Harry Franklin Phillips v. Secretary, Florida Department of Corrections

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 15-15714
____________________
HARRY FRANKLIN PHILLIPS,
Petitioner-Appellant,
versus
SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS,
Respondent-Appellee.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 1:08-cv-23420-AJ
____________________
Before WILSON, J ILL PRYOR , and NEWSOM , Circuit Judges.
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PER CURIAM:
Florida death row inmate Harry Franklin Phillips appeals the
district court’s denial of his § 2254 petition for a writ of habeas cor-
pus. After a thorough review of the record and with the benefit of
oral argument, we affirm the district court’s denial of the petition.
I. FACTS AND PROCEDURAL HISTORY
On the evening of August 31, 1982, Bjorn Thomas Svenson,
a parole supervisor in Miami, was working late. He carried a stack
of old telephone books outside to throw them away in a dumpster.
Svenson never returned. At 8:38 p.m., he was shot multiple
times and died from the gunshot wounds. There were no eyewit-
nesses to the shooting. From bullets found on the scene, law en-
forcement officers determined the gun used was either a .357 Mag-
num or a .38 Special. But no murder weapon was ever recovered.
Phillips was charged with first-degree murder of Svenson. In
this section, we start by discussing the evidence of Phillips’s guilt
introduced at his criminal trial. We then review the history of Phil-
lips’s direct appeal, his post-conviction proceedings in Florida state
court, and his post-conviction proceedings in federal court.
A. Evidence of Guilt at Phillips’s Criminal Trial
The State relied on several categories of evidence to prove
that Phillips murdered Svenson, including evidence about (1) Phil-
lips’s interactions with Svenson and other parole officers before the
murder, (2) statements Phillips made in interviews after the
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murder, and (3) confessions Phillips made to other inmates while
in custody. We review each category of evidence in turn.
1. Phillips’s Interactions with Svenson and Other Pa-
role Officers
At trial, the State introduced evidence showing that Phillips
first encountered Svenson in 1980, while Phillips was on parole in
Florida. Several parole officers, including Nanette Russell and Mi-
chael Russell,1 testified at Phillips’s criminal trial. The parole offic-
ers described a series of interactions that Svenson had with Phillips
beginning in 1980 and continuing through the day of the murder.
In June 1980, Nanette, who reported to Svenson, was as-
signed to serve as Phillips’s parole officer in Dade County. Under
the terms of his parole, Phillips could not leave Dade County with-
out permission. One night a few months into the parole term, Phil-
lips showed up at a grocery store in Broward County where Nan-
ette was shopping. When Nanette left the store, Phillips was wait-
ing by her car. Phillips asked Nanette if they could sit in the car and
talk. She refused. He then said, “I just want a goodnight kiss. I don’t
want any sex from you. I just want a goodnight kiss.” Nanette
ended the conversation, got in her car, and drove to the home that
she shared with Michael, her boyfriend at the time (they later mar-
ried). That night, Phillips drove by Nanette’s home several times.
1 For ease of reference, we refer to Nanette Russell as “Nanette” and Michael
Russell as “Michael.”
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Nanette called Svenson and reported Phillips’s conduct. She also
called the police.
The next morning, Phillips called Nanette at home, even
though she had not given him the number. He told her that a
woman had offered him money to attack Michael.
After these incidents, Svenson assigned Phillips a new parole
officer. Svenson also met with Phillips and told him to stay away
from Nanette.
The parole commission petitioned to revoke Phillips’s pa-
role because he had traveled outside Dade County without permis-
sion. The witnesses at the parole hearing included Svenson, Nan-
ette, and Michael. Phillips’s parole was revoked, and he was incar-
cerated for an additional 20 months.
When Phillips was released from prison in August 1982, he
was again placed on parole. He was assigned a parole officer who
worked in a different building from Nanette. A few days after his
release, Phillips went to Nanette’s office and tried to see her. Nan-
ette refused to see him and reported the incident to Svenson, who
then met with Phillips.
Phillips showed up at Michael’s office next. Michael refused
to see him. Supervisors in Michael’s office met with Phillips and
warned him not to contact Nanette or Michael.
A few days later, someone fired four shots through the front
window of the home Nanette and Michael shared. There were no
eyewitnesses to the shooting. From bullets recovered on the scene,
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law enforcement officers determined that the shooter used a .357
Magnum or a .38 Special.2
Police investigated whether Phillips was the shooter. On the
night of the shooting, several officers went to Phillips’s home,
which he shared with his mother. The officers tested Phillips’s
hands for gunpowder residue. The next day, Svenson and other pa-
role officers searched Phillips’s home for the gun used in the shoot-
ing. When Phillips saw Svenson speaking to his mother, he became
“very belligerent” and yelled at Svenson.
The next day at work, Phillips approached a coworker
whose father was a police officer. Phillips told her that he had re-
cently fired a gun with a friend and that the police had tested his
hands for gunpowder residue. He asked whether the test would
detect residue if he had washed his hands with Comet after firing
the gun. (Phillips’s test for gunpowder residue later came back as
inconclusive.)
Around this time, Phillips ran into a friend, Tony Smith,3 at
a bar. Phillips complained that two parole officers (a man and a
woman) had been hassling his mother. He told Tony that he was
going to put a stop to it and had tried to shoot the female officer
2 The evidence introduced at trial showed that these weapons were common
and there were thousands of them in Florida at the time of the murder.
3 We refer to Tony Smith as “Tony” to distinguish him from Greg Smith, the
lead detective who investigated Svenson’s murder. We refer to Greg Smith as
“Smith.”
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but missed. That evening, Tony saw Phillips carrying a weapon
that appeared to be a .357 Magnum or a .38 Special.
Phillips interacted with both Nanette and Svenson on Au-
gust 31, the day Svenson was murdered. That morning, Nanette
reported for a hearing on the courthouse’s fourth floor. After en-
tering the building, she walked to the elevator. She spotted Phillips
standing by the elevator. To avoid him, she changed her route and
used the escalator. When she arrived on the fourth floor, she again
saw Phillips, and they made eye contact. She was frightened and
reported the incident to court security and Svenson.
A court security officer stopped Phillips and asked whether
he was following his former female parole officer. Phillips denied
following anyone and said that he was in the building to meet with
his attorney, James Woodard. Phillips also said that he would not
recognize his former parole officer if he saw her.
Svenson and other parole officers then met with Phillips.
Svenson told him to stay away from Nanette. Phillips was warned
that if his behavior continued, he would be arrested for violating
his parole. That evening, Svenson was murdered.
2. Phillips’s Statements in Police Interviews
At trial, the jury heard testimony from Greg Smith, the lead
investigator into Svenson’s murder, and other officers involved in
the investigation. These officers interviewed Phillips several times
about Svenson’s murder and told the jury about statements he
made in the interviews.
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The day after Svenson was murdered, detective Linda Beline
interviewed Phillips. He denied murdering Svenson and told Beline
that he had an alibi. He reported that he had left work at 5:00 p.m.
and returned home at 5:20. Afterward, he ran a few errands, includ-
ing picking his sister up from work and taking her children to
church, before returning home. At 7:50 p.m., he went to a Winn-
Dixie store to purchase a few items for dinner, left the Winn-Dixie
between 8:10 and 8:15, and was home before 8:30. When Phillips
arrived home, his mother asked for a ride to his sister’s house.
Shortly after he returned home, Phillips drove his mother to his
sister’s house, stopping to buy gas along the way. Phillips told
Beline that he was home for the night by 9:00 p.m.
Beline uncovered evidence that conflicted with Phillips’s
timeline. She obtained a copy of Phillips’s receipt from the Winn-
Dixie store, which showed that he checked out at 9:13 p.m., ap-
proximately one hour later than he had reported. Phillips’s sister
confirmed that he arrived with their mother around 9:35 p.m.,
again about one hour later than the time Phillips had said.
Smith testified about other statements Phillips made during
interviews. Phillips told Smith that after his release from prison he
went to the office where Nanette worked because “he had received
a phone call from an anonymous white male” who told him to re-
port to the parole office and see Nanette. Phillips said that he saw
Svenson at the parole office. According to Phillips, he spoke with
Svenson for about an hour, they had a “general conversation about
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the parole,” and Svenson never instructed him to stay away from
Nanette.
Phillips also admitted in an interview that he saw Svenson
the day after the shooting at Nanette’s home. Phillips denied argu-
ing with Svenson that day.
Smith testified that he asked Phillips about seeing Nanette at
the courthouse on August 31, the day of the murder. Phillips ex-
plained that he was at the courthouse that morning to meet with
his attorney, Jim Woodward.4 He denied seeing Nanette at the
courthouse, maintaining that he had not seen her since the revoca-
tion hearing years earlier.
Smith also questioned Phillips about whether Svenson was
present when Phillips met with parole officers later that morning.
He told Smith that Svenson had not attended the meeting. But
other officers who were at the meeting testified that Svenson was
present.
At trial, Smith recounted other statements Phillips made
during interviews. During one interview, Phillips asked whether
Smith “had ruled out that there had been two people involved in
this homicide.” Smith responded that police were still investigat-
ing. Phillips then suggested that the number of shots fired at Sven-
son indicated that there had been more than one shooter. Smith
then asked Phillips how he knew how many times Svenson had
4 Woodward testified at trial that Phillips never was his client, and they had no
appointment to meet on that day or any other day.
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been shot. Phillips responded, “I heard he was shot many times.”
According to Smith, though, the police had never publicly released
information about the number of times Svenson had been shot.
