Horton v. Mayle

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JAMES F. HORTON, II,  No. 03-56618

Petitioner-Appellant,

v.  D.C. No.

CV-97-07298-MRP

DENEICE MAYLE, Warden,

OPINION

Respondent-Appellee.



Appeal from the United States District Court

for the Central District of California

Mariana R. Pfaelzer, District Judge, Presiding

Argued and Submitted

December 7, 2004—Pasadena, California

Filed May 10, 2005

Before: Betty B. Fletcher, Pamela Ann Rymer, and

Richard A. Paez, Circuit Judges.

Opinion by Judge Rymer;

Opinion by Judge Paez;

Dissent by Judge Rymer

5065

5068 HORTON v. MAYLE

COUNSEL

Michael Rubin and Dorothea K. Langsam, Altshuler, Berzon,

Nussbaum, Rubin & Demain, San Francisco, California, for

the petitioner-appellant.

Lance E. Winters, Supervising Deputy Attorney General, Los

Angeles, California, for the respondent-appellee.

HORTON v. MAYLE 5069

OPINION

RYMER, Circuit Judge:

James F. Horton, II, a California state prisoner, appeals

from the denial of his 28 U.S.C. § 2254 petition for a writ of

habeas corpus. We agree with the magistrate judge’s analysis,

adopted by the district court, and affirm on all issues except

for Horton’s claim that his rights under Brady v. Maryland,

373 U.S. 83 (1963), were violated. As to that claim, the court

reverses and remands in a separate opinion authored by Judge

Paez.

I

Shortly after 2:30 p.m. on Monday, October 11, 1982,

paramedics responded to a call by Carolyn Ebel, the girlfriend

of Herschel “Lobo” Bowser, who lived in an apartment on

Artesia Boulevard in Los Angeles. They found Bowser lying

unconscious on the floor, his head bleeding severely. A ham-

mer was within a foot of the body near a pool of blood.

Bowser died at the hospital later that day, having suffered

twelve blunt injuries to the head and a fractured skull. The

blows were consistent with force applied by the hammer. No

fingerprints, blood, or DNA were found at the scene except

for one print taken from a tool box, which matched the prints

of the victim.

Ebel had left a wallet containing over $100 and the changer

from her catering truck in a money bag at Bowser’s apartment

and testified that Bowser, who was a drug dealer, kept a large

amount of cash in the apartment. She saw Bowser in bed

asleep about 9:30 in the morning when she went to pick up

a paycheck; around noon, she got a call from Tracy Crisp,

who lived in the building, saying that Crisp had been unable

to reach Bowser on the telephone. As a result of that call, Ebel

returned to Bowser’s apartment around 2:30 p.m.; the top lock

was unlocked and when she opened the door as far as she

5070 HORTON v. MAYLE

could (Bowser was on the floor with his legs by the door), she

saw that the living room was in shambles. Empty bags were

strewn all over, and her wallet as well as the money bag with

$40-70 and rolled change was gone. Ebel testified that

Bowser kept his cocaine in a butter dish in a cupboard next

to the stove in the kitchen, which is where he would take cus-

tomers to negotiate sales. He stored the cocaine in ziploc plas-

tic bags — two of powdered cocaine and one of rock cocaine

— and one of the bags was marked with black “X’s.” Ebel

noticed when she went into the kitchen after the crime that the

cover of the butter container was off and the three bags of

cocaine that had been in it were gone.

Horton was a customer of Bowser’s whom Ebel had seen

at Bowser’s apartment. In October 1982, Horton lived at the

Shangri Lodge, which was managed by Willie Dorn. Michael

Graham also lived there and he and Horton did odd jobs for

Dorn. One day in October Horton asked Graham for a ham-

mer that belonged to Dorn, which Graham gave him. Graham

could not identify the hammer found near Bowser, but Dorn

did. He testified that he had owned this hammer for twelve

years, that Graham had been using it in October, and that he

hadn’t seen it for about a week before October 10. At least

one of the paint specks on the hammer was similar to the paint

used on the Shangri Lodge buildings.

On the morning of October 10, Horton told Dorn that there

was something he had to do and, if it worked out, Horton

would be moving out the next day. The next day, around 9

o’clock, Dorn saw Horton leave in his car with James

(“Doonie”) Cunnigan and Anthony Wilson. A few days later,

Horton telephoned Dorn and asked if the police had been

looking for him. He called back with the question several

more times. Horton told Dorn to tell Graham that if anybody

asked Graham whether he had given Horton anything to tell

them “no.”

Donald “Foo” McLaurin was the prosecution’s principal

witness. The following is taken from his testimony. McLaurin

HORTON v. MAYLE 5071

had known Horton since 1979 or 1980. They used drugs

together. Horton had taken McLaurin to Bowser’s apartment

building to buy cocaine, but McLaurin testified that he never

went inside. Horton told McLaurin that he bought the cocaine

from someone named “Lo” or something like it. Bowser’s

nickname was “Lobo.”

McLaurin testified that he, Horton, Wilson, and Horton’s

brother William went to Bowser’s building on the morning of

October 10 and that Horton came out with a bag of cocaine.

