Should newly discovered Brady/Napue evidence be considered by federal courts or returned to state court?

QUESTIONS PRESENTED The trial prosecutors in this Harris County, Texas capital case hid extensive exculpatory and impeaching evidence relating to the primary State’s sentencing phase witness against Petitioner, David Balderas. As a sentencing phase aggravator designed to demonstrate “future dangerousness,” Mr. Balderas implicated Petitioner in a separate and unadjudicated home-invasion robbery; his testimony was the only evidence the State presented directly linking Petitioner to this crime. Prosecutors made it the centerpiece of their argument on future danger. Despite adequate Brady requests, prosecutor-promises on the record to produce Brady, and the court orders directing same, the record below is undisputed that the trial prosecutors failed to disclose to the defense extensive impeaching information about Balderas, including facts so damning of Balderas’s fundamental credibility ab mito, that a sitting federal judge pronouncing sentence in a later federal prosecution of Balderas would state, on the record, that Balderas was “worthless to the government” as a witness in any case. ROA.4726-32 (United States v. David Balderas, U.S. Dist. Judge Hinojosa, Sentencing Hearing Transcript, at pp.8-14). As to sentencing, at the very least, it is difficult to understand a ruling below that both refused to consider facts not discovered until federal proceedings and failed to find such facts material to and violative of this Court’s clear and long-standing precedents under Brady v. Maryland and Napue v. Ilmois. Addressing this Court’s Pinholster jurisprudence is necessary on the first matter, in particular footnote 10 and Justice Sotomayor’s dissent in that case; and, dealing with a recurring issue about which the lower costs are divided, in the Brady/Napue jurisprudence, is necessary for the second. Question | Given the extreme facts of this case, should this Court finally turn to footnote 10 and Justice Sotomayor’s dissenting opinion in Cullen v. Pinholster to hold that facts only disclosed after state i court proceedings which give rise to claims under Brady and Napue must either be considered by federal courts in adjudicating the merits of those claims, or they must be returned to state court for first adjudication there? Question 2 Should the Court grant certiorari to settle a conflict amongst the circuits as to the answer to question 1?! In this case the lower court applied Pinholster to Petitioner’s newly discovered Brady/ Giglio facts to bar consideration thereof, indicating Petitioner knew or should have known State’s witness Balderas was a long-time Houston police informant. In doing so, it failed to account for this Court’s holdings in Banks and Saickler, which make plain that trial counsel are entitled to rely upon prosecutor promises to disclose all Brady material, particularly when those assertions are confirmed by prosecutors post-trial.” Question 3 Should the Court settle the confusion in the lower courts, both state and federal, concerning whether the lower court should have denied the Brady claim here in reliance on the (unsubstantiated) view that Mr. Dennes knew or should have known that the State’s chief witness against him was a long-time informant for the Houston Police Department, imposing a Brady due diligence requirement in excess of this Court’s Banks and Saickler diligence requirements? ‘Compare Gonzalez v. Wong, 667 F.3d 965, 980 (9th Cir. 2011) (applying Rimes stay and abey to Banks-Strickler Brady claim evidence first uncovered in federal habeas) and Barton v. Warden, Southern Ohio Correctional Facility, 786 F.3d 450, 464-65 (6th Cir. 2015)(applying Banks and Sackler cause and prejudice exception even after Pinholster) with Dennes v. Davis (applying neither and refusing to consider Brady evidence under Pinholsten. * Banks v. Dretke, 540 U.S. 668, 692-93 (2004)(citing Sackler v. Greene, 527 U.S. 268, 289 (1999)). ii