Barker v. Fleming

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ANTON E. BARKER,  No. 04-35911

Petitioner-Appellant,

v.  D.C. No.

CV-03-03134-EFS

GARY FLEMING,

OPINION

Respondent-Appellee.



Appeal from the United States District Court

for the Eastern District of Washington

Edward F. Shea, District Judge, Presiding

Argued and Submitted

June 8, 2005—Seattle, Washington

Filed September 8, 2005

Before: Procter Hug, Jr., David R. Thompson, and

M. Margaret McKeown, Circuit Judges.

Opinion by Judge McKeown

12591

BARKER v. FLEMING 12595

COUNSEL

Professor Jacqueline McMurtrie, Lindsay L. Halm, Law Stu-

dent, & Lesli S. Wood, Law Student, Innocence Project

Northwest Clinic, University of Washington School of Law,

Seattle, Washington, for the appellant.

Gregory J. Rosen, Assistant Attorney General, Attorney Gen-

eral’s Office, Criminal Justice Division, Olympia, Washing-

ton, for the appellee.

12596 BARKER v. FLEMING

OPINION

McKEOWN, Circuit Judge:

This petition for a writ of habeas corpus presents the ques-

tion whether the prosecution in a robbery case suppressed evi-

dence in violation of Brady v. Maryland, 373 U.S. 83 (1963).

In analyzing this issue, the Washington Supreme Court failed

to consider the cumulative effect of the undisclosed evidence

and thus its decision was contrary to clearly established

Supreme Court precedent. 28 U.S.C. § 2254(d)(1) (permitting

grants of habeas corpus where the state court issued a decision

that was contrary to, or an unreasonable application of, clearly

established federal law); Kyles v. Whitley, 514 U.S. 419, 436-

37 & n.10 (1995) (holding that the State’s disclosure obliga-

tion under Brady turns on the cumulative effect of the with-

held evidence, not an item by item analysis). Even so, we

conclude on de novo review that the witness who would have

been impeached by the suppressed evidence was so severely

discredited and not so critical to the prosecution’s case that

there is no reasonable probability that the withheld evidence

would have affected the outcome. Accordingly, we affirm the

district court’s denial of the petition.1

FACTUAL AND PROCEDURAL BACKGROUND

Sheniece Brown was working as a clerk at Payless Shoe-

Source when a man, who had a handkerchief covering his

1

Barker also presents an uncertified issue with respect to admission of

expert testimony on eyewitness identification. We decline to expand the

Certificate of Appealability (“COA”) to reach this question because

Barker has failed to make a “substantial showing of the denial of a consti-

tutional right.” 28 U.S.C. § 2253(c)(2). Despite the fundamental right of

a defendant to offer the testimony of witnesses, Chambers v. Mississippi,

410 U.S. 284, 302 (1973), the exclusion of expert testimony on eyewitness

identification does not violate that right. See Jordan v. Ducharme, 983

F.2d 933, 939 (9th Cir. 1993) (“There is no federal authority that [expert

testimony on eyewitness identification] must be allowed.”)

BARKER v. FLEMING 12597

nose and mouth and appeared to be bleeding, entered the

store. As Brown approached him, she realized that he was not

injured but instead had red marks drawn with makeup on the

backs of his hands and on the sides of his face. The man told

Brown that it was a holdup and forced her to open the cash

register and till by shoving a hard object into her back that felt

like a gun. As the man took the cash from the till, she stood

to his right side for a couple of minutes trying to memorize

his profile. She testified, “I stood back on the right side of the

register . . . about four feet away . . . and I was trying to mem-

orize his profile. And so he brought the handkerchief down

from his face . . . .” She saw that his face was covered with

brown foundation and that there was a blue circle painted on

one cheek along with some red marks on both sides of his

face.

Brown initially provided a general description of the assail-

ant, but without a name or identification of a specific individ-

ual, the police had no leads. The so-called “clown robber”

became the subject of media headlines. A few days later,

Brown talked about the robbery with two of her co-workers,

Maria Diaz and Amber Trainer. Based on her description,

Trainer and Diaz said they thought the robber was a man who

frequently visited the store but never bought anything. Trainer

told Brown what the suspicious customer looked like, noting

that he had several tattoos. Trainer and Brown put their heads

together and concluded that the robber’s makeup probably

was covering the tattoos.

After her discussion with her colleagues, Brown called the

police and told a detective that the robber looked a lot like a

man who often came to the store. Although Brown had never

seen the suspicious customer before, she described him and

emphasized that he had tattoos on his hands and neck that she

thought were covered by the makeup. Upon hearing her

description, the detective said, “I think I know who that is.

This guy’s been in jail before.”

12598 BARKER v. FLEMING

Based on the additional information about the suspicious

customer, the police pursued the case. Brown identified

Barker from a photo montage of six men. When she first saw

Barker’s picture, it “took [her] breath away because . . . that’s

him.” Brown was confident in her identification because of

the suspect’s “medium-sized nose, his cheekbones, and he had

a moustache on the picture in this montage, even though he

didn’t that night, but I knew that was him.” After she identi-

fied Barker, she was shown a booking photograph and a pro-

file shot of Barker that made her even more certain that the

identification was correct.

Barker was first tried in June 1999. Brown’s identification

was the centerpiece of the prosecution’s case because the

store security camera failed to produce a usable photograph of

the robber, and the police failed to obtain fingerprints. Barker

represented himself pro se and the trial ended in a hung jury.

