Felker v. Thomas, 52 F.3d 907 (11th Cir. 1995). · Go Syfert
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Felker v. Thomas, 52 F.3d 907 (11th Cir. 1995). Cases Citing This Book View Copy Cite
“we have held numerous times that there is no suppression, and thus no brady violation, if either the defendant or his attorney knows before trial of the allegedly exculpatory information.”
72 citation events (26 in the last 25 years) across 11 distinct courts.
Strongest positive: Armey v. Secretary, Department of Corrections (flmd, 2022-09-23)
Treatment trajectory · 1995 → 2026 · click a year to view as-of
1995 2010 2026
Top citers, strongest first. 34 distinct citers. How cited ↗
discussed Cited as authority (verbatim quote) Armey v. Secretary, Department of Corrections
M.D. Fla. · 2022 · quote attribution · 1 verbatim quote · confidence high
we have held numerous times that there is no suppression, and thus no brady violation, if either the defendant or his attorney knows before trial of the allegedly exculpatory information.
discussed Cited as authority (verbatim quote) United States v. Holman, Freeman
7th Cir. · 2002 · signal: see also · quote attribution · 1 verbatim quote · confidence high
rial counsel may not concede the guilt of a defendant who has pleaded not guilty, at least not without the defen- 8 no. 01-1535 dant's consent. that is true enough as to the guilt stage.
discussed Cited as authority (rule) Ball v. United States
M.D. Fla. · 2024 · confidence medium
See Chandler, 218 F.3d at 1314 n. 14 (holding that counsel is not ineffective for choosing to make certain strategic decisions at sentencing and choosing not to make other arguments); Felker v. Thomas, 52 F.3d 907, 912 (11th.
discussed Cited as authority (rule) Maurice v. United States
S.D. Fla. · 2021 · confidence medium
The Eleventh Circuit has “held numerous times that there is no suppression, and thus no Brady violation, if either the defendant or his attorney knows before trial of the allegedly exculpatory information.” Felker v. Thomas, 52 F.3d 907, 910 (11th Cir. 1995).
discussed Cited as authority (rule) William Avery v. City of Milwaukee
7th Cir. · 2017 · confidence medium
See, e.g., Fullwood v. Lee, 290 F.3d 663, 686 (4th Cir. 2002); West v. Johnson, 92 F.3d 1385, 1399 (5th Cir. 1996); Felker v. Thomas, 52 F.3d 907, 910 (11th Cir.), opinion supplemented on denial of reh’g, 62 F.3d 342 (11th Cir. 1995); United States v. Dias, 922 F.2d 998, 1007 (2d Cir. 1990); Atkins v. County of Riverside, 151 Fed.Appx. 501 , 505 n.4 (9th Cir. 2005) (citing Gauger, 349 F.3d 354 ); see also United States v. Agurs, 427 U.S. 97, 103 , 96 S.Ct. 2392 , 49 L.Ed.2d 342 (1976) (stating that Brady applies to “information which had been known to the prosecution but unknown to the def…
discussed Cited as authority (rule) Moody v. Thomas
N.D. Ala. · 2015 · confidence medium
Evidence is not considered to have been suppressed if “the evidence itself ... proves that [the petitioner] was aware of the existence of that evidence before trial.” Felker v. Thomas, 52 F.3d 907, 910 (11th Cir.1995).
discussed Cited as authority (rule) Anthony Boyd v. Commissioner, Alabama Department of Corrections
11th Cir. · 2012 · confidence medium
Evidence is not considered to have been suppressed if “the evidence itself ... proves that [the petitioner] was aware of the existence of that evidence before trial.” Felker v. Thomas, 52 F.3d 907, 910 (11th Cir.1995).
discussed Cited as authority (rule) Magwood v. Jones
M.D. Ala. · 2007 · confidence medium
In reaching this conclusion, the court relied on Felker v. Thomas, 52 F.3d 907 (11th Cir.1995), which held that “there is no suppression, and thus no Brady violation, if either the defendant or his attorney knows before trial of the allegedly exculpatory information.” Id. at 910.
discussed Cited as authority (rule) Gerald Ross Pizzuto, Jr. v. A.J. Arave, Warden (2×)
9th Cir. · 2004 · signal: cf. · confidence medium
Cf. Felker v. Thomas, 52 F.3d 907, 911-13 (11th Cir.1995) (finding that counsel was not ineffective for failing to resort to a "residual doubt" strategy when the sentencing jury had just found the defendant guilty), opinion supplemented on denial of rehearing, 62 F.3d 342 (11th Cir.1995), cert. denied, 516 U.S. 1133 , 116 S.Ct. 956 , 133 L.Ed.2d 879 (1996).
discussed Cited as authority (rule) Gary Gauger v. Beverly Hendle
7th Cir. · 2004 · confidence medium
See Buie v. McAdory, 341 F.3d 623, 625-26 (7th Cir.2003); Fullwood v. Lee, 290 F.3d 663, 685-86 (4th Cir.2002); West v. Johnson, 92 F.3d 1385, 1399 (5th Cir.1996); Felker v. Thomas, 52 F.3d 907, 910 (11th Cir.1995); United States v. Diaz, 922 F.2d 998, 1007 (2d Cir.1990).
discussed Cited as authority (rule) Gauger, Gary A. v. Hendle, Beverly
7th Cir. · 2003 · confidence medium
See Buie v. McAdory, 341 F.3d 623, 625-26 (7th Cir. 2003); Fullwood v. Lee, 290 F.3d 663, 685-86 (4th Cir. 2002); West v. Johnson, 92 F.3d 1385, 1399 (5th Cir. 1996); Felker v. Thomas, 52 F.3d 907, 910 (11th Cir. 1995); United States v. Diaz, 922 F.2d 998, 1007 (2d Cir. 1990).