They went to Ray’s Motel where they proceeded to get high,

then went to the Shangri Lodge where they were joined by

Cunnigan and consumed more cocaine. According to

McLaurin, Horton began to discuss a plan to rob his dealer,

said that he could use a pipe to “slug him a few times,” and

indicated he knew his dealer kept cocaine in one of the

kitchen cabinets. McLaurin agreed to drive Horton to the

dealer’s apartment, but instead left with his girlfriend.

About 1 p.m. on the 11th, Horton called McLaurin at work

and asked McLaurin to meet him at Ray’s Motel. Horton

stated that he “did the number he was talking about last

night.” Horton, Doonie, and Anthony were at Ray’s when

McLaurin got there. McLaurin saw three bags of cocaine, two

with a powdered substance and one with cocaine rocks. There

were black “X’s” on one of the bags. McLaurin also saw a

large roll of money. They began to smoke cocaine.

According to McLaurin, Horton said that he (Horton), Doo-

nie, and Anthony went to the apartments on Artesia. Cunni-

gan stated that “everything went down pretty smooth.” Horton

said that he walked into the apartment, the dealer turned his

back and closed the door, and Horton clubbed him on the

head with a hammer. Horton then went to the kitchen cabinet

and grabbed the cocaine. On the way back, Horton’s car over-

heated on the freeway and they left it. At Ray’s, Horton asked

McLaurin to pick it up. McLaurin and Cunnigan returned to

the car and retrieved a gym bag and a couple of bags of mari-

5072 HORTON v. MAYLE

juana, but left the car. After McLaurin and Cunnigan returned,

the group consumed more drugs and then McLaurin drove

Horton, Doonie, and Anthony to the Greyhound bus depot.

McLaurin’s supervisor testified that McLaurin arrived for

work on October 11 at 5:45 a.m. and left at 1 p.m. after

receiving a telephone call. Much later, in November 1984,

McLaurin was incarcerated on a probation violation and was

housed in the same module as Horton. He met with Horton’s

counsel.

At trial, McLaurin testified that he was in jail for a proba-

tion violation based on testing positive for cocaine, that he

lied to Horton’s attorney when he talked with him because he

feared harm if other inmates knew he was a “snitch,” and that

neither the police nor the district attorney “helped him out”

with the sentencing on the probation violation. McLaurin also

admitted that he told defense counsel that he had been

untruthful about everything he had told the police. He stated

that he habitually smoked marijuana, had tried PCP, and had

smoked a lot of cocaine the night before the murder; that he

wasn’t functioning too clearly when the plan was being dis-

cussed; and that he was never charged with a crime even

though he had driven Horton to the bus depot.

On April 1, 1985 a jury found Horton guilty of first degree

murder and robbery, Cal. Penal Code §§ 187 and 211, finding

true the special circumstance that the murder was committed

during a robbery, Cal. Penal Code § 190.2(a)(17). In a bifur-

cated proceeding the jury also found true a special circum-

stance that Horton had a prior murder conviction. Cal. Penal

Code § 190.2(a)(2). Following a penalty phase, the jury

returned a verdict of death on April 16, 1985. On December

11, 1995 the California Supreme Court reversed the prior

murder special circumstance and the death penalty verdict,

but otherwise affirmed the judgment. People v. Horton, 11

Cal.4th 1068, 906 P.2d 478 (1995). The state elected not to

HORTON v. MAYLE 5073

retry the penalty phase, therefore Horton’s sentence stands at

life in prison without the possibility of parole.

On October 17, 1989 Horton filed a petition for writ of

habeas corpus in the California Supreme Court based on his

trial by a commissioner instead of a superior court judge,

which the court denied on August 12, 1991. In re Horton, 54

Cal.3d 82, 813 P.2d 1335 (1991). He filed a second petition

for writ of habeas corpus in the California Supreme Court on

April 3, 1995, which the court denied on July 18, 1996.

On October 2, 1997 Horton filed his first federal petition;

he filed a Second Amended Petition on March 6, 2001. The

district court denied all of Horton’s claims on the merits. The

court granted a Certificate of Appealability (COA) on four

issues that Horton pursues on appeal, and he has requested

certification on five additional claims.

II

We review de novo a district court’s decision to grant or

deny a 28 U.S.C. § 2254 habeas petition. Benn v. Lambert,

283 F.3d 1040, 1051 (9th Cir. 2002). Because Horton’s peti-

tion was filed after April 24, 1996, the amendments to § 2254

under the Antiterrorism and Effective Death Penalty Act

(AEDPA) apply. Id. Under AEDPA, Horton is not eligible for

habeas relief unless the decision of the California Supreme

Court was “contrary to, or involved an unreasonable applica-

tion of, clearly established Federal law, as determined by the

Supreme Court of the United States,” or was “based on an

unreasonable determination of the facts in light of the evi-

dence presented in the State court proceeding.” 28 U.S.C.

§ 2254(d); see also Benn, 283 F.3d at 1051. A state court

decision is contrary to clearly established federal law if the

state court applies a rule that contradicts the governing law set

forth in Supreme Court cases or if the state court confronts a

set of facts that are materially indistinguishable from a deci-

sion of the Supreme Court and nevertheless arrives at a result

5074 HORTON v. MAYLE

different from the Supreme Court precedent. Lockyer v.