Between the first and second trials, the prosecution

obtained new evidence from a jailhouse snitch, Raul Abundiz.

At the second trial, Abundiz testified that Barker confessed to

committing the crime when the two of them were near a motel

in early April, 1999. Abundiz also testified that he and Barker

talked on June 14, 1999, around 10 a.m. when they were wait-

ing for their respective court appearances in a holding cell.

Abundiz’s testimony, though, was not without warts. He

was impeached in all manner of ways, from admitting to

lying, to confessing to prior convictions, to acknowledging

that he was testifying only because he had received a deal

from the State. The image of Abundiz presented to the jury

was that of a chronic drug user willing to do anything to get

out of jail and anxious to capitalize on his knowledge about

Barker: The details of Abundiz’s deal were fully disclosed

and he admitted that he was testifying only because of the

agreement. The jury also heard testimony that Barker had

threatened to kill Abundiz and that Abundiz was looking for

Barker “to do some harm to him” with a pistol.

BARKER v. FLEMING 12599

The jury returned a conviction for second degree robbery,

and Barker was sentenced to life without parole. He appealed

to the Washington Court of Appeals, which affirmed his con-

viction. See State v. Barker, 14 P.3d 863 (Wash. Ct. App.

2000). The Washington Supreme Court denied review.

After he exhausted his direct appeals, Barker pursued relief

via a Personal Restraint Petition (“PRP”), Washington State’s

mechanism for collateral challenges. An independent investi-

gation revealed several pieces of evidence that had not been

disclosed to the defense before trial. This evidence forms the

basis of Barker’s Brady claim.

The first category of undisclosed evidence consists of four

misdemeanor convictions of Abundiz that occurred within the

year preceding the trial:

1) June 15, 1999—conviction for obstructing the

duties of a police officer and trespassing based on an

incident that involved Abundiz lying about his iden-

tity to the police.

2) March 30, 1999—shoplifting conviction based on

an incident that also involved possession of drug par-

aphernalia.

3) March 19, 1999—shoplifting conviction.

4) August 18, 1998—false reporting conviction

based on an incident that involved providing false

information to the police.

All four of these crimes are considered crimes of dishonesty

in Washington.2

2

The two convictions for false reporting involve dishonesty. The other

two were for shoplifting, which is a crime of dishonesty in Washington.

See State v. Ray, 806 P.2d 1220, 1228 (Wash. 1991) (en banc) (“[C]rimes

of theft involve dishonesty and are per se admissible for impeachment pur-

poses.”).

12600 BARKER v. FLEMING

The second group of undisclosed evidence revolves around

a charge for residential burglary that Abundiz faced in June

1999, at the same time that Barker’s first trial occurred.

Barker identifies three pieces of evidence:

1) Documentation that a court found probable cause

to believe that Abundiz committed residential bur-

glary. Barker points to a June 14, 1999, Superior

Court of Yakima County Order finding probable

cause and setting bail at $20,000 and to a transcript

of Abundiz’s probable cause hearing.

2) A police report documenting a June 14, 1999,

meeting between the same detective with whom

Brown spoke and Abundiz during which they dis-

cussed the residential burglary charge. The report

states that the prosecutor’s office concluded there

was not enough evidence to prove the case. The

report does not mention Abundiz’s robbery of a JC

Penny store, which occurred a few days earlier, or

his conversation with Barker, which allegedly

occurred that morning. The report makes no mention

that Abundiz had information about the robbery of

Payless.

3) A June 16, 1999, order releasing Abundiz and

stating that the State decided not to charge him with

residential burglary. The order was signed by a dep-

uty prosecutor “for Ken Ramm,” who was the prose-

cutor in Barker’s first trial.

Barker first raised his claim that the prosecution withheld

the above evidence in the PRP he filed in the Washington

Court of Appeals, which dismissed his petition. The Washing-

ton Supreme Court, through its Commissioner, denied discre-

tionary review in a thorough opinion. The court itself adopted

the Commissioner’s decision by denying a motion to modify

the ruling. The Washington Supreme Court held that Barker

BARKER v. FLEMING 12601

failed to show that suppression of the evidence caused him

prejudice because Abundiz’s credibility was so thoroughly

destroyed that the withheld convictions would not have mat-

tered. The court went on to note that the alleged residential

burglary deal was speculative and that any evidence indicat-

ing a deal was cumulative because the jury already knew

Abundiz received benefits for his testimony.

Barker filed a federal petition for a writ of habeas corpus

in the district court, which reviewed the Washington Court of

Appeals’ decision and denied relief.

DISCUSSION

I. STANDARDS AND SCOPE OF REVIEW

In a habeas corpus petition, two standards of review are at

play. See, e.g., Lambert v. Blodgett, 393 F.3d 943, 964-65

(9th Cir. 2004). The first standard is the straightforward de

novo standard we employ to evaluate the district court’s deci-

sion to deny the petition. E.g., Beardslee v. Woodford, 358

F.3d 560, 568 (9th Cir. 2004) (as amended). The standard that

governs review of the state court’s decision is established by

the Antiterrorism and Effective Death Penalty Act of 1996

(“AEDPA”), which prohibits a federal court from granting

habeas relief “with respect to any claim that was adjudicated

on the merits in State court proceedings unless the adjudica-

tion of the claim resulted in a decision that was contrary to,

or involved an unreasonable application of, clearly established

Federal law, as determined by the Supreme Court of the

United States.” 28 U.S.C. § 2254(d)(1).

