[D O NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FILED

F O R THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

DECEMBER 27, 2006

THOMAS K. KAHN

N o . 06-10545

CLERK

N o n - A r g u m e n t Calendar

D . C. Docket No. 03-01036-CV-J-32-MCR

A A R O N A. SMITH,

Petitioner-Appellant,

versus

SECRETARY, DEPARTMENT OF CORRECTIONS,

ATTORNEY GENERAL, STATE OF FLORIDA,

Respondents-Appellees.

A p p e al from the United States District Court

fo r the Middle District of Florida

(December 27, 2006)

B efo re DUBINA, CARNES and HULL, Circuit Judges.

P E R CURIAM:

A a ro n Smith, a Florida state prisoner serving concurrent sentences on three state drug convictions, appeals the district court's denial of his 28U.S.C. § 2254 p etitio n for writ of habeas corpus.1 After review, we affirm.

I. BACKGROUND A. S ta te Court Proceedings O n June 16, 1999, Smith was arrested and charged with sale of cocaine, p o ssessio n of cocaine, and possession of marijuana. Before trial, Smith filed a d em an d for discovery under Fla. R. Crim. P. 3.220, seeking "[a]ny evidence or in fo rm atio n within the State's possession, control or knowledge which is e x c u lp a to r y or favorable to the Defendant with respect to the offenses charged." At the jury trial in November 1999, the State presented testimony from Officer A ric Sinclair and four narcotics detectives involved in the undercover drug o p eratio n that led to Smith's arrest. Smith's codefendant also testified against him.

Smith was convicted and sentenced, as an habitual felony offender, to twenty years' imprisonment for the sale or delivery of cocaine and concurrent sentences of f iv e years for possession of cocaine and one year for possession of marijuana. In F e b r u a r y 2001, Smith's convictions were affirmed on appeal. See Smith v. State, 7 7 8 So. 2d 286 (Fla. Dist. Ct. App. 2001).

O n February 1, 2002, Smith filed a motion for post-conviction relief, p u rsu an t to Fla. R. Crim. P. 3.850, alleging that the State violated Brady v. M arylan d , 373 U.S. 83, 83 S. Ct. 1194 (1963), by suppressing evidence that could h a v e impeached Officer Sinclair's testimony. Smith alleged that the State had s u p p r es se d information regarding a joint federal-state investigation that targeted co rru p t Florida police officers, including Officer Sinclair, for drug violations, illeg al searches, and other criminal activity. Smith learned of this investigation fro m a series of newspaper articles published in 2000, which he filed with the state co u rt. The articles indicated that the federal-state investigation had begun in D e ce m b e r 1998, prior to Smith's arrest and trial in 1999. Officer Sinclair was in d icted on December 12, 2000, and convicted in federal court on September 21, 2001.

T h e state court denied Smith's 3.850 motion, determining that Smith failed to show that the state prosecutor in his case was aware that Sinclair was under in v estig atio n . See State v. Smith, No. 99-7486-CF-B at 2 (Fla. Cir. Ct. Sept. 20, 2 0 0 2 ). The state court indicated that it was "not persuaded by Defendant's sp ec u lativ e argument that the State had information concerning Officer Sinclair's in v estig atio n at the time of Defendant's trial." Id. A lte rn a tiv e ly , the state 3.850 court concluded that there was substantial e v id e n c e beyond Sinclair's testimony to support the verdict, and therefore, that th ere was no reason to believe that any evidence concerning the investigation of S in c la ir "would have changed the outcome of the trial." Id. at 2-4. The state court rev iew ed how the testimony of several other police officers besides Sinclair, the testim o n y of Smith's codefendant, and Smith's own admissions proved Smith's g u ilt. The state appellate court affirmed the denial of Smith's 3.850 motion. Smith v . State, 855 So. 2d 62 (Fla. Dist. Ct. App. 2003).

B. § 2254 Petition O n December 8, 2003, Smith filed his § 2254 petition in federal district co u rt, alleging that his state drug convictions were obtained in violation of Brady.

The district court denied Smith's petition, concluding that the state court's ruling w a s neither contrary to nor an unreasonable application of clearly established f ed e r al law. See Smith v. Crosby, No. 3:03-cv-1036-J-32MCR at 15 (M.D. Fla.

