Jesse Gonzalez v. Robert Wong

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JESSE GONZALEZ, 

Petitioner-Appellant,

No. 08-99025

v.

ROBERT WONG, Warden of  D.C. No.

2:95-CV-02345-JVS

California State Prison at San

OPINION

Quentin,

Respondent-Appellee.



Appeal from the United States District Court

for the Central District of California

Lourdes G. Baird and James V. Selna,

District Judges, Presiding

Argued and Submitted

January 10, 2011—Pasadena, California

Filed December 7, 2011

Before: Diarmuid F. O’Scannlain, William A. Fletcher, and

Richard R. Clifton, Circuit Judges.

Opinion by Judge Clifton;

Partial Concurrence and Partial Dissent by

Judge W. Fletcher;

Partial Dissent by Judge O’Scannlain

20683

GONZALEZ v. WONG 20687

COUNSEL

Robert Berke, Santa Monica, California; Mark E. Overland

(argued), Scheper Kim & Overland LLP, Los Angeles, Cali-

fornia, for the petitioner-appellant.

Joseph P. Lee, Deputy Attorney General, Los Angeles, Cali-

fornia, for the respondent-appellee.

OPINION

CLIFTON, Circuit Judge:

Jesse Gonzales1 was convicted in a California state court of

first degree murder, with a finding of the special circumstance

of killing a law enforcement officer engaged in the lawful

pursuit of his duties, and was sentenced to death. The Califor-

1

It appears that Gonzales’s name is spelled wrong in the case caption.

This error dates back to his trial and is reflected in the caption of the Cali-

fornia Supreme Court’s decision as well. People v. Gonzalez, 800 P.2d

1159 (Cal. 1990). In order to avoid confusion we have retained the errone-

ous spelling in the caption, but have correctly spelled Gonzales’s name in

the opinion.

20688 GONZALEZ v. WONG

nia Supreme Court affirmed the conviction and sentence and

denied Gonzales’s petition for post-conviction relief. People

v. Gonzalez, 800 P.2d 1159 (Cal. 1990). The district court

denied his petition for habeas corpus under 28 U.S.C. § 2254,

and he appeals that denial to us.

Gonzales’s appeal requires us to consider and apply the

decision of the United States Supreme Court earlier this year

in Cullen v. Pinholster, ___ U.S. ___, 131 S. Ct. 1388 (2011).

In that decision, the Court held that in reviewing the petition

of a state prisoner for habeas relief under the Antiterrorism

and Effective Death Penalty Act (“AEDPA”) when the pris-

oner petitions for review of a claim adjudicated in the state

courts on the merits under 28 U.S.C. § 2254(d)(1), a federal

court may consider only the record that was before the state

court when it adjudicated the claim.

One of the arguments made by Gonzales to the California

Supreme Court and rejected by that court was that the prose-

cutor failed to turn over exculpatory material as required

under Brady v. Maryland, 373 U.S. 83 (1963), and related

cases. The argument specifically referred to information con-

cerning one prosecution witness, a jailhouse informant named

William Acker. Acker testified during the guilt and penalty

phases of Gonzales’s trial that Gonzales had admitted that he

intentionally killed the deputy sheriff, in effect confessing to

Acker that he was guilty of the crime and special circum-

stance alleged. Some material regarding Acker was turned

over by the prosecutor to Gonzales’s defense counsel prior to

trial, but other material, concerning Acker’s mental state and

credibility, was not. Despite diligent effort by Gonzales, some

of the documents that were not turned over did not become

known to Gonzales until they were obtained during the fed-

eral habeas proceeding in district court, after the state court

had rendered its decision. Those materials were not, therefore,

part of the state court record.

GONZALEZ v. WONG 20689

Under Pinholster, we may not consider those later-

discovered materials in reviewing Gonzales’s federal habeas

claim. Because it appears to us that those materials strengthen

Gonzales’s Brady claim to the point that his argument would

be potentially meritorious — that is, that a reasonable state

court might be persuaded to grant relief on that claim — it is

not appropriate for us to ignore those materials. We remand

that portion of the case2 to district court with instructions to

stay the proceeding in order to give Gonzales an opportunity

to return to state court and present his claim with the benefit

of the materials that were not available and not part of the

record at the time of the California Supreme Court decision.

By that process, we seek to satisfy the intent of AEDPA, as

discussed in Pinholster, 131 S. Ct. at 1398, that habeas claims

of state prisoners be channeled in the first instance to state

court.

We are not persuaded by the other arguments presented by

Gonzales. Thus, we affirm the judgment of the district court

as to most issues, but vacate the part of the judgment that

denied the Brady claim (and related ineffective assistance of

counsel claim, see note 2) and remand that claim to the dis-

trict court with instructions to stay proceedings to permit

Gonzales to present the claim to the California Supreme

Court.

2

In addition to the Brady claim, we also remand to the district court with

similar instructions as to one of several ineffective assistance of counsel

claims asserted by Gonzales, that being a claim that his counsel was inef-

fective for not earlier obtaining the materials that arguably would have

impeached Acker. As we explain below, at 20698 note 7, that particular

ineffective assistance claim substantially overlaps with the Brady claim.

For clarity, we will generally not discuss or refer to that ineffective assis-

tance claim separately, but when we refer to our disposition of the Brady

claim we include that ineffective assistance claim as well.

20690 GONZALEZ v. WONG

I. Background

Eleven plain-clothed sheriff deputies arrived in three

unmarked vehicles at the home of Gonzales’s parents in La

Puente to execute a search warrant on the evening of May 29,

1979. The search warrant was based on an undercover narcot-

ics purchase made several days earlier from Gonzales’s cou-

sin at the residence. Four of the deputies approached the front

door and one of them knocked and stated “Los Angeles Sher-

iff’s Department. We have a search warrant. Open the door.”

Several seconds later the knock and announce was repeated.

The deputies heard what sounded like running and, fearing

that narcotic evidence was being destroyed, they attempted to

enter the house forcefully. Deputy Robert Esquivel eventually

kicked in the door and his momentum carried him into the

entryway. Esquivel saw Gonzales standing at the end of the

hallway with a shotgun pointed at the front door. The shotgun

blast missed Esquivel but hit Deputy Jack Williams who

entered the house behind him. Williams died as a result of the

shotgun wound. Gonzales was shot and apprehended by the

deputies.

Gonzales was charged with first degree murder with the

special circumstance of killing a peace officer who was

engaged in the lawful pursuit of his duties. His trial was bifur-

cated into two phases, a guilt phase and a penalty phase. Each

phase was tried before a different jury.

During the guilt phase, the facts of the shooting, as

described above, were not disputed by the defense. Gon-

zales’s defense was that he had not heard the officers’

announcements and instead believed the officers were mem-

bers of a rival gang, known as the Bassetts, coming to kill him

and his cousin. The central question at trial was Gonzales’s

understanding and intent at the time of the shooting.

The prosecution presented significant evidence showing

that Gonzales could not have believed that the officers were

GONZALEZ v. WONG 20691

gang members. All of the surviving deputies who were by the

front door testified as to the manner of the entry and the

shooting. In particular, they testified that while they were

dressed in casual clothing, all of them, including the officer

who was killed, had their badges either affixed to their jackets

or in their hands. They also testified that they twice

announced that they were police before entering the home.

Additionally, an officer with expertise in gang-related crime

testified that La Puente was no longer an area of high gang

activity. He testified that almost all gang violence consisted

of drive-by shootings, conduct very different from the actions

of the officers serving the warrant. He also described the typi-

cal gang warrior as a Latino teenager and gave reasons why

the officers, all of whom were in their 30’s and, with the

exception of Esquivel, were white, could not have been mis-

taken for gang warriors. Thus, the prosecution argued, Gon-

zales must have known that he was shooting at law

enforcement officers, not rival gang members.

In addition, the prosecution presented evidence to support

the contention that Gonzales not only knew he was shooting

at officers but that he knew in advance that the police were

coming and planned on using the raid as an opportunity to kill

a police officer. This theory was based almost entirely on the

testimony of William Acker, another prisoner held in the

same jail as Gonzales. Acker testified that while in jail, Gon-

zales admitted to knowing that the men were officers because

he had received a phone call informing him of the raid, and

further that he planned to “bag a cop” when the officers

served the warrant. Acker also testified that Gonzales had

planned in advance to say that he believed the officers were

Bassett members.

Gonzales sought to counter the prosecution’s evidence. He

attempted to show that he reasonably could have believed the

officers were gang members. He presented evidence of other

gang-related violence in La Puente. He relied on the testi-

mony of two officers with whom he spoke shortly after the

20692 GONZALEZ v. WONG

shooting. Both officers testified that Gonzales told them he

had believed the officers were Bassetts.3 To explain why it

was reasonable for Gonzales to believe that the Bassetts

would storm his house to kill him, Gonzales sought to estab-

lish that he had been a former leader of the La Puente gang,

rivals of the Bassetts.

Gonzales testified in his own defense. His testimony was

that he was inside the house when he heard the cars pull into

the driveway. He went to the window but did not recognize

the men. He testified that he focused on a Latino male who

he said was the front seat passenger in one of the cars. He

stated that he believed that the men were Bassetts. He denied

seeing badges or hearing the announcements.

While Gonzales denied knowingly killing a police officer,

his testimony about the shooting was inconsistent with the

facts as described by all of the officers who testified. Among

the many inconsistencies was that he insisted that Esquivel,

the only Latino officer, was sitting in the front passenger seat.

3

Deputy Mace testified that while en route to the hospital, Gonzales said

that he had believed that the men trying to enter his home were members

of the Bassett gang and that he did not know they were police officers

until he had been shot. The testimony of Sergeant Verdugo, who investi-

gated the murder with his partner Sergeant Overlease, was somewhat less

clear. Verdugo testified about what Gonzales said during an interview at

the hospital early the following morning. Gonzales described the incident

as a “freak accident.” He initially stated that he was watering the lawn

until he saw the “cops coming” and ran into the house. The record is

unclear whether Gonzales recognized the men as “cops” when he saw

them approaching the house, or whether his description of them as cops

to Verdugo was based on his learning by the time of the interview that the

men were police. The record is also unclear on what was said next.

Verdugo testified at trial that Gonzales stated that he was confused.

According to Verdugo’s report of the conversation, Gonzales said that the

officers were confused. It is undisputed that Gonzales then stated that he

had been watering the lawn, but was inside with his infant son when he

heard the cars arrive. He heard pounding and yelling at the door, but could

not hear what was said. Gonzales reiterated to Verdugo that he believed

the men were Bassett members.

GONZALEZ v. WONG 20693

All of the officers stated that Esquivel was driving one of the

cars. Gonzales also denied that the cars he saw were the ones

the officers had identified as their vehicles.

The defense also sought to counter Acker’s testimony.

Gonzales testified that he had never admitted to Acker that he

knew the men were police officers. James Nobel, a prisoner

who was housed in the cell between Acker and Gonzales, tes-

tified that he never saw Gonzales speak with Acker. Nobel

also testified that Gonzales had asked him to read aloud the

police reports of the incidents because Gonzales was illiterate.

Both Gonzales and Nobel said that Acker could have over-

heard Nobel reading the police reports, which the defense

argued explained how Acker knew specific facts about the

shooting.

The defense also sought to impeach Acker. During cross

examination, Acker admitted that he had previously pled

guilty to a charge of murder and that he had provided evi-

dence against his own wife concerning that murder. He denied

being a police informant or giving information in other cases.

He testified that he hoped giving the information would help

him get transferred to an out-of-state prison because he

believed he would be killed by gangs if he remained in Cali-

fornia. He insisted, though, that he was testifying because “it

was a step in the right direction” and would help him get bal-

ance in his life. Acker admitted that he could lie if he wanted

to, but insisted that he was not lying about Gonzales’s state-

ments.

Gonzales was convicted of first degree murder and the spe-

cial circumstance of killing a police officer engaged in the

lawful pursuit of his duties. The case then moved to the pen-

alty phase. The state sought the death penalty. The first pen-

alty phase trial resulted in a hung jury. The penalty phase was

retried before a different jury.

20694 GONZALEZ v. WONG

The state’s penalty phase case was aimed at establishing

aggravating factors that would outweigh any mitigating fac-

tors offered by Gonzales.4 The primary aggravating factor

offered by the state was the aggravated nature of the killing,

which the state sought to establish by proving that Gonzales

was aware of the police raid and had planned out the killing

of the officer, including his Bassett excuse. The focal point of

the state’s case during the penalty phase was Acker’s testi-

mony that Gonzales had confessed to Acker all the key facts

that the state argued made Gonzales’s crime worthy of the

death penalty.