Before we can apply AEDPA’s standards, we must identify

the state court decision that is appropriate for our review.

When more than one state court has adjudicated a claim, we

analyze the last reasoned decision. See Ylst v. Nunnemaker,

501 U.S. 797, 803-04 (1991);3 Avila v. Galaza, 297 F.3d 911,

3

Although the Court in Ylst was concerned with determining whether

the state court had lifted a procedural bar to a claim by reaching the mer-

12602 BARKER v. FLEMING

918 (9th Cir. 2002) (“In determining whether a state court

decision is contrary to federal law, we look to the state’s last

reasoned decision.”). Here, the last reasoned state decision is

the Washington Supreme Court’s denial of discretionary

review of the PRP dismissal. The Court, through its Commis-

sioner, issued a seven-page order that explained in detail why

review was denied and specifically examined the substance of

Barker’s Brady claim.

Determining that the Supreme Court’s decision is the last

reasoned decision does not resolve the question whether it is

the proper decision to review. We must still decide whether

it is “an adjudication on the merits” because 28 U.S.C.

§ 2254(d) applies only to those claims that have been adjudi-

cated on the merits. 28 U.S.C. § 2254(d). The requirement of

an adjudication on the merits does not mandate a hearing or

other judicial process beyond rendering a decision; rather it

means that the court must finally resolve the rights of the par-

ties on the substance of the claim, rather than on the basis of

a procedural or other rule precluding state review of the mer-

its. Lambert, 393 F.3d at 969. Under this definition of “adju-

dication on the merits,” in Lambert we concluded that a

Washington Supreme Court Ruling Denying Review, the

same kind of decision at issue here, was an adjudication on

the merits. Id. at 970 & n.17 (stating that the Washington

Supreme Court reached the merits of the petitioner’s claim

and deciding to review primarily the Supreme Court’s ruling).

Lambert, then, settles that a Washington Supreme Court

order denying review of a PRP, when it is reasoned and dis-

its, the doctrine that a federal habeas court reviews the last reasoned state

decision has been extended beyond the context of procedural default. See,

e.g., Lambert, 393 F.3d at 970 n.17 (looking to last reasoned decision in

a case that did not involve procedural default); Bailey v. Rae, 339 F.3d

1107, 1112-13 (9th Cir. 2003) (explaining that, where procedural default

is not at issue, identifying the last explained decision is relevant only for

purposes of applying AEDPA).

BARKER v. FLEMING 12603

cusses the merits, is an “adjudication on the merits” that may

be reviewed by federal courts under AEDPA. Even before

Lambert fleshed out the meaning of “adjudication on the mer-

its” under AEDPA we reviewed Washington Supreme Court

denials of review. See Riley v. Payne, 352 F.3d 1313, 1316,

1322 (9th Cir. 2003).4 Thus, we travel well charted territory

when we consider the Washington Supreme Court’s order as

an adjudication on the merits that we may review under

AEDPA.

The State urges us to review the decisions of the Washing-

ton Court of Appeals and Supreme Court together as a collec-

tive whole. This argument relies both on language in 28

U.S.C. § 2254(d) referring to “state court proceedings,” plu-

ral, and on Ninth Circuit cases that have reviewed multiple

state court decisions together. Neither source persuades us

that collective review is appropriate in this case.

The text of 28 U.S.C. § 2254(d)(1) is at best ambiguous as

to whether we may review multiple state court judgments at

once. Habeas relief, under § 2254(d)(1), is prohibited with

respect to “any claim that was adjudicated on the merits in

State court proceedings unless the adjudication of the claim

resulted in a decision that was contrary to, or involved an

unreasonable application of, clearly established Federal law,

as determined by the Supreme Court of the United States.”

Obviously, the provision employs the plural “State court pro-

ceedings,” which could indicate that Congress intended all

state proceedings to be considered as a whole. Equally likely,

however, is that “proceedings” is used here in a generic sense

and not as a reference to multiple final adjudications. Signifi-

4

In one instance, the Riley opinion refers to the Washington Supreme

Court decision as “affirm[ing]” the Court of Appeals’ denial of the PRP,

rather than as denying review of the Court of Appeals’ decision. 352 F.3d

at 1316. Our review of the Washington Supreme Court decision in Riley

confirms that, like the ruling in this case, it is an order denying discretion-

ary review.

12604 BARKER v. FLEMING

cantly, the text refers to “a decision that was contrary to, or

involved an unreasonable application of, clearly established

Federal law.” Id. (emphasis added). The reference to a single

decision underscores that Congress meant federal courts to

review only one final state court decision.

Most telling, the Supreme Court describes AEDPA review

as applying to a single state court decision, not to some amal-

gamation of multiple state court decisions. In Williams v. Tay-

lor, 529 U.S. 362 (2000), the landmark decision explaining

the meaning of the “contrary to” and “unreasonable applica-

tion of” prongs of AEDPA, Justice O’Connor, writing for the

Court, viewed these prongs of the statute as applying to a sin-

gle state decision. She repeatedly and consistently used singu-

lar references to identify the state court adjudication under

review. See, e.g., id. at 405 (“A state-court decision will cer-

tainly be contrary to our clearly established federal prece-

dent”; “If a state court were to reject”; “the state court’s

decision must be substantially different”).