Andrade, 538 U.S. 63, 73 (2003). A state court decision

involves an unreasonable application of clearly established

federal law if the state court identifies the correct governing

legal principle from the United States Supreme Court’s deci-

sions but unreasonably applies that principle to the facts of the

prisoner’s case; the state court decision must be more than

incorrect or erroneous, it must be objectively unreasonable.

Id. at 75. If a state law issue must be decided in order to

decide a federal habeas claim, the state’s construction of its

own law is binding on the federal court. Mullaney v. Wilbur,

421 U.S. 684, 691 (1975).

III

[1] Horton contends that trial counsel was ineffective in

failing to impeach McLaurin with prior felony convictions,

including a conviction on August 10, 1982 for possession of

PCP with intent to sell. The California Supreme Court

rejected this claim for lack of prejudice given McLaurin’s

own testimony that revealed his extensive drug use and the

fact that he was on probation for a criminal conviction. We

agree with the district court that this is not an unreasonable

application of United States Supreme Court law as set out in

Strickland v. Washington, 466 U.S. 668, 687 (1984) (defen-

dant must show both that counsel’s performance was deficient

and that the deficient performance prejudiced the defense).

The jury knew that McLaurin had used cocaine, marijuana

and PCP, that he had a criminal history, and that he was an

admitted liar. In short, McLaurin’s credibility was so under-

mined anyway that evidence that he also had a conviction for

possession with intent to sell PCP would not have affected the

outcome.

IV

[2] Horton also challenges his trial counsel’s performance

on the ground that counsel advised him not to testify based on

HORTON v. MAYLE 5075

the mistaken belief that Horton’s prior murder conviction

could be used to impeach him even though the trial judge had

ruled that it was inadmissible. We agree with the district

court’s bottom line, that the Strickland standard has not been

met. Counsel’s declaration does not indicate when he told

Horton that his prior conviction might be used to impeach him

(it could have been before the trial judge’s ruling).1 Nor is

there any indication from Horton that he wanted to testify or

would have testified; he gave no such signal at trial, see, e.g.,

Dows v. Wood, 211 F.3d 480, 487 (9th Cir. 2000); United

States v. Edwards, 897 F.2d 445, 446 (9th Cir. 1990), or in the

district court. Further, there is no submission indicating what

he might have testified to. In these circumstances, and in light

of Horton’s own inculpatory conduct and statements, it would

be sheer speculation to say that the outcome would have been

different.

V

[3] Horton maintains that his constitutional right to a fair

trial was violated because his trial was conducted by a court

commissioner who lacked jurisdiction. In California, the juris-

diction of a court commissioner derives from the parties’ stip-

ulation. Cal. Const., art. VI, § 21. There was no formal

stipulation to the commissioner’s serving in this case, but

Horton and his counsel knew that the presiding judicial offi-

cer was a commissioner rather than a superior court judge.

Knowing this, they appeared and allowed the proceedings to

go forward without objection. As the California Supreme

Court explained, a valid stipulation for purposes of Califor-

nia’s constitutional provision may arise as a result of the con-

duct of the parties. In re Horton, 813 P.2d at 1339. This is

known as the “tantamount stipulation doctrine,” and the attor-

1

We note that the declaration reflects a strategic concern about Horton’s

taking the stand in the guilt phase with the penalty phase, including the

special circumstance prior murder conviction that had not yet been

stricken.

5076 HORTON v. MAYLE

ney’s conduct alone is sufficient to trigger it. Id. at 1340.

Here, the supreme court found that the conduct of Horton’s

counsel was dispositive, and that Horton’s explicit authority

or waiver was not required. It also concluded that trial by a

commissioner did not offend Horton’s federal constitutional

rights because the commissioner “takes on the mantle of a

regularly appointed superior court judge in presiding over the

trial and applies all the usual rules and procedures applicable

in such a proceeding.” Id. at 1346.

[4] We cannot say that the California Supreme Court’s

determination is contrary to clearly established federal law.

Under California law, the commissioner who presided over

Horton’s trial had jurisdiction under the tantamount stipula-

tion doctrine. Nothing more is required by the cases upon

which Horton relies, Gomez v. United States, 490 U.S. 858

(1989) and English v. United States, 42 F.3d 473 (9th Cir.

1994). Both recognize that the right to be tried by a person

with jurisdiction is a critical element of the federal constitu-

tional right to a fair trial, but that right was honored here. And

as the district court held, to the extent Article III jurispru-

dence or federal law interpreting the Federal Magistrates Act,

28 U.S.C. § 636(b)(3), is relevant, Horton’s case falls between

Gomez and Peretz v. United States, 501 U.S. 923, 936 (1991)

(finding no constitutional infirmity in the delegation of felony

trial jury selection to a magistrate judge when petitioner’s

counsel affirmatively welcomed the magistrate’s role rather

than objecting).