discussed Cited as authority (rule) Brown v. Crosby
S.D. Fla. · 2003 · confidence medium
For example, calling some witnesses and not others is ‘the epitome of a strategic decision.’ Id. at 1512 (en banc); see also id. at 1518-19 (en banc); Felker v. Thomas, 52 F.3d 907, 912 (11th Cir.1995) (whether to pursue residual doubt or another defense is strategy left to counsel, which court must not second-guess); Stanley v. Zant, 697 F.2d 955, 964 (11th Cir.1983) (stating that reliance on line of defense to exclusion of others is matter of strategy)- Chandler, 218 F.3d at 1314 n. 14.
discussed Cited as authority (rule) Gerald Ross Pizzuto, Jr. v. A.J. Arave, Warden (2×)
9th Cir. · 2002 · signal: cf. · confidence medium
Cf. Felker v. Thomas, 52 F.3d 907, 911-13 (11th Cir.1995) (finding that counsel was not ineffective for failing to resort to a "residual doubt" strategy when the sentencing jury had just found the defendant guilty), opinion supplemented on denial of rehearing, 62 F.3d 342 (11th Cir.1995), cert. denied, 516 U.S. 1133 , 116 S.Ct. 956 , 133 L.Ed.2d 879 (1996).
cited Cited as authority (rule) McCoy, Anthony v. Gilbert, James R.
7th Cir. · 2001 · confidence medium
Because Felker raised a prior challenge to his conviction and his sentence, 52 F.3d at 909, we reasoned that there was no unfairness in applying the new law to Felker’s second petition.
discussed Cited as authority (rule) David Ronald Chandler v. United States (2×)
11th Cir. · 2000 · confidence medium
For example, calling some witnesses and not others is "the epitome of a strategic decision." Id. at 1512 (en banc); see also id. at 1518-19 (en banc); Felker v. Thomas, 52 F.3d 907, 912 (11th Cir.1995) (whether to pursue residual doubt or another defense is strategy left to counsel, which court must not second-guess); Stanley v. Zant, 697 F.2d 955, 964 (11th Cir.1983) (stating that reliance on line of defense to exclusion of others is matter of strategy). 15 The presumption impacts on the burden of proof and continues throughout the case, not dropping out just because some conflicting evidence…
discussed Cited as authority (rule) Smith v. Gibson
10th Cir. · 1999 · confidence medium
See, e.g., Tarver v. Hopper, 169 F.3d 710, 715-16 , 715 n. 7 (11th Cir.1999); Felker v. Thomas, 52 F.3d 907, 912 (11th Cir.), opinion supplemented on denial of reh’g on other grounds, 62 F.3d 342 (11th Cir.1995).
discussed Cited as authority (rule) Chandler v. United States
11th Cir. · 1999 · confidence medium
For example, calling some witnesses and not others is “the epitome of a strategic decision.” Id. at 1512 (en banc); see also id. at 1518-19 (en banc); Felker v. Thomas, 52 F.3d 907, 912 (11th Cir. 1995) (whether to pursue residual doubt or another defense is strategy left to counsel, which court must not second-guess); Stanley v. Zant, 697 F.2d 955, 964 (11th Cir. 1983) (stating that reliance on line of defense to exclusion of others is matter of strategy). 14 exercise of reasonable professional judgment.” Strickland, 104 S. Ct. at 2065-66 ; accord Williams v. Head, 185 F.3d 1223 , 1227-…
discussed Cited as authority (rule) Chandler v. United States
11th Cir. · 1999 · confidence medium
For example, calling some witnesses and not others is "the epitome of a strategic decision." Id. at 1512 (en banc); see also id. at 1518-19 (en banc); Felker v. Thomas, 52 F.3d 907, 912 (11th Cir.1995) (whether to pursue residual doubt or another defense is strategy left to counsel, which court must not second-guess); Stanley v. Zant, 697 F.2d 955, 964 (11th Cir.1983) (stating that reliance on line of defense to exclusion of others is matter of strategy). 15 The presumption impacts on the burden of proof and continues throughout the case, not dropping out just because some conflicting evidence…
discussed Cited as authority (rule) Frierson v. Calderon
C.D. Cal. · 1997 · confidence medium
However, when “a defendant has enough information to be able to ascertain the supposed Brady material on his own, there is no suppression by the government.” United States v. Aichele, 941 F.2d 761, 764 (9th Cir.1991) (citing United States v. Dupuy, 760 F.2d 1492 , 1501 n. 5 (9th Cir.1985)); see also United States v. Bracy, 67 F.3d 1421, 1428-29 (9th Cir.1995)(finding government’s “disclosure provided all the information necessary for the defendants to discover the alleged Brady material on their own, so the government was not guilty of suppressing any evidence favorable to [petitioner]…
examined Cited as authority (rule) In Re: Billy Joe Magwood (3×) also: Cited "see"
11th Cir. · 1997 · confidence medium
Felker v. Thomas, 52 F.3d 907, 910 (11th Cir.), opinion supplemented on denial of reh’g, 62 F.3d 342 (11th Cir.1995), cert. denied, — U.S. -, 116 S.Ct. 956 , 133 L.Ed.2d 879 (1996).
examined Cited as authority (rule) Felker v. Turpin (3×) also: Cited "see"
11th Cir. · 1996 · confidence medium