Phillips suggested to Smith that Svenson might have been
murdered because he was a drug dealer. Phillips refused to tell
Smith why he believed Svenson was a drug dealer. The police found
no evidence, however, that Svenson was involved with drugs or any
other illegal activities.
Phillips volunteered that he had heard other inmates in the
jail say that they did not like Smith. According to Phillips, these in-
mates, whom he would not identify, knew Smith’s home address
and that he had a teenage son. Phillips warned that these inmates
could cause “great bodily harm.”
Smith also testified about Phillips’s reaction upon hearing
that he had been charged with Svenson’s murder. Phillips said that
the State had no case because it had no eyewitnesses and had never
found the murder weapon. Phillips then said that he “didn’t kill the
motherfucker[,] but he was glad he was dead.” Phillips continued,
“They’re lucky they got me when they did because I would have
killed every last motherfucker in that office.” “If somebody does
me harm, I do them harm,” he added.
Phillips then brought up Nanette, saying, “I fucked her, that
skinny bitch, in the ass.” He told Smith that he and Nanette had
sexual intercourse the night he saw her at the grocery store. He
ended the conversation by saying, “Smith, you ain’t got no wit-
nesses. There ain’t nobody saw me kill that motherfucker.”
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3. Evidence of Phillips’s Confession to Four Jailhouse
Informants
The State also presented trial testimony about confessions
Phillips made to four inmates: William Scott,5 William Farley,
Larry Hunter, and Malcolm Watson. Each inmate testified at trial
that Phillips had confessed to murdering Svenson. We turn to the
evidence about each confession.
a. Confession to Scott
Scott testified that Phillips confessed to him in jail shortly
after Svenson was murdered. In August 1982, Scott, who was on
probation, was arrested for attacking his wife’s friend and violating
the terms of his parole by traveling out of state. After his arrest,
Scott was taken to the Dade County jail. In jail in early September,
Scott saw Phillips, whom he had known for at least 10 years.6
Phillips asked what Scott was doing in jail. Scott explained
that he had been arrested for aggravated battery and violating his
parole. Phillips then said that he was in jail because “I just downed
one of them motherfuckers.” During that conversation, Scott
warned Phillips that he needed to get rid of the murder weapon.
Phillips responded, “Don’t worry about the gun . . . ‘cause some
5 William Scott also used the name William Smith. We refer to him as Scott.
6 After Svenson was murdered, Phillips was arrested for a parole violation.
When Phillips encountered Scott, he had had not yet been charged with Sven-
son’s murder.
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woman got it.” Phillips told Scott that he committed the murder
because Svenson had “been riding him.”
After Phillips confessed, Scott called Detective Hough with
the Metro-Dade Police Department, whom Scott had known for
decades. Scott told Hough about Phillips’s confession. Hough then
connected Scott with Smith.
Within a few days of reporting Phillips’s confession, Scott
was released from jail. Upon his release, Scott went to see Phillips’s
sister. At trial, Scott mentioned in passing that he had spoken with
Phillips’s sister about the murder. But he did not say why he had
gone to see Phillips’s sister or what they discussed.7
During his trial testimony, Scott was asked what he would
receive from the State for testifying against Phillips. He denied that
he had been promised anything for his testimony or that anyone
had told him to talk to Phillips.
Scott also told the jury about what had happened to his crim-
inal charges. He explained that the aggravated battery charge
against him had been dropped because the victim had decided not
7 Before trial, Phillips deposed Scott. At his deposition, Scott gave more details
about visiting Phillips’s sister. According to Scott, he went to see Phillips’s sis-
ter on the day that he was released from Dade County Jail to bring her $20 to
deposit in Phillips’s commissary account.
As we describe below, at the post-conviction evidentiary hearing Scott testi-
fied that he went to see Phillips’s sister at the direction of officers investigating
the murder. See infra Section I-C-1-d. Scott did not mention this fact at his pre-
trial deposition or at trial.
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to pursue the charge. After this charge was dropped, he had been
released on his own recognizance. He acknowledged that he still
had a pending charge for violating his parole but told the jury that
the charge was “being taken care of.”
On cross examination, Phillips questioned Scott about his
motivation for testifying. He pointed out that Scott had previously
worked as a confidential informant for the federal government and
had been paid $1,000 a month for a four-year period.8
Phillips probed why Scott called Hough to report the con-
fession. Scott explained that he had given Hough information in
the past when a man had confessed to a killing. When the man con-
fessed, Scott called Hough and asked him to “check it out.” Scott
testified that he reported Phillips’s confession to Hough for the
same reason. Phillips then asked, “Are you a member of any police
agency that you wanted this checked out?” Scott responded, “No,
no, no, I’m not a police agent.” Phillips followed up by asking, “You
run an investigative agency or something, your checking things out
like this?” Scott answered, “No, man, no.”
Smith testified at trial that he “made no promises” to Scott.
And he denied playing any role in the State’s decision to drop
Scott’s aggravated battery charge. Smith was not asked whether he
played a role in securing Scott’s release on his own recognizance
for the parole revocation charge.
8 At his pretrial deposition, Scott denied that he had worked as a confidential
informant for the Metro-Dade police.
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b. Confession to Farley
Farley testified at trial that Phillips had confessed to murder-
ing Svenson. Farley met Phillips for the first time shortly after Sven-
son’s murder when they were cellmates at the Reviewing Medical
Center at Lake Butler. Soon after Farley and Phillips became cell-
mates, Smith and another officer interviewed Phillips. After the in-
terview, they met with Farley and asked whether Phillips had spo-
ken about the murder. Farley responded that he had not. During
the interview, the officers did not tell Farley to ask Phillips any
questions about the murder.
When Farley returned to his cell, Phillips mentioned that he
had been questioned by two officers. Farley said that he too had
been questioned. Phillips apologized for not warning Farley that
the officers investigating Svenson’s murder might try to speak to
him.
According to Farley, Phillips then showed him a copy of a
newspaper article about Svenson’s funeral. Phillips told Farley that
he had “murdered the cracker.” He described how he committed
the murder, saying that he “laid across the street” waiting for Sven-
son and “shot him a whole heap of times.” He said that that he
killed Svenson for having “sent him back to prison” for a parole
violation. Phillips also said that Svenson was “toting an object” at
the time he was shot.
After Phillips confessed, Farley told a prison official that he
wanted to speak with Smith. Farley was moved to a new prison
and met with Smith a few days later. Smith took a recorded
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statement in which Farley described Phillips’s confession. At trial,
Farley testified that he and Smith did not discuss the confession be-
fore the recording began. But the recorded statement itself showed
that they discussed Phillips’s confession before the recording be-
gan.9 When Farley described what Phillips had said about waiting
for Svenson, Smith interrupted and asked, “In the pre-interview
you said something about being behind a building? Did he say
something about being behind a building across the street or any-
thing like that?”
At trial, Farley was asked about his motivation for telling po-
lice about Phillips’s confession. Farley said that he went to Smith
because Phillips “had no respect for human life.” Farley also said
that he felt bad for Svenson’s family.
Farley was questioned about what he expected to receive in
exchange for his testimony. He testified that he was currently serv-
ing a prison sentence with a presumptive release date in November
(about 11 months after the trial). Farley explained that he had an
interview with the parole board scheduled for March, and based on
the interview he could secure an earlier release date. He acknowl-
edged that Smith and David Waksman, the lead prosecutor, had
promised to write letters to the parole board on his behalf if he tes-
tified against Phillips.
9 As we describe in greater detail below, at Phillips’s post-conviction eviden-
tiary hearing, Smith admitted that he discussed the confession with Farley for
approximately 90 minutes before the recording began. See infra Section I-C-1-
a.
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Farley testified that Waksman had helped him in another
way as well. Before Phillips’s trial, inmates learned that Farley was
testifying against Phillips, labeled Farley a snitch, and attacked him.
Waksman arranged for Farley to be moved for his safety.
On cross-examination, Phillips suggested that Farley made
up the story about the confession. He introduced an affidavit from
Farley stating that Farley made up the story about the confession
“to get out of prison.” But Farley testified that a group of inmates
had forced him to sign the affidavit.
When Smith testified, he was asked about his meetings with
Farley. He denied ever telling Farley what to say about Phillips’s
confession. He was not asked about whether he and Farley spoke
about Phillips’s confession before Smith began recording.10
Smith also described what had been promised to Farley. He
explained that when Farley gave the recorded statement about
Phillips’s confession, he had not made any promises to Farley or
agreed to give Farley anything in return. Smith said he later told
Farley that he would send a letter to the parole board on Farley’s
behalf.
10 Smith testified in a pretrial deposition that Farley’s “full statement . . . would
be within [his] report.” The record does not indicate whether Smith was aware
that Waksman had redacted the portion of his report stating that Smith talked
with Farley before taking the recorded statement. See infra Section I-C-1-a (de-
scribing Waksman’s redaction practices).
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c. Confession to Hunter
The third inmate to testify that Phillips had confessed was
Hunter. Hunter had previously been convicted of four crimes. In
January 1983, he was again arrested and held at the Dade County
jail, where he met Phillips in the jail’s law library.
Hunter testified that Phillips confessed to murdering Sven-
son. Phillips told Hunter how he approached the parole building
and shot Svenson in the parking lot. Phillips said that he murdered
Svenson because Svenson had testified against him at the revoca-
tion hearing. Hunter said that Phillips asked him to serve as an alibi
witness to say that he had seen Phillips at the Winn-Dixie around
8:30 p.m. on the night of the murder.