VI

[5] Horton’s motion to broaden the Certificate of Appeala-

bility is denied. Reasonable jurists would not find the district

court’s assessment of the claims that he wishes to pursue

debatable or wrong. Slack v. McDaniel, 529 U.S. 473, 484

(2000).2

2

Although we agree with the district court’s conclusion on Horton’s

appellate delay claim, we do so on the ground that he fails to make a sub-

stantial showing of the denial of a constitutional right under clearly estab-

lished Supreme Court law.

HORTON v. MAYLE 5077

VII

Opinion by Judge Paez

PAEZ, Circuit Judge:

Horton alleges that the prosecution violated his rights under

Brady v. Maryland, 373 U.S. 83 (1963), by failing to disclose

a deal between the police and McLaurin, under which

McLaurin agreed to testify as the prosecution’s star witness in

exchange for immunity for anything he did on the weekend of

the murder. The district court denied relief on this claim with-

out making a factual finding as to the existence of a deal

between the police and McLaurin. Instead, the court con-

cluded that even assuming the alleged deal existed, evidence

of the deal was not material under Brady v. Maryland. We dis-

agree.3 We hold that the prosecution’s failure to disclose the

deal between the police and McLaurin violated Brady. Thus,

we vacate the district court’s denial of Horton’s Brady claim

and remand to the district court for further proceedings.

[6] In criminal cases, the prosecution has a duty to disclose

all material evidence that is favorable to the accused. Brady,

373 U.S. at 87. This duty extends not only to exculpatory evi-

dence but also to “evidence that the defense might have used

to impeach the Government’s witnesses by showing bias or

interest.” United States v. Bagley, 473 U.S. 667, 676 (1985).

Evidence is material if “there is a reasonable probability that,

had the evidence been disclosed to the defense, the result of

the proceeding would have been different.” Id. at 682. To

prove materiality, a defendant need not demonstrate that it is

more likely than not that he would have received a different

3

In addressing Horton’s Brady claim, we assume, as the district court

did, that the deal between the police and McLaurin existed as Horton has

alleged. However, as discussed below, because no court has determined

whether the deal existed, we remand to the district court for a resolution

of this potential factual dispute.

5078 HORTON v. MAYLE

verdict with the evidence; rather, “[a] ‘reasonable probability’

of a different result is . . . shown when the government’s evi-

dentiary suppression ‘undermines confidence in the outcome

of the trial.’ ” Kyles v. Whitley, 514 U.S. 419, 434 (1995)

(quoting Bagley, 473 U.S. at 678).

We conclude that the state’s failure to disclose McLaurin’s

leniency deal undermines confidence in the outcome of the

trial for two reasons. First, McLaurin’s testimony was central

to the prosecution’s case. See Kyles, 514 U.S. at 444 (finding

that non-disclosed evidence tending to undermine the reliabil-

ity of key witness testimony was material); Giglio v. United

States, 405 U.S. 150, 154-55 (1972) (finding that undisclosed

deal with key prosecution witness was material non-

disclosure); see also Banks v. Dretke, 540 U.S. 668, 699-703

(2004) (finding that non-disclosure of paid-informant status of

key prosecution witness was material). Second, the deal

would have provided powerful and unique impeachment evi-

dence demonstrating that McLaurin had an interest in fabri-

cating his testimony. See Napue v. Illinois, 360 U.S. 264, 270

(1959) (holding that some evidence of bias did not diminish

value of other evidence of bias); Banks, 540 U.S. at 702-03

(finding that impeachment evidence was not “merely cumula-

tive” where the withheld evidence was of a different charac-

ter). We therefore hold that the California Supreme Court’s

summary dismissal of Horton’s Brady claim was an unreason-

able application of clearly established federal law as deter-

mined by the United States Supreme Court in Brady and

related cases.

[7] McLaurin’s testimony was the glue that held the prose-

cution’s case together. It was McLaurin’s testimony that

described the plot and the motive to attack and kill Bowser.

It was McLaurin’s testimony that linked Horton to the drugs

and money that belonged to Bowser shortly after the murder.

And most importantly, it was McLaurin’s testimony that

revealed that Horton confessed to the crime. As the Supreme

Court has noted, “A confession is like no other evidence.

HORTON v. MAYLE 5079

Indeed, ‘the defendant’s own confession is probably the most

probative and damaging evidence that can be admitted against

him.’ ” Arizona v. Fulminante, 499 U.S. 279, 296 (1991)

(quoting Bruton v. United States, 391 U.S. 123, 139 (1968)

(White, J., dissenting)).

[8] As the prosecutor emphasized to the jury, McLaurin

provided the only “direct” evidence that connected Horton to

the crime. Indeed, without McLaurin’s testimony, the prose-

cution’s case was entirely circumstantial. No fingerprints,

DNA evidence, or eyewitness testimony placed Horton at the

scene. See Hayes v. Brown, 399 F.3d 972, 985, 988 (9th Cir.

2005) (en banc) (holding that evidence of an undisclosed deal

with a witness was material where the witness’s testimony

regarding the defendant’s confession was undoubtedly the

centerpiece of the prosecution’s case and almost all of the

other evidence against the defendant was circumstantial).

