 (9th Cir. 2015) (quoting Anderson v. Terhune , 516 F.3d 781, 786 (9th Cir. 2008) ). Hewing to that template, the Court concludes for the reasons that follow that the finding of pre-release and pre-embalming removal is unreasonable under § 2254(d)(2), and the Court therefore need not apply the presumption of correctness to that finding under § 2254(e)(1).

A. The Court Need Not Defer to the Idaho Post-Conviction Court's Factual Finding that C.W.'s Eyes Were Removed Before Release and Embalming

i. The evidence presented in state court

The eye removal issue centered on whether C.W.'s eyes were removed at the autopsy or, as Petitioner claims, after the body had been released to the funeral home and embalmed. The post-conviction court found that four people were at the autopsy of C.W.: (1) Dr. Ronald Slaughter, the pathologist who performed the autopsy and, at some point, removed the eyes; (2) Detective Jim Miller; (3) Dave Sherner from the coroner's office; and (4) then-Sergeant (later Lieutenant) Gene Trakel. (State's Lodging C-11 at 2366.) Although the county coroner, Erwin Sonnenberg, testified during post-conviction proceedings that he believed he was at the autopsy, all of the other evidence indicates that only those four individuals were present. The autopsy reports do not note that the eyes were removed at the autopsy.

Dr. Slaughter testified multiple times about removing C.W.'s eyes for further testing, but he never said when he removed the eyes. During the first trial, which ended in a hung jury, Dr. Slaughter said that he removed the eyes, at the direction of the coroner, and placed them in a fixative to preserve them. (State's Lodging A-7 at 1125-26.) There was no mention of when the eyes were removed, although, if the coroner advised Dr. Slaughter to remove the eyes, that conversation likely took place before or after the autopsy, as the coroner was not present at the autopsy. (State's Lodging C-11 at 2366.)

In the second trial, Dr. Slaughter gave these answers to the prosecutor's questions:

Q. Doctor, with respect to [C.W.'s] eyes, did you perform a procedure to remove [the] eyes?

A. Yeah, after consulting with Dr. Garrison and Dr. Ray [two other experts], I knew the eyes would be important and I'm not an ophthalmology pathologist ... so I just took the eyes out and put in a fixative to make sure that they stayed the way they are now and sent it to a pathologist specially trained in that area.

Q. And so you actually packaged them and sent them to Dr. Brooks Crawford?

A. Yes.

(State's Lodging A-9 at 411.) Once again, no one asked Dr. Slaughter when he removed the eyes, though Dr. Slaughter did testify that he had these discussions with Drs. Garrison and Ray about the importance of the eyes before the autopsy. (Id. at 415.)

By the time he testified during proceedings on Petitioner's motion for a new trial, Dr. Slaughter vaguely recalled removing C.W.'s eyes, but he did not remember when:

Q. Dr. Slaughter, just to move on to the issue of the eyes, I'm sure you're aware of that issue; correct?

A. Yeah. I was told today of the issue of the eyes, or maybe yesterday.

Q. I notice in ... the final autopsy report and preliminary autopsy report ..., there is no mention in there that you removed the eyes during the autopsy.

A. I just looked for that and you're right, there's no mention of it.

Q. In fact, you didn't remove the eyes during autopsy, did you?

A. Honestly, I don't remember the exact instant that I removed the eyes. I do vaguely remember-remember this is almost ten years ago-removing the eyes. It's not something we normally do. This report that has the gross, that lists all the organs and heart and lungs, I do that after I've done the autopsy from a template because we almost never remove the eyes. The eyes are not listed in that template. So it's likely I just overlooked dictating how I removed the eyes or what their weight was or anything else.

Q. At some point you removed the eyes?

A. Correct.

Q. What made you decide to remove the eyes?

A. From what I can recall and from looking at my previous testimony, I think I spoke to someone with more experience in this area in Washington, and they recommended that I remove the eyes.

Q. Did you speak with Dr. Garrison in Pocatello?

A. Yes.

Q. And he recommended that you remove the eyes?

A. Correct.

Q. And the reason he did that is because he explained to you that in alleged shaken baby cases the removal of the eyes is important to the evidence of shaking?

A. I don't remember the exact reason, but he did ask me to take the eyes.

Q. Do you recall when you removed the eyes?

A. No, I do not.

....

Q. What time of day was it when you removed the eyes?

A. I have no idea. I don't remember what time of day it was when I did the autopsy.

....

Q. How did the body arrive for you to take the eyes?

A. I don't know. As far as I know, I took the eyes at autopsy, which is the body was stored in our cooler.

Q. But that was not noted in either of your autopsy reports?

A. Correct, because the eyes are not part of my normal dictating template. And I just didn't mention it specifically also since I wasn't keeping the eyes. The eyes were taken to be sent out. And that's why there are no weights or anything. That's why it's not on my final diagnosis, for instance. I didn't examine the eyes microscopically, so I had no reason to include them in my report.

....

Q. You're speculating here, aren't you, because you don't have a memory?

A. I am speculating.

....

Q. As far as the issue of the body being embalmed when the eyes are removed, you have no specific memory as to whether it was embalmed?

A. I have no specific memory of the exact time I took the eyes. I'm assuming I took them at the time of autopsy because it would be unusual for me to do it any other time. But I don't have a specific memory.

(State's Lodging A-13 at 41-50, 58.)

Dr. Slaughter testified that he did not know what time of day it was when he performed the autopsy. Though in answer to the question about the time of day the eyes were removed he left a possible impression that the eyes were taken during the autopsy, he clarified shortly thereafter in his testimony that he was only assuming and speculating that he removed the eyes at autopsy.

After a defense investigator initially raised the issue of the chain of custody of the eyes, the prosecutor asked Detective Jim Miller to investigate the timing of the removal. Detective Miller's subsequent investigative report contains his conclusion that C.W.'s eyes were removed after the autopsy, after the body was released to the funeral home, and after the body was embalmed. The detective remembered C.W.'s eyes "being collected a day or two [after the autopsy] while [C.W.] was at the funeral home." (State's Lodging A-4 at 325.) Detective Jim Miller's brother, Detective Joe Miller, corroborated the conclusion, saying that "there had been at least one trip made to Dakan Funeral Chapel by the coroner's office to collect [C.W.'s] eyes and the tissue samples." Id. at 325-26 (emphasis added). And although the autopsy report states that Dr. Slaughter performed biopsies of tissues from C.W.'s face, Detective Jim Miller's report concluded that facial tissue samples likely were taken after the body was released, at the same time the eyes were removed.

Detective Jim Miller came up with the following timeline, based on his interviews with witnesses and his handwritten notes:

12-27-96 (Friday) At about 1530 hrs, Meridian Police respond to [Petitioner's address].

12-28-96 (Saturday) 1038 hrs. [C.W.] dies at St Luke's Hospital.

12-29-96 (Sunday) 0800-0930 hrs , Lt. Gene Trakel and I attend [C.W.'s] autopsy performed by Dr. Slaughter.

1145 hrs, Ken Hestead with Dakan Funeral Chapel picks [C.W.] up.

1230 hrs, [C.W.] arrives at Dakan Funeral Chapel. Doug Reinke notes [C.W.'s] eyes are brown , and notes only bruises on his body.

1230-1430 hrs, Doug Re