After this conversation with Phillips, Hunter said, he spoke
with his cellmate. According to Hunter, without his knowledge, his
cellmate reported to the police that Hunter had information about
Svenson’s murder. Smith then interviewed Hunter. Hunter re-
ported Phillips’s confession and turned over notes from Phillips
telling Hunter what to say about seeing Phillips at the Winn-Dixie.
Hunter was asked what he expected to receive in exchange
for his testimony. He explained that he had pending criminal
charges and his case was set for trial in a few weeks. He testified
that the police and prosecution had promised him that, if he was
convicted, they would go to court and inform the judge that he had
been a witness for the State at Phillips’s trial. (When Smith testified,
he confirmed making this promise.) But Hunter told the jury that
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this assistance would not matter because he was innocent of the
charges against him.
Hunter also testified that Waksman assisted him by having
him transferred to another jail after Phillips threatened him. Before
the trial, Phillips demanded that Hunter sign an affidavit saying he
knew nothing about the case. When Hunter refused to sign, Phil-
lips threatened his family. Afterward, Waksman had Hunter trans-
ferred to a different jail.
d. Confession to Watson
Watson was the fourth inmate who testified that Phillips
confessed. Watson, who had three or four prior felony convictions,
testified that he encountered Phillips in jail.
Watson told the jury that he had known Phillips for several
years. In 1980, Phillips asked to borrow $50 from Watson and of-
fered to give him a gun as collateral. During this conversation, Phil-
lips told Watson that he was going to get even with a parole officer
who was trying to send him back to prison. Watson did not lend
Phillips any money or take the gun.
A few years later, Watson, who was then serving a sentence
for armed robbery, encountered Phillips in the Dade County jail.
When Watson saw Phillips, he exclaimed, “You did it. You finally
did it?” Phillips responded, “Yeah, yeah, yeah.” Watson then said,
“You really killed a parole officer, right?” Phillips answered, “Yeah,
yeah, but they got to prove it.” Phillips told Watson that the police
had no eyewitnesses and the gun was thrown away. On another
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occasion, Watson heard Phillips tell another inmate that “he had
fired a shot around at his parole officer’s house.”
Watson called police and reported Phillips’s confession. He
explained that he went to police because his brother was a law en-
forcement officer who had been shot and ended up paralyzed.
After Watson reported Phillips’s confession, Phillips and
other inmates threatened to kill Watson and his family if Watson
testified. The prosecution then had Watson moved to another area
of the jail for his safety. Watson admitted that on occasions he had
told other inmates that he knew nothing about Phillips’s case. But
he said that he had lied to these inmates so that they would not
harass him.
At trial, Watson was asked what he expected in exchange for
his testimony. He explained that he had already been convicted and
sentenced on the armed robbery charge. Although he admitted
that he had participated in the robbery, he denied using a gun dur-
ing the crime. According to Watson, Smith promised that he would
arrange for Watson to receive a polygraph test for the underlying
crime. If the polygraph test showed that Watson was not lying
when he denied having a gun, Smith agreed to “speak up” for him
in his criminal case. Smith confirmed making this agreement.
After hearing all this evidence at trial, the jury found Phillips
guilty of murdering Svenson. During the penalty phase, by a vote
of 7 to 5, the jury recommended a sentence of death.
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B. Direct Appeal
Phillips appealed his conviction and sentence. On direct ap-
peal, the Florida Supreme Court affirmed. See Phillips v. State (Phil-
lips I), 476 So. 2d 194 (Fla. 1985).
C. State Post-Conviction Proceedings
Phillips filed a Rule 3.850 post-conviction motion in state
court. As relevant for our purposes,11 he alleged that the State had
failed to fulfill its disclosure obligations under Brady v. Maryland,
373 U.S. 83 (1963), and had run afoul of Giglio v. United States, 405
U.S. 150 (1972).
Phillips claimed that Brady and Giglio violations occurred in
connection with the testimony of the four inmates. He alleged that
the inmates falsely testified to his confessions, the State withheld
evidence about what had been promised to the inmates for testify-
ing against him, and the State allowed the inmates to testify falsely
about these promises. He further alleged that the State either with-
held material evidence about the inmates or allowed them to give
false testimony on other topics, including Scott’s relationship with
the Metro-Dade police, how law enforcement learned of Phillips’s
confession to Hunter, the extent of Farley’s and Watson’s criminal
histories, and Hunter’s mental health history.
11 In post-conviction proceedings, Phillips raised numerous challenges to his
conviction and death sentence. We limit our discussion to Phillips’s Brady and
Giglio claims, the only claims before us in this appeal.
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After an evidentiary hearing, the state court denied Phillips’s
post-conviction motion. In this section, we begin by describing the
evidence introduced at the hearing. We then review the state
court’s order denying Phillips’s claims. We conclude with the Flor-
ida Supreme Court’s decision affirming that order.
1. The Evidentiary Hearing
At the evidentiary hearing, Phillips introduced evidence to
support his Brady and Giglio claims. We discuss the evidence intro-
duced at the hearing on the following topics: (1) whether Phillips
confessed to Farley and Hunter, (2) the benefits promised to the
inmates for testifying, (3) Scott’s relationship with Metro-Dade po-
lice, (4) how the State learned of Phillips’s confession to Hunter,
(5) the extent of Farley’s and Watson’s criminal histories, and
(6) Hunter’s mental health history. We review each category of ev-
idence in turn.
a. Evidence About Phillips’s Confessions to
Farley and Hunter
At the hearing, Phillips introduced testimony from Farley
and Hunter in which they recanted their trial testimony about Phil-
lips’s confession. Farley and Hunter testified that Phillips never
confessed and that Smith and Waksman told them what to say
about Phillips’s confession.
Farley. Farley testified at the hearing that Phillips never con-
fessed to him. He also offered a new account of what happened
before Smith took his recorded statement about Phillips’s confes-
sion. Farley said he met with Smith for “15 or 20 minutes” before
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giving his recorded statement. During this time, Smith instructed
him what to say about Phillips’s confession. At one point, Smith
asked Farley how many times Phillips said he shot the victim. Far-
ley initially responded, “once or twice,” but Smith corrected him,
saying “the victim was shot numerous times.” And Farley said that
both Smith and Waksman told him to say that Phillips had men-
tioned that Svenson was carrying something at the time of the
shooting.
Smith and Waksman denied telling Farley what to say about
Phillips’s confession. Smith admitted that he and Farley discussed
Phillips’s confession before Farley gave the recorded statement. He
testified that this conversation lasted for approximately 90 minutes
and that Farley was “mistaken” when he testified at trial that no
such conversation had occurred.
Although Smith noted in his police report that he met with
Farley before taking the recorded statement, this portion of his re-
port was not disclosed to Phillips before trial. Waksman removed
the mention of the meeting from the copy of the report produced
to Phillips because he did not believe that the statement had to be
disclosed.
But Waksman did more than simply redact the statement
from the police report. He reproduced the police report so that
Phillips could not tell that any information had been removed. To
do this, Waksman copied the report and cut out the part mention-
ing that Farley and Smith spoke before the recording began. He
then pasted the report back together so that it appeared that no
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22 Opinion of the Court 15-15714
information had been removed. He produced a copy of the recon-
structed report to Phillips.
Waksman testified that his practice of cutting and pasting to
remove information that was not discoverable was “rather com-
mon.” Waksman defended his practice, saying that the rules “tell[]
me what I’m supposed to disclose. I disclose what I think I have to,
and I do not disclose the balance.”
Hunter. At the evidentiary hearing, Phillips introduced an af-
fidavit in which Hunter disavowed his trial testimony. According
to the affidavit, Phillips “never made a confession” to and “never
spoke” with Hunter about the murder. Hunter swore that the
“only knowledge” he had about Svenson’s murder came from
Smith and Waksman.
In the affidavit, Hunter also told a new story about the notes
he had turned over to Smith. Hunter said that he approached Phil-
lips in jail and told Phillips that he had been at the Winn-Dixie on
the night of the murder. Hunter offered to serve as an alibi witness
and asked Phillips to write the notes to help him remember the de-
tails.
At the evidentiary hearing, Phillips called Hunter as a wit-
ness. But Hunter asserted his Fifth Amendment right against self-
incrimination and refused to testify because he was worried about
being prosecuted for perjury. When Waksman and Smith testified,
they denied telling Hunter what to say about Phillips’s confession.
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b. Evidence About Promises Made to the In-
mates and the Assistance They Ultimately
Received
The second category of evidence introduced at the eviden-
tiary hearing concerned what the State had promised the four in-
mates for cooperating and testifying against Phillips, as well as the
benefits the inmates ultimately received. Phillips introduced evi-
dence showing that, for testifying against him, each inmate re-
ceived reward money and assistance from the State in a pending
criminal case or a sentence he was serving.
First, Phillips introduced evidence showing that the four in-
mates received payments after the trial: Scott received $300, while
Farley, Hunter, and Watson each received $175. Farley, Scott, and
Hunter all stated that they knew about the reward money at the
time they testified against Phillips.
Smith and Waksman acknowledged at the evidentiary hear-
ing that each inmate was paid reward money after the criminal
trial. Smith explained that the money came from the Police Benev-
olent Association as a reward for providing information the led to
the conviction of Svenson’s murderer. But he denied that any of
the inmates were told about the money before trial. Waksman,
too, testified that the inmates were not told about the reward
money until the trial was over.
Second, Phillips introduced evidence about the assistance
that each inmate received from the State for testifying against him.
We review the evidence introduced as to each inmate.
