Banks v. Dretke, 540 U.S. 668, 21 (2004)

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688

BANKS v. DRETKE

Opinion of the Court

Court of Appeals observed that in his 1992 state-court post-conviction application, Banks had not endeavored to develop the facts underpinning the Farr Brady claim. App. to Pet. for Cert. A19-A20. For that reason, the court held, the evidentiary proceeding ordered by the Magistrate Judge was unwarranted. Ibid. The Court of Appeals expressed no doubt that the prosecution had suppressed, prior to the federal habeas proceeding, Farr's informant status and his part in the fateful trip to Dallas. But Banks was not appropriately diligent in pursuing his state-court application, the Court of Appeals maintained. In the Fifth Circuit's view, Banks should have at that time attempted to locate Farr and question him; similarly, he should have asked to interview Deputy Sheriff Huff and other officers involved in investigating the crime. Id., at A19, A22. If such efforts had proved unavailing, the Court of Appeals suggested, Banks might have applied to the state court for assistance. Id., at A19. Banks's lack of diligence in pursuing his 1992 state-court plea, the Court of Appeals concluded, rendered the evidence uncovered in the federal habeas proceeding procedurally barred. Id., at A22-A23.

In any event, the Fifth Circuit further concluded, Farr's status as an informant was not "materia[l]" for Brady purposes. App. to Pet. for Cert. A32-A33. Banks had impeached Farr at trial by bringing out that he had been a police informant in Arkansas, and an unreliable one at that. Id., at A28, A32-A33; supra, at 680. Moreover, the Court of Appeals said, other witnesses had corroborated much of Farr's testimony against Banks. App. to Pet. for Cert. A32. Notably, Banks himself had acknowledged his willingness to get a gun for Farr's use in robberies. Ibid. In addition, the Fifth Circuit observed, the Magistrate Judge had relied on the cumulative effect of Brady error and the ineffectiveness of Banks's counsel at the penalty phase. App. to Pet. for Cert. A44. Banks himself, however, had not urged that position; he had argued Brady and ineffective assistance of

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