The Supreme Court observed in Kyles that “[t]he likely

damage [of suppressed evidence] is best understood by taking

the word of the prosecutor . . . .” 514 U.S. at 444. Here, the

prosecutor stated in closing argument that it is “obvious to

everybody in this courtroom that [McLaurin’s] testimony in

this case is very important” and urged three times that the jury

ask to have it read back if they had “some doubt or question

as to what he testified to.” The jury did in fact ask to have

McLaurin’s testimony read back. See Gantt v. Roe, 389 F.3d

908, 915-16 (9th Cir. 2004) (stating that “[w]e also know that

the jury thought carefully about the matchbook because it

submitted a question about it,” in concluding that suppressed

evidence relating to the matchbook was material).

Further, in discussing the call that Horton allegedly made

to McLaurin after the murder, the prosecutor stated, “If they

didn’t call McLaurin, would this case be solved? I don’t think

anybody would know anything about the case if it weren’t for

the fact that the car broke down and they had to go from

5080 HORTON v. MAYLE

Ray’s Motel to the Greyhound bus depot.”4 The prosecutor

also argued that despite his drug use, McLaurin was a credi-

ble, valuable witness.

[9] The prosecutor’s emphasis on the importance of

McLaurin’s testimony bolsters the conclusion that disclosure

of the deal may have significantly damaged the prosecution’s

case. See Hayes, 399 F.3d at 986 (“The importance of James’s

testimony was underscored by the prosecution in its closing

argument.”); Gantt, 389 F.3d at 915 (noting that the prosecu-

tor “spent a good part of his summation arguing the impor-

tance of the matchbook”); cf. Strickler v. Greene, 527 U.S.

263, 295 (1999) (holding that suppressed impeachment evi-

dence was not material where the witness’s testimony “was

not relied upon by the prosecution at all during its closing

argument at the penalty phase”).

[10] Although certain details of McLaurin’s account were

corroborated by other witnesses, the most damning part of

McLaurin’s testimony—Horton’s confession—was not. Thus,

evidence that would have impeached McLaurin’s credibility

might well have altered the outcome of the trial. See Banks,

540 U.S. at 701 (holding that suppressed evidence of a wit-

ness’s role as an informant was material where his testimony

was the “centerpiece” of the prosecution’s case and noting

that had the evidence been disclosed, the jury “might well

have distrusted [the informant’s] testimony, and, insofar as it

was uncorroborated, disregarded it”); see also Silva v. Wood-

ford, 279 F.3d 825, 854-55 (9th Cir. 2002) (holding that an

evidentiary hearing was warranted on a Brady claim involving

a deal with a witness whose “credibility was a critical issue,

given that he was the only witness who could identify [defen-

dant] as the trigger man”).

4

The dissent references pieces of evidence that are consistent with, or

at least not inconsistent with, McLaurin’s testimony; but as the prosecutor

essentially conceded, without McLaurin’s testimony there would have

been no case. This is precisely why his secret deal undermines confidence

in the verdict.

HORTON v. MAYLE 5081

It is true that McLaurin’s testimony was already severely

impeached by his own admission that he habitually used

drugs, lied to the police, and drove Horton to the bus depot

after the killing. However, that the jury had other reasons to

disbelieve McLaurin does not render the suppressed evidence

of the deal immaterial. Evidence that the prosecution prom-

ised immunity to induce McLaurin to testify as its star witness

is a wholly different kind of impeachment evidence, from

which the jury reasonably could have inferred that McLaurin

had an interest in fabricating his testimony. In Hayes, we held

that disclosure of a deal with the prosecution’s key witness

would not have been “merely cumulative impeachment” evi-

dence, even though the witness was already subject to

impeachment on the basis of transactional immunity, drug

addiction, and his criminal record. 399 F.3d at 987. Rather,

we concluded that the additional disclosure “would have dem-

onstrated that the State was going to great lengths to give [the

witness] a powerful incentive to testify favorably, to the point

of letting him go free on unrelated felony charges.” Id.; see

also Banks, 540 U.S. at 702 (rejecting the government’s argu-

ment that suppressed evidence of a witness’s role as an infor-

mant was immaterial merely because the witness’s testimony

was already impeached on grounds that were not “directly rel-

evant” to his informant status); Napue, 360 U.S. at 270

(“[W]e do not believe that the fact that the jury was apprised

of other grounds for believing that the witness . . . may have

had an interest in testifying against petitioner turned what was

otherwise a tainted trial into a fair one.”).

[11] Moreover, as this court explained in Benn v. Lambert,

where a witness is central to the prosecution’s case, the defen-

dant’s conviction demonstrates that the impeachment evi-

dence presented at trial likely did not suffice to convince the

jury that the witness lacked credibility. 283 F.3d 1040, 1054

(9th Cir. 2002).5 In such cases, we noted, the suppressed

5

Although Supreme Court holdings are the only definitive source of

clearly established federal law for purposes of the AEDPA, we may rely

5082 HORTON v. MAYLE

impeachment evidence “takes on an even greater importance.”

Id. In Benn, we ultimately held that:

Where, as here, there is reason to believe that the

jury relied on a witness’s testimony to reach its ver-

dict despite the introduction of impeachment evi-

dence at trial, and there is a reasonable probability

that the suppressed impeachment evidence, when

considered together with the disclosed impeachment

evidence, would have affected the jury’s assessment

of the witness’s credibility, the suppressed evidence

is prejudicial.

