Emanuel Fitzgerald HAMMOND, Petitioner-Appellant, v. Hilton HALL, Warden, GD & CC, Respondent-Appellee, 586 F.3d 1289

CARNES, Circuit Judge: Julie Love was driving a red Mustang convertible through the upscale Buckhead

section of Atlanta around 10:00 p.m. on July 11, 1988, one of those typically hot summer nights in Georgia. The petite 27-year-old preschool fitness teacher had been to her regular Monday night “career chat” meeting. She had also gotten engaged the week before and may have been thinking about that. Whatever was on her mind, her thoughts were interrupted by the reality of her car slowing to. a stop, as cars do when they run out of gas. She steered it over to the side of the road. This was back before everyone had a cell phone, so Love got out of her stranded car and started walking to get help.

After she had gone only a short distance down Howell Mill Road, a maroon Cutlass sedan pulled up beside her. There were two men and a woman inside. They offered Love a ride, but she declined the offer, waving the group on and telling them that she lived in a house just up a nearby driveway. Love didn’t live in the house she pointed out or even on that road, but she started walking up the driveway of that house anyway. The Cutlass drove off. Before the Cutlass had driven completely out of sight of Julie Love, someone in it looked around in time to see her coming back down the driveway to the street.

Realizing that she had tricked them about where she lived, Emanuel Hammond, one of the men in the car, ordered the driver to turn around, dim the headlights, and drive slowly back toward the young woman. After the car crept close, Hammond leaped from it with a sawed-off shotgun. He grabbed Love and threw her into the car, face down onto the rear floorboard. While she screamed and begged him not to hurt her, a wild-eyed Hammond beat her with the steel barrel of the shotgun. Any woman in Love’s position would have been terrified, and even more so if she had known what Hammond had done to other women.

About six-and-a-half years before, in February 1982, a young woman named Janet was returning home to the Virginia Highlands

section of Atlanta around 1:00 a.m., after having a late dinner with her friends. A man named Antonio Stephney came up behind her with a gun. He forced Janet into a dark alley. While Stephney was robbing Janet, Emanuel Hammond appeared on the scene. Hammond told Stephney that it was supposed to be Hammond’s robbery. And he suggested to Stephney that “we rob some more places.” Stephney agreed. He rooted through Janet’s purse, found her keys, and tossed them to Hammond, telling him to go get Janet’s car and bring it around. While Hammond went to get her ear, Stephney raped Janet.

When Hammond got back with the car, the two men forced Janet into the back seat, covered her with a blanket, took her to several ATM machines in search of cash, and beat her. While this was going on, Hammond was armed with a sawed-off shotgun. Hammond drove the car around while Stephney raped Janet a second time and talked about killing her. Hammond, who was only sixteen at the time, evidently did not yet have the stomach for murder. Kidnapping maybe, but not murder. At one point when the car was stopped and Stephney had stepped outside for awhile, Janet begged Hammond to drive away.

He hesitated but then sped away as Stephney stood in the street and shot at them with a pistol. After a side trip to his grandfather’s house where he got rid of the shotgun, Hammond took Janet to the police station. By the time Hammond and Janet arrived at the police station, she had been held hostage for three-and-a-half hours and had been raped twice. According to her, Hammond “d[id] the talking” to the police, describing the ordeal in a way that “ma[d]e the people there think that [he and Janet] were both victims.” Even so, he was charged with rape and aggravated sodomy.

Those charges against him were dismissed in December 1982. The reason probably was that despite his involvement in the crimes against Janet, Hammond’s belatedly appearing conscience may have saved her life. As far as the record shows, that was the last time his conscience would make an appearance, belatedly or otherwise. The dismissal of the charges against him provided Hammond with an opportunity to straighten out his life. He quickly failed to take advantage of it.

Ten days after the rape and sodomy charges against him were dismissed, Hammond put his apprenticeship with Antonio Stephney behind him and struck out on his own. On the night of December 17, 1982, Hammond came upon a woman as she arrived at her apartment on Briarcliff Road in Atlanta. Because this woman, named Trinh, had worked the late shift, she did not get home until 1:30 a.m. As she tried to get out of her car, Hammond loomed over her, stuck a knife to her neck, and forced her back into the car. When she resisted, he beat her and slashed her hand with the knife.

He grabbed her purse and demanded her credit cards. For the next hour Hammond terrorized Trinh. He drove her around, telling her he was going to rape her and Mil her and stuff her body in the trunk of her car. She escaped with her life when Hammond had to pull the car into a service station to get some gas. When he did that, Trinh jumped out of the car and ran to the attendant for help. Hammond was quicMy caught and charged. He pleaded guilty to kidnapping with bodily injury and armed robbery. He was sentenced to eight years in prison. Prison life did not suit Hammond.

He was taught some vocational sMlls in prison, but the main lesson he took from the experience was not a constructive one. Hammond vowed to his girlfriend that he would never let another of his victims live to send him back to prison. With each victim, he would come closer to fulfilling that vow. In 1987 Hammond was released after serving less than half of his sentence for attacMng Trinh. In May 1988 he saw a woman, whose name was Ellen, entering her Rock Springs Circle apartment in Atlanta around lunch time.

Hammond grabbed Ellen from behind, put her into a headlock and dragged her at knife point down two flights of stairs to her car. He rifled through Ellen’s purse, found her bank cards, and drove her around the city forcing her to make withdrawals from several ATM machines. When Ellen had withdrawn the limit on her card, Hammond drove her to a trash-filled wooded area on a steep incline. There he raped her. Then he stabbed her repeatedly and slit her throat. Ellen had the presence of mind to fake convulsions so Hammond would think she was dying.

After terrorizing and abusing her for three-and-a-half hours and seeing her convulse, Hammond hid Ellen’s body under a blanket in the trash and left her for dead. Thinking that he had succeeded in killing Ellen, Hammond bragged to his girlfriend, Janice Weldon, that he had Mlled a woman. He took her by the wooded area to show her where he had done it, and then he took her to see Ellen’s car, which he had stolen. While looking into that car, Weldon noticed a Mother’s Day card inside, all addressed and ready to be mailed.

After Hammond left Ellen, she pulled off the blanket, which he had intended to be her burial shroud, and she dragged herself from the wooded area to a street where she found help. We don’t know when Hammond found out Ellen had survived. We do know that only two months after Mdnapping, robbing, raping, and attempting to Mil Ellen, Hammond abducted Julie Love. This time he was accompanied by his girlfriend Weldon and by his own apprentice, his 18-year-old cousin Maurice Porter.

As she lay on the floorboard of his car, Julie Love could not have known that Hammond’s crimes against her were the latest in a series of his increasingly violent attacks on women. She could not have known about his vow to make sure that no more of his victims would live to testify against him. She did know, however, that Hammond was cruel, violent, and dangerous. Love, who was only five feet tall and weighed just a hundred pounds, knew that because Hammond kept beating her. She was screaming. After he finished beating Julie Love, Hammond wanted a cigarette.

He told Weldon, who was driving, to take them to a service station in the Bankhead

section of Atlanta so he could get something to smoke. Leaving Love in the back seat of the car with Porter, Hammond rested the shotgun against the front seat and went into the store. Weldon, Porter, and Love sat in the car in silence. When Hammond returned to the Cutlass, he slid into the front seat next to Weldon and told her to drive the group to his grandmother’s house in northwest Atlanta. As they pulled up near the house and stopped, Hammond tossed Love’s purse to Weldon and ordered her to go through it. Weldon rummaged through the purse, finding a little cash and some ATM cards. Hammond took the cards.

He asked Love how much money she had in her bank account. She told him that she did not have much. Love begged Hammond not to hurt her. She told him she kept cash at her apartment, and they could go get it. She also pleaded with him to call her boyfriend, who would give them anything they wanted if they would just not hurt her. Worried that Love’s boyfriend might be at the apartment, the group went to a pay phone where Weldon called Love’s apartment. She got Love’s answering machine.

She heard Love’s voice say: “Hi, this is Julie, and I can’t come to the phone right now, but if you leave your name and number, I’ll be glad to get in touch with you as soon as I can. Have a nice day, and thanks for calling.” Satisfied that Love’s boyfriend was not there, the group drove to the apartment complex. Once there, however, they saw a security kiosk out front and turned away. The group doubled back to northwest Atlanta. Hammond directed Weldon to drive to Grove Park Elementary School, which was just down the street from his grandmother’s house.