Felker v. Thomas, 52 F.3d 907, 908 (11th Cir.), extended on denial of rehearing, 62 F.3d 342 (11th Cir. 1995), cert. denied, 116 S. Ct. 956 (1996); Felker v. State, 252 Ga. 351, 364-65 , 314 S.E.2d 621, 635-36 , cert. denied, 469 U.S. 873 , 105 S. Ct. 229 (1984).
examined Cited as authority (rule) Ellis Wayne Felker v. Tony Turpin, Warden, Georgia Diagnostic and Classification Center (3×) also: Cited "see"
11th Cir. · 1996 · confidence medium
Felker v. Thomas, 52 F.3d 907, 908 (11th Cir.), extended on denial of rehearing, 62 F.3d 342 (11th Cir.1995), cert. denied, — U.S. -, 116 S.Ct. 956 , 133 L.Ed.2d 879 (1996); Felker v. State, 252 Ga. 351, 364-65 , 314 S.E.2d 621, 635-36 , cert. denied, 469 U.S. 873 , 105 S.Ct. 229 , 83 L.Ed.2d 158 (1984).
examined Cited as authority (rule) Felker v. Turpin (3×) also: Cited "see"
11th Cir. · 1996 · confidence medium
Felker v. Thomas, 52 F.3d 907, 908 (11th Cir.), extended on denial of rehearing, 62 F.3d 342 (11th Cir.1995), cert. denied, --- U.S. ----, 116 S.Ct. 956 , 133 L.Ed.2d 879 (1996); Felker v. State, 252 Ga. 351, 364-65 , 314 S.E.2d 621, 635-36 , cert. denied, 469 U.S. 873 , 105 S.Ct. 229 , 83 L.Ed.2d 158 (1984).
discussed Cited as authority (rule) Ellis Wayne Felker v. Tony Turpin, Warden, Georgia Diagnostic and Classification Center
11th Cir. · 1996 · confidence medium
When that evidence is combined with other evidence of Felker’s guilt, including the remarkable similarities between this crime and a similar crime he had committed and been convicted for earlier, see Felker v. Thomas, 52 F.3d at 908, we readily conclude that Felker has not shown that but for the alleged constitutional violation of permitting Warren Tillman to offer his opinion as to the time of death, it is more likely than not that no reasonable juror would have convicted him.
examined Cited as authority (rule) Ellis Wayne Felker v. Albert G. Thomas, Warden (4×)
11th Cir. · 1995 · confidence medium
Felker, 52 F.3d at 910-11.
discussed Cited "see" United States v. Salomon E. Melgen
11th Cir. · 2020 · signal: see · confidence high
See Felker v. Thomas, 52 F.3d 907, 910 (11th Cir. 1995) (no Brady violation where the defendant knows or should have known of the allegedly exculpatory information before trial). 21 Case: 18-10991 Date Filed: 07/31/2020 Page: 22 of 25 “new” evidence was merely evidence that might, at best, have been used as weak impeachment evidence against the government’s witnesses.
cited Cited "see" Muff v. Dragovich
3rd Cir. · 2009 · signal: see · confidence high
See Felker v. Thomas, 52 F.3d 907, 911 (11th Cir.1995) (“[Tjrial counsel may not concede the guilt of a defendant who has pleaded not guilty, at least not without the defendant’s consent.
cited Cited "see" Johnson v. Nagle
N.D. Ala. · 1999 · signal: see · confidence high
See Felker, 52 F.3d at 910. 3.
discussed Cited "see" Thompson v. Nagle
11th Cir. · 1997 · signal: see · confidence high
See Felker v. Thomas, 52 F.3d 907, 909 (11th Cir.) (citing Jackson, 443 U.S. at 319 , 99 S.Ct. at 2789 ), opinion supplemented on denial of rehearing by 62 F.3d 342 (11th Cir.1995), cert. denied, — U.S. -, 116 S.Ct. 956 , 133 L.Ed.2d 879 (1996).
discussed Cited "see" Thompson v. Nagle
11th Cir. · 1997 · signal: see · confidence high
See Felker v. Thomas, 52 F.3d 907, 909 (11th Cir.) (citing 10 Jackson, 443 U.S. at 319 ), opinion supplemented on denial of rehearing by 62 F.3d 342 (11th Cir. 1995), cert. denied, 116 S.Ct. 956 (1996).
cited Cited "see" Felker v. Turpin
11th Cir. · 1996 · signal: see · confidence high
See Felker v. Thomas, 52 F.3d 907, 913 (11th Cir.), extended on denial of rehearing, 62 F.3d 342 (11th Cir. 1995), cert. denied, 116 S.Ct. 956 (1996).
cited Cited "see" Ellis Wayne Felker, Larry Grant Lonchar v. Tony Turpin, Wayne Garner, John Doe
11th Cir. · 1996 · signal: see · confidence high
See Felker v. Thomas, 52 F.3d. 907, 913 (11th Cir.), extended on denial of rehearing, 62 F.3d 342 (11th Cir.1995), cert. denied, — U.S. -, 116 S.Ct. 956 , 133 L.Ed.2d 879 (1996).
cited Cited "see" Felker v. Turpin
11th Cir. · 1996 · signal: see · confidence high
See Felker v. Thomas, 52 F.3d 907, 913 (11th Cir.), extended on denial of rehearing, 62 F.3d 342 (11th Cir.1995), cert. denied, --- U.S. ----, 116 S.Ct. 956 , 133 L.Ed.2d 879 (1996).
discussed Cited "see, e.g." United States v. Freeman Holman
7th Cir. · 2003 · signal: see also · confidence medium
As we said in Simone , “[w]e do not approve of a defense counsel’s deliberate, explicit admission that a jury should find his client guilty of a charge in the absence of any suggestion that the defendant concurred in the decision to proceed in such a manner.” 931 F.2d at 1197 ; see also Felker v. Thomas, 52 F.3d 907, 911 (11th Cir.1995) (“[T]rial counsel may not concede the guilt of a defendant who has pleaded not guilty, at least not without the defendant’s consent.
Retrieving the full opinion text from the archive…
Felker
v.
Thomas
94-8224.
Court of Appeals for the Eleventh Circuit.
May 8, 1995.
52 F.3d 907
Cited by 36 opinions  |  Published
United States Court of Appeals,