D ec. 14, 2005). The district court also concluded that the state court's 3.850 ruling w as not based on an unreasonable determination of the facts in light of the e v id e n c e presented in the state court proceedings. Id. Specifically, the district co u rt also determined that Smith had not shown that the state prosecutor, at the tim e of Smith's November 1999 trial, would have been aware of the investigation o f Sinclair. Id. at 17.

Alternatively, the district court concluded that, even assuming arguendo that th e prosecution suppressed favorable evidence, this lack of Brady disclosure was n o t material because Sinclair's testimony was brief, there was overwhelming ev id en ce to convict Smith without Sinclair's testimony, and Smith had received a f air trial and a verdict worthy of confidence. Id. at 17-22. Smith appeals the denial o f his § 2254 petition.

II. DISCUSSION A. D e fe re n t ia l Standard of Review "[W ]e review de novo the district court's resolution of questions of law and o f mixed questions of law and fact." Conklin v. Schofield, 366 F.3d 1191, 1199 (1 1 th Cir. 2004), cert. denied, 544 U.S. 952 (2005). However, under AEDPA, a f ed e r al court may not grant habeas relief unless the state court's decision "was c o n tr ar y to, or involved an unreasonable application of, clearly established Federal law , as determined by the Supreme Court of the United States," or "was based on an unreasonable determination of the facts in light of the evidence presented in the S ta te court proceeding." 28U.S.C. § 2254(d)(1)-(2). The state court's factual d eterm in atio n s are "presumed to be correct" and the petitioner has the "burden of reb u ttin g the presumption of correctness by clear and convincing evidence." 28 U .S .C . § 2254(e)(1).

B. B ra d y Issue U n d e r Brady, prosecutors have an affirmative duty to reveal any "evidence [ th a t] is material either to guilt or to punishment." 373 U.S. at 87, 83 S. Ct. at 1 1 9 7 - 9 8 . For purposes of a Brady violation, this disclosure duty covers im p each m en t evidence as well as exculpatory evidence. See Kyles v. Whitley, 514 U .S . 419, 433, 115 S. Ct. 1555, 1565 (1995). To establish a Brady violation, Smith m u st show "(1) that the [State] possessed evidence favorable to the defense, (2) th at the defendant did not possess the evidence and could not obtain it with any r ea so n a b le diligence, (3) that the prosecution suppressed the evidence, and (4) that a reasonable probability exists that the outcome of the proceeding would have been d ifferen t had the evidence been disclosed to the defense." Moon v. Head, 285 F.3d 1 3 0 1 , 1308 (11th Cir. 2002) (quotation marks and citation omitted).

We first conclude that the state court's determination­that Smith failed to s h o w that the state prosecutor had knowledge about the investigation of Officer S in clair­ w as neither an unreasonable determination of the facts in light of the ev id en ce presented in state court nor an unreasonable application of clearly e sta b lis h e d law. In state court, Smith relied on four newspaper articles published in 2000 and Sinclair's December 2000 indictment, all of which occurred after S m ith 's trial in November 1999. Furthermore, the articles and indictment gave no in d icatio n of when Sinclair became a target of the investigation, or of any aw ar en es s by the state prosecutor that Sinclair was a target. In fact, one of Smith's n ew sp ap er articles noted that the State Attorney's office had declined to have one o f its prosecutors on the task force: O d d ly , during the whole process, the State Attorney's Office . . . has n o t gotten involved. The U.S. Attorney's Office told State Attorney H a rr y Shorstein he could have a prosecutor on the task force, but that p e r so n wouldn't be allowed to share information with anyone, in c lu d in g Shorstein. Shorstein declined the offer.

A lth o u g h the State Attorney's office may have been aware of the general existence o f an investigation, that does not demonstrate that they knew any of the details, in clu d in g that Sinclair was under investigation.

Smith also argues that the general law enforcement knowledge of the in v es tig atio n should be legally, or per se, imputed to the state prosecutor in Smith's case, and that the state 3.850 court's failure to consider imputed knowledge v io lated Kyles, which states that "the individual prosecutor has a duty to learn of an y favorable evidence known to the others acting on the government's behalf in th e case, including the police." Kyles, 514 U.S. at 437, 115 S. Ct. at 1567 (1995).