Standing on the steps of the school, his sawed-off shotgun in hand, Hammond forced Love to tell him the pin number for her ATM cards. She was so nervous that she gave him the wrong number. Holding Love at gunpoint at the school, Hammond sent Porter and Weldon to withdraw money using her ATM cards. Weldon drove Porter to a bank in the West End area of town, where he punched the pin number Love had given into two different ATM machines. Because it was the wrong number, the machines gave no money and kept the cards.

Realizing they would be returning empty-handed, Weldon (calling Hammond by his nickname) told Porter: “Demon going to be mad.” He was. When Porter and Weldon returned to the school with neither the cash nor the cards, Hammond became enraged. Standing over a seated Love, Hammond called her “bitch,” hit her hard in the back with the shotgun barrel, and began beating her again. Because the beating “looked painful” to Porter and he no longer wanted to see it, he asked Hammond to “let [him] talk to [Love] for a minute.” Hammond agreed. The “talk” started out innocently enough.

Porter took Love to the side and told her to “do nothing to make [Hammond] mad.” Porter, however, had more than Love’s best interests in mind. After advising her to avoid Hammond’s temper, Porter proceeded to rape her. Love was, according to Weldon, “scared to death” and begged Porter “Please don’t hurt me.” As Porter was raping Julie Love, Weldon and Hammond approached them.

Weldon grinned at Porter, called him by his nickname, “Gooney,” and told him he was “a fool.” Hammond told Porter to “come on” because “that was enough.” Porter and Love pulled their clothes back on, and all four of them got back into the Cutlass. It was between 1 and 2 a.m. At that point Love had been at the group’s mercy for more than three hours. Sitting once again behind the wheel of the Cutlass, Weldon decided that she “didn’t want to be involved” anymore. She asked Hammond to let her go home.

Weldon’s wanting out made Hammond “real angry,” but because she was “getting on his nerves” he told Weldon to “go on.” She drove the group to her apartment in College Park, on the south side of Atlanta. Hammond and Weldon got out of the car, leaving Porter alone with Julie Love. Standing in the doorway of the apartment, Hammond gave Love’s purse to Weldon and told her to “get rid of it.” She put the purse in a paper sack and threw it into a dumpster. Leaving Weldon behind, Hammond, Porter, and Love continued their crisscross of the city.

Hammond directed Porter, who was driving, to Hammond’s mother’s house in Cobb County. The three went inside where they found Hammond’s mother standing in her kitchen reading a newspaper. Despite the late hour and the unknown white woman with her son and nephew, Hammond’s mother barely acknowledged them when they greeted her. Hammond walked Porter and Love back to his bedroom. For five minutes he left them sitting alone, apparently while he talked with his mother. When Hammond returned, the three of them left in the Cutlass. Hammond ordered Porter to take them back to Grove Park Elementary.

As they neared the school, he had Porter turn onto a side street and cut off the car. Then Hammond got out and walked to the trunk, where he got three clothes hangers and a sheet. He unraveled the hangers and forced Love to lie on her stomach across the back seat of the sedan. Hammond then ordered her to put her feet together, and when she did he tied them with one of the unraveled coat hangers. Then he tied her hands together behind her back with another hanger. Face down and bound, Love lay on the rear seat while Hammond covered her head and body with the sheet. Then he wrapped the third hanger around her neck.

Hammond handed one end of the hanger to Porter and told him to pull. He did while Hammond pulled in the opposite direction. As the wire tightened around her neck, Julie Love struggled, kicked, screamed, and fought for her life. Small as she was, the fitness teacher managed to free her hands. As Hammond wrestled to get Love under control, she thrashed about and pleaded, “Don’t do it.” Calling her a bitch, he told her to “[s]hut up before I kill you right here.” Hammond’s threat scared Love into submission long enough for him to rebind her hands with the coat hangers.

As she lay there bound, Hammond sat and thought for awhile. Then he had Porter start the Cutlass and drive them to a wooded area off Grove Park Place, about two miles from the school. Once they were there, Hammond had Porter drive up and down the street several times. When he settled on a spot, Hammond ordered Porter to pull over and raise the car’s hood. Hammond removed the bindings from Love’s feet, and then he marched her through trash-strewn bushes down into the woods. Three or four minutes later Porter got out of the car to lower the hood. He heard a gunshot.

Porter hung his head for a moment, and when he looked up he saw Hammond coming up out of the woods alone. Hammond was holding the sawed-off shotgun and had blood spots on his face. Porter said: “You didn’t do what I think you did.” Hammond’s only response was that he “had to.” At Hammond’s direction, Porter drove back to Weldon’s apartment on the south side. They arrived as the sun was coming up. Porter dropped onto the sofa and dozed off for a few hours. When he awoke, Hammond called him into a back bedroom where he was waiting with Weldon.

Hammond made it clear that if either one of them ever told anybody what he had done to Julie Love, he would kill them both. Then he described the murder. He told them that as he was about to shoot Love she raised her hands in front of her face, and he “blew her head off’ with an “execution style” shotgun blast. The shot, he said, “blew the side of her face off.” Hammond boasted, “You should have seen how I did it.” Shortly after Hammond killed Julie Love, Weldon told him her children needed “something to eat in the house.” He gave Weldon a pair of small, diamond-and-gold earrings to pawn.

Hammond described to Weldon how he had taken the earrings from Love while the two waited for Weldon and Porter to return from the bank. Love had begged him not to take them because they had belonged to her mother, who had died a few years before, and she cherished them. He took them from her anyway. Even so, Hammond told Weldon: “I didn’t get a damn thing from the lady and I took her life.” Meanwhile, Julie Love’s friends and family had no idea where she was. All they knew was that on July 11, 1988, she had met with a group of people for a career chat, as she did every Monday night. Then she disappeared.

Love and Mark Kaplan had become engaged on the Fourth of July, just a week before she went missing. Kaplan had last seen her earlier that day when he kissed her as he left for work. He called Love’s apartment later that night, expecting her to be back from her regular Monday meeting. When he got her answering machine Kaplan left a message. He phoned Love again on each of the next two days. When he was unable to locate her after two days, Kaplan reported her disappearance to the police, and an officer followed him back to Love’s apartment. They could not get in.

The police were not yet willing to launch an investigation into Love’s disappearance, so Kaplan launched one himself. After calling her family and friends for help and information, Kaplan eventually discovered the red Mustang Love had been driving. It was on the road half a mile from his home, jutting diagonally out from the curb, abandoned. The formal police investigation began when Kaplan showed police the abandoned car. On Thursday morning, three days after Love’s disappearance, an officer went with Kaplan to her apartment so they could listen to her answering machine tape.

The tape was full of unplayed messages, starting with one Kaplan had left around 9:45 p.m. on the night Love had disappeared. There were messages from him: “Give me a call whenever you get home. Just want to hear your voice. Okay?” “You got me worried. Whenever you get home tonight, give me a buzz.” There were also messages from Love’s family: “Hey, Doodle ... it’s Daddy again.... I’ll keep trying.” And from her colleagues at work: “We were just wondering if ... something had happened or what____ We’ll be out on the playground.

Give -me a call at home if you need to.” “I’m concerned because we haven’t heard from you and we’ve been expecting you in the playroom at the sporting club.” And from her friends: “Got me worried about you. Where are you, Julie? We haven’t talked to you in two days.” “Just call me sometime, let me know that you’re alive and well, which I hope you are, and I’m sure you are, but let me hear from you.” “Everybody’s trying to find you....

So give me a call no matter what time you come in and call your Dad so he knows you’re okay.” In all, the tape held thirty-one messages from people worried because Julie Love had vanished. After getting the police investigation started, Kaplan did more. He made flyers. He organized rallies. He opened his home to hundreds of volunteers who tried everything from “ask[ing] questions” to “comb[ing] the woods.” He appealed “to anyone who knew anything to please come forward and share information that would help [him] find Julie.” For more than a year no one did.

During all of that time, none of the many people who cared about Julie Love knew that her body lay beneath some garbage in a northwest Atlanta trash pile. They might never have known but for the fact that Hammond made the mistake of abusing his girlfriend, Janice Weldon, one time too many. On a July night in 1989, a year after he had brutally murdered Julie Love, Hammond was choking Janice Weldon during an argument about some cocaine. When he finally loosened his grip on her neck, and as Weldon was gasping for air, Hammond pointed his gun at her. She pleaded for her life.