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Scott. Phillips introduced evidence showing that the State
played a role in securing Scott’s release from jail on his pending
probation revocation charge. At trial, Scott testified that his battery
charge was dropped after the victim decided not to press charges
and then the parole board agreed that he could be released on his
own recognizance pending a revocation hearing. At the evidentiary
hearing Phillips introduced evidence showing that Smith had con-
tacted the parole board and advised that Scott was assisting in Phil-
lips’s case.
Farley. Phillips introduced evidence showing that Farley had
been promised and, in fact, received additional assistance from
Waksman and Smith that went beyond what was disclosed at trial.
At the evidentiary hearing, Farley testified that Waksman had
promised that if he testified against Phillips, Waksman would try
to assist him in getting out of prison.
After Phillips’s trial, Smith and Waksman helped to secure
Farley an earlier release from prison. In January 1984, about a
month after Phillips’s criminal trial, Smith and Waksman jointly
sent a letter to the parole board on Farley’s behalf, stating that Far-
ley had provided “outstanding assistance” at Phillips’s trial and
“recommend[ing] him for early parole.”
The parole board did not act immediately on the letter, how-
ever. Farley, who remained in custody, became angry. He threat-
ened Waksman that unless the parole board confirmed his release
date, “I will do everything I can to sabotage the case and get Phillips
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an acquittal.” About a month later, Farley was granted parole and
released from custody.
After his release from prison, Farley got into more trouble.
He was arrested on new charges and faced up to five years in
prison. Farley asked Waksman to contact the prosecutor, saying
that he was “deathly afraid” to return to prison because he was
worried about being attacked by other inmates. After Waksman
wrote a letter on Farley’s behalf, Farley ended up serving a year
and a day in custody.
After Farley completed this sentence, he was arrested again,
and again he contacted Waksman for help. When Waksman re-
fused to assist him, Farley threatened to “sabotage” Phillips’s case.
Smith and Waksman denied promising Farley that he would
be released from custody if he testified against Phillips. Instead,
they testified, before Phillips’s trial they had promised Farley that
if he testified truthfully, they would notify his attorney and the pa-
role board about his assistance.
Hunter. Phillips introduced evidence showing that Hunter
had been promised and, in fact, received additional assistance from
Waksman and Smith that went beyond what was disclosed at trial.
In his affidavit, Hunter explained that at the time of Phillips’s trial,
he had pending state charges for sexual battery, car theft, and pos-
session of cocaine. Hunter said that Waksman promised he would
receive a sentence of five years’ probation if he testified against
Phillips, but life if he did not. Waksman also instructed him to tes-
tify falsely that no such deal existed.
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Approximately two weeks after Phillips’s trial, Hunter and
the State entered into a plea agreement. Under the plea agreement,
which Waksman helped negotiate, Hunter pled guilty to grand
theft and armed sexual battery and received a sentence of five
years’ probation. The State agreed to this deal because of Hunter’s
“invaluable help” in Phillips’s murder trial.
Smith and Waksman denied promising Hunter that he
would receive a sentence of probation if he testified against Phillips.
Rather, they said they told Hunter the same thing they told the
other inmates: if he testified against Phillips, they would “tell his
judge he cooperated, period.”
According to Waksman, he decided after Phillips’s trial to as-
sist Hunter with the plea deal. He maintained that he made this
decision after seeing how Hunter “had been beat up in the county
jail” and “had to spend months in [a] small safety cell[]” before Phil-
lips’s trial.
After his release from prison, Hunter continued to seek as-
sistance from Waksman. While on probation, Hunter was arrested.
He called Waksman seeking help because he was worried for his
safety in jail. Waksman contacted a prison official, explained that
Hunter had testified “against a seasoned inmate who had a lot of
friends,” and asked that Hunter be moved to another prison. After
he was transferred to a new prison, Hunter reached out to Waks-
man again, but Waksman provided no further assistance.
Watson. Phillips introduced evidence showing that after
Watson testified against Phillips, assistance from Smith and
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Waksman resulted in Watson’s life sentence being vacated and his
being released from prison.
After Phillips’s trial, Smith and Waksman arranged for Wat-
son to take a polygraph test about whether he handled a gun during
the robbery that resulted in his conviction for armed robbery. Wat-
son passed the polygraph test and then filed a post-conviction mo-
tion challenging his armed robbery conviction. The State then
agreed to vacate Watson’s conviction for robbery with a firearm
and allow him to plead guilty to robbery. Watson’s sentence was
reduced from life imprisonment to a term of 15 years’ imprison-
ment, the unserved portion of which was suspended, and five years
of probation. As a result, he was released from prison. Waksman
represented the State in the proceedings in which the sentence was
reduced.
c. Evidence About Scott’s Relationship with
the Metro-Dade Police
Phillips’s evidence also covered Scott’s role as an informant
working for the Metro-Dade Police. The evidence showed that
from 1972 Scott occasionally worked as a paid informant for Metro-
Dade. He assisted the Metro-Dade police with Phillips’s case.
About a week after Phillips confessed to Scott, Scott was released
from jail. That day, Scott met with Smith and another officer. The
officers gave him $20 and asked him to find out whether Phillips’s
sister had information about the location of the murder weapon.
Although Smith’s notes reflected that Scott went to see Phil-
lips’s sister at the police’s direction, this information was not
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28 Opinion of the Court 15-15714
disclosed to Phillips before trial. Once again, after deciding that the
State was not required to turn over this information, Waksman
performed a cut-and-paste job on Smith’s report to remove the ref-
erence to Scott’s visit with Phillips’s sister.
According to Smith, during the pendency of Phillips’s case,
Scott was “not a documented informant” with Metro-Dade police.
But Smith admitted that when Scott went to see Phillips’s sister, he
was acting as “an agent” of Metro-Dade Police. According to
Smith, it was only after Phillips’s trial that he opened an informant
file for Scott and Scott was a assigned a number as a confidential
informant. For his part, Waksman admitted that he knew during
Phillips’s trial that Scott had “periodically” provided information to
Hough.
d. Evidence About How the State Learned of
Phillips’s Confession to Hunter
Also introduced at the evidentiary hearing was evidence
about how law enforcement learned about Phillips’s confession to
Hunter. Recall that at trial, Hunter testified that his cellmate
reached out to Smith. But at the evidentiary hearing, Hunter testi-
fied that he had contacted Waksman about Phillips’s confession.
Waksman then had Smith interview Hunter.
Smith’s notes reflected that Hunter, not his cellmate, first
contacted police. But Phillips did not know this information at the
time of trial because Waksman had determined that the State was
not required to disclose this information and had redacted it. And
again, Phillips could not tell that Smith’s notes had been redacted.
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e. Evidence About Farley’s and Watson’s
Criminal Records
Evidence at the hearing revealed that Farley and Watson did
not fully disclose their criminal histories at Phillips’s trial. At trial,
Farley testified that he had one conviction and one parole violation.
But Farley admitted at the hearing that he had two additional con-
victions. Farley’s explanation for giving false testimony about his
criminal record was, “I forgot a few things.”
At trial, Watson testified that he was a convicted prisoner
but said that he had never been on probation or parole. Phillips’s
hearing evidence showed that, to the contrary, Watson had actu-
ally been sentenced to probation twice.
f. Evidence About Hunter’s Mental Health
Lastly, Phillips introduced into evidence records about
Hunter’s mental health from the period before Phillips’s trial. The
records included an inmate classification report, which had been
found in the files of the prosecutor’s office in another case, showing
that in 1969 Hunter had been found not guilty by reason of insanity
in two criminal cases. In addition, mental health records from 1970
through 1972 showed that Hunter had been diagnosed with para-
noid schizophrenia. Records from this period also reflected that
medical providers had determined that Hunter did not appreciate
the wrongfulness of his conduct and was unable to adequately as-
sist in his own defense in a criminal case.
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2. The State Court’s Order
After the evidentiary hearing, the state court denied Phil-
lips’s motion for post-conviction relief. In its order, the court dis-
cussed why it denied Phillips relief on his Brady claim but did not
mention his Giglio claim.
In rejecting Phillips’s Brady claim, the state court addressed
whether the State violated Brady by failing to disclose two things:
(1) that Phillips never confessed to Farley and Hunter and (2) that
the four inmates received benefits beyond what was disclosed at
trial.
First, as to whether the State violated Brady by failing to dis-
close that Phillips never confessed to Farley or Hunter, the court
found Farley’s hearing testimony to be “totally incredulous and un-
believable” and Hunter’s affidavit to be “totally at odds with the
facts.” The court credited instead Waksman’s and Smith’s testi-
mony. Based on these credibility determinations, the court con-
cluded that Phillips failed to prove that the State withheld infor-
mation showing that Phillips never confessed to Farley or Hunter.
Second, the court considered whether the State failed to dis-
close the full extent of what it had promised the inmates for testi-
fying against Phillips. The court found that Phillips failed to sub-
stantiate his allegations that the inmates were told about reward
money before they testified or that the State had made promises to
the inmates beyond what was disclosed at trial. The court thus con-
cluded that there was no Brady violation.
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3. Florida Supreme Court’s Decision
Phillips appealed the denial of his post-conviction motion to
the Florida Supreme Court. In relevant part, the Florida Supreme
Court affirmed. See Phillips v. State (Phillips II), 608 So. 2d 778 (Fla.
1992). In its decision, the Florida Supreme Court discussed Phil-
lips’s Brady and Giglio claims.
The Florida Supreme Court quickly disposed of Phillips’s
Brady claim. See id. at 780–81. First, it rejected his arguments that
the State violated Brady by failing to disclose that Phillips had never
actually confessed to Farley and Hunter or that Smith and Waks-
man had told the inmates what to say about Phillips’s confessions.