During the penalty phase, the defense continued to main-

tain that Gonzales had believed the officers were gang mem-

bers. However, faced with an existing guilty verdict on the

charge of premeditated murder, the defense argued in the

alternative that Gonzales did not know about the raid in

advance and that therefore the crime was not so heinous and

did not warrant the death penalty. For example, evidence was

presented that Gonzales had gone to work that day and had

not been waiting around for the officers. Gonzales did not tes-

tify again during the penalty phase, and no character evidence

was presented on his behalf. The second penalty phase jury

imposed the death penalty. The trial judge denied a motion for

a retrial and a motion to modify the sentence.

Gonzales appealed his conviction and brought a petition for

post-conviction relief to the California Supreme Court. The

court considered both the appeal and the habeas petition at the

same time. Gonzales’s habeas petition claimed, among other

4

Under the 1978 California death penalty statute, in effect at the time

of Gonzales’s crime and applied at his trial, the guilt phase jury first had

to find the defendant guilty of first degree murder and one of the enumer-

ated special circumstances. If that requirement was met, the penalty phase

jury was instructed to consider aggravating and mitigating circumstances

and to impose the death penalty if it concluded that the aggravating cir-

cumstances outweighed the mitigating circumstances. See Cal. Penal Code

§ 190.3 (1978).

GONZALEZ v. WONG 20695

things, ineffective assistance of counsel based on his trial

counsel’s failure to investigate and present positive character

evidence. The California Supreme Court appointed a referee,

a Superior Court judge, to review evidence and make factual

findings as to what character evidence could have been

uncovered by Gonzales’s counsel and what evidence the pros-

ecution may have presented in rebuttal.

At the referee hearing, Gonzales’s trial counsel, Ralph

Bencagey, testified about his investigation. He testified that

he conducted it on his own and that he interviewed people

from the neighborhood. He did not conduct an investigation

into Gonzales’s health or school records and did not have

Gonzales tested for mental health impairments.

Gonzales also presented character witnesses at the referee

hearing who testified that Gonzales was a kind individual who

had a loving and caring relationship with his children as well

as other children. Some also testified that he was a “slow”

child and had never learned to read. However, several of these

witnesses had limited interactions with Gonzales, and none

were aware of his involvement with gangs. Two of the wit-

nesses also described the tragic death of Gonzales’s twin sis-

ters in a train accident and the subsequent impact the tragedy

had on Gonzales and his family. The referee made factual

findings and filed a report with the California Supreme Court.

While Gonzales’s case was pending before the California

Supreme Court, a scandal erupted regarding false testimony

by jailhouse informants in Los Angeles. Leslie White, a jail-

house informant, revealed that he and other informants in the

Los Angeles County jail had fabricated confessions during the

period from 1979 through 1988.5 An investigation into the use

5

Our court recently dealt with a case involving another informant from

this period. See Maxwell v. Roe, 628 F.3d 486 (9th Cir. 2010). Our col-

league, Judge Stephen Trott, who previously served as a Los Angeles

Assistant District Attorney, has written and lectured extensively about the

problems inherent in prosecutors’ use of jailhouse informants. See Stephen

S. Trott, Words of Warning for Prosecutors Using Criminals as Witnesses,

47 Hastings L.J. 1381, 1394 (1996).

20696 GONZALEZ v. WONG

of jailhouse informants by prosecutors found significant prob-

lems. While Acker was never officially identified as a jail-

house informant during the investigation, the revelations of

how jailhouse informants had fabricated confessions led Gon-

zales’s lawyers to seek additional discovery regarding Acker.

Gonzales filed discovery motions which were heard by the

judge who had presided over his trial. The trial court granted

the request for further discovery, but the State sought a writ

of mandamus from the California Supreme Court to overturn

the discovery order. That issue was consolidated with Gon-

zales’s habeas petition and direct appeal.

The California Supreme Court upheld Gonzales’s convic-

tion and death sentence and rejected his claims for habeas

relief. Gonzalez, 800 P.2d 1159. On the discovery issue, the

court held that the trial court could not authorize the discovery

sought by Gonzales because it no longer had jurisdiction over

the case. It also declined to grant the discovery requests under

its direct appeal or habeas jurisdiction. Id. at 1256-61. The

court stated, though, that “we expect and assume that if the

People’s lawyers have such information in this or any other

case, they will disclose it promptly and fully.” Id. at 1261. No

such information was voluntarily disclosed to Gonzales.

Gonzales filed a petition for habeas corpus in federal court.

The district court denied Gonzales’s request for an evidentiary

hearing on most of the claims, but it granted discovery on the

claim that Gonzales’s trial counsel failed to investigate and

the state failed to disclose evidence that Acker was a govern-

ment agent. This discovery did not unearth evidence that

Acker was a government agent, but it did uncover impeach-

ment evidence about Acker that had not been provided to the

defense prior to the trial. Specifically, the state turned over six

psychological reports prepared by prison psychologists on

Acker while he had been incarcerated in California prisons

between 1972 and 1979. These reports, discussed in more

detail below, indicated that Acker had a severe personality

disorder, was mentally unstable, possibly schizophrenic, and

GONZALEZ v. WONG 20697

had repeatedly lied and faked attempting suicide in order to

obtain transfers to other facilities.

Based on this new evidence Gonzales moved for reconsid-

eration of the denial of an evidentiary hearing on his ineffec-

tive assistance of counsel and Brady claims. The district court

denied the request, holding that while the newly discovered

evidence “strengthened some of the elements” of these

claims, it did not establish materiality. The court subsequently

denied Gonzales’s other claims.

Gonzales sought and received a certificate of appealability

from the district court under 28 U.S.C. § 22536 and brought

this appeal.

II. Discussion

The provisions of AEDPA apply to Gonzales’s petition

because it was filed on September 20, 1996, after AEDPA’s

effective date. Under AEDPA, a federal court may not grant

the writ based on any claim that was adjudicated on the merits

by a state court unless the state court decision “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; or . . . resulted in

a decision that was based on an unreasonable determination

of the facts in light of the evidence presented in the State

court proceeding.” 28 U.S.C. § 2254(d). The district court’s

denial of a petition for a writ of habeas corpus is reviewed de

novo. Lambert v. Blodgett, 393 F.3d 943, 964 (9th Cir. 2004).

6

Gonzales failed to request a certificate of appealability on his claim of

ineffective assistance of counsel based on the failure to investigate and

present character evidence during the penalty phase. Gonzales claims to

have inadvertently omitted this claim from his request and has asked this

panel to grant one for it. Because the claim substantially overlaps with

another claim which was certified, we conclude that the failure to request

certification was an inadvertent mistake and grant the request for a certifi-

cate of appealability on this claim.

20698 GONZALEZ v. WONG

Gonzales has raised numerous claims in his habeas petition,

some of which relate to the guilt phase, some to the penalty

phase, and some to both. We begin by addressing his Brady

claim, which he asserts as to both phases. It is the only claim

on which we remand this case to the district court. We then

address his other claims, which we conclude are not meritori-

ous.

A. Brady Claim7

1. Procedural History

Gonzales’s state habeas petition raised a Brady claim based

on allegations that the state failed to turn over evidence about

Acker’s criminal history. His argument was based on an inac-

curate criminal history printout given to Gonzales’s counsel.

It showed Acker was serving a sentence of life without parole,

when in fact he was sentenced to life with the possibility of

7

Gonzales has also raised an ineffective assistance of counsel claim

based on his counsel’s failure to discover the impeachment evidence. The

analysis of materiality for ineffective assistance of counsel is the same as

the analysis of prejudice for Brady, see United States v. Bagley, 473 U.S.

667, 682 (1985), so our Brady prejudice analysis applies directly to this

ineffective assistance of counsel claim. The district court rejected this

ineffective assistance claim on the same ground that it rejected the Brady

claim: the additional evidence was not material under Brady or prejudicial

under Strickland. It is not clear to us that this ineffective assistance claim

adds anything to Gonzales’s Brady claim, but out of caution we resolve

this ineffective assistance claim in the same way as the Brady claim. It is

remanded to the district court with the same instruction to stay and abey,

in order to give the state court the first opportunity to resolve the claim

in light of the late-disclosed materials. In order to avoid confusion with the

other ineffective assistance claims asserted by Gonzales, as to which we

affirm the district court’s dismissal, we will not separately discuss this

ineffective assistance claim in this decision and will treat it as included

within our discussion of the Brady claim.

By this action, we do not suggest any determination by us with regard

to whether counsel’s performance was so unprofessional as to satisfy the

other prong under Strickland. In order to give the state court a fair oppor-

tunity to consider the issue, we will not take it up ourselves now.

GONZALEZ v. WONG 20699

parole. The criminal history also omitted several burglary

convictions. Gonzales argued that the state’s failure to correct

these errors constituted a Brady violation. In addition, Gon-

zales argued that the state failed to inform him that Acker was

providing information to the police in other criminal cases.

The California Supreme Court rejected this claim, concluding

that there was no prejudice because “these additional details

do not paint a significantly different picture of Acker’s char-

acter and motives than appears on the record.” Gonzalez, 800

P.2d at 1193.

As noted above, Gonzales sought additional discovery

about Acker from the state during the pendency of his state

appeal. The state trial court granted Gonzales this discovery,

but the California Supreme Court overturned the discovery

order. This effectively ended Gonzales’s ability to pursue

additional Brady claims in state court.

Gonzales’s initial federal habeas petition raised a Brady

claim based on the same withheld evidence that was the sub-

ject of his state petition. The district court held that Gonzales

suffered no prejudice from the withholding of the material

and denied the request for an evidentiary hearing. When addi-

tional suppressed evidence was uncovered, Gonzales twice

moved for re-consideration of his Brady claim. The district

court twice denied the request, concluding that while the

newly discovered evidence “strengthened some of the ele-

ments” of these claims, it did not establish materiality. The

court based its conclusion on its belief that Acker was ade-

quately impeached and his testimony was corroborated by

other evidence. Notably, the district court concluded that “[a]t

the guilt phase, and to a lesser degree at the penalty phase,

this was not a case where it is likely the jury had to believe

Acker’s testimony in order to believe the prosecution’s theo-

ry.”

20700 GONZALEZ v. WONG

2. Cullen v. Pinholster

After we heard oral arguments in this case, the Supreme

Court filed its decision in Cullen v. Pinholster, 131 S. Ct.

1388 (2011).8 We ordered and received supplemental briefs

from the parties regarding the impact of that decision. Two

elements of Pinholster are of particular importance for the

case before us.

[1] First, Pinholster specifically held that “review under

§ 2254(d)(1) is limited to the record that was before the state

court that adjudicated the claim on the merits.” Pinholster,

131 S. Ct. at 1398.

[2] Second, in announcing that holding, Pinholster empha-

sized that, under AEDPA, the state courts are to bear primary

responsibility for adjudicating habeas claims brought by state

prisoners. In the Court’s words, AEDPA “demonstrate[d]

Congress’ intent to channel prisoners’ claims first to the state

courts. . . . ‘The federal habeas scheme leaves primary respon-

sibility with the state courts.’ ” Id. at 1398-99, (quoting

Woodford v. Visciotti, 537 U.S. 19, 27 (2002) (per curiam)).

The Acker psychological reports were not part of the record

when the California Supreme Court rendered its decision

because they were not obtained by Gonzales until later, while

8

Recently we followed Pinholster in denying a habeas petitioner’s

request for an evidentiary hearing relating to an ineffective assistance of

counsel claim involving new evidence not presented to the state court. See

Stokley v. Ryan, ___ F.3d ___, 2011 WL 4436268 (9th Cir. Sep. 26, 2011).

We concluded that we did not have to determine whether Pinholster

applied in that case, however, because the petitioner’s claim failed either

way. Id. at *4. The present case poses a different situation, however, as

the only relief sought by the petitioner in Stokley was for an evidentiary

hearing. Id. at *6. Further, we found that the petitioner in Stokley did not

present a colorable ineffective assistance of counsel claim, id. at *6-11,

whereas the new evidence of psychological reports presented by Gonzales

could make a colorable Brady claim.