It was not the first time Hammond had done that sort of thing to Weldon, but it was to be the last. Although she was scared of Hammond, Weldon decided she’d had enough. She went to the police station and “took a warrant out on him” for the assault. Because Weldon was sure that Hammond would kill her for getting the warrant, she felt she had nothing to lose from telling the police about the murder of Julie Love. So she did. In order to corroborate what Weldon had told them about Love’s murder, investigators outfitted Weldon with a recording device and sent her to talk to Maurice Porter.

What Porter said during that conversation, which he did not know was being recorded, corroborated Weldon’s statements to the police. Porter and Hammond were arrested. Investigators questioned Porter, who admitted his participation in the crimes against Julie Love and identified Hammond as her killer. Porter then took officers to the area where Love’s body had been left more than a year before. The officers found her remains within thirty yards of where Porter had told them they would be. In September 1989, Hammond and Porter were charged with murder, felony murder, kidnapping, and armed robbery.

Porter was also charged with rape. He pleaded guilty. The State recommended that Porter receive three life sentences instead of a death sentence in exchange for his testimony at Hammond’s trial in February and March 1990. Janice Weldon was given immunity in return for her testimony. In addition to the eyewitness accounts provided by Porter and Weldon at trial, the State presented the testimony of Phillip Williams, who had been an inmate in the jail where Hammond was held on charges of assaulting Weldon.

Williams testified that Hammond had offered him $20,000 and help establishing himself on the outside if he would kill Weldon. Hammond had told him that Weldon “knowed too much.” Hammond also told Williams that he had killed someone. He gave Williams a piece of paper with his name and address written on it. Janet, Trinh, and Ellen, three of Hammond’s other victims, all testified about their encounters with Hammond. Each woman told of her hours-long ordeal of being abducted, assaulted, and robbed. Each woman’s story foreshadowed what happened to Julie Love.

And each woman’s account showed how Hammond’s violence against women had been intensifying. The State presented more evidence. Michael Dominick testified that Hammond had sold him a sawed-off shotgun for “about $20” and “around five rocks” of cocaine. Dominick identified the shotgun shown to him by the prosecutor as the one he bought from Hammond; he recognized a string he had tied to it after the purchase. He testified that the gun had been in his possession from the time he bought it until it was confiscated by police during a drug bust.

Kelly Fite, a firearms examiner for the Georgia Bureau of Investigation’s crime laboratory, testified that wadding found near Julie Love’s remains had been discharged from a sawed-off 12-gauge shotgun. The State also presented the testimony of Dr. Randy Hanzlick, a medical examiner for Fulton County, who told of finding and analyzing some remains of Julie Love’s body.

He described the area where most of the skeletal remains were found as a sloped bank that contained “an old broken television case” resting “part way up on a pile of tires.” On top of the broken television was a woman’s blouse and bra with rib, shoulder, and back bones. The blouse had held those upper-body bones in roughly the “proper position,” while other smaller bones had cascaded into the crevices of the tire pile below. Just up the slope from the television, Dr. Hanzlick found fragments of Julie Love’s skull. Smaller shards of it had trickled down through the tires.

Altogether, he recovered twenty-two pieces of Love’s skull, including one with dark “Caucasian head hair” attached to it. Nearby he found a glass eye with a brown iris. Love had brown hair, and she’d had a glass eye since she was a little girl. When Dr. Hanzlick glued the fragments of her skull together he saw a beveled semicircle-shaped hole, nearly an inch in diameter, in what had been Julie Love’s head. Beneath the skull fragments, he found a pinkish disk of shotgun wadding with a diameter similar to the hole in the skull. Combining all of his findings, Dr.

Hanzlick concluded that Love had died from a “gunshot wound to the head” that was “consistent with a closeup blast by a 12-gauge sawed-off shotgun.” “Demon” had told Porter and Weldon that he “blew the side of [Love’s] face off’ and had boasted that they should have seen how he did it. In a sense Dr. Hanzlick did see that. He never found the bones that made up the right side of Julie Love’s face. I. After a trial in February and March 1990, a Fulton County jury convicted Hammond of murder, kidnapping, and armed robbery. A two-day sentencing phase followed.

On March 9, 1990, the jury found three aggravating circumstances: the murder of Julie Love was outrageously and wantonly vile; it had been committed during another capital felony (armed robbery); and Hammond had a prior armed robbery conviction. Hammond was sentenced to die. He appealed his conviction and sentence to the Georgia Supreme Court. Hammond v. State, 260 Ga. 591, 898 S.E.2d 168, 169 (Ga.1990) (.Hammond I). That court rejected all of Hammond’s challenges, but it remanded the case to the trial court “to give [Hammond] an opportunity to litigate the issue of trial counsel’s effectiveness.” Id. at 175.

After conducting an extensive four-day hearing on Hammond’s ineffective assistance claims, the trial court issued a sixty-seven page order explaining its decision not to vacate the convictions and sentences. State v. Hammond, Order Denying Mot. to Vacate Conviction and Sentence, Ga.Super. Ct. Fulton County, at 60, Mar. 4, 1994 (Hull, J.) (“Remand Order”).

As the Georgia Supreme Court later summarized it, the trial court “concluded that Hammond’s trial counsel rendered reasonably effective assistance throughout all phases of trial,” and “that the evidence of Hammond’s guilt was so overwhelming that any deficiencies in trial counsel’s performance did not affect the jury’s decision in either phase of trial.” Hammond v.

State, 264 Ga. 879, 452 S.E.2d 745, 754 (1995) (Hammond IT)- On return of the case from remand, the Georgia Supreme Court agreed with the trial court that Hammond’s counsel had not rendered ineffective assistance either in the original trial or on direct appeal. Id. at 754. The court also concluded that the evidence supported Hammond’s convictions and that the death sentence fit the crime. Id. It affirmed the trial court’s judgment in its entirety. Id. Hammond filed a petition for a writ of habeas corpus in the Superior Court of Butts County in December 1995.

He filed an amended petition a little more than two years later and then a second amended petition in April 1999. The state trial court conducted an evidentiary hearing on that second amended petition in December 1999 and eventually denied it in November 2000. Hammond v. Head, Order Denying Second Amended Petition for Writ of Habeas Corpus, Ga.Super. Ct. Butts County, at 3, Nov. 8, 2000 (Brannen, C.J.) (“State Habeas Order”). Hammond asked the Georgia Supreme Court for a certificate of probable cause to appeal, but that court denied Hammond’s application in May 2002.

Hammond appealed to the United States Supreme Court, but his petition for a writ of certiorari was denied in January 2003. Hammond then filed his petition for federal habeas corpus in the United States District Court for the Northern District of Georgia in June 2003. In January 2004 he filed an amended petition that raised fifteen claims. In January 2008 the district court denied habeas relief because it concluded that the state courts’ resolution of the claims he had presented to those courts was “neither contrary to nor an unreasonable application of clearly established federal law.” Hammond v.

Terry, No. l:03-cv-1646, at 5-57, 80 (N.D.Ga. Jan. 4, 2008) (District Court Order). The district court also decided that Hammond was not entitled to habeas relief on any of the claims he raised that had not been decided on their merits by the state courts. Finally, the district court denied Hammond’s requests for discovery and his request for an evidentiary hearing, which related to one of his prosecutorial misconduct claims. Hammond filed a motion to alter or amend the judgment of the district court, which was denied in February 2008.

The court did issue an order granting in part Hammond’s motion for a certificate of appealability. That order gave Hammond permission to appeal on some of his claims. We later granted Hammond’s motion to expand the COA to cover issues relating to his request for discovery and an evidentiary hearing on one of his Brady claims. II. In Brady v.

Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196-97, 10 L.Ed.2d 215 (1963), the Supreme Court held that “the suppression by the prosecution of evidence favorable to an accused ... violates due process where the evidence is material either to guilt or to punishment.” A Brady violation has three components: “[1] The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; [2] that evidence must have been suppressed by the State, either willfully or inadvertently; and [3] prejudice must have ensued.” Strickler v.

Greene, 527 U.S. 263, 281-82, 119 S.Ct. 1936, 1948, 144 L.Ed.2d 286 (1999). The prejudice or materiality requirement is satisfied if “there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 3383, 87 L.Ed.2d 481 (1985) (internal quotation marks omitted); see also Kyles v. Whitley, 514 U.S. 419, 433, 115 S.Ct. 1555, 1565, 131 L.Ed.2d 490 (1995).

