Whether § 5(a)(1) is an adequate and independent state procedural ground to bar review of a Brady claim

QUESTION PRESENTED At Robert Fratta’s first trial, the State concealed the fact that police had interviewed under hypnosis the lone eyewitness to the murder for which Fratta was convicted. The night of the murder, that eyewitness reported observing a shooter in red pants who fled the garage where the victim was shot, a man in all black waiting by the garage, and a getaway driver who arrived minutes after the shooting. After the hypnosis, the eyewitness ceased to recall a third man wearing red pants. The State’s theory at Fratta’s trial was that there were only two men present. In post-conviction proceedings after the first trial, Fratta discovered that fact the hypnosis had been suppressed and raised a violation of Brady v. Maryland, 373 U.S. 83 (1963). The State responded by disclosing some facts about the hypnosis while concealing others—including that police were present during the hypnosis and that the eyewitness was asked about her recollection of what she previously described as a shooter dressed in red pants. Fratta was retried, and the eyewitness testified again and still maintained her post-hypnotic version of the murder. After completing state and federal habeas proceedings, Fratta learned of the concealed information and raised the new Brady claim in a subsequent application. The Texas Court of Criminal Appeals dismissed the claim under a rule that bars review when a factual basis could have been discovered at the time of a prior habeas application through the exercise of reasonable diligence. Tex. Code Crim. Proc. art. 11.071, §§ 5(a)(1), § 5(e). The question presented is: Whether § 5(a)(1) is an adequate and independent state procedural ground to bar review of a Brady claim where the petitioner discovers new exculpatory evidence after the conclusion of initial state and federal habeas review because the State’s selective disclosure of information in response to a prior Brady allegation concealed the facts that supported a finding of materiality.