Id. at 1056. Because McLaurin’s testimony was critical to the

prosecution’s case, we conclude that it is reasonably probable

that the result of the trial would have been different had evi-

dence of the deal been disclosed.

[12] In sum, we hold that the prosecution’s failure to dis-

close the deal between McLaurin and the police violated

Brady. The rule in this situation is clear and specific: the pros-

ecution must disclose material evidence favorable to the

defense. Brady, 373 U.S. at 87. By implicitly finding that the

suppression of McLaurin’s leniency deal was immaterial, the

state court unreasonably applied Supreme Court-established

federal law set down in Napue, Brady, Giglio, and Kyles. The

recurrent theme of these cases is that where the prosecution

fails to disclose evidence such as the existence of a leniency

deal or promise that would be valuable in impeaching a wit-

ness whose testimony is central to the prosecution’s case, it

violates the due process rights of the accused and undermines

confidence in the outcome of the trial. Napue, 360 U.S. at

270; Giglio, 405 U.S. at 154; Kyles, 514 U.S. at 444. Here, the

on circuit precedent as persuasive authority for determining whether a

state court decision unreasonably applies Supreme Court law. Clark v.

Murphy, 331 F.3d 1062, 1069 (9th Cir.), cert. denied, 540 U.S. 968

(2003).

HORTON v. MAYLE 5083

prosecution failed to disclose a promise of immunity given to

McLaurin, its “star witness,” in exchange for his testimony,

testimony that provided the only evidence of a motive and the

opportunity to kill the victim and that included a confession

by Horton himself. The state court was not only wrong in its

application of these cases, it was objectively unreasonable.

See 28 U.S.C. § 2254(d)(1); Lockyer v. Andrade, 538 U.S. 63,

75-76 (2003); see also Gantt, 389 F.3d at 916 (holding that

the state court’s conclusion that the suppression of evidence

did not violate Brady was an unreasonable application of

clearly established federal law).

[13] We therefore vacate the district court’s denial of Hor-

ton’s Brady claim and remand to the district court for a deter-

mination whether the state disputes the existence of the deal

between McLaurin and the police. See Gantt, 389 F.3d at 916.

If the state does dispute the deal’s existence, the district court

shall hold an evidentiary hearing to resolve this dispute.6 If

6

Although Horton’s habeas petition is governed by the AEDPA, which

limits a district court’s discretion to conduct evidentiary hearings, see 28

U.S.C. § 2254(e)(2) (providing that petitioners who failed to develop the

facts in state court may not obtain an evidentiary hearing in district court

except in limited circumstances), here we assess the availability of an evi-

dentiary hearing under pre-AEDPA law because Horton exercised suffi-

cient diligence in seeking to develop the factual basis of his claim in the

state court proceedings. See Williams v. Taylor, 529 U.S. 420, 437 (2000)

(“If there has been no lack of diligence at the relevant stages of the state

court proceedings, the prisoner has not ‘failed to develop’ the facts under

§ 2254(e)(2)’s opening clause, and he will be excused from showing com-

pliance with the balance of the subsection’s requirements.”).

Ordinarily diligence requires that a petitioner seek an evidentiary hear-

ing in state court in the manner prescribed by state law. Id. Under Califor-

nia law, an appellate court, when presented with a state habeas petition,

determines whether an evidentiary hearing is warranted only after the par-

ties file formal pleadings, if they are ordered to do so. See People v.

Duvall, 886 P.2d 1252, 1258-61 (Cal. 1995); People v. Romero, 883 P.2d

388, 391-94 (Cal. 1994). Here, the California Supreme Court summarily

denied Horton’s state habeas petition without ordering formal pleadings.

Because Horton never reached the stage of the proceedings at which an

5084 HORTON v. MAYLE

the state concedes, or if the district court finds after an eviden-

tiary hearing, that the deal existed, the district court shall

grant a writ of habeas corpus ordering that Horton be released

unless the state retries him within a reasonable time to be set

by the district court. See id.

AFFIRMED IN PART, REVERSED AND REMANDED

IN PART.

RYMER, Circuit Judge, dissenting in part:

We do not need to know whether or not Donald McLaurin

had a deal that charges would not be pressed against him or

his probation revoked for anything he did on the weekend of

October 10th,1 because even if there were a deal, evidence of

it would not have changed the outcome of Horton’s trial. The

California Supreme Court denied this claim on the merits, but

as it did so without discussion, we independently review the

record to determine whether its decision was objectively rea-

sonable. See Delgado v. Lewis, 223 F.3d 976, 982 (9th Cir.

2000); Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002)

evidentiary hearing should be requested, he has not shown “a lack of dili-

gence at the relevant stages of the state court proceedings” and therefore

is not subject to AEDPA’s restrictions on evidentiary hearings.

Under pre-AEDPA law, a habeas petitioner is entitled to an evidentiary

hearing on a claim where the facts are in dispute if (1) he has alleged facts

that, if proven, would entitle him to relief, and (2) he did not receive a full

and fair evidentiary hearing in state court. See Silva, 279 F.3d at 853.