We determine materiality by asking whether “the government’s evidentiary suppressions, viewed cumulatively, undermine confidence in the guilty verdict.” Smith v. Sec’y, Dep’t of Corr., 572 F.3d 1327, 1334 (11th Cir.2009) (citing Kyles, 514 U.S. at 434, 436-37 n. 10, 115 S.Ct. at 1566, 1567 n. 10).

Under AEDPA, if the state court had addressed Hammond’s Brady claims on the merits, we could not grant him relief unless the state court’s decision was: (1) “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) ... based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d); LeCroy v. Sec’y, Fla. Dep’t of Corr., 421 F.3d 1237, 1259 (11th Cir.2005). Hammond raised his Brady claims in his state habeas petition in 2003.

Those claims were based on evidence that Hammond asserted had previously been suppressed by the State, and so he argued that the claims were timely. The state habeas court did not disagree. It simply failed to address the claims as Brady claims, instead treating them as ineffective assistance claims. For that reason the district court reviewed the Brady claims de novo, without applying any deference under AEDPA. We do the same. See, e.g., Toles v.

Gibson, 269 F.3d 1167, 1172 (10th Cir.2001) (“Under the AEDPA, the appropriate standard of review for a particular claim hinges on the treatment of that claim by the state courts. If a claim was not decided on the merits by the state courts ... we may exercise our independent judgment in deciding the claim.”); DiBenedetto v. Hall, 272 F.3d 1, 7 (1st Cir.2001) (“Faced with state court opinions that do not decide constitutional claims raised by the defendant ... federal courts apply de novo review to the federal constitutional claims raised in habeas petitions.”). Hammond brings twelve Brady claims to us. III.

We begin with the six Brady claims that fail to reach the materiality stage of the analysis. See Smith v. Sec’y, Dep’t of Corr., 572 F.3d 1327, 1337-42 (11th Cir.2009) (following the same approach). A Hammond claims that the prosecution violated Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972), by eliciting misleading testimony from Janice Weldon about her criminal background. Weldon testified that she had never been arrested or spent a single day in jail.

Hammond contends that Weldon’s statements were misleading because the State possessed evidence, mostly in the form of statements by Weldon herself, implicating her in several violent crimes including the Love murder, the Gwendale Turner murder, and the kidnapping of another woman. A Giglio claim involves an aggravated type of Brady violation in which the suppression of evidence enabled the prosecutor to put before the jury what he knew was false or misleading testimony, Ford v.

Hall, 546 F.3d 1326, 1332 (11th Cir.2008), or allowed the prosecutor himself to make a false statement to the jury, Alzate, 47 F.3d at 1110. The testimony or statement elicited or made must have been a false one. See Smith, 572 F.3d at 1335 (“Accurate statements do not violate the Giglio rule.”); United States v. Meros, 866 F.2d 1304, 1309 (11th Cir.1989) (“Simply put, there has been no violation of Giglio in this case since [the witness’] testimony that he voluntarily turned himself in was true.”). Hammond concedes that Weldon’s testimony about her criminal history was literally accurate.

He admits that she had never been arrested, nor had she been in jail even for a single day. Georgia Bureau of Investigation (GBI) Agent Nita Weston corroborated that fact by testifying that she had been “unable to find any criminal history on Weldon.” Because there was no lie, there was no Giglio violation. B. Hammond claims that the State failed to disclose its suspicions that Weldon had been involved in crimes against a woman named Ellen. In May 1988, just two months before Love was murdered, Ellen was abducted, robbed, raped, stabbed repeatedly, and left for dead. See supra at 1299.

Ellen testified at Hammond’s trial in this case and identified him as her attacker. Her testimony was admitted as similar-act evidence because the incident was so similar to Porter’s and Weldon’s accounts of what they and Hammond had done to Julie Love. Hammond’s counsel wanted to impeach Weldon’s credibility by showing that she had been the female accomplice in the crimes against Ellen. He complains that the State, which suspected that Weldon had been that accomplice, failed to disclose its suspicion to the defense. It is unclear, however, what actual evidence Hammond contends should have been disclosed.

He asserts that the police believed that Weldon was probably the female accomplice. Yet Hammond has cited no tangible evidence that was withheld that tended to show the accomplice was Weldon. He points to no evidence at all beyond what came out at his trial. Weldon’s story was that she learned of Ellen’s kidnapping the next day, when Hammond told her about it.

It came out, however, that Weldon knew the details of the crime against Ellen, including the fact that her stolen and abandoned car had an unmailed Mother’s Day card in it. (She said Hammond took her to the car and she looked inside it.) Ellen, who had every reason to know and none to lie, testified that there was a female accomplice. Weldon, who claimed to have been told about the crime by Hammond, did not mention one. Everyone, including the jury, knew that Weldon had been Hammond’s girlfriend at the time.

Finally, Weldon bore a striking physical resemblance to another woman whom Ellen had originally identified as Hammond’s female accomplice. The point is that of course the police suspected that Weldon had been Hammond’s female accomplice in the crimes against Ellen. All of the reasons for their suspicions came out at trial. For those same reasons Hammond’s trial counsel also suspected that Weldon had been the accomplice. He pursued that point before the jury. Counsel cross-examined Ellen about it, getting her to admit that she had mistakenly identified another woman as the accomplice.

He then showed Ellen a picture of Weldon for comparison’s sake. He thought about having Weldon brought into the courtroom so Ellen could look at her, but decided at the last minute not to do that. So far as Hammond has been able to show, all the evidence to support his position that Weldon was the accomplice in the crimes against Ellen came out at trial. He points to the testimony of a police officer taken at a deposition eight years after the trial in which the officer stated that he had suspected Weldon.

He also has a former prosecutor’s affidavit of the same vintage indicating that prosecutor had strongly believed Weldon was involved in the crimes against Ellen and had considered prosecuting her for them. So far as we can tell, however, the officer’s and former prosecutor’s suspicions were based on the same evidence that underlay everyone else’s suspicions, all of which came out at trial. That one officer or one prosecutor had suspicions is not admissible evidence any more than the fact that trial counsel himself had those same suspicions.

Nor has Hammond explained how disclosure of those suspicions would have led to the discovery of admissible evidence. There was no suppression of evidence. Although we rest our decision about this Brady claim on the lack of suppression, we note that any thought of materiality brings to mind the awkwardness of this claim for Hammond. Weldon was his girlfriend. She and Porter testified that she was his accomplice in the abduction and robbery of Julie Love.

If, as Hammond insists, his girlfriend Weldon was an accomplice in the crimes committed against Ellen, that makes it more likely that Hammond was the man who committed those crimes. And anything that makes it more likely that Hammond committed the crimes against Ellen makes it more likely that he committed the strikingly similar crimes against Julie Love just two months later. c. Hammond claims that the State withheld evidence about the amount of money it paid Weldon for her testimony.

He adds that Weldon lied when she acknowledged only around $650 in cash payments from the GBI and Fulton County, and when she testified that the money was given to her so that she could relocate. Hammond asserts that the truth is that Weldon got at least 22 separate payments, mostly in cash, that totaled around $2,600. Hammond says that because his counsel did not have that information, he could not impeach Weldon with it.

Hammond’s trial counsel swore in a later affidavit that “I was never provided with information accurately detailing the payments made to Janice Weldon.” Hammond’s claim is not supported by the record. At trial, during his cross examination of Weldon, Hammond’s counsel said: “They spent $1,260 on you for food, did they not?” He also asked whether the GBI paid “$74.51 to have you moved?”, whether “they spent $315 for your household expenses?”, and whether the GBI paid “for your lodging that totaled $429.70?”.

Weldon acknowledged that she had been paid about $650, but disclaimed any knowledge of the amount that the GBI had paid to have her moved or for her lodging. For those expenses, she stated that the GBI “didn’t pay me. They paid the hotel fee.” Hammond’s counsel concluded his line of questions by asking: Q. So you got a total, did you not, Miss Weldon, of almost $2500 for your expenses while you were in the witness program, did you not? A. Just like I said, they didn’t show me no papers about no 2,000 and whatever dollars you’re talking about. Q. Well, you don’t have any doubt that that’s inaccurate, do you? A.

Well, I’m sure they didn’t pay that much, because my lawyer took over. As the trial transcript shows, Hammond’s counsel possessed detailed figures about how much money had been spent to support Weldon. He knew her hotel bill and moving expenses down to the pennies, and was aware of the rough total amount of $2,500. He used that information to cross-examine Weldon. The trial transcript shows there was disclosure; there was no suppression.