The Court’s analysis of the state court proceedings in Wil-

liams confirms our conclusion that AEDPA generally requires

federal courts to review one state decision. In Williams, the

Virginia Supreme Court applied a standard that was contrary

to federal law while the trial court applied the correct stan-

dard. Id. at 395. The Supreme Court did not aggregate the two

state court decisions or engage in “collective review.” Instead,

it reviewed only the Virginia Supreme Court decision and

held that it was contrary to federal law. Id. at 397-99. Thus,

even when one state court adhered to federal law, if the last

court to review the claim erred, the federal court should

review the last decision in isolation and not in combination

with decisions by other state courts.

We are cognizant that some of our cases discuss two state

court decisions simultaneously. See Lambert, 393 F.3d at 970

n.17 (reviewing the state supreme court’s decision but stating

that “because the supreme court largely adopted the reasoning

BARKER v. FLEMING 12605

of the court of appeals, we also discuss the court of appeals’

decision”); Lewis v. Lewis, 321 F.3d 824, 829 (9th Cir. 2003)

(“Because [the state appellate court’s] decision affirmed the

trial court and adopted one of the reasons cited by the trial

court, . . . our analysis will necessarily include discussion of

the trial court’s decision as well.”). In each of these cases, the

last reasoned decision adopted or substantially incorporated

the reasoning from a previous decision and, as a result, it was

reasonable for the reviewing court to look at both decisions to

fully ascertain the reasoning of the last decision. Here, the

Washington Supreme Court did not adopt the Court of

Appeals’ decision, although agreeing with its reasoning.

Rather, the Commissioner reviewed the record independently

and authored an order that reflected his own reasoning. Thus,

we review the Supreme Court Ruling Denying Review with-

out considering the decision of the Washington Court of

Appeals.

II. “CONTRARY TO CLEARLY ESTABLISHED FEDERAL LAW”

[1] Supreme Court holdings at the time of the state court’s

last reasoned decision are the source of clearly established

Federal law for the purposes of AEDPA. Williams, 529 U.S.

at 412; Clark v. Murphy, 331 F.3d 1062, 1069 (9th Cir. 2003).

At the time the Washington Supreme Court denied review of

Barker’s PRP, the components of a Brady claim were clearly

established by Supreme Court law—a defendant must show

that 1) the prosecution suppressed evidence that 2) was

favorable to the accused and 3) was material. Strickler v.

Greene, 527 U.S. 263, 281-82 (1999) (summarizing the ele-

ments of a Brady claim). The Court first defined materiality

in United States v. Bagley, 473 U.S. 667, 682 (1985), holding

that 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.”

[2] Crucial to this case is the Supreme Court’s requirement

that the materiality of the withheld evidence be analyzed

12606 BARKER v. FLEMING

cumulatively: One “aspect of Bagley materiality to be stressed

here is its definition in terms of suppressed evidence consid-

ered collectively, not item by item.” Kyles, 514 U.S. at 436.

The Court specifically explained that courts should “evaluate

the tendency and force of the undisclosed evidence item by

item; there is no other way. We evaluate its cumulative effect

for purposes of materiality separately and at the end of the

discussion.” Id. at 436 n.10.

[3] Despite the clarity of the Supreme Court’s directive that

a materiality analysis include an assessment of the cumulative

effect of undisclosed evidence, the Washington Supreme

Court did not conduct such an analysis. Instead, the court sep-

arately analyzed the withheld convictions and the evidence

related to Abundiz’s residential burglary charge on a piece-

meal basis and then ended its analysis. Examining the effect

of the withheld evidence group by group, as the court did

there, is only the first half of the analysis. Because the Wash-

ington Supreme Court failed to complete the second half of

the equation, which requires evaluation of the cumulative

effect of all the withheld evidence “separately and at the end

of the discussion,” id., its decision was contrary to clearly

established Federal law as set forth in Kyles. See Castleberry

v. Brigano, 349 F.3d 286, 291-92 (6th Cir. 2003) (holding that

a state court decision that failed to analyze withheld evidence

cumulatively was contrary to Kyles).

Barker offers an alternate argument for why the decision is

contrary to Federal law. He contends that the Washington

Supreme Court’s “actual and substantial prejudice” standard

imposed a more stringent prejudice requirement than Federal

law because the prejudice inquiry under Brady requires only

a showing that “there is a reasonable probability that, had the

evidence been disclosed to the defense, the result of the pro-

ceeding would have been different.” Bagley, 473 U.S. at 682;

see also Strickler, 527 U.S. at 280. The showing of actual and

substantial prejudice, Barker contends, heaps an extra burden

on petitioners that contradicts Federal law.

BARKER v. FLEMING 12607

We need not reach Barker’s argument, having already con-

cluded that the decision was contrary to Federal law, but we

take this opportunity to observe that the interplay of the

Washington PRP “actual and substantial prejudice” standard

and the Brady materiality standard is not without confusion.

It is unclear whether the PRP standard, as used here, governs

a threshold examination that determines whether a petitioner

may raise his claim, see, e.g., In re Cook, 792 P.2d 506, 510-

11 (Wash. 1990) (en banc), or whether it is the ultimate show-

ing required for relief, see id. at 512. The difference matters

for federal habeas review because if the standard is a thresh-

old obstacle to state court review, it would not conflict with

the Brady materiality standard. In that event, the petitioner

simply would fail to gain access to Washington’s post-

conviction review. If it is a substantive standard imposed in

addition to the prejudice showing required under Brady and

its progeny, it appears to impose a higher burden than is

required to establish prejudice under Brady.5

III. ANALYSIS OF THE BRADY CLAIM

[4] Because the state court did not conduct the proper anal-

ysis, AEDPA’s restrictions on our review do not apply. See,

e.g., Cooperwood v. Cambra, 245 F.3d 1042, 1046 (9th Cir.