This Court has noted that "Kyles does not, however, further define what exactly is m ean t by `acting on the government's behalf.'" Moon, 285 F.3d at 1309 (2002). In Moon, we also pointed out that a claimant must still show that the favorable ev id en ce was possessed by a district's prosecution team, which includes both in v e stig a tiv e and prosecutorial personnel, that the prosecution team is defined as "th e prosecutor or anyone over whom he has authority," and that there is no per se ru le of imputation. Id. (citing United States v. Meros, 866 F.2d 1304, 1309 (11th C ir . 1989) and United States v. Antone, 603 F.2d 566, 570 (5th Cir. 1979)). Here, S m ith has not shown that the state prosecutor in this case had authority over an yo n e with knowledge that Sinclair was a target of the investigation.

Accordingly, Smith has not demonstrated that the state court's decision on the B r ad y issue was contrary to, or an unreasonable application of, clearly established fed eral law, or that the decision involved an unreasonable determination of the facts in light of the evidence presented.

C. M a t e ria lit y Standard T h e state court alternatively concluded that even if the information was in th e possession of the state prosecutor, Smith's alleged impeachment evidence still w o u ld not satisfy Brady's materiality standard. To satisfy Brady's materiality stan d ard , Smith must demonstrate a reasonable probability that, had the favorable ev id en ce been disclosed, the result of the proceeding would have been different.

Moon, 285 F.3d at 1308. A reasonable probability of a different result is shown w h en the government's evidentiary suppression "`undermines confidence in the o u tc o m e of the trial.'" Kyles, 514 U.S. at 434, 115 S. Ct. at 1566 (quoting United S tates v. Bagley, 473 U.S. 667, 678, 105 S. Ct. 3375, 3381 (1985)). Smith claims th at the state court applied the wrong legal standard in evaluating whether the im p each m en t evidence was material. We need not resolve that issue because the ch allen g ed impeachment evidence so clearly lacked materiality given how minor S in clair's role was at trial and given the other overwhelming evidence against S m ith .

F o r example, at trial, undercover narcotics detectives Donald Nixon and R o b er t Cook testified that they made contact with Roland Ball, Smith's c o d e f e n d a n t. Nixon told Ball they wanted to buy forty dollars worth of crack c o c ain e , and Ball said he could take them to get it. Ball got in the detectives' car an d directed them to a house with a car parked in the driveway. Nixon gave Ball fo rty dollars in marked money. Ball walked to the car parked in the driveway and g o t in. Less than a minute later, Ball returned to the detectives' car with two pieces o f crack cocaine. At trial, Ball identified Smith as the man who provided him with d ru g s and testified that Smith provided him with cocaine in exchange for the m o n ey given to him by the undercover detectives.

T w o blocks away, Officer Sinclair and Detectives Bishop and Van Dyke w ere given the signal to arrest the individuals involved in the drug transaction.

Sinclair testified that he approached the vehicle parked in the driveway and pulled S m ith from the vehicle. In searching Smith, he recovered a twenty-dollar bill.

Detectives Cook and Nixon both testified that the serial numbers on the money that w a s recovered from Smith by Sinclair matched the serial numbers on the money th at they had given Ball. The jury also heard testimony from Detective Bishop, w h o testified that he recovered drugs from the car close to where Smith had been s ittin g , and Detective Van Dyke, who testified that Smith first denied but later ad m itted that the drugs belonged to him. In sum, given this trial testimony, any failu re to disclose the impeachment evidence does not undermine confidence in the o u tco m e of the trial and is thus not material under Brady.2 F o r all of these reasons, the state court's decision was not contrary to, or an u n r ea so n a b le application of, clearly established federal law, nor was it an u n reaso n ab le determination of the facts in light of the evidence presented. Thus, w e affirm the district court's denial of Smith's § 2254 petition.

A F F IR M E D .

1 Smith filed his petition after the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub. L. No. 104-132, 110 Stat. 1214 (1996); therefore, the provisions of that Act govern this appeal.

2 We also reject Smith's claim that the district court erred in refusing to grant him an evidentiary hearing.