Because information about the payments to Weldon was not suppressed, Hammond’s related Giglio claim based on Weldon’s alleged lies about the amount of the payments to her also fails. Ford, 546 F.3d at 1331 (“Giglio error, a species of Brady error, occurs when the undisclosed evidence demonstrates that the prosecution’s case included perjured testimony and that the prosecution knew, or should have known, of the perjury.”) (internal quotation marks omitted) (emphasis added). D.

Hammond claims that the State suppressed evidence that it had bullied Phillip Williams into testifying against Hammond after Williams attempted to recant what he had said earlier. Williams testified at trial that he had been incarcerated in the Fulton County jail with Hammond. He told the jury that, after they had become friends, Hammond had offered him $20,000, a car, and assistance with getting a job on the outside if Williams, who was slated for release, would kill Weldon.

Williams further testified that Hammond had shown him pictures of Weldon and had written down his address so that Williams could contact Hammond after they got out of jail. According to Williams, Hammond had said that Weldon needed to be killed “because she knowed too much.” Williams explained that he had gone to the police with the information because he “just didn’t want to see Janice [Weldon] get hurt, knowing she had kids and stuff’ and added that he believed Hammond would carry out his plan to have her killed.

Williams testified that he did not expect anything in return for his testimony against Hammond, although he conceded that he had faded to respond to his subpoena and so had been arrested and held as a material witness for the trial. Eight years after the trial, however, Williams signed an affidavit telling a much different story. In the 1998 affidavit Williams swore that “I had agreed to testify that Emanuel Hammond had offered me money to kill Janice Weldon.

It wasn’t true but at the time I had a very bad heroin addiction and I thought that if I agreed to testify I would get out of jail faster.... ” Williams also claimed that he changed his mind and decided not to testify against Hammond, but the prosecutor had told him that if he refused to testify he would be falsely charged with other crimes and sent to prison. And if he agreed to testify, charges pending against him would be reduced or dropped. Williams said that he had been in heroin withdrawal and just wanted to get the whole thing over with so he could return to the street.

The affidavit does not state that Williams told the prosecutor that his statements incriminating Hammond were false, only that he had changed his mind about testifying and then that the prosecutor had pressured him back into doing it. After comparing Williams’ testimony to his affidavit, the district court found that the affidavit was an after-the-fact fabrication and so refused to give it any weight. District Court Order, at 68-69. The court observed that Williams’ 1998 allegations against the prosecutor were vague.

It also noted that the prosecutor could not have agreed to drop any pending charges against Williams, as the affidavit claimed, because none were pending at that time. Moreover, Williams’ trial testimony against Hammond was corroborated by the handwritten note containing Hammond’s address that had been given to Williams and admitted into evidence at trial. In view of all the facts and circumstances, the district court made a factfinding that the story contained in Williams’ affidavit was a lie. We review the district court’s factfindings only for clear error. United States v.

Hogan, 986 F.2d 1364, 1371 (11th Cir.1993). Hammond has not argued that the district court’s finding that the prosecutor did not bully him into testifying was clear error, and we do not believe it was. As a result, this Brady claim has no factual basis. A prosecutor cannot be required to disclose that he bullied and threatened a witness when he did not. E. Hammond claims that the State suppressed evidence that Phillip Williams also had an extensive criminal record and a history of drug abuse.

He argues that information about Williams’ drug habit and prior convictions could have been used to impeach Williams’ testimony. Again, the record contradicts Hammond’s claim. During Williams’ cross-examination, Hammond’s trial counsel asked him: Q. But you were in [jail] for possession of cocaine, weren’t you? A. Yes. Q. And how often do you use cocaine? A. Once, twice a week. Q. And how long have you used it? A. About two or three years.

Trial counsel also put into evidence certified copies of Williams’ five prior convictions — two convictions for theft, each with a 12-month sentence; a conviction for theft with a 9-month sentence; a conviction for robbery with a 5-year sentence; and a drug conviction with a 2-year sentence. Hammond’s trial counsel obviously had a lot of evidence of Williams’ drug use and prior convictions, and Hammond has not specified what else, if anything, was suppressed. F.

Hammond claims that the State failed to disclose that it sent the sawed-off shotgun it alleged was the murder weapon for forensic comparison to the wadding found by Love’s body.

He offers an inventive conspiracy theory, which goes like this: the State surreptitiously removed the shotgun from the evidentiary exhibits after it had been marked as an exhibit; the State had the shotgun tested; the test revealed that it was not the same shotgun that had fired the wadding found by Love’s body; the State then hid that result from the defense; and to make the cover-up complete, it secretly slipped the shotgun back into evidence.

Thus, Hammond argues that the prosecutor lied when he told the jury that the shotgun was the murder weapon because the prosecutor allegedly knew about the alleged negative result of the alleged forensic test. While this claim may be firmly moored in Hammond’s imagination, it is unmoored from any evidence in the record. His Giglio claim that the prosecutor lied about the shotgun being the murder weapon requires him to demonstrate that the prosecutor knew the shotgun was not the murder weapon. Not only is there no evidence the prosecutor knew that fact, there is also no evidence it was a fact.

And there is plenty of evidence the shotgun was in fact the murder weapon. Julie Love was killed by a blast to the head that was “suggestive of a shotgun wound,” and a shotgun wadding was found in the decaying matter close to the fragments of Julie Love’s skull. That wadding came not just from a 12-gauge shotgun, but from a sawed-off 12-gauge shotgun, precisely the same type of shotgun admitted into evidence. Michael Dominick testified that he had bought that sawed-off 12-gauge shotgun from Hammond, and he identified it by its missing trigger guard and by a string he had attached.

Dominick added that Hammond had brought him the gun “about three or four weeks” before an August 1988 police raid. (Love had been killed in July of that same year.) Porter also identified the shotgun as the one that Hammond had used to murder Love. Hammond himself even acknowledged that he had seen the shotgun before, although he told the jury that it had belonged to Weldon, and that she, not he, had sold it to Dominick. In the hope of countering all of that evidence, Hammond theorizes that a forensic test ruled out the shotgun as the murder weapon by finding that it did not fire the wadding found by Love’s body.

But despite vigorous attempts during the state habeas proceedings, Hammond failed to produce any evidence at all that the shotgun had ever been forensically tested. Forensic investigator Kelly Fite testified, “I see there’s a gun on my report, but I don’t recall the gun, actually.” Nor did Fite have any recollection of doing any tests, or of what later happened to shotgun. Hammond has not shown that the prosecutor’s assertion that the sawed-off shotgun was the murder weapon was a lie. Plenty of evidence supported the assertion that it was the murder weapon and no evidence indicates otherwise.

So all that remains of Hammond’s Brady and Giglio claims about the shotgun is the assertion that the prosecution failed to notify him that it had temporarily removed the shotgun from the court for possible forensic testing. But even that assertion has no factual basis. Just hours after first locating the gun, the prosecutor told the court: “[W]e found the gun yesterday afternoon, found this witness [Dominick] this morning at 10:30. It’s not like we’ve been sitting on a murder weapon ever since the date of the crime, believe me.

Your Hon- or, we also expect there will be evidence from the crime lab technician.” The trial court refused to admit the shotgun into evidence at that time and ordered the prosecutor to put it away so the jury would not see it. Hammond’s counsel was on notice that the shotgun had not been admitted into evidence and that the prosecutor planned to seek forensic testing to connect it to the wadding. The prosecutor did not, as Hammond asserts, “surreptitiously remov[e] the gun from the courtroom in the middle of the trial.” Petitioner’s Brief at 52. The shotgun had not at that point been admitted into evidence.

It was still a State’s exhibit. The prosecutor simply had it sent to the crime lab, after stating in open court that was what he was going to do. The next week, the shotgun returned to the courtroom without any test results being mentioned. The failure to mention any test results is the peg on which Hammond has hung his hat. He argues that the test results must have shown that the shotgun did not fire the wadding found by Love’s body because otherwise the State would have introduced those test results into evidence.

There is not a speck of evidence to show that there was a test indicating whether that sawed-off 12-gauge shotgun was the one that fired the wadding found with Love’s body. Hammond has had an opportunity to find any evidence that there was a test, and what it showed, but he has come up with nothing. Hammond argues that, if the shotgun was not in fact tested, the most likely explanation is that the ballistics expert, Kelly Fite, immediately saw that the wadding was not fired by the shotgun. Hammond could have, but did not, recall Fite to the stand at trial to explain why there were no test results.