2001); Wade v. Terhune, 202 F.3d 1190, 1195 (9th Cir. 2000).

5

In practice, Washington courts often avoid the potential conflict

between the “actual and substantial prejudice” standard, which applies in

all PRPs raising constitutional claims for the first time, and other federal

standards that incorporate prejudice in one of two ways. The courts may

waive the burden of establishing actual and substantial prejudice when an

error gives rise to a conclusive presumption of prejudice. See In re

Orange, 100 P.3d 291, 295 (Wash. 2004) (en banc); In re St. Pierre, 823

P.2d 492, 496 (Wash. 1992) (en banc) (errors that are never harmless on

direct appeal may be per se prejudicial in a collateral attack). Or the courts

may equate the “actual and substantial prejudice” standard with the preju-

dice showing incorporated in the federal test. See, e.g., In re Dalluge, 100

P.3d 279, 287 (Wash. 2004) (en banc) (granting relief upon a finding of

prejudice under the federal ineffective assistance of counsel prejudice

standard).

12608 BARKER v. FLEMING

Accordingly, we review Barker’s Brady claim de novo apply-

ing the correct analysis. See Cooper-Smith v. Palmateer, 397

F.3d 1236, 1243 (9th Cir. 2005) (as amended); Cooperwood,

245 F.3d at 1046.

[5] We begin by returning to Brady itself, which estab-

lished that “the suppression by the prosecution of evidence

favorable to an accused upon request violates due process

where the evidence is material either to guilt or punishment,

irrespective of the good faith or bad faith of the prosecution.”

373 U.S. at 87. Barker readily establishes the first prong of his

Brady claim, that the evidence would have been favorable to

him. It is well settled that evidence impeaching the testimony

of a government witness falls within the Brady rule, see, e.g.,

Singh v. Prunty, 142 F.3d 1157, 1161 (9th Cir. 1998), and the

government does not dispute that the four misdemeanor con-

victions were relevant to Abundiz’s credibility. Nor is there

a serious argument that evidence of a deal with Abundiz and

of contact between Barker and Abundiz would not have been

useful impeachment evidence. See, e.g., Bagley, 473 U.S. at

683 (evidence indicating that witness received inducement

from prosecution to testify constituted evidence favorable to

the accused); Benn v. Lambert, 283 F.3d 1040, 1057 (9th Cir.

2002) (explaining that prosecution-provided benefits are

Brady material because they indicate that a witness may have

reasons for testifying other than altruism). Barker’s claim that

the State agreed to drop the residential burglary charge

against Abundiz in exchange for his testimony is speculative,

but at the same time, it takes little imagination to see how a

competent attorney could have implied that such a deal

existed. It takes even less imagination to see how evidence

calling into question whether Barker and Abundiz talked on

June 14 would have helped Barker impeach Abundiz.

[6] The second prong of the Brady claim, that the prosecu-

tion failed to disclose evidence, is subject to some dispute.

The Washington Supreme Court was unconvinced that the

prosecution had access to all the information that Barker

BARKER v. FLEMING 12609

argues was suppressed,6 but we need not explore the particu-

lars of this issue because Barker’s claim is defeated by the

lack of materiality of the allegedly withheld evidence. Signifi-

cantly, “[w]e do not . . . automatically require a new trial

whenever a combing of the prosecutors’ files after the trial

has disclosed evidence possibly useful to the defense but not

likely to have changed the verdict . . . A finding of materiality

of the evidence is required . . . .” Bagley, 473 U.S. at 677

(internal quotations and citation omitted). It is upon this third

element, materiality, that Barker’s claim fails.

[7] The standard for materiality set out in Bagley is worth

repeating: Evidence is material if “there is a reasonable proba-

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

result of the proceeding would have been different.” Bagley,

473 U.S. at 682. “A ‘reasonable probability’ is a probability

sufficient to undermine confidence in the outcome.” Id. In

analyzing the materiality factor, we heed the Supreme Court’s

instruction that the defendant need not show that he would

more likely than not have been acquitted had the evidence

been disclosed. Kyles, 514 U.S. at 434-35. Rather, the touch-

stone of the inquiry is whether Barker received a fair trial that

resulted in a verdict “worthy of confidence.” Id. at 434. We

examine the withheld evidence individually and cumulatively.

See id. at 436-37 & n.10.

A. MATERIALITY OF THE UNDISCLOSED CONVICTIONS

[8] Barker argues that Abundiz’s four convictions were

material because they would have so undermined the credibil-

ity of a key prosecution witness that the jury could not have

6

With respect to the undisclosed convictions, the Washington Supreme

Court was concerned that there would be no constitutional violation if

Barker, who apparently had access to the same criminal history databases

as the prosecution, could have obtained the information through reason-

able diligence. The court also noted that it was not clear that a more thor-

ough search of the databases would have revealed a complete report of

Abundiz’s criminal history.

12610 BARKER v. FLEMING

believed his story that Barker confessed. The convictions,

though, merely duplicate grounds for impeaching Abundiz

that were actually presented to the jury. See, e.g., United

States v. Croft, 124 F.3d 1109, 1124 (9th Cir. 1997) (withheld

psychiatric report that would have established witness’s mem-

ory loss was cumulative when defense had elicited fact of

memory loss on cross-examination); United States v.