Id. at 780. The Court explained that at the evidentiary hearing there
was conflicting testimony, with Farley and Hunter, on the one
hand, saying that the police gave them the information about Phil-
lips’s confessions, and Waksman and Smith, on the other hand,
denying these allegations. Id. The Florida Supreme Court con-
cluded that there was “competent, substantial evidence” to support
the lower court’s finding that Waksman and Smith were credible
and that Farley and Hunter were not. Id. at 781.
Second, the Florida Supreme Court rejected Phillips’s argu-
ment that the State violated Brady by withholding information
about the benefits the inmates were promised. Id. at 780–81. Again,
the Florida Supreme Court relied on the lower court’s credibility
determination. Given Waksman’s testimony that at the time of the
trial he had informed the inmates only that he would write letters
on their behalf and did not know “to what extent he would end up
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32 Opinion of the Court 15-15714
helping” the inmates, the Florida Supreme Court concluded there
was no Brady violation. Id. at 780.
Next, the Florida Supreme Court addressed Phillips’s Giglio
claim based on the State’s failure to correct the following trial tes-
timony: (1) Scott’s denial that he was an agent of the police, (2) Far-
ley’s statement that Smith started the tape recording immediately
instead of speaking with him before he gave the recorded state-
ment about Phillips’s confession, and (3) statements from Farley
and Watson about their criminal records. Id. at 781. The Court re-
jected each of these bases for the claim.
The Court began with the standard for establishing a Giglio
violation: Phillips had “to demonstrate (1) the testimony was false;
(2) the prosecutor knew the testimony was false; and (3) the state-
ment was material.” Id. (citing Routley v. State, 590 So. 2d 397, 400
(Fla. 1991)).
For Scott’s testimony denying that he acted as a police
“agent,” the Court concluded there was no Giglio violation because
there was no false testimony. Id. Although “Scott was on the fed-
eral government payroll at the time of trial and was assigned an
informant number for the federal authorities,” the Court ex-
plained, “he did not, at that time, have an informant number for
the Metro-Dade police, and therefore evidently did not believe that
he was an agent for that department.” Id. It further observed that,
“[e]ven at the postconviction hearing, Scott seemed confused over
whether he was an informant for Metro-Dade” when he provided
information about Phillips. Id. Because “[a]mbiguous testimony
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15-15714 Opinion of the Court 33
does not constitute false testimony for the purposes of Giglio,” the
Court concluded that no violation occurred. Id.
The Florida Supreme Court then considered whether a Gi-
glio violation occurred when Farley testified that Smith immedi-
ately began to record his statement about Phillips’s confession. The
Court concluded that any misstatement was “immaterial,” noting
that it “could have been corrected by the defense, had it been im-
portant, since the defense was aware of the pre-interview.” Id.
Next the Court addressed whether there was a Giglio viola-
tion when Farley and Watson testified falsely about their criminal
records. Id. The Court accepted that these inmates gave “incorrect”
statements about their criminal records at Phillips’s trial. Id. But the
Court concluded that Phillips failed to establish materiality because
there was “no reasonable probability that the false testimony af-
fected the judgment of the jury.” Id. Because the jury had heard
that Farley and Watson were convicted felons, the Court con-
cluded, “the admission of an additional conviction or probationary
sentence would have added virtually nothing to further undermine
their credibility.” Id.
The Florida Supreme Court did not explicitly address
whether a constitutional violation occurred when (1) the State
failed to disclose that Scott met with Phillips’s family at the direc-
tion of law enforcement, (2) Hunter testified that his cellmate ini-
tially contacted Waksman; or (3) the State failed to turn over
Hunter’s mental health records. The Florida Supreme Court also
did not address Waksman’s routine practice of redacting police
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34 Opinion of the Court 15-15714
records and cutting and pasting the records so that no redaction
was apparent.
D. Federal Habeas Proceedings
After the Florida Supreme Court denied relief, Phillips filed
a federal habeas petition raising Brady and Giglio claims. The district
court denied relief.
On the Brady claim, the district court concluded that the
Florida Supreme Court’s decision was entitled to deference. Be-
cause there was conflicting evidence about whether the State had
encouraged or coached witnesses to give false testimony and
whether it had disclosed all the promises made to the inmates, the
district court explained, this claim “rest[ed] on the credibility of the
witnesses.” The court concluded that Phillips “failed to overcome
the presumption of correctness” owed to the state court’s credibil-
ity determinations and other factual findings.
Addressing Phillips’s Giglio claim, the district court began by
considering whether a Giglio violation occurred when Scott testi-
fied at trial that he was not a police “agent.” The district court gave
deference to the Florida Supreme Court’s determination that Scott
did not give false testimony when he denied that he was a police
agent because of the ambiguous way the question at trial had been
formulated.
The district court also reviewed whether a Giglio violation
occurred when Farley testified that he had not discussed Phillips’s
confession with Smith before giving his recorded statement. The
court concluded that the Florida Supreme Court’s decision that this
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15-15714 Opinion of the Court 35
statement was not material was reasonable and thus entitled to def-
erence. Similarly, the district court concluded that the Florida Su-
preme Court reasonably determined that Farley’s and Watson’s
false statements about the extent of their criminal history were not
material.
The district court also considered Waksman’s redactions.
The court explained that Waksman’s conduct implicated Giglio be-
cause he “purposefully withheld” information from the defense,
and “witnesses testified falsely concerning certain facts that had
been withheld.”
But the court explained that to establish his entitlement to
relief, Phillips had to show not only that the false statements were
material for purposes of Giglio, but also that any error was not
harmless under Brecht v. Abrahamson, 507 U.S. 619 (1993). To satisfy
this standard, Phillips had to show that the “error had a substantial
and injurious effect or influence on the jury’s verdict.” The court
concluded that this standard was not satisfied given the other cir-
cumstantial evidence of Phillips’s guilt, which included the evi-
dence of Phillips’s “serious problems” with Svenson and tying Phil-
lips to a gun.
This is Phillips’s appeal.
II. STANDARD OF REVIEW
We review de novo a district court’s denial of a petition for a
writ of habeas corpus. Morrow v. Warden, Ga. Diagnostic Prison,
886 F.3d 1138, 1146 (11th Cir. 2018).
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36 Opinion of the Court 15-15714
The Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA) governs our review of federal habeas petitions. See
28 U.S.C. § 2254(d). “AEDPA prescribes a highly deferential frame-
work for evaluating issues previously decided in state court.” Sears
v. Warden GDCP, 73 F.4th 1269, 1279 (11th Cir. 2023). Under
AEDPA, a federal court may not grant habeas relief on claims that
were “adjudicated on the merits in [s]tate court” unless the state
court’s decision was (1) “contrary to, or involved an unreasonable
application of, clearly established [f]ederal law, as determined by
the Supreme Court of the United States” or (2) “based on an unrea-
sonable determination of the facts in light of the evidence pre-
sented in the [s]tate court proceeding.” 28 U.S.C. § 2254(d).
A state-court decision is “contrary to” clearly established law
if the court “applie[d] a rule that contradicts the governing law” set
forth by the Supreme Court or the state court confronted facts that
were “materially indistinguishable” from Supreme Court prece-
dent but arrived at a different result. Williams v. Taylor, 529 U.S.
362, 405–06 (2000). To meet the unreasonable application of law
standard, “a prisoner must show far more than that the state court’s
decision was merely wrong or even clear error.” Shinn v. Kayer,
592 U.S. 111, 118 (2020) (internal quotation marks omitted). Ra-
ther, the decision must be “so obviously wrong that its error lies
beyond any possibility for fairminded disagreement.” Id. (internal
quotation marks omitted). This standard is “difficult to meet and
. . . demands that state-court decisions be given the benefit of the
doubt.” Raulerson v. Warden, 928 F.3d 987, 996 (11th Cir. 2019) (in-
ternal quotation marks omitted).
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15-15714 Opinion of the Court 37
Federal courts must defer to a state court’s determination of
the facts unless the state court decision “was based on an unreason-
able determination of the facts in light of the evidence presented in
the [s]tate court proceeding.” 28 U.S.C. § 2254(d)(2). Section
2254(d)(2) works much like § 2254(d)(1) in that it requires us to give
state courts “substantial deference.” Brumfield v. Cain, 576 U.S. 305,
314 (2015). “We may not characterize . . . state-court factual deter-
minations as unreasonable merely because we would have reached
a different conclusion in the first instance.” Id. at 313–14 (alteration
adopted) (internal quotation marks omitted). We presume a state
court’s factual determinations are correct absent clear and convinc-
ing evidence to the contrary. See Pye v. Warden, Ga. Diagnostic
Prison, 50 F.4th 1025, 1035 (11th Cir. 2022) (en banc).
On each claimed basis for relief, we review “the last state-
court adjudication on the merits.” Greene v. Fisher, 565 U.S. 34, 40
(2011). “When a federal claim has been presented to a state court
and the state court has denied relief,” we presume “the state court
adjudicated the claim on the merits in the absence of any indication
or state-law procedural principles to the contrary.” Harrington v.
Richter, 562 U.S. 86, 99 (2011).
III. LEGAL ANALYSIS
Phillips argues on appeal that the Florida Supreme Court’s
decision is not entitled to deference and that he is entitled to habeas
relief on his Giglio and Brady claims under a de novo standard. In this
section, we begin by reviewing the standard that applies to Giglio
and Brady claims before addressing the claims in turn.