Fite was asked about test results during the state habeas evidentiary hearing. He testified that although an intake form showed that the gun had come to his lab, there was no record that it had ever been tested. He said that one possible explanation is that a quick look showed the wadding could not have come from the shotgun. Another explanation, he said, is that no test was possible because the barrel was oxidized (rusted), a condition that prevents matching the striations in a barrel to a wadding.

That explanation is by far the more likely one because just a few days before Fite received the gun, Dominick, who had bought it from Hammond, had testified that the barrel was in fact rusty: Q. I want you to look down the barrel of this weapon, sir, if you will. Is it rusty? A. Yes, sir. There is a perfectly logical explanation in the record, which does not require us to assume a multi-agency conspiracy against Hammond, for the absence of any test results about the gun, negative or otherwise. It was too rusty to test. The record shows it was rusty.

There is no factual anchor for Hammond’s Brady claim about the shotgun. His trial counsel knew that the shotgun would be sent for testing and knew that no test results came back. He actually argued that fact to the jury. In the 19 years since his conviction Hammond has not found a shred of evidence that any test was ever performed on the gun, nor has he offered any explanation for the lack of a test that is remotely as plausible as the rusted barrel preventing any useful test. There is no evidence at all that the prosecutor received exculpatory test results and hid them.

As a fallback request, Hammond seeks to have the shotgun tested now. He argues that the district court abused its discretion in refusing to order testing in view of the state habeas court’s earlier refusal of his similar request. Hammond hopes that despite the poor condition of this sawed-off 12-gauge shotgun with its rusty barrel, there is some chance that a test could show that it is not the sawed-off 12-gauge shotgun that was used to murder Julie Love. Hammond’s request to have the shotgun tested comes years too late. Whatever testing he wants done now he should have asked for at the time of the trial.

He could at least have asked Fite at trial if any testing had been performed. The reason he did not pursue testing is telling. Hammond’s primary strategy at trial was to portray Weldon and Porter as the murderers. Consistent with that strategy, he did not attempt to present any evidence that this shotgun was not the murder weapon. Instead, he took the position that it was the murder weapon but that it belonged to Weldon, who along with Porter had used it to kill Love. Hammond testified this shotgun was not his but he had seen it at Weldon’s house before Love was murdered.

He told the jury that the gun had belonged “to one of her ex-boyfriends or something; some dude she was going with had apparently left it there.” Hammond also testified that at one time he had gone with Weldon to sell the shotgun and had not seen it since. To corroborate Hammond’s story, his counsel called a man named Richard Cody, who testified that he had been present when Weldon, not Hammond, sold the shotgun to Dominick. Cody added that the five rocks of crack cocaine that were given for the gun went to Weldon, not to Hammond.

Hammond’s counsel followed up on his strategy of pinning the murder weapon on Weldon in his closing argument, when he told the jury: “[Y]ou heard Mr. Porter take the stand and say well, I remember that [shotgun] handle. Well, if he remembers the handle it’s because he used it. And then you heard Mr. Cody take the stand and said yes, I was there; Miss Weldon sold this weapon and she’s the one that received the crack cocaine and not Mr. Hammond.” Counsel argued to the jury, in line with his general defense theory, that Weldon and Porter had committed the crime and had framed Hammond.

Though he also noted in passing the lack of forensic testing, the defense argument that Weldon had owned and used the shotgun highlights the weakness of Hammond’s belated position that it was not the murder weapon after all. In keeping with his new position, and to strengthen his argument for testing the shotgun, Hammond’s brief concedes that it was, after all, his: “[T]he truth in this case — that Appellant possessed a saw-off [sic] shotgun that was not the murder weapon — was virtually valueless to the prosecution.” Petitioner’s Brief at 53 (emphasis and internal quotation marks omitted).

At trial Hammond swore it was not his shotgun; now he insists it is. A defendant can change his positions, but he is not entitled to a post-trial fishing expedition to support his new position, which contradicts his own testimony at trial, especially when there is no reason to believe that what he belatedly seeks would be useful. IV.

The remainder of Hammond’s Brady claims do reach the cumulative materiality stage. “[T]he analytical process of gauging materiality begins with determining the force and effect of each individual item of favorable evidence not disclosed to the defense.” Smith, 572 F.3d at 1346; see also Kyles, 514 U.S. at 437 n. 10, 115 S.Ct. at 1567 n. 10 (‘We evaluate the tendency and force of the undisclosed evidence item by item; there is no other way. We evaluate its cumulative effect ... separately.”); Maharaj v.

Sec’y, Dep’t of Corr., 432 F.3d 1292, 1310 (11th Cir.2005) (“[T]he only way to evaluate the cumulative effect is to first examine each piece standing alone.”). That means we size up each piece of evidence before aggregating it and considering the cumulative impact. We then weigh that cumulative impact against the inculpatory evidence presented at trial to decide whether our confidence in the guilty verdict is undermined. Smith, 572 F.3d at 1346-47; see also Kyles, 514 U.S. at 453, 115 S.Ct. at 1575 (“[T]he question is ... whether we can be confident that the jury’s verdict would have been the same.”). A.

Hammond claims that the State suppressed the audiotape of the prosecutor’s pretrial interview with Weldon and Porter. He argues that the tape would have been useful because during that interview Porter said that Weldon herself had removed Love’s earrings, which contradicted Weldon’s statement that Hammond had given them to her later. Weldon’s and Porter’s statements remained inconsistent about the earrings. In his 1998 affidavit, Hammond’s trial counsel stated: “Nor was I provided with the audiotape ... of the joint interview between Mr. Porter and Ms. Weldon conducted by [the prosecutor]....

When I reviewed the State’s file, there were no audiotapes or videotapes in the file.” The State has not responded to Hammond’s allegation that the audiotape was not disclosed. The tape qualifies as impeachment evidence and apparently was suppressed. Accordingly, this claim reaches the materiality stage. However, the “tendency and force,” see Kyles, 514 U.S. at 437 n. 10, 115 S.Ct. at 1567 n. 10, of the statement about the earrings on the tape is not strong. Had the tape been disclosed, it would have revealed that Porter and Weldon disagreed at a pretrial meeting about who had removed Love’s earrings.

But that discrepancy is a detail. It is unsurprising that two accomplices would not have the same recollection about all of the details of what happened during an hours-long crime involving kidnapping, rape, robbery, beatings, and murder. The “tendency and force” of the earring discrepancy by itself is not strong, but it still must be considered cumulatively. B. Hammond claims that the State failed to disclose Christopher Fagin’s account of what happened to Gwendale Turner, who was the man Weldon said in a tape-recorded interview Hammond had shot to death.

In an interview with police, Fagin had said that Weldon and Hammond had robbed Turner and shot him to death. During Hammond’s state habeas action, his trial counsel stated in an affidavit that “Christopher Fagin’s videotaped interview with law enforcement agents regarding the College Park (Gwendale Turner) homicide was also not made available to me.” Hammond claims that had his counsel been armed with Fagin’s accusation, he could have impeached Weldon generally and specifically about her efforts to minimize her criminal background. The State has not denied that the Fagin tape recording was suppressed.

The gist of Fagin’s statements was that in August of 1988, he had been present when Weldon and Hammond hatched a plan to rob one of her Cobra Club customers (now believed to be Turner). Fagin had been at Weldon’s house when Hammond and Turner arrived from the club. Hammond took Fagin into the next room and showed him a .38 pistol and a sawed-off shotgun. Then Hammond, Weldon, and Turner left in Hammond’s car. Shortly thereafter, Fagin heard a gunshot and the car returned. Fagin then helped dump the body, get rid of Turner’s car, and clean the blood out of Hammond’s car.

Although Fagin’s statements implicate Weldon, this is a weak Brady claim because Fagin’s statements largely corroborate Weldon’s own description of the Turner murder, which the jury heard. Weldon’s tape-recorded statement about the incident, which the defense played to the jury at Hammond’s trial, was quite similar to Fagin’s version of what happened. Weldon stated that she met a man (now believed to be Turner) at the club, where he flashed money and tried to pick her up. She described returning to her house, where Fagin was, then leaving her house with Hammond and Turner but without Fagin.