Marashi, 913 F.2d 724, 733 (9th Cir. 1990) (withheld evi-

dence that would have contradicted trial testimony was cumu-

lative and not material because deposition contradicted trial

testimony in the same way).

[9] The convictions surely would have highlighted

Abundiz’s dishonest nature, but we do not think that addi-

tional evidence of Abundiz’s penchant for lying would have

affected the jury when his proclivity for lying had already

been firmly established. The jury heard Abundiz admit that he

lied to the police about his identity by giving his brother’s and

cousin’s names instead of his own. He was caught in a lie on

the stand when he said he had used drugs for only a year and

a half but had to acknowledge a conviction for possession of

cocaine six years earlier. More important, the jury heard evi-

dence suggesting that Abundiz was lying about Barker’s con-

fession. When Abundiz first offered information about the

robbery, he had the details wrong: He called Barker “Parker”

and thought the name of the robbed store was “Pay ‘N Save,”

not “Payless.” The erroneous details permitted a strong infer-

ence that Abundiz may have fabricated the confession.

Finally, one of Abundiz’s jail-mates, who was not getting a

deal, testified that in early June, a few months after Barker

allegedly confessed, Abundiz said he knew nothing about the

robbery. The testimony suggests that Abundiz fabricated the

confessions sometime in June. All in all, Abundiz was por-

trayed as a serial liar whose story that Barker confessed was

highly doubtful.

[10] The convictions might also have shown that Abundiz

was a career criminal desperate to escape from jail time. But

BARKER v. FLEMING 12611

just as the jury knew that Abundiz was a liar, the jury also

knew that he had been in and out of jail several times. He

admitted to a juvenile conviction and the jury knew of the

three other crimes that were involved in his agreement with

the State. Specifically, the jury knew that Abundiz had been

charged with possession of narcotics and robbing a JC Penney

store, as well as that he was currently serving a 90-day sen-

tence.

Only one conviction, the March 30, 1999, shoplifting con-

viction, is qualitatively different than the evidence introduced.

That conviction places Abundiz behind bars from March 29,

the date of the shoplifting incident, until April 9. Barker alleg-

edly confessed to Abundiz at a house behind a motel some-

time after Barker’s picture appeared on the news and before

Barker was arrested on April 10. According to Barker, the

jury was under the impression that the confession could have

occurred any time during the ten days that elapsed between

the robbery and Barker’s arrest. The withheld conviction,

Barker contends, whittles down the time span in which the

alleged confession could have taken place from ten days to

the thirty-two hours Barker and Abundiz were outside jail at

the same time.

Where Barker misses the mark is that the conviction does

not whittle down the time period during which the confession

could have occurred from ten days to thirty-two hours.

Rather, the conviction reduces the possible time frame from

only about seventy-two hours to thirty-two hours. Abundiz

testified that Barker confessed after having seen his picture on

the news. The earliest date that Barker’s face could have

appeared on the news was April 7, the day Brown identified

him,7 meaning that the confession had to occur between April

7

The jurors were not informed of the exact date that Barker’s face was

shown on the news, but they were told of the date Brown identified

Barker. We surmise that the news probably did not identify Barker until

at least the next day, on April 8, when an arrest warrant was issued. In that

case, Abundiz’s March 30 conviction would only reduce the time during

which Barker could have confessed from about forty-eight hours to thirty-

two hours, an even smaller difference than the seventy-two hours we

assume based on the date of Brown’s identification.

12612 BARKER v. FLEMING

7 and April 10. Thus, the jury was presented with a three-day

time frame, not a ten-day time frame. Seventy-two hours is

not a long time to begin with, and we doubt that jurors would

be significantly more skeptical of the confession had they

known that it had to occur during a thirty-two hour period.

Here, the withheld evidence did not provide “the defense

with a new and different ground of impeachment.” Silva v.

Wood, No. 04-99000, 2005 WL 1732765, at *7 (9th Cir. July

26, 2005) (quoting Benn, 283 F.3d at 1056); see also Horton

v. Mayle, 408 F.3d 570, 580 (9th Cir. 2005) (although wit-

ness’s testimony was impeached by evidence of drug use,

lying to police, and assisting in the crime, withheld evidence

of promised immunity is a “wholly different kind of impeach-

ment evidence” and is material). The withheld convictions

were cumulative icing on an already crumbling cake.

B. MATERIALITY OF THE EVIDENCE RELATED TO

ABUNDIZ’S RESIDENTIAL BURGLARY CHARGE

[11] Barker makes two claims based on the evidence

related to Abundiz’s residential burglary charge.8 First, he

argues that the withheld evidence shows that Abundiz was

likely in his probable cause hearing at the time he claims to

have talked with Barker on June 14 around 10 a.m., a time

when one could infer that Barker confessed. The effort to

label this evidence as material fails because the facts do not

bear out Barker’s story line. Abundiz did not testify that

Barker confessed on June 14. Rather, he claimed only that

“Mr. Barker talked to [him] while in jail”9 (emphasis added)

8

To recap, the undisclosed evidence related to Abundiz’s residential

burglary charge is: 1) Documentation of Abundiz’s probable cause hearing

for a residential burglary; 2) A police report documenting a June 14, 1999,

meeting between a detective and Abundiz during which they discussed the

residential burglary charge; and 3) A June 16, 1999, order releasing

Abundiz and stating that the State decided not to charge him with residen-

tial burglary.