GONZALEZ v. WONG 20701

he was pursing his federal habeas petition in district court. A

Brady claim was made before the state court, but it was nar-

rower because Gonzales was not aware at the time of the psy-

chological reports that had been withheld. As we discuss in

detail below, we have concluded that the Acker psychological

reports might have been helpful to Gonzales’s defense. Before

discussing those reports, however, it is necessary to determine

what consideration, if any, we can properly give to them in

light of Pinholster.

Gonzales argues that Pinholster’s limitation of our review

to the record before the state court does not apply to his Brady

claim based on the psychological reports because it is a “new

claim,” not decided on the merits by the California Supreme

Court. In Pinholster the Court referenced but declined to draw

the dividing line between a “new claim” and a claim decided

on the merits by the state court and subject to review under

§ 2254(d). Justice Sotomayor’s dissent in Pinholster ques-

tioned how the Court’s holding would apply to a hypothetical

situation somewhat similar to the one before us: a petitioner

who diligently pursued a Brady claim in state court is denied

relief on the grounds that the withheld evidence presented in

the Brady claim was not material, but subsequently is able to

force production of additional undisclosed exculpatory evi-

dence. Pinholster, 131 S. Ct. at 1417-18 (Sotomayor, J., dis-

senting). The majority opinion written by Justice Thomas

responded to Justice Sotomayor’s concern by noting that “Jus-

tice Sotomayor’s hypothetical involving new evidence of

withheld exculpatory witness statements may well present a

new claim,” but stated that it did “not decide where to draw

the line between new claims and claims adjudicated on the

merits.” Id. at 1401 n.10 (internal citation omitted).

[3] Under the circumstances, we conclude that Pinholster

applies here and prevents us from considering the new evi-

dence in reviewing Gonzales’s Brady claim under § 2254(d).

Gonzales raised and the state court explicitly rejected a Brady

claim regarding information about Acker. Moreover, the sug-

20702 GONZALEZ v. WONG

gestion that Gonzales has presented a “new claim” inherently

invites questions regarding exhaustion. In light of Pinholster’s

emphasis on the primary responsibility of the state court, we

conclude that the new evidence needs to be presented to the

state court before it can be considered by us on habeas review

of the state court’s decision.

That does not mean that we can or should disregard the

new evidence, however. We cannot fault Gonzales for a lack

of diligence with respect to the withheld reports. Responsibil-

ity for the late appearance of those documents lies with the

state. Despite discovery requests by Gonzales’s trial counsel

and the inherent obligation of the prosecutor to turn over

exculpatory material, these reports were withheld. Gonzales

made further discovery requests while pursuing post-

conviction relief in state court, but the California Supreme

Court granted the State’s request to set aside the trial court’s

order permitting the discovery. That court did so while

expressing its expectation that prosecutors would voluntarily

and promptly turn over any such evidence, but that expecta-

tion was not fulfilled. For us simply to ignore the materials

that did not emerge until the federal habeas proceedings

would be to reward the prosecutor for withholding them.

[4] As discussed below, we conclude that if the new evi-

dence were considered, Gonzales could make a colorable or

potentially meritorious Brady claim, meaning that a reason-

able state court could conclude that the withholding of the

psychological reports constituted a Brady violation at the guilt

phase, the penalty phase, or both. Because the claim is not

clearly meritless, we do not believe dismissal of Gonzales’s

Brady claim is the appropriate result.

[5] We conclude that the appropriate course for us at this

point is to remand to the district court with instructions that

it stay and abey the habeas proceedings to allow Gonzales to

present to state court his Brady claim including the

subsequently-disclosed materials. In effect, we follow the

GONZALEZ v. WONG 20703

suggestion offered by Justice Breyer in his concurring opinion

in Pinholster that a petitioner “can always return to state court

presenting new evidence not previously presented. If the state

court again denies relief, he might be able to return to federal

court to make claims related to the latest rejection.” See Pin-

holster, 131 S. Ct. at 1412 (Breyer, J., concurring).9

The stay and abey process is the same process that may be

employed when a petitioner files a petition containing unex-

hausted claims. In Rhines v. Weber, 544 U.S. 269, 278 (2005),

the Court instructed that “if the petitioner had good cause for

his failure to exhaust, his unexhausted claims are potentially

meritorious, and there is no indication that the petitioner

engaged in intentionally dilatory litigation tactics . . . the dis-

trict court should stay, rather than dismiss” the petition. Here,

Gonzales had good cause for not presenting the new evidence

to the state court, has not engaged in intentional dilatory liti-

gation tactics, and, as is explained below, has a potentially

meritorious claim.

This course provides the state court with the first opportu-

nity to resolve this claim. It also protects Gonzales’s interest

in obtaining federal review of his claim. As in the case of

unexhausted claims that meet the Rhines requirements, Gon-

zales’s “interest in obtaining federal review of his claims out-

weighs the competing interests in finality and speedy

resolution of federal petitions.” Id. Once the state court has

spoken on this claim, Gonzales may, if necessary, return to

district court and reactivate the federal proceedings.

We now turn to a discussion of the new materials. Our dis-

cussion below is only to demonstrate why we conclude that

Gonzales has a colorable or potentially meritorious Brady

claim such that a reasonable state court could find a Brady

9

The separate opinion of Judge O’Scannlain, dissenting in part, dis-

agrees with this portion of our decision in this case. The majority’s

response to the partial dissent appears below, at 20734-36.

20704 GONZALEZ v. WONG

violation. We do not decide whether there was a Brady viola-

tion. That determination is for the California Supreme Court

to make in the first instance.

3. A Potentially Meritorious Brady Claim

“The prosecution’s affirmative duty to disclose evidence

favorable to a defendant can trace its origins to early 20th-

century strictures against misrepresentation” by prosecutors.

Kyles v. Whitley, 514 U.S. 419, 432 (1995). As the Supreme

Court recognized in 1935, a prosecutor is “the representative

not of an ordinary party to a controversy, but of a sovereignty

. . . whose interest, therefore, in a criminal prosecution is not

that it shall win a case, but that justice shall be done.” Berger

v. United States, 295 U.S. 78, 88 (1935). In subsequent deci-

sions, most notably Brady, the Court has consistently “under-

scored the ‘special role played by the American prosecutor in

the search for truth in criminal trials.’ ” Banks v. Dretke, 540

U.S. 668, 696 (2004) (quoting Strickler v. Greene, 527 U.S.

263, 281 (1999)).

The Supreme Court has also repeatedly reaffirmed that

Brady is one of the central bulwarks against injustice in our

criminal justice system. The Court has stressed the central

premise of Brady; even though an individual prosecutor may

win a conviction, society as a whole loses when that convic-

tion is wrong. Our system, therefore, places a “duty [on prose-

cutors] to refrain from improper methods calculated to

produce a wrongful conviction.” Cone v. Bell, ___ U.S. ___,

129 S. Ct. 1769, 1782 (2009) (quoting Berger, 295 U.S. at

88). Principal among a prosecutor’s duties is to provide a

defendant with all material exculpatory and impeachment evi-

dence prior to trial. This obligation recognizes the significant

advantage the state has over an individual defendant in

regards to gathering information and seeks to level the play-

ing field. We expect our government to fight fair and not deny

a defendant evidence that could exculpate him or ameliorate

the penalty he faces. Only by giving a defendant this evidence

GONZALEZ v. WONG 20705

can the government ensure that “justice is done its citizens in

the courts.” Brady, 373 U.S. at 87.

The elements of a claim for a Brady violation are that

“[t]he evidence at issue must be favorable to the accused,

either because it is exculpatory, or because it is impeaching;

that evidence must have been suppressed by the State, either

willfully or inadvertently; and prejudice must have ensued.”

Strickler, 527 U.S. at 281-82. The state does not appear to

contest the first two elements, so we discuss these only briefly

before turning to the issue of materiality, which the state does

contest.

a. Favorable to the Accused

In United States v. Bagley, the Supreme Court recognized

that “[i]mpeachment evidence . . . as well as exculpatory evi-

dence, falls within the Brady rule,” because it is “favorable to

an accused.” 473 U.S. 667, 676 (1985). There is a colorable

argument that the psychological reports could have been used

to impeach Acker. Impeaching Acker was important for Gon-

zales’s defense in both phases. Gonzales can, therefore, make

a colorable argument that the withheld evidence was favor-

able to him.

b. Evidence was Suppressed

Gonzales can also make a colorable argument that the evi-

dence was suppressed. Brady does not require a showing that

the state willfully or intentionally suppressed the evidence;

even inadvertent suppression will satisfy this prong of the test.

See Brady, 373 U.S. at 87 (suppression of evidence by prose-

cution violates due process “irrespective of the good faith or

bad faith of the prosecution”). The psychological reports were

in the possession of the prosecutor’s office prior to the trial.

Even if they had not been, a prosecutor has a duty under

Brady to “learn of any exculpatory evidence known to others

acting on the government’s behalf.” Carriger v. Stewart, 132

20706 GONZALEZ v. WONG

F.3d 463, 479-80 (9th Cir. 1997) (en banc) (prosecutor vio-

lated Brady when he did not turn over witness’s prison

records); see also Strickler, 527 U.S. at 275 n.12.

c. Materiality

Suppressed evidence is material if “the favorable evidence

could reasonably be taken to put the whole case in such a dif-

ferent light as to undermine confidence in the verdict.” Kyles,

514 U.S. at 435. In other words, the petitioner does not need

to prove that a different result would have occurred, just that

there is “a reasonable probability of a different result.” Id. at

434 (internal quotation marks omitted). “The question is not

whether the defendant would more likely than not have

received a different verdict with the evidence, but whether in

its absence he received a fair trial, understood as a trial result-

ing in a verdict worthy of confidence.” Id. We conclude that

a reasonable state court could conclude that there was a rea-

sonable probability of a different result if the information con-

tained in the psychological reports had been available to the

defense and presented to the juries.

We reach this conclusion by undertaking a two-step

inquiry. First, we ask whether a reasonable state court could

conclude that there was a reasonable probability that the new

evidence would have changed the way in which the jurors

viewed Acker’s testimony. We determine that a state court

could so conclude. We then ask whether a reasonable state

court could conclude that there was a reasonable probability

that this change would have resulted in a different verdict dur-

ing either or both phases. We conclude that given Acker’s

role in both phases, there is a potentially meritorious claim

that there was a reasonable probability of a different verdict

at one or both phases.10

10

We recognize that it was probably true, as the district court suggested,

that Acker’s testimony held greater importance in the penalty phase than

in the guilt phase. We need not decide here whether the evidence was

actually material in one or both of the trials, as that conclusion should be

made in the first instance by the state court.

GONZALEZ v. WONG 20707

i. Jurors’ view of Acker

[6] Our inquiry into how the jurors viewed Acker is pri-

marily focused on how the withheld evidence could have pro-

vided additional or alternative means of impeachment. There

is a colorable argument that a factfinder would have found the

information about Acker contained in these reports disturbing,

and that it would have been difficult for anyone, let alone a

reasonable factfinder, to trust the witness described in these

reports. The reports were prepared by psychologists employed

by the State. They characterized Acker as predatory, manipu-

lative, and unscrupulous, and they detailed his past lies and

manipulations. See Benn v. Lambert, 283 F.3d 1040, 1055

(9th Cir. 2002) (evidence that witness “had regularly lied” and

“was untrustworthy and deceptive” would have “severely

undermined his credibility.”).

Perhaps the most severe examples of Acker’s manipulative

and deceptive behavior were the three occasions when he

faked committing suicide in order to obtain prison transfers or

otherwise influence his placement within the prison system. A

1972 Psychiatric Evaluation reported that Acker admitted that

he had faked suicide at the Norwalk Receiving Center in order

to be placed in the hospital, from which it would be easier to

escape. A 1973 Psychiatric Evaluation reported an attempted

hanging, which Acker stated “was only a gesture designed to

prevent his egress from CMC East,” the hospital in which he

had been placed. Finally, a 1974 report described another fake

suicide attempt in April or May of 1974, which Acker said he

faked because “he wanted out” of the facility.

Beyond the fake suicide attempts, the reports specifically

described Acker’s other manipulative behavior. One of the

psychiatrists reported that Acker asked, “how much money

would it take to give me a good report.’ ” Another psychiatrist

described Acker as “the type of an individual who was con-

stantly testing me.” The 1979 diagnostic study prepared for

Acker’s sentencing for his murder conviction concluded that

20708 GONZALEZ v. WONG

he was “intelligent, manipulative, unscrupulous” and “capable

of any measure of brutality in the service of achieving what

he wants to do.”