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38 Opinion of the Court 15-15714
A. Overview of Giglio and Brady
In Brady, the Supreme Court recognized that “the suppres-
sion by the prosecution of evidence favorable to an accused upon
request violates due process where the evidence is material either
to guilt or to punishment.” 373 U.S. at 87. The Court has since clar-
ified that a defendant need not request favorable evidence from the
State to be entitled to it. See Kyles v. Whitley, 514 U.S. 419, 433
(1995).
“There are two categories of Brady violations, each with its
own standard for determining whether the undisclosed evidence is
material and merits a new trial.” Smith v. Sec’y, Dep’t. of Corr.,
572 F.3d 1327, 1333 (11th Cir. 2009). The first category of violations
(often referred to as Giglio violations) occurs when “the undisclosed
evidence reveals that the prosecution knowingly made false state-
ments or introduced or allowed trial testimony that it knew or
should have known was false.” Id. at 1334; see Giglio, 405 U.S. at
153. However, “there is no violation of due process resulting from
prosecutorial non-disclosure of false testimony if defense counsel is
aware of it and fails to object.” United States. v. Stein, 846 F.3d 1135,
1147 (11th Cir. 2017) (alteration adopted) (internal quotation marks
omitted). But when the government “affirmatively capitalizes” on
the false testimony, “the defendant’s due process rights are violated
despite the government’s timely disclosure of evidence showing
the falsity.” Id.
When a Giglio violation occurs, the defendant generally is
entitled to a new trial “if there is any reasonable likelihood that the
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15-15714 Opinion of the Court 39
false testimony could have affected the judgment of the jury.”
United States v. Agurs, 427 U.S. 97, 103 (1976) (emphasis added). This
standard “requires a new trial unless the prosecution persuades the
court that the false testimony was harmless beyond a reasonable
doubt.” Smith, 572 F.3d at 1333 (internal quotation marks omitted).
“This standard favors granting relief.” Id. We have described it as
“defense friendly.” Ford v. Hall, 546 F.3d 1326, 1333 (11th Cir. 2008).
But when a Giglio claim arises on collateral review, a peti-
tioner also must satisfy the more onerous standard set forth in
Brecht. Rodriguez v. Sec’y, Fla. Dep’t of Corr., 756 F.3d 1277, 1302
(11th Cir. 2014) (citing Brecht, 507 U.S. at 637). Under Brecht, a fed-
eral constitutional error is not a basis for relief on collateral review
unless it resulted in “actual prejudice.” 507 U.S. at 637 (internal
quotation marks omitted). Under this standard, relief may be
granted “only if the federal court has grave doubt about whether a
trial error of federal law had substantial and injurious effect or in-
fluence in determining the jury’s verdict.” Davis v. Ayala, 576 U.S.
257, 267–68 (2015) (internal quotation marks omitted). There must
be “more than a reasonable possibility that the error was harmful.”
Id. at 268 (internal quotation marks omitted).
This standard requires us to “consider the specific context
and circumstances of the trial to determine whether the error con-
tributed to the verdict.” Al-Amin v. Warden, Ga. Dep’t of Corr.,
932 F.3d 1291, 1301 (11th Cir. 2019); see Mansfield v. Sec’y, Dep’t of
Corr., 679 F.3d 1301, 1313 (11th Cir. 2012) (explaining that this anal-
ysis “is necessarily fact-specific and must be performed on a case-
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40 Opinion of the Court 15-15714
by-case basis”). The Brecht standard requires a reviewing court to
“‘ask directly’ whether the error substantially influenced the jury’s
decision.” Granda v. United States, 990 F.3d 1272, 1293 (11th Cir.
2021) (quoting O’Neal v. McAninch, 513 U.S. 432, 436 (1995)). “[I]f
the court cannot say, with fair assurance, after pondering all that
happened without stripping the erroneous action from the whole,
that the judgment was not substantially swayed by the error, the
court must conclude that the error was not harmless.” Id. (internal
quotation marks omitted). An error is “likely to be harmless” when
“there is significant corroborating evidence or where other evi-
dence of guilt is overwhelming.” Mansfield, 679 F.3d at 1313 (cita-
tions omitted); see Brecht, 507 U.S. at 639 (concluding that error was
harmless when “the State’s evidence of guilt was, if not over-
whelming, certainly weighty” and noting that “circumstantial evi-
dence . . . pointed to petitioner’s guilt”).
The Brecht standard reflects the view that the State should
“not be put to the arduous task of retrying a defendant based on
mere speculation that the defendant was prejudiced by trial error.”
Ayala, 576 U.S. at 268 (alterations adopted) (internal quotation
marks omitted); see Fry v. Pliler, 551 U.S. 112, 116 (2007) (explaining
that the Brecht standard reflects “concerns about finality, comity,
and federalism”). As a result, “Brecht can prevent a petitioner from
obtaining habeas relief even if he can show that, were he raising a
Giglio claim in the first instance on direct appeal before a state ap-
pellate court, he would be entitled to relief.” Rodriguez, 756 F.3d at
1302.
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“Because the Brecht harmlessness standard is more strict
from a habeas petitioner’s perspective than the Giglio materiality
standard,” we have recognized that “federal habeas courts con-
fronted with colorable Giglio claims in § 2254 petitions . . . may
choose to examine the Brecht harmlessness issue first.” Id. at 1303
n.45 (internal quotation marks omitted). And, “[b]ecause we con-
sider the Brecht question in the first instance on federal habeas re-
view, there is no state court Brecht actual-prejudice finding to re-
view or to which we should defer.” Trepal v. Sec’y, Fla. Dep’t of Corr.,
684 F.3d 1088, 1112 (11th Cir. 2012). “Of course, we still . . . defer
to the state court’s other fact findings derived from testimony, doc-
uments, and what happened at trial and the [evidentiary] hearing.”
Id.
The second category of Brady violations (often referred to as
Brady violations) occurs when “the government suppresses evi-
dence that is favorable to the defendant[], although the evidence
does not involve false testimony or false statements by the prose-
cution.” Smith, 572 F.3d at 1334. The defendant is entitled to a new
trial if he establishes that “there is a reasonable probability that, had
the evidence been disclosed to the defense, the result of the pro-
ceeding would have been different.” Id. (internal quotation marks
omitted). “A reasonable probability of a different result exists when
the government’s evidentiary suppressions, viewed cumulatively,
undermine confidence in the guilty verdict.” Id. (internal quotation
marks omitted). On federal habeas review of the denial of a claim
that the State suppressed favorable evidence, we do not conduct a
Brecht inquiry because the applicable materiality standard
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42 Opinion of the Court 15-15714
“necessarily entails the conclusion that the suppression must have
had substantial and injurious effect or influence in determining the
jury’s verdict.” Rodriguez, 756 F.3d at 1303 (internal quotation
marks omitted).
B. The Giglio Claim
Phillips argues that the State violated Giglio because it pre-
sented false testimony on the following topics:
(1) whether Farley discussed Phillips’s confession with
Smith before giving the recorded statement;
(2) the assistance promised to the inmates for testifying
against Phillips;
(3) Scott’s relationship with the Metro-Dade police depart-
ment, including whether he was acting as an agent of the
department;
(4) how Hunter first came into contact with the State about
Phillips’s confession; and
(5) the extent of Farley’s and Watson’s criminal histories.
In support of his Giglio claim, Phillips also points to Waksman’s re-
dactions, which he says concealed that the inmates gave false testi-
mony.
In reviewing the Florida Supreme Court’s denial of the Gi-
glio claim, we begin with its determination that the State did not
introduce false testimony about what had been promised to the in-
mates in exchange for their testimony or about Scott’s relationship
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with Metro-Dade Police. See Phillips II, 608 So. 2d at 781. As we ex-
plain in greater detail below, we conclude that this determination
was not unreasonable. For the other alleged Giglio violations, the
Florida Supreme Court concluded that any false testimony was not
material. Rather than address whether this aspect of the Florida Su-
preme Court’s decision is entitled to deference under AEDPA,12 we
conclude that Phillips is not entitled to relief because, under Brecht,
any error was harmless given the State’s other evidence about Phil-
lips’s guilt that was separate from and independent of any evidence
the inmates supplied.
1. Reasonableness of the Determinations About
Promises Made to the Inmates and Whether Scott
Was an Agent
We now consider whether the Florida Supreme Court’s de-
cision—that no Giglio violation occurred when the inmates testified
about the extent of assistance promised to them and when Scott
denied acting as an agent of the State—was reasonable. As to the
promises made to the inmates, the Florida Supreme Court reason-
ably concluded that no false testimony was given. As to Scott’s tes-
timony about his status as an agent, the Florida Supreme Court
likewise reasonably concluded that Scott gave no false testimony.
12 Phillips argues that the Florida Supreme Court’s decision is not entitled to
deference because it failed to apply the correct materiality standard or to con-
duct a cumulative analysis of materiality.
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a. Testimony About Promises Made to the In-
mates
We begin with the issue of whether a Giglio violation oc-
curred when the inmates testified at trial about what they were
promised for testifying against Phillips. The Florida Supreme Court
reasonably rejected this claim based on the lower court’s factual
finding that Waksman and Smith did not decide until after trial to
give additional assistance to the inmates.
As we described in detail above, at the evidentiary hearing,
the parties introduced conflicting evidence on the factual question
of what the State promised the inmates for testifying against Phil-
lips. See supra Section I-C-1-b. To summarize, on the one hand,
Smith and Waksman testified that as to any criminal charges or ex-
isting sentences, the inmates generally were told that in exchange
for their testimony against Phillips, the State would tell the judges
in their criminal cases (or the parole board) that they had assisted
by testifying against Phillips. According to Smith and Waksman, it
was only after the criminal trial that they decided to provide addi-
tional help to the inmates and told them about the reward money.