9

Abundiz did not testify about the June 14 meeting on direct examina-

tion.

BARKER v. FLEMING 12613

on June 14. The alleged confession was on a different date.

Merely talking is vastly different from confessing. “A confes-

sion is like no other evidence. 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) (internal quotation

marks and citation omitted). Thus, had the June 14 meeting

involved a purported confession, then evidence undermining

the likelihood that such a confession occurred would surely

hold more sway than evidence of a mere conversation. Unfor-

tunately for Barker, the evidence does not support his claim

of a June 14 confession.

To the extent the timing of the probable cause hearing

undermines the June 14 conversation, it is of minimal signifi-

cance because the defense established at trial that Barker

probably was in another courtroom at that time. Whether

Barker was in one courtroom and Abundiz in another (accord-

ing to the withheld evidence), or whether Barker was in one

courtroom and Abundiz in a holding cell (according to the tes-

timony), the implication is the same. In either scenario, the

two men probably were in different places when Abundiz

claims they spoke.

Barker’s second argument is that the withheld evidence

would have shown that the State agreed to drop a residential

burglary charge against Abundiz in exchange for favorable

testimony. From a series of events that occurred in June 1999,

Barker tries to craft a theory of collusion that the State

induced Abundiz to fabricate his testimony. Like the June 14

confession theory, this claim too rests on conjecture.

According to Barker, the undisclosed evidence would tell

the following tale: On June 14, 1999, the same day Abundiz

claims he and Barker talked in the holding cell, Abundiz met

with the same detective who identified Barker based on

Brown’s description, Detective Salinas, to talk about the resi-

dential burglary. Detective Salinas’s report on the meeting

12614 BARKER v. FLEMING

does not indicate that they discussed Abundiz’s burglary of a

JC Penney, which Salinas had written up only four days ear-

lier. Also absent is any notation that Abundiz had information

about the “clown robbery.” Barker is skeptical that Abundiz,

a drug addict facing a $20,000 bail, would have passed up an

opportunity to use his supposed knowledge about the Payless

robbery as a bargaining chip. Barker surmises that “[a] rea-

sonable juror would search for some other explanation for

why either Abundiz did not disclose the confession (i.e. it

never happened) or why Detective Salinas did not write it

down (i.e. it might not sound as credible coming from some-

body in Salinas’ position, being already involved and going

to testify in the following days in the first Barker trial).” The

suppression of the evidence prevented the defense from tell-

ing this tale because, without the evidence, Barker’s attorney

was not aware that Abundiz had met with Detective Salinas

the day Barker and Abundiz allegedly talked, or that the State

dropped the residential burglary charge against him.

The flaw in Barker’s theory is that it is mere speculation.

Cf. Downs v. Hoyt, 232 F.3d 1031, 1037 (9th Cir. 2000)

(holding that undisclosed evidence of several leads in the

sheriff’s files was not material because defendant’s theory

that they might have helped his case was speculative and he

did not show how the evidence might have altered the out-

come). He has not pointed to any evidence that the State

induced Abundiz to conjure up confessions or that Detective

Salinas’s June 14, 1999, meeting with Abundiz involved the

Payless robbery. The most Barker can offer is a theory woven

largely of threads he has created himself to link pieces of evi-

dence. That is not enough: “The mere possibility that an item

of undisclosed information might have helped the defense, or

might have affected the outcome of the trial, does not estab-

lish ‘materiality’ in the constitutional sense.” Croft, 124 F.3d

at 1124 (quoting United States v. Agurs, 427 U.S. 97, 109-10

(1976)).

Even if the prosecution did hide one of the benefits it gave

Abundiz, a deal involving the residential burglary charge

BARKER v. FLEMING 12615

would have very nearly replicated evidence already admitted

that showed Abundiz received significant benefits for his tes-

timony. See United States v. Vgeri, 51 F.3d 876, 880 (9th Cir.

1995) (evidence of witness’s prior cooperation with law

enforcement was not material when the jury heard extensive

testimony about her cooperation with the Drug Enforcement

Agency). The jury knew that one burglary charge was being

dismissed, another reduced, and a sentence commuted.

Adding the dismissal of one additional charge to that list of

already substantial benefits would not add to the impeachment

value of the evidence. More importantly, the presence of such

a deal is pure speculation and surely not material.

C. MATERIALITY OF THE CUMULATIVE IMPACT OF THE

WITHHELD EVIDENCE

[12] Thus far we have examined the force and nature of the

withheld evidence item by item, but our materiality analysis

is not complete until we consider the cumulative effect of the

suppressed evidence. Kyles, 514 U.S. at 436-37 & n.10

(courts must first evaluate the tendency and force of each item

of suppressed evidence and then evaluate its cumulative effect

at the end of the discussion). Gauging the collective impact of

the withheld evidence requires us to step back and consider

the strength of the prosecution’s case, paying close attention

to how critical Abundiz’s testimony was. See Banks v. Dretke,

540 U.S. 668, 700-01 (2004) (evidence impeaching witness

who was “the centerpiece” of a case that lacked physical evi-

dence was material); Strickler, 527 U.S. at 292-93 (evidence

impeaching important witness not material when the record

provided strong support for the conviction apart from the wit-

ness’s testimony); Horton, 408 F.3d at 578-79 (withheld evi-

dence was material when it impeached a witness who was

“central to the prosecution’s case”).