In addition to showing Acker to have a history of lying and

manipulative behavior, the reports could be viewed to cast

significant doubt on what Acker stated was his primary moti-

vation for testifying against Gonzales. Acker repeatedly said

that he was testifying because of a desire to turn his life

around and do the right thing. The psychological reports

showed that Acker had previously lied about reforming his

life. The psychological report from 1972 stated that Acker

told the psychologist he had turned his life around because he

had “undergone a religious experience.” After making these

statements and being released from prison, he committed first

degree murder and numerous robberies.11 A subsequent social

evaluation of Acker noted that he had been “offered therapy

in the past and has used it as a tool to get out of prison early

and has not attempted to use it as a tool to change his own

behavior.”

A reasonable state court could conclude that these prior

statements would have enabled Gonzales to show that Acker’s

professed reason for testifying was false. A court could also

conclude that Gonzales would have then been able to focus

the jurors on Acker’s “continuing interest in obtaining [the

state’s] favor” and that as a result “they might well have dis-

trusted [Acker’s] testimony, and insofar as it was uncorrobo-

rated, disregarded it.” Banks, 540 U.S. at 701; see also On Lee

v. United States, 343 U.S. 747, 757 (1952) (noting that testi-

mony from witness receiving benefits from government “may

raise serious questions of credibility”).

[7] The reports also indicated that Acker had schizophre-

11

The reports would also have shown that Acker was in fact a career

criminal who first interacted with the law at age 8, and since the age of

14 had spent all but fourteen months incarcerated.

GONZALEZ v. WONG 20709

nia, which a reasonable state court could determine would

have raised serious questions in the factfinder’s mind about

Acker’s competency to perceive accurately and testify truth-

fully. As early as 1974, Acker was diagnosed with

“[s]chizophrenia, chronic, undifferentiated type.” In 1975, he

was diagnosed with “[s]chizophrenia, residual type.” A 1977

report noted that Acker was “mentally unstable” and had “a

severe personality disorder, and he has previously been diag-

nosed as schizophrenic.” Courts have long recognized the

impeachment value of evidence that a government witness has

a “severe illness, such as schizophrenia, that dramatically

impaired [his] ability to perceive and tell the truth.” United

States v. Butt, 955 F.2d 77, 82-83 (1st Cir. 1992) (“For over

forty years, federal courts have permitted the impeachment of

government witnesses based on their mental condition at the

time of the events testified to.”). A reasonable state court

could conclude that an assessment that Acker had not only

lied in the past but had a mental condition that made him

prone to lying could have affected the jury’s evaluation of his

credibility.

Finally, a state court could conclude that the psychiatric

reports would have provided an opportunity to impeach Acker

by showing that the state’s own expert employees had repeat-

edly expressed doubts about Acker’s credibility, truthfulness,

and competency. See Silva v. Brown, 416 F.3d 980, 988 (9th

Cir. 2005) (requirement witness not have psychological evalu-

ation was evidence of “potentially devastating fact that the

state itself doubted [the witness’s] mental competency”);

Benn, 283 F.3d at 1055 (evidence that police doubted veracity

of informant because of past lies was material Brady evi-

dence).

The state argues, and the district court concluded, that

regardless of the impeachment value of this evidence, it was

nevertheless not material because Acker was already suffi-

ciently impeached. Defense counsel did present some

impeachment evidence, but courts have repeatedly held that

20710 GONZALEZ v. WONG

withheld impeachment evidence does not become immaterial

merely because there is some other impeachment of the wit-

ness at trial. Where the withheld evidence opens up new ave-

nues for impeachment, it can be argued that it is still material.

See Banks, 540 U.S. at 702 (rejecting argument that since wit-

ness was otherwise impeached withheld impeachment evi-

dence was immaterial); United States v. Kohring, 637 F.3d

895, 905-06 (9th Cir. 2011) (even though witness was

impeached on memory problems, evidence of alleged sexual

misconduct and suborning perjury was not cumulative

because it “would have added an entirely new dimension to

the jury’s assessment of [the witness]” such that “ ‘there is a

reasonable probability that the withheld evidence would have

altered at least one juror’s assessment [of the evidence]’ ”

(quoting United States v. Price, 566 F.3d 900, 914 (9th Cir.

2009))); Horton v. Mayle, 408 F.3d 570, 580 (9th Cir. 2005)

(“[T]hat the jury had other reasons to disbelieve [the witness]

does not render the suppressed [impeachment evidence]

immaterial.”); Benn, 283 F.3d at 1055 (“The mere fact that a

prosecution witness has a prior record, even when combined

with other impeachment evidence that a defendant introduces,

does not render otherwise critical impeachment evidence

cumulative.”).

While cumulative impeachment evidence might have been

immaterial, a reasonable state court could determine that the

psychology reports “ ‘provided the defense with a new and

different ground of impeachment’ ” and as such were not

cumulative. Silva, 416 F.3d at 989 (quoting Benn, 283 F.3d at

1056.) In Silva, the court recognized that even though the wit-

ness was impeached on his forthrightness, the withheld evi-

dence, in that case a plea deal which prohibited the witness

from undergoing a psychiatric evaluation prior to trial, was

not cumulative because it related to his reliability. In Car-

riger, the district court had ruled that an informant’s prison

records, which described him as repeatedly lying, having a

sociopathic personality, and being manipulative were immate-

rial for Brady purposes because the jury was made aware of

GONZALEZ v. WONG 20711

his burglary conviction and plea deal. 132 F.3d at 480-82.

Recognizing that the withheld evidence opened a new avenue

of impeachment, we reversed because “the government can-

not satisfy its Brady obligation to disclose exculpatory evi-

dence by making some evidence available and claiming the

rest would be cumulative.” Id. at 481

During both phases defense counsel did attempt to impeach

Acker by his conviction for murder, his desire to be trans-

ferred to an out-of-state prison, previous cases where Acker

had testified about jailhouse confessions, and his statement

that he could lie when he wanted to, although he denied doing

so in this case. None of the evidence presented at trial actually

demonstrated Acker had lied in the past or that he was known

to be manipulative and deceptive. See Benn, 283 F.3d at 1055

(evidence that informant had lied in the past was non-

cumulative impeachment evidence). It is one thing for a wit-

ness to admit that he could lie; everyone can lie. Evidence of

Acker’s past lies, deception, and manipulation would have

provided hard evidence, different from that already presented,

to support Gonzales’s argument that Acker was lying.

In addition, Gonzales has a colorable argument that the new

evidence would have opened up other unexplored opportuni-

ties for impeachment. A reasonable state court could deter-

mine that none of the impeachment at trial touched on

Acker’s competency to perceive and tell the truth, which rea-

sonably could have been put at issue by evidence that Acker

was schizophrenic. Similarly, there is a colorable argument

that none of the impeachment evidence available to Gonzales

at trial allowed him to cast doubt on Acker’s purported desire

to turn his life around or demonstrate that the state had previ-

ously expressed doubts about Acker’s veracity and compe-

tency.

Finally, Gonzales has a colorable argument that the jury

believed Acker despite the impeachment evidence presented

to them. This argument could rest in part on the fact that

20712 GONZALEZ v. WONG

Acker was an important witness for the government, espe-

cially during the penalty phase, and that “[i]n cases in which

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

dant’s conviction indicates that in all likelihood the impeach-

ment evidence introduced at trial was insufficient to persuade

a jury that the witness lacked credibility.” Benn, 283 F.3d at

1055.

There is also documentary evidence that a reasonable state

court could conclude supports the argument that the jury

believed Acker. In a memo written after the first penalty

phase trial resulted in a hung jury, the prosecutor stated that

he spoke with the first penalty phase jurors and that most of

them, including all of the women, found Acker’s testimony

convincing. Acker’s testimony and defense counsel’s cross

examination were essentially the same in all three trials.

Given that the cited jurors in the first penalty trial found

Acker credible, this memo could be viewed to provide some

evidence that the jurors in the other trials did as well.

[8] In light of the manner in which Acker was described in

these reports and the potential new avenues of impeachment

opened by these descriptions, we conclude that a reasonable

state court could determine that a jury would have doubted

Acker’s veracity, motive for testifying, and competency if

presented with the evidence in the psychological reports.

ii. A Different Outcome

[9] We next consider whether there is a colorable argument

that there is a reasonable probability that the additional

impeachment of Acker through the psychological reports

would have led to a different outcome at either the guilt or

penalty phase. We conclude that a reasonable state court

could decide that Acker’s importance to the prosecution’s

cases was significant enough that additional impeachment of

him reasonably could have changed the outcome.

GONZALEZ v. WONG 20713

[10] Acker’s testimony amounted to a confession by Gon-

zales to first degree premeditated murder of a police officer,

both the crime he was charged with and the facts the state

argued warranted sentencing him to death. As the Supreme

Court has noted “[a] confession 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)

(quoting Bruton v. United States, 391 U.S. 123, 139-40 (1968)

(White, J., dissenting)); see also Maxwell, 628 F.3d at 507-08

(informant was “the ‘make-or-break witness’ ” and his testi-

mony about defendant’s jailhouse confession was the “center-

piece of the prosecution’s case”). While there was other

circumstantial evidence, Acker’s testimony was the only

direct evidence establishing that Gonzales had a premeditated

plan to kill a police officer.

In addition, a state court could conclude that the damage

the suppressed impeachment evidence could cause was “best

understood by taking the word of the prosecutor.” Kyles, 514

U.S. at 444. The prosecutor spent time during his summations

discussing Acker’s testimony and countering the attempted

impeachment of him, and a court could view this as further

support for the proposition that Acker was central to the pros-

ecution’s cases. See Horton, 408 F.3d at 580 (“The prosecu-

tor’s emphasis on the importance of [the witness’s] testimony

bolsters the conclusion that disclosure of the [impeachment

evidence] may have significantly damaged the prosecution’s

case.”). There is also the memo written by the prosecutor after

the hung jury in the first penalty trial, in which the prosecutor

stated that his ability to retry the penalty phase depended on

whether “Acker is available and is willing to testify.” A rea-

sonable state court could view the prosecutor’s arguments and

memo as evidence that Acker was important to the prosecu-

tion’s case, especially in the context of the penalty phase.

[11] We do not decide here that the new evidence would

have resulted in a different outcome in either phase. It is pos-

20714 GONZALEZ v. WONG

sible that even without this new evidence the jury did not

believe Acker. It is also conceivable that, based on the other

evidence presented to it, the jury could have concluded that

Gonzales was guilty and deserved the death penalty. How-

ever, in order to establish a Brady violation, Gonzales would

only have to show a “reasonable probability” that the outcome

would have been different. Given the nature of Acker’s testi-

mony, a reasonable state court could conclude that Acker’s

testimony “was the glue that held the prosecution’s case

together,” Horton, 408 F.3d at 579, and that there is a reason-

able probability that further impeachment of Acker could

have resulted in a different outcome.

4. Remand to District Court

[12] Based on the above analysis, we conclude that Gon-

zales could make a potentially meritorious or colorable Brady

claim based on the psychological reports. In order to allow the

state court to consider this Brady claim and to ensure Gon-

zales can seek federal review of the claim if necessary, we

remand the case as to this claim to the district court with

instructions to stay and abey the case pending review of this

claim by the California Supreme Court.12

12

While Gonzales’s Brady argument before this court focuses mostly on

the Acker psychological reports, he also argues that the California

Supreme Court erred by denying relief based solely on the evidence that

Gonzales knew about and cited in his argument to that court, such that it

is appropriate for us to grant habeas relief to him at this time. We disagree.

Applying the AEDPA standard, we conclude that the determination of the

California Supreme Court that there was no prejudice, based on the mate-

rial known to it at the time of its decision, was not unreasonable. Gon-

zales’s counsel was able to present evidence that Acker had committed

murder and robbery in the past. The fact that he had committed several

more robberies would not have painted a significantly different picture.

Additionally, even though the criminal history printout indicated that

Acker was not eligible for parole, Gonzales’s counsel still questioned

Acker on whether he hoped that his testimony would help him with the

parole board. We do not resolve whether the cumulative effect of the

materials alleged at the time of the state court decision to have been with-

held and the later-disclosed materials was prejudicial. The California court

may consider that question for itself.