Because, as noted, Horton would be entitled to relief if his allegation of

the deal were proven, and because Horton was not afforded an evidentiary

hearing in state court, Horton is entitled to an evidentiary hearing on his

Brady claim if the state disputes that the deal existed. See id. at 855.

1

Horton submitted McLaurin’s declaration to this effect to the Califor-

nia Supreme Court in 1995. There is no other evidence of a deal, and

McLaurin testified at the preliminary hearing that he had no deal.

HORTON v. MAYLE 5085

(noting that although we independently review the record, we

still defer to the state court’s ultimate decision). The district

court assumed (as do I) that an undisclosed deal had been

made, but rejected Horton’s Brady claim because the sup-

pressed evidence was not material. Brady v. Maryland, 373

U.S. 83 (1963). I agree, and would hold that the state court’s

decision was not contrary to, or an unreasonable application

of, clearly established United States Supreme Court law.

Evidence is material “if there is a reasonable probability

that, had the evidence been disclosed to the defense, the result

of the proceeding would have been different.” Strickler v.

Greene, 527 U.S. 263, 280 (1999) (citing United States v.

Bagley, 473 U.S. 667, 676 (1985), and Kyles v. Whitley, 514

U.S. 419, 433-34 (1995)). “[T]he question is not whether the

defendant would more likely than not have received a differ-

ent verdict with the evidence, but whether in its absence he

received a fair trial, understood as a trial resulting in a verdict

worthy of confidence.” Strickler, 527 U.S. at 289-90 (citing

Kyles, 514 U.S. at 434). Put differently, “the question is

whether ‘the favorable evidence could reasonably be taken to

put the whole case in such a different light as to undermine

confidence in the verdict.’ ” Id. (quoting Kyles, 514 U.S. at

435).

Evidence of the deal that McLaurin declares he had would

not put the entire case in such a different light that my confi-

dence in the outcome is undermined. Benn v. Lambert, 283

F.3d 1040, 1053 (9th Cir. 2002) (citing Bagley, 473 U.S. at

676; United States v. Agurs, 427 U.S. 97, 111-12 (1976)).

This is so for three reasons: McLaurin was severely

impeached anyway; key parts of his testimony were corrobo-

rated by independent witnesses; and Horton’s own conduct

and statements, apart from those to which McLaurin testified,

were strong evidence of guilt.

Horton’s connection to the murder was established through

witnesses other than McLaurin who testified that Horton

5086 HORTON v. MAYLE

asked Graham for a hammer that belonged to Dorn, Graham

gave the hammer to Horton, and neither Graham nor Dorn

saw the hammer again after Graham gave it to Horton. This

was in October; Dorn noticed that the hammer (which he usu-

ally kept in his office) was missing after October 11 but

hadn’t seen it for about a week before that. Horton told Dorn

on the morning of October 10 that “he had something he was

going to do” and that “if it worked out okay” Horton would

be moving out the next day. Dorn saw Horton drive away

with Doonie and Anthony about 9:30 on the morning of the

murder. Bowser was killed by Dorn’s hammer. Horton left

town after the crime was committed. In the next few days

Horton called Dorn a number of times asking if the police

were looking for him (Horton), and Horton told Dorn to tell

Graham that if anyone asked whether Graham had given any-

thing to Horton, to deny it. All of this evidence came in

through witnesses other than McLaurin.

While McLaurin was an important witness for the prosecu-

tion, he was important primarily because he testified that Hor-

ton said and did things that were consistent with, or

corroborated by, testimony from independent witnesses. For

example: McLaurin testified that he drove Horton to a build-

ing on Artesia Boulevard where Horton went inside, and came

out with drugs; Bowser’s girlfriend Ebel testified that Bowser

sold drugs from his apartment, which is in that building, and

that Horton was a customer whom she had seen in Bowser’s

apartment. McLaurin said that Horton called his dealer a

name with “Lo” in it; Ebel testified that Bowser was known

as “Lobo.” McLaurin testified that Horton and Doonie and he

discussed a plan to rob Horton’s dealer the night before it

happened, and that Horton said he would not use a gun

because it would be too noisy but would use a pipe; a pipe

was not used, but a hammer has similar qualities. McLaurin

testified that Horton said he knew his dealer kept cocaine in

one of the kitchen cabinets; Ebel testified that Bowser kept his

supply in plastic bags inside a container in a cupboard in the

kitchen, that this is where Bowser’s drug deals went down,

HORTON v. MAYLE 5087

and that Horton was a customer. McLaurin testified that Hor-

ton called him about 1:00 p.m. at work and said to meet at

Ray’s Motel; McLaurin’s supervisor testified that McLaurin

left work, having arrived at 5:45 a.m., about 1 p.m. after

receiving a telephone call. McLaurin testified that at Ray’s,

Horton, Doonie and Anthony had two bags of powdered

cocaine and one with cocaine rocks, and that one of the bags

had black “X’s” on it; Ebel testified that Bowser kept two

bags of powdered cocaine and one of rock cocaine in baggies,

one of which was marked with black “X’s.” McLaurin testi-

fied that he also saw a roll of money at Ray’s; Ebel testified

that catering truck money was missing from Bowser’s apart-

ment after the murder. McLaurin testified that Horton said he

clubbed Bowser in the head with a hammer, then went to the

kitchen and got the cocaine; Dorn’s hammer, which Graham

gave to Horton, was within a foot of Bowser’s body, the inju-

ries to Bowser’s head were consistent with hammer blows,

and Ebel as well as a police officer testified that the butter

dish where Bowser kept his cocaine was uncovered and

empty.