[13] The heart of the prosecution’s case was Brown’s iden-

tification of Barker. Without physical or forensic evidence,

her testimony provided the only direct evidence that Barker

12616 BARKER v. FLEMING

was the robber. Brown was approximately four feet away

from the robber for a couple of minutes during the robbery

and, during that time, she got a good look at his profile.

Brown was practiced at carefully looking at a person’s fea-

tures because of facial drawing classes she took and she made

a conscious effort to memorize her assailant’s profile. She

was extremely confident in her identification of Barker from

the photo montage. Her testimony and identification at trial

were categorical that Barker was the robber. Right away, she

said the picture “just kind of took my breath away because I

was like, that’s him . . . .”

[14] We acknowledge that Brown’s identification was not

airtight. Her view was obstructed by the robber’s makeup and,

at times, by his handkerchief. Her description also became

more precise after she talked with co-workers who knew and

already distrusted Barker. Although she did not see any of his

tattoos, Brown stated that his hands were covered with mark-

ings and makeup. Nonetheless, the question we decide is not

whether we believe Brown, but whether we remain confident

in the verdict despite the potential damage the withheld evi-

dence would have wrought. In considering this question, we

appreciate the central importance of the identification by a

witness at the scene. “[D]espite its inherent unreliability,

much eyewitness identification evidence has a powerful

impact on juries,” Watkins v. Sowders, 449 U.S. 341, 352

(1981) (Brennan, J., dissenting), and the jury likely would

have convicted when presented with a confident eyewitness

like Brown whose trial testimony was clear and unwavering.

Significantly, Abundiz was not such a critical part of the case,

nor would the withheld evidence have so discredited him, that

our confidence is shaken.

[15] A useful measurement of the importance of Abundiz

and the materiality of the withheld impeachment evidence is

the lack of emphasis the prosecutor placed on his testimony.

See Kyles, 514 U.S. at 444 (“The likely damage is best under-

stood by taking the word of the prosecutor. . . .” ); Horton,

BARKER v. FLEMING 12617

408 F.3d at 580 (noting that the prosecutor’s emphasis on the

importance of the witness’s testimony highlights how impor-

tant the witness was to the case). The prosecutor spent most

of his closing argument reviewing Brown’s identification and

shoring up her testimony. The identification was the essential

platform of the State’s case. The prosecutor discussed

Abundiz’s testimony as corroborating evidence, but he

devoted only a small portion of his argument to Abundiz.

Unlike many cases in which withheld evidence is material

because it would have impeached a key witness, Abundiz was

not the glue holding together the prosecution’s case nor would

heaped-on impeachment evidence have altered his already

shattered credibility. Consequently, the cumulative impeach-

ment evidence is unlikely to have been the difference between

conviction and acquittal. See, e.g., Benn, 283 F.3d at 1046,

1054 (evidence was material when witness who would have

been impeached was “critical” to the prosecution); Carriger

v. Stewart, 132 F.3d 463, 466, 480-81 (9th Cir. 1997) (en

banc) (impeaching evidence was material when the physical

evidence was weak and the prosecution relied principally

upon the witness who would have been impeached).

Barker makes much of the fact that the first jury that heard

his case without Abundiz’s testimony was hung but, when

Abundiz’s testimony was added, the jury returned a guilty

verdict. It oversimplifies the two trials to conclude that

Abundiz’s testimony was necessarily the difference between

a hung jury and a conviction. The fact that his testimony was

a key piece of different evidence is surely significant; it is not,

however, the defining factor standing alone. Instead, it must

be acknowledged that different juries may view the same facts

and testimony differently. In fact, the scope and nature of the

testimony was different at the two trials, although identifica-

tion by Brown remained firm. When he represented himself

at the first trial, Barker was relentless in his cross-examination

of Brown. Her testimony under fire from Barker covers forty-

seven pages. He hammered at issues relating to the tattoos,

makeup on the neck, markings on the hands, and ability to

12618 BARKER v. FLEMING

observe the robber. At the second trial, Brown’s cross-

examination was a mere thirteen pages and Barker’s lawyer

told the judge, “We can see that the witness’s testimony has

changed from the first trial. I’m sure the holes will be plugged

up that way . . . .” We simply cannot conclude that Abundiz’s

testimony was necessarily the pivotal difference between the

two trials.

The real question with respect to Abundiz is whether he

was telling the truth. Even absent the withheld evidence,

Abundiz was thoroughly impeached and showcased as a self-

serving jailhouse snitch. The alleged “confession” was wholly

suspect in light of the evidence. The withheld evidence simply

made it more so. But even without the undisclosed evidence,

the defense severely discredited Abundiz by highlighting his

deal with the State, his history of lying, his drug addiction,

and the errors in his initial statement. The difference between

the story of Abundiz that the jury knew and that which would

have been presented with the withheld evidence is not signifi-

cant. Contra Benn, 283 F.3d at 1057 (evidence was material

when the jury never heard that a key witness lied about any-

thing but suppressed evidence would have shown willingness

to lie about his testimony); Carriger, 132 F.3d at 480-81 (evi-

dence was material when prosecution portrayed star witness

as nonviolent and truthful but withheld evidence would have

shown that he was a sociopath, serial liar, and career felon).

In sum, looking at the withheld evidence in a cumulative

sense, as well as than piece-by-piece, we are confident that

the withheld evidence would not have changed the jury’s cal-

culus of Abundiz as a witness. Given Brown’s powerful testi-

mony, we conclude that the withheld evidence was not

material.

AFFIRMED.