GONZALEZ v. WONG 20715

B. Ineffective Assistance of Counsel: Character Evidence

[13] As stated above, we are not persuaded by any of the

other arguments presented by Gonzales. We start with several

claims seeking relief based on ineffective assistance of coun-

sel.

Gonzales contends that he received ineffective assistance of

counsel during both the guilt and penalty phase because his

attorney failed to investigate or present any character evi-

dence during either phase. In order to establish ineffective

assistance of counsel, a petitioner must prove both deficient

performance by his counsel and prejudice caused by the defi-

ciency. To demonstrate deficient performance Gonzales must

show that counsel’s performance “fell below an objective

standard of reasonableness” based on “the facts of the particu-

lar case [and] viewed as of the time of counsel’s conduct.”

Strickland v. Washington, 466 U.S. 668, 688-90 (1984). In

order to establish prejudice Gonzales “must show that there is

a reasonable probability that, but for counsel’s unprofessional

errors, the result of the proceeding would have been different.

A reasonable probability is a probability sufficient to under-

mine confidence in the outcome.” Id. at 694. Because failure

to meet either prong is fatal to Gonzales’s claim, there is no

requirement that we “address both components of the inquiry

if the defendant makes an insufficient showing on one.” Id. at

697.

The California Supreme Court rejected Gonzales’s claims

of ineffective assistance of counsel for failure to present char-

acter evidence. See Gonzalez, 800 P.2d at 1198-99.13 Under

13

The California Supreme Court only expressly ruled on this claim in

regards to the penalty phase. However, “[w]here a state court’s decision

is unaccompanied by an explanation, the habeas petitioner’s burden still

must be met by showing there was no reasonable basis for the state court

to deny relief.” Harrington v. Richter, ___ U.S. ___, 131 S. Ct. 770, 784

(2011).

20716 GONZALEZ v. WONG

AEDPA this conclusion is reviewed only to ensure it is not

contrary to or an unreasonable application of federal law. In

reviewing the California Supreme Court’s ruling we are

guided by the Supreme Court’s instruction that when a peti-

tioner raises a Strickland claim through a habeas petition gov-

erned by the AEDPA, he must surmount two highly

deferential standards. Harrington v. Richter, ___ U.S. ___,

131 S. Ct. 770, 778 (2011) (“Federal habeas courts must

guard against the danger of equating unreasonableness under

Strickland with unreasonableness under § 2254(d).”). “[T]he

question is not whether counsel’s actions were reasonable.

The question is whether there is any reasonable argument that

counsel satisfied Strickland’s deferential standard.” Id.

1. Guilt Phase

To support his claim of ineffective assistance of counsel

during the guilt phase Gonzales points to evidence presented

during the referee hearing conducted at the request of the Cal-

ifornia Supreme Court. At the hearing, witnesses testified that

Gonzales was a loving father who cared about his children,

was attentive to them, and was also caring towards other chil-

dren. He argues that this evidence was relevant because the

parties stipulated that Gonzales’s infant son and another child

were in the house when the shooting occurred. Gonzales

argues that the character evidence would have strengthened

his defense that he was not aware of the raid and was not

planning to kill an officer, because if he had been, he would

have made sure the children were out of the house.

[14] It was reasonable for the California Supreme Court to

conclude that this claim was meritless because the failure to

present this character evidence was not prejudicial. First, it is

unlikely the witnesses Gonzales might have called would

have been persuasive. Two of the witnesses, Dr. Furth and

Mr. Clancy, had very limited contact with Gonzales. Dr. Furth

admitted to basing her opinion on the few times that Gonzales

had brought his children to her office for medical appoint-

GONZALEZ v. WONG 20717

ments. Mr. Clancy was Gonzales’s middle school teacher and

had seen him only a few times since then. The other wit-

nesses, George Gonzales, Raymond de Jesus, Patricia

Espinoza, and Maria Blanco, were either family or close

friends, making their testimony suspect based on their close

relationship with Gonzales and their admitted desire to help

him avoid the death penalty.

Most importantly, none of these witnesses were aware of

Gonzales’s gang involvement. Gonzales’s professed fear of a

raid by the Bassetts necessarily highlighted his significant

gang involvement, which would have cast doubt on how well

the proposed witnesses knew him and on their ability to ade-

quately judge his character. Furthermore, the fact that all of

these witnesses would testify that they were unaware of Gon-

zales’s role as a gang leader could have undermined the

defense argument that Gonzales feared attack by the Bassetts,

giving defense counsel a strategic reason for not introducing

this evidence.

Second, even if the jury were to afford some credibility to

these witnesses, there was evidence which was inconsistent

with these witnesses’ descriptions of Gonzales. Gonzales had

left an unsecured shotgun and shells in the same room as his

infant son. Drug paraphernalia including syringes were also

found lying around the house. The jury could have seen these

facts and Gonzales’s self-described gang history as inconsis-

tent with someone who was purportedly so concerned for the

welfare of the children.

Third, this character evidence would have provided limited

support for the conclusion that Gonzales did not know about

the raid in advance. According to Gonzales, this evidence

demonstrated that if he knew about the raid in advance and

was planning on killing a police officer, he would have

ensured that the children were not in the home at all. But that

assumed that Gonzales was aware of exactly when the police

officers would arrive and knew when the children needed to

20718 GONZALEZ v. WONG

be out of the house. The jury also could have thought that

Gonzales merely did not think through his plan, or could have

concluded that having the children in the house was part of

Gonzales’s plan to make the shooting look like an accident.

Finally, even if the jury did draw Gonzales’s desired infer-

ence from this evidence and concluded based on the presence

of the children that Gonzales did not have advance notice of

the raid, the guilt phase jury could have convicted him even

if they believed he did not have advance notice. The jury

could also have found Gonzales guilty of first degree murder

if they did not believe that Gonzales had advance notice, but

did believe that he knew at the time of the shooting that the

men were officers. If the jury convicted on this basis, the chil-

dren being in the home would have been irrelevant.

2. Penalty Phase

Gonzales raises a similar claim in the context of the penalty

phase, arguing that the failure of his lawyer to investigate and

present character and background evidence during the penalty

phase constituted ineffective assistance of counsel. The Cali-

fornia Supreme Court rejected the claim because it found

there was a valid strategic reason for not presenting character

evidence. Gonzalez, 800 P.2d at 1197-1201. Once again, Gon-

zales must show that the California Supreme Court was

unreasonable in reaching this conclusion. Gonzales cannot

meet this requirement because he cannot show prejudice aris-

ing from the failure to present this evidence. See Wong v. Bel-

montes, ___ U.S. ___, 130 S. Ct. 383, 386 (2009) (prejudice

requires a showing of “a reasonable probability that a compe-

tent attorney, aware of the available mitigating evidence,

would have introduced it at sentencing, and that had the jury

been confronted with this mitigating evidence, there is a rea-

sonable probability that it would have returned with a differ-

ent sentence.”) (internal quotation marks and alterations

omitted)).

GONZALEZ v. WONG 20719

Gonzales points to two types of character evidence that he

claims his attorney should have discovered and presented.

The first type, already discussed in the context of the guilt

phase, consisted of testimony by family, friends, neighbors,

and a former teacher, all of whom described Gonzales as a

kind person who was respectful of adults and caring towards

children. However, as discussed above, this testimony was

suspect because none of these witnesses were aware of Gon-

zales’s drug and gang history. It is improbable that this evi-

dence would have caused the jury to reach a different

sentence.

More importantly, introduction of this evidence would have

opened the door to evidence about allegations that Gonzales

was involved in a gang rape in 1972. Gonzales had been

accused of being involved in a gang rape but ultimately only

pled guilty to a charge of misdemeanor battery on the victim’s

friend. Defense counsel was able to limit evidence of this

incident during the penalty phase to a stipulation as to this

conviction. Gonzales’s attorney testified at the referee hearing

that he did not develop or introduce character evidence

because he was worried about the prosecution introducing

additional details about the incident. The referee and the Cali-

fornia Supreme Court found that had Gonzales raised the

issue of his character, the prosecution would have been able

to present the facts underlying the battery conviction.

While there was some evidence presented at the referee

hearing that the rape victim would have denied that Gonzales

had raped her, Gonzales still pled guilty to battery on the vic-

tim’s friend. Therefore, the best Gonzales could have hoped

for was a showing that he was not one of the rapists but did

batter the victim’s friend, and at worst the jury could have

believed that Gonzales was involved in or assisted in allowing

the rape. Given how weak the mitigating character evidence

was, it was not unreasonable for the California Supreme Court

to conclude that Gonzales’s counsel had a valid strategic rea-

son for not introducing the character evidence so as to avoid

20720 GONZALEZ v. WONG

the details of this incident. See Burger v. Kemp, 483 U.S. 776,

791 (1987) (concern about prior convictions was valid reason

not to introduce character evidence); Siripongs v. Calderon,

133 F.3d 732, 736-37 (9th Cir. 1998) (same).

The second type of evidence was information about Gon-

zales’s life history. The bulk of this testimony portrayed Gon-

zales’s family as a stable lower-class family. The only

potentially helpful information was that two of Gonzales’s

sisters died in a train accident when he was younger and that

after this accident Gonzales’s parents neglected the remaining

children. This testimony came from Gonzales’s aunt. Addi-

tionally, the defendant’s brother testified that there was a

change in the family after the death of his sisters. While it is

unclear what these witnesses meant, it is conceivable that this

evidence could have been presented to the jury to induce sym-

pathy for Gonzales, and its introduction would not have

opened the door to the gang rape evidence.

While this evidence could have been introduced, it was not

the kind of evidence that would have made a sentencer “con-

clude[ ] that the balance of aggravating and mitigating cir-

cumstances did not warrant death.” Strickland, 466 U.S. at

695. Generally Gonzales appears to have come from a stable

family. While Gonzales’s aunt used the word “neglect,” it

does not appear that she means that the children were aban-

doned or abused. Furthermore, Gonzales was already sixteen

when the accident occurred so it is questionable how much

any neglect would have affected him. Additionally, there was

no evidence of the kinds of abuse which other courts have

found sufficiently material to warrant relief. See, e.g., Wiggins

v. Smith, 539 U.S. 510, 535 (2003) (evidence of abuse at

hands of alcoholic absentee mother and “physical torment,

sexual molestation, and repeated rape” while in foster care);

Boyde v. Brown, 404 F.3d 1159, 1180 (9th Cir. 2005) (coun-

sel was deficient for failing to investigate and present evi-

dence of physical and sexual abuse by parents). While the

death of his sisters was undoubtedly tragic and the shock may

GONZALEZ v. WONG 20721

have caused Gonzales’s parents to be inattentive to him, this

evidence was not sufficient to engender enough sympathy to

overcome the aggravating circumstances of the murder.

[15] We conclude that the state court did not unreasonably

determine that there was not a reasonable probability that had

this evidence been presented to the jury the result would have

been different. Since Gonzales failed to establish that the

alleged deficiency by his counsel caused him prejudice, these

ineffective assistance of counsel claims fail.

C. Ineffective Assistance of Counsel: Mental Impairment

Evidence

Gonzales also alleges that his counsel was deficient

because he failed to investigate and present evidence at the

guilt and penalty phases that Gonzales had a mental impair-

ment that would have affected his judgment at the time of the

shooting. Gonzales points to a medical opinion by Dr. Stein,

a doctor retained by Gonzales’s habeas counsel, which stated

that Gonzales has a mental impairment which “would make

it extremely difficult for him to choose between alternatives

within a short period or to size up options available to him.”

Dr. Stein also opined that “[e]ven if Gonzales had heard the

police officers announce themselves, it is highly likely he

would have still tended to distort or misperceive the events

and have been unable to grasp the correct response.” Id. Gon-

zales asserts that this mental impairment evidence would have

explained why, once he believed the men were Bassetts, he

was unable to process the evidence that they were in fact offi-

cers.

The California Supreme Court rejected this claim because

Gonzales had not shown that his counsel was deficient. In

doing so it first determined that federal law contained “no

blanket obligation to investigate possible ‘mental’ defenses.”

Gonzalez, 800 P.2d at 1195. Rather, an attorney only needs to

investigate mental health defenses if there are “facts known to

20722 GONZALEZ v. WONG

counsel from which he reasonably should have suspected that

a meritorious defense was available.” Id. It then made a fac-

tual determination that counsel was not aware of any evidence

that would have made “the possibility of convincing ‘mental’

evidence . . . reasonably apparent to a competent attorney.”