She said that she was driving when Hammond, riding in the back, suddenly shot Turner with a sawed-off shotgun. She said that she then returned to the house and cleaned up her clothes. She explained that Fagin and Hammond had returned to the body to remove Turner’s shirt, which had his name on it, and to take his money. Hammond claims that Fagin’s statements show that Weldon lured Turner to his death and actively participated in his murder. In fact, that is also a fair characterization of Weldon’s own statements: she lured Turner to his death at the hands of Hammond and participated in the murder as the driver.

To the extent that Hammond’s goal was to impeach Weldon by showing that she had been involved in violent crimes before, Fagin’s statements hardly add anything to Weldon’s own admissions. Further, Fagin’s statements also would have provided strong inculpatory evidence against Hammond. If they had been introduced at trial, those statements would have corroborated Weldon’s otherwise uncorroborated account of Hammond murdering Turner. Because the effect of Fagin’s statements would have been as harmful as helpful to the defense, we have some question whether they can accurately be described as favorable.

See Johnson v. Alabama, 256 F.3d 1156, 1189 (11th Cir.2001) (“[T]he evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching ... ”) (quoting Strickler, 527 U.S. at 281, 119 S.Ct. at 1948). Even assuming that they can be considered favorable to Hammond, the balance of the opposing effects of Fagin’s statements is not much in Hammond’s favor. The suppressed statements will have little “tendency and force” in undermining the State’s case at the materiality stage. See Kyles, 514 U.S. at 437 n. 10, 115 S.Ct. at 1567 n. 10. C.

Hammond claims that the State failed to disclose that Weldon had been given broad immunity against prosecution for her crimes. He concedes that his trial counsel knew that Weldon had received immunity in the Love case, but argues that he had not been told that Weldon would not be prosecuted for her alleged role in the crimes against Ellen or for her admitted role in the Turner murder.

In support of this claim, Hammond presents an affidavit from Weldon’s attorney affirming that: “It was [his] further understanding that [Weldon] would not be prosecuted in either DeKalb County or Fulton County for any other potential criminal charges arising from incidents about which she provided information to the State.” Hammond’s trial counsel stated that he was not aware “of the precise nature and scope of the immunity agreement” entered into by Weldon. In response, the State asserts only that the suppressed immunity agreements covering the crimes against Ellen and Turner are not material.

As to the “tendency and force” of Weldon’s immunities, Kyles, 514 U.S. at 437 n. 10, 115 S.Ct. at 1567 n. 10, generally speaking if an important witness has received immunity, that is a significant fact. The Supreme Court has held that the government’s failure to disclose that it had promised immunity to its most important witness is material and requires a new trial, at least where the case depends almost entirely on that witness’ testimony. Giglio, 405 U.S. at 154-55, 92 S.Ct. at 766; see also Moore v.

Kemp, 809 F.2d 702, 720 (11th Cir.1987) (remanding the case to the district court for an evidentiary hearing to determine if the key government witness had been promised immunity). However, it is not the case that every immunity agreement, or the scope of the immunity promised, is always material by itself. See United States v. Burroughs, 830 F.2d 1574, 1579 (11th Cir.1987) (“Materiality is a function of the strength of the government’s case.... In Giglio, the weakness of the government’s case played an important role in the Supreme Court’s decision.”).

Although Weldon was a key State witness, her testimony was supported by Porter’s equally important testimony, along with that of Dominick and Williams, as well as physical evidence in the form of the body, the earrings, the bank cards, the shotgun, and the wadding. Further, the jury knew of Weldon’s immunity for the case at hand, in which she played a significant accomplice’s role in a multi-hour kidnapping, beating, robbery, rape, and murder.

During his closing argument, the defense counsel stated: Now, [Weldon]’s gone in and said I want to tell you all this and the State says well, we’re not going to prosecute you. Why? Wasn’t she involved? Wasn’t she there? By her own admission? Didn’t she sell the earrings? Didn’t she see Mr. Porter rape poor Julie Love[?] ... So, it was not just brought out to the jury, but also stressed, that Weldon had gained a great deal from her testimony against Hammond. As for her immunity in the Turner and Ellen cases, Weldon’s testimony about them was minimal. She testified only briefly about the crimes against Ellen.

She did not testify at all about the Turner incident, which was brought up by the defense and never mentioned by the prosecution. Finally, there is no evidence that Weldon’s immunity in the Turner and Ellen cases stemmed from her agreement to testify against Hammond in the Love case; it is just as likely that any immunity she received for those cases was negotiated in return for her telling the police what she knew about those crimes. Central to this materiality question is the fact that the jury knew Weldon was receiving a get out of jail free card in exchange for testifying against Hammond in the Love case.

The jury knew that she had a powerful incentive to do the State’s bidding and testify against Hammond. See Alderman v. Zant, 22 F.3d 1541, 1554 (11th Cir.1994) (“[T]he thrust of Giglio and its progeny has been to ensure that the jury know the facts that might motivate a witness in giving testimony.”); Haber v. Wainwright, 756 F.2d 1520, 1524 n. 8 (11th Cir.1985) (noting that promises of leniency for a State’s witness may create “a greater incentive for the witness to try to make his testimony pleasing to the prosecutor”) (citation omitted).

Because of the strength of the case against Hammond, and because the jury already knew of Weldon’s immunity for all the crimes against Julie Love, we cannot say that the fact she received immunity in the Turner case (about which she did not actually testify) and in Ellen’s case (about which there are only suspicions, not direct evidence, that she was involved) weighs heavily in the materiality scale. It certainly is not material by itself. Of course, we will consider this evidence along with the other suppressed evidence at the cumulative materiality stage. D.

Hammond claims that the State failed to disclose the results of the GBI’s forensic tests. Before the trial the GBI had tested the interior of Hammond’s Cutlass for blood. The test result stated: “Examination of the interior of the car (item 17) and piece of upholstery (item 32) fails to reveal the presence of blood.” According to Hammond, that evidence suggests that Love was never in Hammond’s car and that Turner was not murdered in the car as Weldon had claimed (on the tape that the defense played to the jury).

The State does not dispute that the forensic report was suppressed and argues only that it is not material. As to its “tendency and force,” Kyles, 514 U.S. at 437 n. 10, 115 S.Ct. at 1567 n. 10, Porter testified that when Hammond threw Love into the back seat and beat her, he hit her only in the center of her back and used only the side of the barrel of his shotgun. Porter testified that there was no blood. Thus, a test result showing no blood on the upholstery of Hammond’s car is consistent with Porter’s testimony. The test result has little or no value as evidence for the defense.

As for Gwendale Turner, Weldon stated in her taped police interview that Hammond had taken the car to a carwash to get the blood out. And the car was not examined for a full year after the shooting. Beyond that, the Turner murder was not part of the State’s evidence against Hammond. The only reason the Turner murder came up was that the defense chose to play the tape of Weldon’s description of the killing. No one was on trial for killing Turner, and even if the forensic evidence tended to disprove Weldon’s version of Turner’s death, it was nothing more than impeachment evidence on a collateral matter.

See generally Fed.R.Evid. 608 (forbidding impeachment by extrinsic evidence on collateral matters). Insofar as this evidence cast doubt on whether Hammond murdered Turner in the way Weldon described it in the tape recording, it would have done the defense little good in this case. For these reasons, the suppressed evidence of the negative blood tests is not material by itself but will be considered at the cumulative materiality stage. E.

Hammond claims that the State failed to disclose evidence that a serial killer, James Richard Conner, had confessed to killing Julie Love and passed a polygraph examination about it. Conner told the police that he and another man had kidnapped and killed a woman he believed was Julie Love. He claimed that they had shot Love with a .38 caliber pistol and then dumped her body into a stream bed on a county line near Lake Hartwell. Conner told police all of this in April 1989, and a search and excavation of the area where Conner said he had left the body turned up nothing.

The State does not dispute that Conner’s confession was suppressed but instead argues that because the statements were demonstrably false, failing to disclose them did not violate Brady. Assuming otherwise, we evaluate the statement for materiality. As to the “tendency and force” of Conner’s confession, see Kyles, 514 U.S. at 437 n. 10, 115 S.Ct. at 1567 n. 10, it is obvious that Conner was wrong about having participated in the murder of Julie Love. He was completely wrong about every important fact that he shared with police.