Eleventh Circuit.

No. 94-8224.

Ellis Wayne FELKER, Petitioner-Appellant,

v.

Albert G. THOMAS, Warden, Respondent-Appellee.

Aug. 9, 1995.

Appeal from the United States District Court for the Middle
District of Georgia. (No. 93-171-3-MAC(WDO), Wilbur D. Owens, Jr., Judge.

ON PETITION FOR REHEARING
AND SUGGESTION OF
REHEARING EN BANC

Before BIRCH, BLACK and CARNES, Circuit Judges.

PER CURIAM:

Because no member of this panel nor any other judge in regular active service on this Court has requested that this Court be polled about the suggestion of rehearing en banc (Fed.R.App.P. 35; 11th Cir.R. 35-5), that suggestion is denied, as is the petition for rehearing. However, the initial panel opinion, published at 52 F.3d 907 (11th Cir.1995), is extended as follows:

In his petition for rehearing, Felker argues that we have failed to give proper deference to the state court factfindings relating to the Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), issue. We affirmed the denial of relief as to the Brady claim on two independently adequate grounds. One was that Felker had not established, and cannot establish, that the evidence in question was suppressed, because if that evidence is true, Felker himself was aware of it before trial. None of the state court factfindings is in any way inconsistent with that independently adequate basis for denying relief on the claim.