Id. In reviewing this conclusion we once again ask only

“whether there is any reasonable argument that counsel satis-

fied Strickland’s deferential standard.” Richter, 131 S. Ct. at

778. Here, there are reasonable arguments that counsel was

not deficient. Because Gonzales has failed to satisfy his bur-

den under the deficiency prong, there is no need to address the

prejudice prong.

First, the California Supreme Court’s determination that

there is “no blanket obligation to investigate possible ‘mental’

defenses, even in a capital case” was not an unreasonable

application of federal law. Strickland explicitly addresses

counsel’s duty to investigate, instructing that “counsel has a

duty to make reasonable investigations or to make a reason-

able decision that makes particular investigations unneces-

sary.” 466 U.S. at 691 (emphasis added); see also Wiggins,

539 U.S. at 527 (“[A] court must consider not only the quan-

tum of evidence already known to counsel, but also whether

the known evidence would lead a reasonable attorney to

investigate further.”); Douglas v. Woodford, 316 F.3d 1079,

1085 (9th Cir. 2003) (“Trial counsel has a duty to investigate

a defendant’s mental state if there is evidence to suggest that

the defendant is impaired.”). There is no clear Supreme Court

case law always requiring a mental health investigation at the

guilt or penalty phase. See Pinholster, 131 S. Ct. at 1406-07

(“Strickland itself rejected the notion that the same investiga-

tion will be required in every case.”). The Court has generally

eschewed blanket rules in the context of ineffective counsel.

Strickland, 466 U.S. at 696 (“Most important, in adjudicating

a claim of actual ineffectiveness of counsel, a court should

keep in mind that the principles we have stated do not estab-

lish mechanical rules.”).

GONZALEZ v. WONG 20723

Second, the California Supreme Court’s determination that

counsel would not have been aware that a mental health

investigation would lead to “materially favorable evidence,”

Gonzalez, 800 P.2d at 1195, was a reasonable factual determi-

nation. The only facts that Gonzales suggested should have

put his counsel on notice was the fact that Gonzales was illit-

erate and that he had been sick as a child. The California

Supreme Court requested a response from defense counsel as

to why he failed to conduct a mental health investigation, and

he explained that Gonzales “seemed normal and alert, and he

participated knowledgeably in strategy discussions.” Id. at

1194. In regards to Gonzales’s illiteracy, counsel stated “he

attached little significance to defendant’s illiteracy, because

poor reading skills are common in low-income communities

for reasons unrelated to mental ability.” Id. The California

Supreme Court found counsel’s responses uncontroverted and

dispositive.

As Strickland requires, the California Supreme Court

“evaluate[d] the conduct from the counsel’s perspective at the

time” and then “judge[d] the reasonableness of counsel’s

challenged conduct on the facts of the particular case, viewed

as of the time of counsel’s conduct.” 466 U.S. at 689-90.

Given that “counsel is strongly presumed to have rendered

adequate assistance,” id. at 690, the California Supreme Court

was not unreasonable in accepting counsel’s statement that

from his perspective there was nothing unusual about Gon-

zales’s illiteracy, in combination with other facts he knew

about Gonzales, that would have required him to seek a men-

tal health evaluation.

[16] Nor has Gonzales adequately explained why his illit-

eracy would have necessarily put his counsel on notice that a

mental impairment defense would be fruitful. The fact that

Gonzales appeared normal and alert and was able to partici-

pate in strategy discussions would have been much more rele-

vant in considering whether to pursue a mental impairment

investigation. We find nothing unreasonable with the state

20724 GONZALEZ v. WONG

court’s conclusion that defense counsel did not have reason to

believe that a mental health investigation would have been fruit-

ful.14

D. Ineffective Assistance of Counsel: Evidence that Acker

was a Government Agent

Gonzales also argues that his counsel was ineffective for

failing to investigate and present evidence that William Acker

was a government agent. Inherent in this claim is the assump-

tion that Acker was a government agent. However, despite

having pursued this claim for close to thirty years, Gonzales

has never been able to provide evidence to support his asser-

tion that Acker was acting as a government agent. As the Cal-

ifornia Supreme Court correctly noted, “[a]bsent evidence of

direct motivation by the police or a prior ‘working relation-

ship’ between Acker and the authorities,” there is no basis for

concluding Acker was a government agent. Gonzalez, 800

P.2d at 1193.

Even after the discovery authorized by the district court,

nothing in the record suggested that Acker had an established

14

We also note that while Gonzales has presented this argument as one

about a mental impairment investigation, it is actually an argument that

counsel did not think of a potential avenue for supporting the defense’s

theory that Gonzales believed the officers were gang members. Just

because counsel did not come up with all potential ways to prove the case

does not make the counsel’s performance ineffective. See Richter, 131 S.

Ct. at 789 (“Counsel was entitled to formulate a strategy that was reason-

able at the time and to balance limited resources in accord with effective

trial tactics and strategies.”); see also Strickland, 466 U.S. at 689 (“There

are countless ways to provide effective assistance in any given case. Even

the best criminal defense attorneys would not defend a particular client in

the same way.”); Chandler v. United States, 218 F.3d 1305, 1316 n. 16

(11th Cir. 2000) (“No lawyer can be expected to have considered all of the

ways. If a defense lawyer pursued course A, it is immaterial that some

other reasonable courses of defense (that the lawyer did not think of at all)

existed and that the lawyer’s pursuit of course A was not a deliberate

choice between course A, course B, and so on.”).

GONZALEZ v. WONG 20725

relationship with the police prior to his conversations with

Gonzales. Gonzales points to the fact that Acker also testified

about jailhouse confessions in other murder cases and argues

that it cannot be mere coincidence that Acker was placed next

to several murder suspects who all purportedly confessed to

him. He also suggests that there was something unusual going

on because Acker was referred for a probation evaluation

even though he should not have been eligible for probation on

his murder conviction.

[17] Conjecture and coincidences cannot stand in the stead

of actual evidence that Acker was a government agent, how-

ever, particularly given the high standard of deference given

to the state court’s conclusion. We agree with the district

court that “petitioner has not presented, and cannot come up

with, clear and convincing evidence to controvert, or rebut the

presumption of correctness applicable to, the state court’s

finding that Acker did not act as law enforcement’s agent in

petitioner’s case.” Because there is no evidence that Acker

was a government agent, there is no basis to find that the con-

clusion reached by the California Supreme Court on this

claim was factually or legally unreasonable.

E. Ineffective Assistance of Counsel: Lingering Doubt

Gonzales next argues that his counsel provided ineffective

assistance during the penalty phase because his counsel failed

to understand and explain to the jury the one mitigating factor

he presented to the jury, “lingering doubt.”15 Lingering doubt

15

The California Supreme Court did not explicitly address this argument

as an ineffective assistance of counsel argument. It did reject an argument

that the jury was misled to ignore any lingering doubt in the penalty phase

through either counsels’ arguments or the jury instructions. This is, in

essence, a conclusion that either counsel was not deficient or that any defi-

ciency was immaterial. Gonzalez, 800 P.2d at 1189. It also rejected several

unspecified ineffective assistance claims, which the court describes as

including “incompetently fail[ing] to . . . present mitigating penalty evi-

20726 GONZALEZ v. WONG

was a valid mitigating factor recognized by the California

Supreme Court in People v. Terry, 390 P.2d 381, 387 (Cal.

1964). Lingering doubt is some doubt regarding the defen-

dant’s guilt for the crime of conviction, less than reasonable

doubt but preventing absolute certainty, which mitigates

against imposing the death penalty.

Defense counsel did try to create lingering doubt by pre-

senting evidence during the penalty phase to support the the-

ory that Gonzales had mistakenly believed the police were

gang members. However, in his opening and closing state-

ments, defense counsel made confusing statements that sug-

gested that the jury could not consider whether they had doubt

about Gonzales’s guilt. While counsel’s performance might

have been less than stellar, his statements about lingering

doubt did not have a material adverse effect on the penalty

phase.

The prosecutor focused his case for aggravation almost

exclusively on one aggravating factor, “the aggravated nature

of the crime.” The state sought to establish this factor by

proving that Gonzales knew about the raid in advance and

planned to use the raid as an opportunity to “bag a cop.” In

his opening statement during the penalty phase trial that pro-

duced the death sentence verdict, the prosecutor told the jury

that “the evidence will show that the defendant planned to kill

a cop. Not that it was thought of lightly, that it was just a

split-second situation, spontaneous, but he planned to kill a

cop. Something to the effect he was going to bag a cop.” Dur-

dence” and making “tactical errors at the penalty phase affect[ing] the bal-

ance of aggravation.” Id. at 1202. Gonzales exhausted the issue because

his petition before the California Supreme Court clearly raised this issue

as one of ineffective assistance of counsel. California Amended Petition

at 65-6. “Where a state court’s decision is unaccompanied by an explana-

tion, the habeas petitioner’s burden still must be met by showing there was

no reasonable basis for the state court to deny relief.” Richter, 131 S. Ct.

at 784.

GONZALEZ v. WONG 20727

ing his summation the prosecutor reiterated that the murder

deserved the death penalty because Gonzales “planned to kill

a cop during a raid,” had “a detailed Bassett story to show

how he was going to cover it up,” and was “standing there

with a shotgun, lying in wait.” The prosecution’s penalty

phase case rested on proving the “bag a cop” theory.

[18] Having reached the conclusion that Gonzales’s crime

warranted the death penalty, the jury necessarily found that

the aggravating circumstances outweighed the mitigating

ones. Given the prosecutor’s arguments, it is highly likely that

they concluded there was a premeditated plan to “bag a cop.”

Having reached this conclusion, they also necessarily rejected

the argument that would have created lingering doubt, that

Gonzales mistakenly believed the officers were gang mem-

bers. Therefore, it was not unreasonable for the California

Supreme Court to conclude that any deficiency in defense

counsel’s lingering doubt argument was immaterial.

F. Prosecutorial Misconduct: False Testimony by Acker

Gonzales also claims that the prosecution used false testi-

mony by Acker. Gonzales alleges that Acker lied about his

reasons for testifying against Gonzales. It is clearly estab-

lished law that “a State may not knowingly use false evi-

dence, including false testimony, to obtain a tainted

conviction . . . .” Napue v. Illinois, 360 U.S. 264, 269 (1959).

The California Supreme Court applied this law and rejected

this claim. It concluded that while there may have been incon-

sistencies in Acker’s testimony, “one cannot state a prima

facie case of perjury or concealment simply by showing

inconsistencies in the witness’s testimony.” Gonzalez, 800

P.2d at 1194. The California Supreme Court also rejected

Gonzales’s contention that Acker perjured himself at the guilt

trial by not mentioning that the state had paid for him to have

one of his tattoos removed. The court noted that “any infer-

ence that Acker had received benefits for his cooperation in

this and other cases by the time of the second penalty trial

20728 GONZALEZ v. WONG

does not establish that his contrary guilt phase testimony was

false when given.” Id. at 1174. Given the evidence before the

court, this conclusion was reasonable.

The exact nature of Gonzales’s claim before this court is

not entirely clear, but it appears to be that the California

Supreme Court denied this claim without allowing him the

opportunity to engage in the discovery necessary to support it.

However, Gonzales was given the opportunity to conduct dis-

covery into this claim by the district court and failed to

uncover any evidence demonstrating the prosecutors know-

ingly allowed Acker to lie during his testimony. Once again,

conjecture and coincidence cannot win the day, particularly

given the deference due the state court’s conclusions. Absent

such evidence, there is no reason to question the California

Supreme Court’s conclusion that the claim is meritless.

G. Hicks Claims

[19] Gonzales next claims that his federal due process

rights were violated by statements made by the prosecutor

during his closing argument for the penalty phase. Gonzales

points to three types of statements: instructing the jurors that

they should not consider sympathy, discussing the jury’s dis-

cretion to impose the death penalty if it found the aggravating

circumstances outweighed the mitigating circumstances, and

suggesting the absence of a mitigating circumstance be treated

as an aggravating circumstance.