On the other hand, some of the inmates testified at the evidentiary
hearing that they were told about the reward money and promised
additional assistance before trial.
Ultimately, the state court resolved this factual dispute by
crediting Smith’s and Waksman’s testimony over the inmates’ tes-
timony. See Phillips II, 608 So. 2d at 780–81. Phillips challenges the
state court’s findings of fact. But AEDPA requires us to presume
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that the state court’s factual findings were correct unless rebutted
by “clear and convincing evidence.” 28 U.S.C. § 2254(e)(1). And af-
ter carefully reviewing the record, we cannot say that Phillips came
forward with the clear and convincing evidence necessary to reject
the state court’s credibility determinations. See Pye, 50 F.4th at 1045
n.13. Thus, taking as correct the state court’s factual determination
that Smith’s and Waksman’s testimony was truthful, we cannot say
that it was unreasonable for the Florida Supreme Court to reject
Phillips’s claim that the State presented false testimony about the
promises made to the inmates.13
b. Testimony About Scott’s Status as an Agent
We now turn to Phillips’s claim that a Giglio violation oc-
curred when Scott denied that he was acting as an agent of the
State. As a refresher, at trial, Phillips questioned Scott about why
he reported Phillips’s confession to law enforcement. Scott testified
that he wanted the police to “check it out.” Phillips’s attorney then
asked a line of questions comparing Scott to individuals who nor-
mally would investigate a confession. He began by asking, “Are
13 In state court, Phillips also argued that a Giglio violation occurred because
Hunter and Farley falsely testified that Phillips had confessed. The Florida Su-
preme Court rejected this claim, explaining that “competent, substantial evi-
dence” supported the state court’s finding that Farley and Hunter’s hearing
testimony was “completely unbelievable.” See Phillips II, 608 So. 2d at 781. Af-
ter carefully reviewing Phillips’s appellate brief, we do not see an argument
challenging this determination as unreasonable. But even assuming that he
adequately raised this argument on appeal, we would conclude that the state
court’s decision was entitled to deference.
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46 Opinion of the Court 15-15714
you a member of any police agency that you wanted this checked
out?” Scott responded, “No, no, no, I’m not a police agent.” Phil-
lips’s attorney then followed up by asking, “You run an investiga-
tive agency or something, your checking things out like this?” And
Scott answered, “No, man, no.”
Phillips argues that Scott gave false testimony when he de-
nied being a “member of any police agency” and said he was “not
a police agent.” Because testimony at the evidentiary hearing indi-
cated that Scott was working as an agent of police, Phillips reasons
that Scott must have given false testimony at trial.
But, as the Florida Supreme Court explained, even at the ev-
identiary hearing, “Scott seemed confused over whether he was an
informant for Metro-Dade.” Phillips II, 608 So. 2d at 781. And from
the record of the trial, it is not entirely clear what Scott meant when
he answered that he was not an agent. He made the statement in
response to a question asking whether he was a “member of any
police agency.” Phillips takes Scott’s answer to be a denial that he
had any relationship with the Metro-Dade police. But it is just as
possible that Scott was denying being an employee of any police
department or agency (as the question asked at trial suggested).
Given this ambiguity, and because there is no evidence suggesting
that Scott was an employee or member of a police department or
agency, we hold that the state court reasonably concluded that
Scott did not testify falsely and there was no Giglio violation. See
United States v. Petrillo, 821 F.2d 85, 89 (2d Cir. 1987).
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2. Harmlessness of Any Other Giglio Violation
Phillips also claimed that the State violated Giglio in other
ways. But we need not decide whether it was unreasonable for the
Florida Supreme Court to reject the remainder of his Giglio claim
because any error was harmless under Brecht. Given the other evi-
dence of Phillips’s guilt, we are left with no grave doubt about
whether the alleged Giglio violations had a substantial and injurious
effect or influence on the jury’s verdict.
In analyzing harmlessness, we assume that if the false testi-
mony had been disclosed, Phillips would have been able to im-
peach the inmates to such an extent that the jury would not have
relied on their testimony in reaching a verdict. But given the sub-
stantial evidence of Phillips’s guilt that was unrelated to the four
inmates, we conclude that any error was harmless.
To begin, the State introduced strong evidence of Phillips’s
motive. Testimony from multiple witnesses without questionable
motivations indicated that Phillips was seeking vengeance on Sven-
son and Nanette. After Phillips harassed Nanette, showing up at
her home and following her to a grocery store, Svenson and Nan-
ette both played roles in sending him back to prison. Upon his re-
lease from prison, Phillips showed up at Nanette’s office and tried
to see her. A week later, shots were fired through the front window
of her home. When Svenson searched Phillips’s house after this
shooting, he became belligerent. And on the morning of Svenson’s
murder, he and Phillips had another confrontation after Nanette
spotted Phillips at the courthouse. Svenson met with Philips and
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48 Opinion of the Court 15-15714
warned him that he might send him back to jail for intimidating
Nanette. A few hours later, Svenson was murdered.
Moreover, Phillips made statements indicating that he
sought revenge on Svenson and Nanette for sending him back to
prison. Upon learning of the murder charge, Phillips said, “They’re
lucky they got me when they did because I would have killed every
last motherfucker in that office” and also “[i]f somebody does me
harm, I do them harm.”
Motive aside, there was ample evidence that Phillips was the
person who shot into Nanette’s home and that he had access to a
firearm around the time of the murder. Phillips admitted to Tony
Smith that he had tried to shoot a female parole officer. Tony Smith
saw Phillips carrying a .38 Special or a .357 Magnum, the same type
of weapon that was used to shoot into Nanette’s home and to mur-
der Svenson. And on the evening of the shooting at Nanette’s
home, police tested Phillips’s hands for gunpowder residue; after
this test, Phillips told a coworker that he had recently fired a
weapon and was concerned that officers would find gunpowder
residue on his hands.
The State also introduced evidence showing that Phillips
gave the police a false alibi. In an interview the day after the mur-
der, Phillips reported that he had been shopping at the Winn-Dixie
until 8:30 p.m. (the murder occurred at 8:38) and then drove home.
He claimed that upon returning home from the grocery store, he
drove his mother to his sister’s house.
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15-15714 Opinion of the Court 49
But the alibi quickly fell apart. Police obtained Phillips’s
Winn-Dixie receipt, which showed that he was at the store nearly
one hour later, meaning that there was time for Phillips to drive to
the parole office, wait for Svenson, shoot him, travel to the Winn-
Dixie, and check out by 9:19 p.m. His sister admitted at trial that
Phillips and his mother came to her house later than he told police.
Phillips’s false alibi further supports our conclusion on harmless-
ness. See Hodges v. Att’y Gen., Fla., 506 F.3d 1337, 1343 (11th Cir.
2007) (considering, when assessing harmlessness of error under
Brecht, that State had introduced evidence disputing the defend-
ant’s “alibi defense”); United States ex rel. Hines v. LaValee, 521 F.2d
1109, 1113 (2d Cir. 1975) (holding error was harmless because of,
among other things, “the adverse inference to be drawn from [the
defendant’s] attempted use of a false alibi”).
In addition to the false alibi, the State introduced evidence
of other false statements Phillips made to police in interviews.
When Phillips was asked about seeing Svenson the day after the
shooting at Nanette’s house, he denied arguing with Svenson. But
the denial conflicted with testimony from other parole officers who
were there. And Phillips said in interviews that Svenson was not at
the meeting with parole officers on August 31. But several wit-
nesses testified that Svenson was present.
Viewing the entire record, we cannot say that we have a
grave doubt about whether the alleged Giglio errors had a substan-
tial and injurious effect on the trial’s outcome. Even though the
State’s evidence in this case was largely circumstantial and we
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50 Opinion of the Court 15-15714
cannot say it was overwhelming, there was significant enough cor-
roborating evidence of Phillips’s guilt that any Giglio error was
harmless. See Brecht, 507 U.S. at 639; Mansfield, 679 F.3d at 1313.
Phillips argues that our decision in Guzman v. Secretary, De-
partment of Corrections, 663 F.3d 1336 (11th Cir. 2011), compels the
opposite conclusion. We find the case distinguishable and there-
fore disagree.
James Guzman was convicted in Florida state court of mur-
dering David Colvin. Id. at 1339–40. At the time of the murder,
Guzman was living at a motel with Martha Cronin. Id. at 1340. Col-
vin also lived at the motel. Id. One morning, Colvin and Guzman
left the motel together to drink beer and eat breakfast. Id. Accord-
ing to Guzman, when they returned, the two men went separate
ways. Id. Later that day, Colvin was robbed and stabbed to death.
Id. There were no eyewitnesses to the murder. Id. at 1354.
When police initially questioned Guzman and Cronin, both
said they knew nothing about the murder. Id. at 1341. Months later,
police again interviewed Cronin, who had an outstanding warrant
for a probation violation. She reported that Guzman had confessed
to robbing and murdering Colvin. Id. at 1341–42. A few weeks
later, Cronin testified before the grand jury about Guzman’s con-
fession. Id. at 1342.
At Guzman’s criminal trial, Cronin again testified that Guz-
man had confessed. Id. at 1340–41. The jury heard from both Cro-
nin and the lead detective that Cronin had not received anything in
exchange for her testimony. Id. at 1342. Guzman testified in his
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15-15714 Opinion of the Court 51
own defense and denied robbing or murdering Colvin. Id. at 1352.