Felker's arguments about the state court factfindings go only to our alternative holding that the allegedly suppressed evidence was immaterial, anyway. Felker, 52 F.3d at 910-11. We stated in our opinion that Felker's alibi for Wednesday, November 25, 1981, began when the police arrived at his house, which was at 7:00 p.m. Id. at 909-10. As Felker points out, one part of the Georgia Supreme Court's opinion, which did not address the Brady issue, states that the police arrived at Felker's house that evening at "approximately 5:30 p.m." Felker v. State, 252 Ga. 351, 314 S.E.2d 621, 627 (1984). We were bound to accept that factfinding as correct unless we concluded that it is not "fairly supported by the record." Sumner v. Mata, 449 U.S. 539, 550, 101 S.Ct. 764, 770, 66 L.Ed.2d 722 (1981). That is exactly what we concluded, albeit implicitly.

Our examination of the record revealed that there were only three witnesses who testified concerning the time the police officers arrived at Felker's house on Wednesday, November 25, 1981. Two were detectives. Detective Pond testified that he was initially informed about the case at the police station at about 5:30 or 6:00 p.m. that night. He also testified that he did not have a record of the time that he and detective Upshaw had arrived at Felker's house, but he thought that it was about 5:30 or 6:00 p.m. that evening. However, when Felker's attorney asked Detective Pond during cross-examination if it could have been nearer to 7:00 p.m. that evening when they arrived at Felker's house, Detective Pond testified: "I guess it's a possibility because I can't recall the exact time." By contrast, Detective Upshaw had no problem recalling the exact time that he and Detective Pond went to Felker's house. During cross-examination by Felker's attorney he testified as follows:

BY MR. HASTY:

Q: Sergeant Upshaw, I believe the night that you did this investigation, November the 25th, that was right at seven p.m. you went to Mr. Felker's house?

A: Yes, sir.

Q: And you're positive of the time?

A: Yes, sir. 7:02 to be exact.

Q: 7:02?

A: Yes, sir, because we called it out on the radio, police radio; went back and checked the log. The only other witness to testify about the arrival of the detectives was Felker himself. He stated that he did not know when the detectives arrived that evening, except that it was after dark.

Having carefully considered all of the evidence on the issue, we find that the Georgia Supreme Court's statement that the two officers arrived at Felker's house at approximately 5:30 p.m. on Wednesday, November 25, 1981, is not "fairly supported by the record." Instead, it is contradicted by the record, which establishes that the two officers arrived at Felker's house at 7:02 p.m. that evening.

Even if we accepted the state court's finding that the detectives arrived at Felker's house between 5:30 p.m. and 6:00 p.m. that evening, the result still would be the same. Nothing about the timing of the detectives' arrival changes the fact that Felker himself personally knew about the allegedly suppressed evidence, if it was true, 52 F.3d at 910, nor does the time of their arrival change the fact that the allegedly suppressed evidence flatly contradicted Felker's own sworn testimony about when he was last with the victim, id. at 910-11.*

* Felker also argues that we should have credited the Georgia Supreme Court's finding concerning the testimony of Dr. Whitaker, the medical examiner, about when the bruises were inflicted on the victim. The Georgia Supreme Court said "Dr. Whitaker concluded that the bruises had been inflicted 4 to 6 hours prior to death." 314 S.E.2d at 627. Actually, the record reveals that Dr. Whitaker testified that three of the four bruises on the victim's body were "fresh," which he said meant that they were inflicted between zero and four to six hours before death. He testified that the fourth bruise, which was not fresh, was probably inflicted four to six hours before death but that "there is a possibility it could have been 10 years also." Neither Dr. Whitaker nor any other witness testified that that bruise was inflicted by the killer.

Moreover, Dr. Whitaker's testimony was evidence that was presented, not suppressed. The only evidence allegedly suppressed was evidence tending to show that the victim had been at a western wear store (with Felker) the Wednesday afternoon of her death. Dr. Whitaker's testimony concerning the victim's bruises does not change the fact that Felker personally knew about the allegedly suppressed evidence, nor does it change the fact that that evidence would have directly contradicted Felker's own sworn testimony. Accordingly, we need not decide whether the state court's characterization of Dr. Whitaker's testimony is fairly supported by the record.