Gonzales is unable to point to any clearly established fed-

eral law from the Supreme Court that establishes any of these

statements as a deprivation of due process under federal law,

as required by the AEDPA. Instead, Gonzales has argued that

the prosecutor’s statements were in violation of state law and

that in making these statements the prosecutor violated his

constitutional right to have the jury exercise its discretion in

the manner authorized by state law. He derives this principle

from Hicks v. Oklahoma, 447 U.S. 343 (1980), which held

GONZALEZ v. WONG 20729

that if a state guaranteed a defendant the right to have a jury

decide his sentence, it was unconstitutional to deny him re-

sentencing by a jury after the statute under which he was sen-

tenced was deemed unconstitutional. The Court stated that:

Where, however, a State has provided for the impo-

sition of criminal punishment in the discretion of the

trial jury, it is not correct to say that the defendant’s

interest in the exercise of that discretion is merely a

matter of state procedural law. The defendant in such

a case has a substantial and legitimate expectation

that he will be deprived of his liberty only to the

extent determined by the jury in the exercise of its

statutory discretion.

Id at 346.

Gonzales reads Hicks too broadly. See Chambers v. Bower-

sox, 157 F.3d 560, 565 (8th Cir. 1998) (distinguishing Hicks

and “reject[ing] the notion that every trial error, even every

trial error occurring during the sentencing phase of a capital

case, gives rise to a claim under the Due Process Clause”). In

Hicks the defendant was denied his state law right to have a

jury decide his punishment, which implicated issues of funda-

mental fairness. Hicks was not concerned with how a jury

exercised its discretion. Here, regardless of the prosecutor’s

statements, the decision to impose death was still made, as

required by state law, by a jury in the “exercise of its statutory

discretion.”

Moreover, Gonzales’s argument also fails because it relies

on the erroneous conclusion that he was denied a right guar-

anteed to him by state law. See Ross v. Oklahoma, 487 U.S.

81, 91 (1988) (rejecting Hicks challenge because defendant

“received all that was due under [state] law”). Gonzales raised

each of these claims as independent state law claims before

the California Supreme Court. That court found no violation

of state law in any of the prosecutor’s statements. See

20730 GONZALEZ v. WONG

McSherry v. Block, 880 F.2d 1049, 1052 (9th Cir. 1989) (“We

are bound by th[e] state court’s construction of its own penal

statute.”).

Finally, even if there was error, it was not enough to estab-

lish a denial of due process. That requires a showing of a

denial of “that fundamental fairness essential to the very con-

cept of justice.” Lisenba v. California, 314 U.S. 219, 236

(1941). This is not a case where “the prosecutor[‘s] comments

‘so infected the trial with unfairness as to make the resulting

conviction a denial of due process.’ ” Darden v. Wainwright,

477 U.S. 168, 181 (1986) (quoting Donnelly v. DeChristo-

foro, 416 U.S. 637, 643 (1974)).

H. Bouie Claim

[20] Gonzales next claims a violation of his due process

rights under Bouie v. City of Columbia, 378 U.S. 347, 353

(1964). In Bouie the Court applied the underlying concept of

the ex post facto clause of the Constitution, which on its face

only applies to legislative acts, to the judiciary. It held that

just as the ex post facto clause prohibits punishing an individ-

ual under a law that was not in effect at the time of the per-

son’s actions, the due process clause protects against

“unforeseeable judicial enlargement of a criminal statute.” Id.

In other words, a court cannot reinterpret a criminal statute in

an unforeseeable manner so that it criminalizes additional

conduct and then apply that novel interpretation retroactively.

We have considered Gonzales’s Bouie claim and conclude

that there was no due process violation.

Gonzales’s claim arises out of the manner in which the jury

was instructed on the special circumstance of which he was

convicted: killing a peace officer engaged in the lawful per-

formance of his duties. The trial court modified the instruction

on the special circumstance so that the jury was instructed that

a police officer serving a search warrant was engaged in the

GONZALEZ v. WONG 20731

performance of his duties.16 Gonzales did not object to this

instruction during trial, but in his direct appeal to the Califor-

nia Supreme Court he argued that the modification violated

established California law. He contended that under Califor-

nia law an officer serving a facially valid, but actually invalid

warrant was not engaged in the lawful performance of his

duties and that the validity of the warrant was a question for

the jury to decide. He argued the court erred by telling the

jury that an officer serving a search warrant was automatically

engaged in the performance of his duties, because in doing so

it prevented the jury from making its own determination about

the warrant’s validity.

Gonzales’s argument relied on the California Supreme

Court’s holding in People v. Curtis, 450 P.2d 33 (Cal. 1969),

that in order to be convicted of a crime with an element

involving physical force against an officer the jury had to find

that the officer was lawfully engaged in his duties. A footnote

in Curtis suggested that an officer serving an invalid warrant

was not lawfully performing his duties. Id. at 37 n.4. How-

ever, the court had never explicitly held that an officer was

not engaged in the performance of his duties if he was serving

a facial valid but actually invalid warrant.

The California Supreme Court rejected Gonzales’s argu-

ment, and held for the first time, over a dissent, that “if a war-

rant is valid on its face, an officer carrying out its command

to search or arrest is lawfully engaged in duty . . . even if the

facts disclosed to the magistrate in support of the warrant

were not legally sufficient to establish probable cause.” Gon-

zalez, 800 P.2d at 1177. Because federal courts will not con-

sider issues of state law as part of habeas review, Gonzales

16

The instruction in question, with the modification in brackets, defined

“performance of his duties” as “any lawful act of conduct while engaging

in the maintenance of the peace and security of the community or in the

investigation or prevention of a crime; [to wit, the serving of a search war-

rant].”

20732 GONZALEZ v. WONG

attempted to repackage this claim as a violation of federal due

process. He argued that Curtis was the law at the time of his

crime and that the California Supreme Court’s decision in his

appeal was an unforeseeable enlargement of a criminal statute

that was retroactively applied to him in violation of due pro-

cess as established in Bouie.

There are several problems with Gonzales’s Bouie argu-

ment. First, the California Supreme Court’s decision in Gon-

zalez was not unforeseeable. In fact, we think it unlikely that

the court would have reached any other conclusion. To do so

would have sanctioned violence against law enforcement offi-

cers who believed they were lawfully performing their jobs.

Curtis, which dealt with an officer making an unlawful arrest

and using excessive force, was clearly directed at denying

officers who were knowingly engaging in unlawful exercises

of police power the extra protection of criminal statutes like

the special circumstance at issue here. The dicta in the foot-

note, while suggesting that a warrant must be actually valid,

is a broad, general statement which was not controlling law.

Even if we thought the California Supreme Court’s deci-

sion was unforeseeable, we do not believe that Bouie is appli-

cable here. Bouie dealt with the reinterpretation of a criminal

statute such that conduct that at the time would not be crimi-

nal was later held, after the fact, to be criminal under the stat-

ute. In Bouie, the South Carolina Supreme Court reinterpreted

a trespassing statute that had previously been interpreted to

only criminalize unlawful entry to, in addition, also criminal-

ize remaining on property after being asked to leave. It then

retroactively applied that new interpretation to civil rights

demonstrators who had been charged with trespassing

because they had refused to leave a restaurant where they

were holding a sit-in. The Supreme Court held this interpreta-

tion to violate the due process clause because at the time the

defendants acted their conduct was not criminal and they had

no notice that their actions were illegal. Bouie, 378 U.S. at

362

GONZALEZ v. WONG 20733

Applying Bouie here would not further the principle under-

lying that decision. The theory behind Bouie was that judicial

enlargement of a criminal statute, like an ex post facto law,

fails to give a defendant adequate notice that his conduct is

criminal. Id. at 350 (discussing principle that “a criminal stat-

ute must give fair warning of the conduct that it makes a

crime”). Here the court’s ruling had nothing to do with the

defendant’s actions, but instead had to do with the victim’s

status. An individual who sees an officer serving a warrant

would not ordinarily know at the time that the warrant was

not valid. There is no suggestion that Gonzales knew that the

search warrant was invalid or was justified in resisting it on

that basis by shooting the officer attempting to serve it. Prior

to Gonzalez, someone who shot an officer in the process of

serving a warrant had notice that he may be subject to the

death penalty. Bouie’s concern with fair notice to the defen-

dant is inapplicable here.

Finally, even if we found Bouie applicable here, the alleged

error was harmless. On habeas review the “substantial and

injurious effect” standard applies to determine whether a con-

stitutional error was harmless. Fry v. Pliler, 551 U.S. 112, 121

(2007). Gonzales challenged the validity of the warrant on

appeal and the California Supreme Court held that “[b]y any

applicable standard, the warrant was valid.” Gonzalez, 800

P.2d at 1169. During the trial Gonzales never contended that

the warrant was invalid and never introduced any evidence

that would have cast doubt on its validity.17 Based on the evi-

dence presented at trial, there was no basis for the jury to con-

17

Justice Mosk stated in his Gonzalez dissent that Gonzales presented

evidence and argument that the police acted unlawfully when they broke

into the residence to execute the warrant. Gonzalez, 800 P.2d at 1210

(Mosk, J., dissenting). However Justice Mosk was not discussing the

validity of the search warrant, but rather the means of entry, which is not

at issue in this appeal. Furthermore Justice Mosk appears to have been

mistaken; we can find no evidence that during trial the defense argued the

officers’ entry into the house was unlawful. In fact defense counsel stated

that he was not going to challenge that the officers knocked and

announced themselves. Gonzales also evidently raised some arguments

before the district court that the warrant was invalid, such “as differing

heights and times between the warrant affidavit and the underlying arrest

report.” Assuming, arguendo, that these alleged deficiencies could make

the warrant invalid, these arguments were not made at trial.

20734 GONZALEZ v. WONG

clude the officers were not acting pursuant to their official

duties. Therefore, there is no reason to believe the changed

language affected the outcome of the trial. Since any error

would have been harmless, Gonzales’s Bouie argument would

fail regardless of its legal merit.

III. Response to Partial Dissent

The partial dissent disagrees with the portion of our deci-

sion that remands the Brady claim based on the psychological

reports to the district court with instructions to stay the habeas

proceedings until Gonzales has had an opportunity to present

this new evidence to the California Supreme Court. Disagree-

ment is expressed on both factual and legal grounds.

Factually, the partial dissent disputes our assessment of the

impact of the psychiatric reports withheld from defense coun-

sel, concluding that “[a]t most, these reports suggest that

Acker has an antisocial personality and that he tries to manip-

ulate the prison system to obtain transfers to his preferred

place of detention.” Partial Dissent, at 20770. That character-

ization appears to us to be a substantial understatement, as

demonstrated by the description of those reports set out

above, at 20706-09. We also disagree with the partial dis-

sent’s view that the withheld documents were not material

because Acker had already been sufficiently impeached, as

discussed at 20709-12. For the reasons discussed in more

detail at 20712-14, we conclude there was a reasonable possi-

bility that the verdict might have been different if the evi-

dence had not been withheld.

The disagreement as to law is more significant. The partial

dissent describes our decision as “an end run around Pinhol-

ster’s holding from (1) a hypothetical problem cited in its dis-

sent, (2) a hypothetical solution posed in a concurrence, (3) a

footnote in the majority opinion responding to both, and (4)

an incredibly broad definition of the word ‘claim.’ ” Partial

Dissent, at 20734.

GONZALEZ v. WONG 20735

The last comment is especially puzzling, because we do not

adopt a “broad” definition of the word “claim.” We conclude

that Gonzales had not presented a new “claim” distinct from

claim already presented and rejected by the California

Supreme Court, see above at 20701-02, though at a time when

that court was not aware of the psychiatric reports withheld

from the defense. Judge Fletcher’s separate concurring opin-

ion raises the suggestion that this argument could be identi-

fied as a “new claim,” but that is not a conclusion of the

majority opinion.

More broadly, the partial dissent reads Pinholster to say

something which the majority of the Court explicitly declined

to say. The discussion which the partial dissent describes as

“hypothetical” appears to us to concern precisely the situation

presented to us in this case: “new evidence of withheld excul-

patory witness statements.” Pinholster, 131 S. Ct. at 1401

n.10. If there were compelling evidence of that nature, the

partial dissent would apparently have us disregard it, nonethe-

less..

The partial dissent does not fault petitioner for failing to

discover the withheld information or for failing to include it

in his previous petition to the California Supreme Court, and

properly so. Gonzales can’t be blamed for not knowing or

presenting to the state court what was withheld from him.