He also introduced evidence of other “viable suspects,” including
two individuals who had previously used knives in physical alter-
cations with Colvin at the motel. Id. at 1353 & n.21. Ultimately,
Guzman was convicted and sentenced to death. Id. at 1339–40.
In post-conviction proceedings, Guzman raised a Giglio
claim based on evidence showing that the lead detective gave Cro-
nin a $500 reward before she testified to the grand jury. Id. at 1342–
43. The Florida Supreme Court affirmed the denial of relief on the
Giglio claim, concluding that “the evidence was immaterial.” Id. at
1345 (internal quotation marks omitted). Guzman then filed a
§ 2254 petition in federal court. Id. The district court granted the
petition and concluded that Guzman was entitled to a new trial. Id.
We affirmed.
We held that the Florida Supreme Court’s decision on ma-
teriality was unreasonable and thus not entitled to AEDPA defer-
ence. Id. at 1349. We also concluded that the Giglio error was not
harmless under Brecht because the error had a “substantial and in-
jurious effect on the outcome of [Guzman’s] trial.” Id. at 1355. We
explained that the State’s case had “significant weaknesses” and
“boiled down essentially [to] a credibility contest between Guzman
[who had testified] on the one side, and Cronin and [the detective]
on the other.” Id. at 1356. Cronin’s credibility was “critical to the
State’s case.” Id. at 1351. But due to the Giglio error, Guzman was
unable to attack Cronin’s credibility by showing that she changed
her story to obtain the reward money. Id. at 1352. The Giglio error
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52 Opinion of the Court 15-15714
also deprived Guzman of the opportunity to impeach the detective
by showing that she gave false testimony about the payment, and
such impeachment would have “impugned not only her veracity
but the character of the entire investigation.” Id. at 1353 (internal
quotation marks omitted). In assessing the overall weakness of the
State’s case, we emphasized, too, that Guzman had identified
“other viable suspects.” Id. After viewing the “entire record,” we
were left with “grave doubt” about whether the Giglio error had
swayed the outcome of the trial and thus affirmed the grant of re-
lief. Id. at 1356 (internal quotation marks omitted).
Guzman is distinguishable from this case. Importantly, the
State’s case against Phillips was stronger than its case against Guz-
man. Here, the State’s case included particularly robust evidence
of motive (Svenson’s role in sending Phillips back to prison and
threatening to send him back to prison again) as well as evidence
that Phillips had possessed a firearm, similar to the one used to
shoot into Nanette’s home and to murder Svenson, around the
time of the murder; had shot into Nanette’s home; and provided a
false alibi. And at Phillips’s trial, there was no evidence of other vi-
able suspects. Given the totality of the evidence introduced at Phil-
lips’s trial, we simply cannot say that the alleged errors had a sub-
stantial and injurious effect or influence on the jury’s guilty verdict.
Even after considering Guzman, we remain convinced that the er-
ror here was harmless under Brecht.
Before moving on, we emphasize that our conclusion that
any Giglio error was harmless should not be taken as condoning
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15-15714 Opinion of the Court 53
Waksman’s conduct in this case. To the contrary, we condemn the
conduct. Waksman redacted discoverable material and then cov-
ered his tracks with his improper cut-and-paste practices, making
the alterations undetectable. This behavior was dishonest and un-
ethical. But our inquiry here is a different one. The Supreme Court
has made clear that to be entitled to relief on collateral review, a
state prisoner must do more than show a constitutional error; he
also must show that the error had a substantial and injurious effect
or influence on the jury’s verdict. See Fry, 551 U.S. at 116. Because
after carefully considering the entire record in the case we are not
left with grave doubt about whether the outcome of the trial was
swayed by Giglio error, we affirm the district court’s order denying
Phillips relief.
C. Phillips’s Brady Claim
Finally, we turn to Phillips’s Brady claim. Phillips argues that
the State violated Brady when it suppressed evidence about (1) the
“monetary and sentencing benefits” promised to the four inmates
and (2) Hunter’s mental health history. Because the Florida Su-
preme Court’s decision denying relief on this claim was not unrea-
sonable, we conclude that it is entitled to AEDPA deference.
We begin by considering whether the State violated Brady
by failing to disclose the full range of monetary and sentencing ben-
efits promised to the inmates. Of course, the State was required to
disclose any promises made to the inmates about benefits they
might receive for testifying because those promises could be used
to impeach the witnesses and thus would qualify as “[e]vidence . . .
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54 Opinion of the Court 15-15714
favorable to the accused for Brady purposes.” Stein, 846 F.3d at
1146. But for the reasons we discussed in Section III-B-1 above, we
conclude that the state court reasonably rejected Phillips’s claim
based on its factual determination that the State disclosed the
promises made to the inmates before Phillips’s criminal trial.
Phillips also contends that a Brady violation occurred when
the State failed to turn over mental health records showing that in
a previous case Hunter had been found not guilty by reason of in-
sanity. We conclude that the decision rejecting this claim is entitled
to deference because the Florida Supreme Court reasonably could
have determined that the records were not material, meaning there
was no reasonable probability of a different result if the State had
disclosed the records.14
These records show that between 1970 and 1972 (approxi-
mately 10 years before the relevant time period), Hunter had men-
tal health problems, including schizophrenia, and was found not
guilty of a crime by reason of insanity. Given the strength of the
State’s case, which we discussed in Section III-B-2 above, it was
14 In its decision, the Florida Supreme Court never expressly addressed the
claim that the State violated Brady by failing to turn over Hunter’s mental
health records. Instead, it silently rejected the claim. See Phillips II, 608 So. 2d
at 780. In determining whether this decision is entitled to AEDPA deference,
we consider what arguments or theories “could have supported” the decision
and ask whether those arguments or theories were reasonable. Richter,
562 U.S. at 102. The Florida Supreme Court could have rejected the Brady
claim because the mental health records were not material, a conclusion we
find to be reasonable.
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15-15714 Opinion of the Court 55
reasonable for the Florida Supreme Court to conclude that there
was not a reasonable probability of a different result if the records
had been disclosed.
IV. CONCLUSION
For the above reasons, we affirm the district court’s denial
of Phillips’s habeas petition.
AFFIRMED.
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15-15714 WILSON, J., concurring 1
WILSON, Circuit Judge, concurring:
I concur in the thorough and well-reasoned majority opin-
ion. But this case presents a close call as to whether any Giglio1
error was harmless under the Brecht2 standard. I write separately
to highlight the implications of, as the majority aptly describes,
Prosecutor Waksman’s “dishonest and unethical” behavior.
At a post-conviction evidentiary hearing, Phillips elicited ex-
tensive information about Prosecutor Waksman’s role in obtaining
the informants’ testimony and about Prosecutor Waksman’s redac-
tion of police reports—none of which Phillips knew at the time of
his trial. In an affidavit, Larry Hunter stated that Prosecutor Waks-
man told him to testify at trial that he received no deal for his tes-
timony, but in reality, Hunter was actually promised probation in-
stead of life imprisonment. The evidence also showed that Prose-
cutor Waksman edited Detective Smith’s police report to remove
any reference to Prosecutor Waksman’s contact with Hunter. This
edited copy was the version handed over to the defense during dis-
covery.
Phillips introduced a letter that William Farley had written
on February 1, 1984 (the day Phillips was sentenced), stating that
Prosecutor Waksman had not tried to get Farley out of prison as
Farley expected and suggesting that Prosecutor Waksman had
“used” him. According to Farley, Detective Smith visited him in
1 Giglio v. United States, 405 U.S. 150 (1972).
2 Brecht v. Abrahamson, 507 U.S. 619, 638 (1993).
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2 WILSON, J., concurring 15-15714
jail after the first letter, upset that Farley would tell the truth, spe-
cifically that Detective Smith told Farley what he should say before
the recorded interview. Farley was subsequently transferred to a
harsher area of prison. Farley then sent a second letter on February
14, 1984, in which he accused Prosecutor Waksman of lying to him
“about everything,” including failing to send a letter to the parole
commissioner on his behalf. A check was also introduced showing
Farley cashed $175 from Prosecutor Waksman. Phillips also pre-
sented Detective Smith’s unredacted report indicating that he and
Farley spoke for 1.5 hours prior to the start of the recording. Pros-
ecutor Waksman had edited Detective Smith’s police report to re-
move reference to this unrecorded interview prior to handing the
report over in discovery.
When confronted with this evidence, Prosecutor Waksman
testified that he routinely redacted police reports in a manner that
concealed the redaction to defense counsel. Prosecutor Waksman
also admitted to providing the informants with benefits greater
than what he had admitted to at trial; however, he justified these
rewards because he decided to provide them after trial. Therefore,
according to Prosecutor Waksman, the rewards did not incentivize
the informants and could not be used as impeachment evidence.
Again, like the majority notes, under Brecht, any error was
harmless. We use “harmless” to mean that the remainder of evi-
dence on the record is sufficient to convict Phillips. See Mansfield v.
Sec’y, Dep’t of Corr., 679 F.3d 1301, 1313 (11th Cir. 2012) (“[T]he er-
roneous admission of evidence is likely to be harmless under
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15-15714 WILSON, J., concurring 3
the Brecht standard where there is significant corroborating evi-
dence.”). However, “harmless” should not be read to minimize
Prosecutor Waksman’s routine practice of redacting discovery doc-
uments. Prosecutorial misconduct like this is so egregious that it
can easily cast a shadow on the entire criminal trial and our crimi-
nal justice system more broadly. But for the significant corrobo-
rating evidence in this case, Waksman’s conduct amounts to a Gi-
glio violation.
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