Forensic analysis of Love’s remains suggested that she was shot not with a .38 as Cornier said, but instead with a shotgun, as Porter testified. Her body was dumped not in a stream bed on the county line near Lake Hartwell, as Conner said, but instead on a trash pile in a different part of Atlanta, where Porter led police. That Porter was able to take police to the body, and Conner was not, proves that Porter knew what he was talking about while Conner did not. As the district court properly found, “there is no credibility to Conner’s story.” District Court Order, at 73.

The bald assertion that someone else confessed to killing Love can be favorable to the defense. But a demonstrably false confession such as Conner’s probably is not. Even assuming it is “favorable” for Brady purposes it is only barely so and is of negligible weight in the materiality scale. Cf. Smith, 572 F.3d at 1344 (finding that a police report “was favorable to [the petitioner], although barely ... [and] evidence of it should be considered in the cumulative materiality analysis, even though it will not help [the petitioner] much”).

We will consider it for what little weight it has at the cumulative materiality stage. F. Hammond claims that the State failed to disclose evidence casting suspicion on Julie Love’s boyfriend, Mark Kaplan. Hammond alleges that police knew that Kaplan’s alibi for the night of Love’s disappearance was false, that he had been seen siphoning gas from Love’s car, had been sexually involved with other women, had later discouraged investigative efforts, and had lied to police when he said that he and Love were engaged and that she often ran out of gas.

Although the State does not dispute that certain information along these lines was not disclosed, the district court correctly found that Hammond overstated it. District Court Order, at 74. The record, as cited by Hammond, does not support his allegation that Kaplan was not engaged to Love and that he was sexually involved with other women at the time. Nor does it show that he tried to subvert the police investigation into Love’s disappearance.

Nor does it show that he lied when he said that Love often ran out of gas; in fact, another friend of Love’s told police that a neighbor had driven Love to the gas station twice before. As for the gas siphoning, that allegation rests entirely on an anonymous tip phoned in to a television station a month after Love disappeared; it was evidently never substantiated by the police. For all the record shows, it could have been phoned in by one of Hammond’s friends or family members. Anonymous tips are not admissible into evidence to prove the truth of the matter stated in the tip. See, e.g., Miles v.

Bums, 54 F.3d 284, 288 (7th Cir.1995) (holding that a witness’ “testimony about the content of the anonymous tip was inadmissible hearsay”). As for Kaplan’s alibi being “false,” the truth is that the gym where Kaplan said he had been the night Julie Love disappeared simply did not have a record of his being there. Assuming that all of these allegations of information about Kaplan are “favorable” to the defense in the Brady sense, they have little “tendency and force” to help the defense. See Kyles, 514 U.S. at 437 n. 10, 115 S.Ct. at 1567 n. 10.

Some of the alleged information is not supported by the record cites that Hammond provides for it, some of it, like the anonymous tip, is not trustworthy in the least, and the rest of it does not amount to much. Overwhelming evidence connects Weldon and Porter, and through them Hammond, to the crime. And there is no evidence suggesting that Kaplan has any connection to Weldon or Porter. The alleged information about Kaplan is not entitled to much weight when we get to the cumulative materiality stage. See Smith, 572 F.3d at 1344. G. Six Brady claims have reached the cumulative materiality stage.

They are: (1) an inconsistency between Porter and Weldon’s stories as to who removed Love’s earrings;

(2) Chris Fagin’s statements implicating Weldon as a participant in the murder of Gwendale Turner, although Weldon already had implicated herself in it by her own taped statement, which the jury heard;

(3) Weldon’s receipt of immunity for the Ellen and Turner crimes, in addition to her immunity for the Love murder, which the jury knew about; (4) the forensic report that showed no blood in Hammond’s car more than a year after the Love murder; (5) the demonstrably false confession of a serial killer; and (6) a collection of miscellaneous information that supposedly casts suspicion on Mark Kaplan. Our task is to consider the aggregate effect of all of that undisclosed evidence and compare it to the inculpatory evidence presented at trial.

Smith, 572 F.3d at 1347 (discussing balancing the weight of evidence favoring the prosecution with the new weight of evidence favoring the defense). In that manner we decide whether our confidence in the guilty verdict is undermined — whether there is a reasonable probability that, given the exculpatory or impeaching evidence, a jury would have acquitted Hammond.

Id. (citing Kyles, 514 U.S. at 453, 115 S.Ct. at 1575). “Of course, the stronger the evidence of guilt to begin with, the more favorable to the defense the undisclosed evidence will have to be to create a reasonable probability that a jury would have acquitted had the evidence been disclosed.” Smith, 572 F.3d at 1347. The evidence against Hammond was powerful.

At oral argument even Hammond’s present counsel admitted that the evidence presented against him was “extraordinarily strong” and added that she did “not believe there is an attorney in Georgia who would say that that was a weak case of guilt.” That is an understatement. We agree with the state trial court and the district court, both of which characterized the evidence against Hammond as “overwhelming.” Hammond II, 452 S.E.2d at 748 (quoting the trial court); District Court Order at 76-77. Weldon and Porter told appropriately congruent stories.

Their stories checked out — the bank cards had been found where Porter said the bank machines swallowed them; Love’s earrings were found through the pawn shop where Weldon said she had sold them. Both Weldon and Porter described Hammond as carrying a sawed-off shotgun that night, and Porter said it was the weapon Hammond used to kill Love; the wadding found by Love’s body was fired from a sawed-off shotgun. Porter led police to the area where they found the body. They knew that Love had been shot in the head, execution style.

It is undeniable that Porter and Weldon were involved in the crime, as they testified that they and Hammond were. There was also plenty of additional, separate evidence that corroborated Porter’s and Weldon’s stories and pointed to Hammond as the ringleader. One surviving woman, Trinh, whose story was similar enough to Love’s to be admissible against Hammond, told how he had kidnapped, assaulted, and robbed her. Hammond openly admitted that he had been involved in two different abductions of women and had gone to prison for one of them.

Another woman, Ellen, testified that Hammond had robbed, raped, stabbed, and left her for dead in the same area where Love’s body was later found and just two months before Love disappeared. Michael Dominick testified that Hammond sold him a sawed-off 12-gauge shotgun around the time of Love’s disappearance; Porter identified that gun as the one Hammond had used to kill Love; and the wadding found with her body came from a 12-gauge, sawed-off shotgun. Phillip Williams also testified that Hammond, while in jail later for assaulting Weldon, tried to pay him to kill Weldon because she knew too much.

Against this mountain of inculpatory evidence, we weigh the cumulative impact of the undisclosed evidence favorable to the defense to decide whether our confidence in the guilty verdict is undermined. Smith, 572 F.3d at 1347. There are three basic categories of that suppressed evidence: evidence impeaching Weldon, evidence of other perpetrators, and forensic evidence. We will look at the impact of each category and then combine those impacts.

Weldon could have been impeached in some small measure by the inconsistency about how she came to have Julie Love’s earrings, and the fact that she had received immunity beyond her serious crimes against Love, and possibly even by Fagin’s statement about the Turner murder, which was not a part of the State’s case against Hammond. But that is not much impeachment in light of all the evidence and given all the corroboration of Weldon’s damning testimony against Hammond. Fagin’s statement, and perhaps the immunity she received for her participation in other crimes, does show that Weldon is a criminal.

But that fact was glaringly apparent to anyone who sat through the trial. Hammond’s counsel presented testimony that Weldon, who was a stripper, had sold a sawed-off shotgun to a drug dealer for five rocks of crack cocaine. Weldon herself admitted that she had known about the crimes against Ellen, which she and Hammond believed had been a murder, yet she had done nothing about it. In a taped statement she admitted a role in the robbery and murder of Gwendale Turner; she told of luring him into a robbery which led to his murder by Hammond.

Weldon admitted that she had driven the car during the Love kidnapping, and for hours had served as one of Love’s captors. She did nothing to help Love escape from what she knew was likely to be death at Hammond’s hands. She admitted rifling through Love’s purse, robbing her, and standing by while Porter raped her. She admitted that she sold Love’s earrings. She admitted that she never would have turned in Hammond but for the realization that he was going to kill her too. Everyone knew Weldon was bad. The jury knew she had participated in violent crimes before.

The jury knew she had received immunity for the kidnapping, robbery, and murder of Julie Love. The jury knew she had been paid for her testimony. The additional details that would have been provided by the undisclosed evidence about the earrings, Fagin’s statement concerning Weldon’s role in the Turner murder, and the immunity she received for other crimes, for which no one had been charged, would have been raindrops in th

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