Apart from this, as the district court found, McLaurin had

“credibility problems that were obvious to the jury through

his own contradictory, vague, and sometimes indecipherable

testimony.” McLaurin admitted to: significant drug use while

he was with Horton before and after the crime; being in jail

on probation violations for testing dirty; lying to the police

about taking Horton to the bus depot because he was afraid

he would be arrested for doing it; lying to Horton’s counsel;

and never being charged with a crime in connection with the

events of October 10-11. While evidence of a deal could have

suggested an even stronger motive to lie, the jury knew that

McLaurin participated in planning the crime, would have

driven Horton to Bowser’s on the 10th but for his girlfriend’s

intervention, and drove Horton to the bus station after the

crime — yet was neither arrested nor prosecuted. Making the

inference of bias more specific would not likely have affected

the total mix of information about McLaurin, which included

5088 HORTON v. MAYLE

the fact that he lied to the police about his involvement in

order to avoid arrest. Nor would it likely have affected the

credibility of testimony that was independently corroborated.

Finally, I cannot see how evidence of a deal would have

affected the weight or credibility of the evidence about Hor-

ton’s statements and conduct to which McLaurin was not per-

cipient and about which he did not testify. Horton’s link to the

murder weapon and his own behavior evincing consciousness

of guilt is not affected at all by testimony adduced through

McLaurin. Cf. Kyles, 514 U.S. at 441-43 (disclosure of very

different contemporaneous eyewitness statements would have

substantially reduced or destroyed their trial testimony).

Horton contends that the circumstantial evidence in his case

is weaker than in other cases where undisclosed deals were

found material. He points in particular to Singh v. Prunty, 142

F.3d 1157, 1159 (9th Cir. 1998), and Carriger v. Stewart, 132

F.3d 463, 479 (9th Cir. 1997). However, these are not deci-

sions of the United States Supreme Court, which are the deci-

sions by which we are obliged to measure the objective

reasonableness of the California court’s determination.

Regardless, in Singh, the witness concerning whom the prose-

cution failed to disclose a deal provided the only evidence that

the defendant had previously tried to hire him to commit the

murder that the defendant ultimately hired someone else to

commit; here, McLaurin’s testimony was substantially cor-

roborated by independent evidence that connected Horton to

the crime. In Carriger, the prosecution failed to disclose the

only direct witness’s long history of lying to police and blam-

ing his crimes on others, and compounded this failure by

arguing to the jury that the witness was telling the truth about

the defendant’s guilt, whereas in this case the jury heard

ample evidence that McLaurin was a liar.

Horton also suggests that McLaurin himself could have

been the murderer because he had a window of opportunity

after he left work at 1:00 p.m. and before Ebel returned to

Bowser’s apartment at 2:30 p.m., but no evidence supports

HORTON v. MAYLE 5089

any such theory. Crisp called Ebel, concerned about being

unable to reach Bowser, around noon; McLaurin didn’t leave

work until 1:00 p.m., which his supervisor confirmed that he

did after receiving a telephone call; and there is no evidence

that it would even have been possible for him to get to

Bowser’s, do the deed, ransack the apartment, find the

cocaine, and leave before Ebel arrived. Neither does any evi-

dence connect McLaurin with the hammer, or manifest any

consciousness of guilt except with respect to driving Horton

to the bus depot.

Finally, Horton supposes that someone other than he —

Cunnigan, for instance — could have provided the description

of the crime to McLaurin, or that McLaurin could have

learned specifics from reading the police report, which he

admittedly did before testifying. That Cunnigan could have

told him anything more than what McLaurin acknowledged is

pure speculation; and, as the district court noted, McLaurin

said that he read the police report before testifying at trial, but

his testimony at the preliminary hearing was consistent with

his trial testimony and there is no evidence that he read the

police report before testifying at that hearing.

Accordingly, I agree with the district court that the Califor-

nia Supreme Court’s rejection of Horton’s Brady claim on the

merits was not contrary to, or an unreasonable application of,

Supreme Court law.2

2

Horton argues that the Brady error was compounded by the trial court’s

instruction that the jury must not consider why other persons than the

defendant who were or may have been involved in the crime were not

being prosecuted in this trial or whether they have been or will be prose-

cuted. Whether the instruction was erroneously given is not a certified

issue on appeal. In any event, this admonition was part of an instruction

that stated “[t]here has been evidence in this case indicating that persons

other than defendant were or may have been involved in the crime for

which the defendant is on trial.” The instruction does not preclude jurors

from considering involvement to the extent it bears on credibility or any

thing else; it simply precludes considering why those persons are not

defendants “in this trial.” Horton also relies upon juror declarations to

show prejudice but, as the district court held, they are inadmissible to

impeach the verdict. Fed. R. Evid. 606(b).