The only fault found by the partial dissent is that, in its

view, by not immediately requesting a stay and seeking to

return to state court after learning of the psychological reports

in 2003, Gonzales “engaged in intentionally dilatory litigation

tactics.” Partial Dissent at 20776. But prior to the announce-

ment of the Court’s decision in Pinholster earlier this year,

there did not appear to be any barrier to Gonzales pursuing his

argument in federal court. Pinholster reversed a decision of

this court, and the law in this circuit prior to that reversal did

not require or even suggest that Gonzales should have done

what the partial dissent castigates him for not doing. By the

20736 GONZALEZ v. WONG

time of the Court’s decision in Pinholster was announced,

Gonzales’s appeal had already been submitted to our panel for

decision, so at that point there was nothing else for him to do.

Staying the proceeding in federal court to give Gonzales an

opportunity to present the previously withheld material to the

California Supreme Court is a sensible solution to the prob-

lem posed by this case. Indeed, we note that even the State,

in supplemental briefing after oral argument of this case, sug-

gested that we should return the case to state court to let it

decide on the significance of the withheld information. That

suggestion appears reasonable to us.

We doubt that the stay and abey process will have to be

employed very often, because Pinholster is now the recog-

nized law, and because there should not be many such

instances of withheld exculpatory witness statements not dis-

covered until years later, after state court proceedings have

concluded. But to disregard that evidence in the situation

presented by this case would be to reward the prosecution for

successfully withholding the evidence in the first place. We

cannot accept such an unjust and illogical result, and we do

not believe that is what the law requires.

IV. Conclusion

We affirm all of the district court’s rulings on all of the

non-Brady claims. However, because we believe that with the

new evidence of the psychological reports Gonzales could

make a colorable Brady claim, we remand to the district court

on this claim (along with the related ineffective assistance

claim) with instructions to stay the habeas proceedings until

Gonzales has had an opportunity to present this new evidence

to the California Supreme Court.

AFFIRMED in PART; REVERSED and REMANDED

in PART.

GONZALEZ v. WONG 20737

W. FLETCHER, Circuit Judge, concurring in part:

I concur fully in Judge Clifton’s analysis of Gonzales’s

non-Brady claims.

I also concur in the decision to remand to the district court

with directions to stay and abey Gonzales’s federal habeas

petition in order to allow him to present to the California state

courts his claim under Brady v. Maryland, 373 U.S. 83

(1963), based on the evidence he has obtained during discov-

ery in his federal habeas proceedings. However, I believe that

we have the authority, in the circumstances of this case, con-

sistent with the Supreme Court’s decision in Cullen v. Pinhol-

ster, 131 S. Ct. 1388 (2011), to decide petitioner’s Brady

claim now, without first seeking the view of the California

courts. I would prefer to exercise that authority.

I. General Application of Pinholster

The Supreme Court held in Pinholster that in a habeas case

governed by 28 U.S.C. § 2254(d)(1) we generally cannot con-

sider evidence that was not before the state court. Pinholster,

131 S. Ct. at 1398. A question Pinholster does not answer is

what federal courts should do when confronted with such evi-

dence. I agree with Judge Clifton that we may treat such evi-

dence in the same way we treat unexhausted claims.

In Rhines v. Weber, 544 U.S. 269 (2005), the Supreme

Court held that when a habeas petitioner files a so-called

“mixed” habeas petition — a petition that includes both

exhausted and unexhausted claims — a district court abuses

its discretion in certain circumstances when it decides not to

stay and abey the petition to allow the petitioner to present the

unexhausted claims in state court. Specifically, a district court

should stay and abey such a mixed petition if “the petitioner

had good cause for his failure to exhaust, his unexhausted

claims are potentially meritorious, and there is no indication

that the petitioner engaged in intentionally dilatory litigation

20738 GONZALEZ v. WONG

tactics.” Id. at 278. The Court reasoned that if district courts

did not stay and abey such mixed petitions, the one-year stat-

ute of limitations in AEDPA would bar petitioners from

obtaining federal review of the unexhausted claims. See id. at

275. Restricting the stay and abeyance procedure to situations

where petitioners have good cause for failure to exhaust, have

potentially meritorious claims, and have not engaged in dila-

tory tactics, protects “AEDPA’s objective of encouraging

finality.” Id. at 277.

The same reasoning applies here. If a habeas petitioner dis-

covers new evidence supporting a claim of a constitutional

violation after he has filed a federal habeas petition, and the

district court adjudicates that claim without the benefit of the

new evidence, then the ban on second or successive petitions

in 28 U.S.C. § 2244 will usually bar the petitioner from ever

having his full claim adjudicated in federal court. I agree with

Judge Clifton that, so long as the petitioner had good cause

for his failure to discover the evidence while before the state

court, the claim based on the new evidence is potentially mer-

itorious, and there is no indication that the petitioner engaged

in intentionally dilatory litigation tactics, the district court

should stay and abey the claim supported by the new evidence

to allow the petitioner to present that evidence to the state

court. I also agree with the application of Rhines to the facts

of this case.

If this were an application of Pinholster to an ordinary

case, I would simply agree with Judge Clifton’s opinion and

not write separately.

II. General Rule of Pinholster Does Not Apply

This, however, is not an ordinary case. The facts of this

case are so extreme that the federal courts have the power,

consistent with Pinholster, to consider the Brady material

now, without first requiring Gonzales to seek the view of the

state courts.

GONZALEZ v. WONG 20739

The prosecutors actively suppressed evidence concerning

William Acker, the witness who gave the only evidence of the

state’s primary aggravating factor at Gonzales’s capital trial.

The California trial court on post-conviction review granted

a discovery motion that would have revealed the suppressed

evidence. But the California Supreme Court reversed the trial

court’s discovery order and refused to enter one of its own.

The suppressed evidence shows not only that Acker was a

jailhouse informant expecting to receive advantageous treat-

ment in return for his testimony. Acker was also, unbe-

knownst to Gonzales and his attorneys, a schizophrenic who

had repeatedly faked suicide attempts to obtain desired prison

transfers; had attempted to bribe a prison psychologist for a

good report; had previously said that he was turning his life

around in order to obtain release from prison, but had com-

mitted thefts and a first-degree murder upon his release,

before testifying at Gonzales’s trial that he was testifying as

part of an effort to turn his life around; and had earlier been

described by state correctional officers as “considered capable

of any measure of brutality in the service of achieving what

he wants to do.”

I explain below the procedural history of Gonzales’s Brady

claim, and why, given that history, Pinholster does not pre-

vent us from deciding that claim now.

A. Acker’s Role at Trial

Judge Clifton accurately describes the events of Gonzales’s

trial. I provide more detail to show fully Acker’s importance

to the state’s case against Gonzales, and the extent to which

Acker was — or, more accurately, was not — impeached at

trial.

1. Acker’s Substantive Testimony

Gonzales’s conviction was based on his murder of a police

officer. The officer was part of a team conducting a drug raid

20740 GONZALEZ v. WONG

of Gonzales’s parents’ home. When the police entered, Gon-

zales was braced against a wall pointing a shotgun at the door.

He fired and killed one of the officers. Gonzales’s guilt-phase

defense was that he thought the people entering his house

were not police, but rather were members of the rival Bassett

gang.

The prosecution’s evidence supported two somewhat dif-

ferent stories. The first was that Gonzales must have known,

based on the facts on the day of the raid, that the people

breaking open his parents’ front door were police officers. As

Judge Clifton describes, the police officers testified that they

repeatedly announced they were police before entering and

that they had entered the house with their badges visible.

Another officer with expertise in gang activity testified that

the area where Gonzales’s parents lived did not have a high

level of gang activity, that the gang activity that did take place

consisted of drive-by shootings rather than home invasions,

and that a typical member of the Bassett gang looked and

dressed nothing like the plain-clothes officers who conducted

the raid. This evidence suggested it was unlikely that Gon-

zales mistook the plain-clothes officers for members of the

Bassett gang.

The second story was that Gonzales had been told in

advance that the police were coming to conduct the raid, and

that he had formed, well in advance of the raid, an intent to

kill a police officer. This story, obviously much more damn-

ing to Gonzales, came entirely from the testimony of William

Acker. Acker was a jailhouse informant. Acker’s story was

generally consistent through Gonzales’s guilt trial, first

penalty-phase trial, and second penalty-phase trial. Acker tes-

tified that Gonzales had approached him while they were in

prison cells in the same row shortly after Gonzales was

arrested. Acker testified that in discussions during the next

two weeks, Gonzales told him the details of his crime.

According to Acker, Gonzales told him that he had been

tipped off by a friend that the police were going to raid his

GONZALEZ v. WONG 20741

house. Gonzales thus knew the police were coming and was

“on point” all day waiting, in Acker’s words, to “bag a cop.”

According to Acker, Gonzales “knew it was a cop. He knew

he was going to kill one. He aimed to kill.” Acker testified

that when he asked Gonzales why he was so determined to

kill a police officer, Gonzales described to him “a real sick

philosophy about how to protect the pad.” Gonzales wanted

to shoot a cop because “[t]hey got that coming.” Acker also

testified that Gonzales had told him that his defense strategy

would be to claim that he thought the police officers were

members of the Bassett gang.

2. Acker’s Importance

Acker’s testimony was important in the guilt phase

because, if believed, it demonstrated that Gonzales knew well

in advance of the raid that the men conducting the raid were

police officers. However, all the prosecution needed to show

in the guilt phase was that Gonzales knew that the men were

police officers at the time he fired. Acker’s testimony was

thus useful but not essential to the guilty verdict. In the pen-

alty phase, however, Acker provided the crucial testimony. In

arguing why Gonzales deserved the death penalty, the prose-

cution’s main theory of aggravation was that Gonzales had

planned in advance to “bag a cop.” In his opening statement

in the second penalty-phase trial, Ronald Bowers, the prose-

cutor, said that “the evidence will show that the defendant

planned to kill a cop. Not that it was thought of lightly, that

it was just a split-second situation, spontaneous, but he

planned to kill a cop. Something to the effect he was going

to bag a cop.” The evidence that Gonzales had planned in

advance to kill a police officer came only from Acker, and the

expression “bag a cop” came only from Acker. In his closing

statement, Bowers’s chronology of when and how Gonzales

formulated his plan to “bag a cop” came entirely from

Acker’s testimony.

Acker’s importance in the penalty phase is also demon-

strated by a memorandum Bowers wrote to his supervisor

20742 GONZALEZ v. WONG

after Gonzales’s first penalty-phase trial resulted in a mistrial.

The jury, which consisted of six men and six women, had

hung with nine in favor of death and three in favor of life

without parole. Bowers wrote:

I talked to the jurors afterwards and most of them

found William Acker’s testimony to be credible. It

was interesting that the women (especially the youn-

ger women) were totally convinced by Acker’s state-

ments. Some of the men only partially believed what

he said. I hope to retry the penalty phase if down-

town approves the retrial and Bill Acker is available

and is willing to testify.

This memorandum makes clear that Bowers was not willing

to retry the penalty phase without Acker. It further suggests

that women were more likely to believe Acker. The jury in the

second penalty-phase trial had eleven women and one man.

Gonzales’s trial took place before the Supreme Court decided

J.E.B. v. Alabama, 511 U.S. 127 (1994), and it was thus per-

missible for the prosecutor to seek women on the jury.

Attacking Acker’s truthfulness was crucial to the penalty-

phase defense strategy. Ralph Bencangey, Gonzales’s lawyer,

decided not to attack the guilt-phase jury’s conclusion that at

the time he fired the gun Gonzales knew the men were police

officers, but to rather attack Acker’s testimony that Gonzales

had planned in advance the murder of a police officer. Ben-

cangey told the second penalty-phase jury that the guilt-phase

jury “could well have thought that at the time it occurred and

the way that it occurred, [Gonazales] should have known that

they were police officers at that time rather than . . . a long

period in advance.” Bencangey told the jury in his opening

statement that he would show that “if [Gonzales] is guilty, as

the jury has previously stated, it would not be based on some

advance plan that the prosecution is talking about, some spe-

cial plan to kill a police officer.” Bencangey made this same

argument in his closing.

GONZALEZ v. WONG 20743

To succeed with this strategy, it was crucial to impeach

Acker. In his opening statement Bencangey said that “the

People are asking for a death penalty verdict, really based on

the absolute truth of everything that Mr. Acker has said. It

must be absolutely true.”

3. Impeachment of Acker

Over the course of one guilt-phase trial and two penalty-

phase trials, the prosecution disclosed only two documents

concerning Acker to the defense: Acker’s rap sheet and a tran-

script of Acker’s initial statement to investigators. The rap

sheet was incomplete and inaccurate. It included several prop-

erty crimes and Acker’s conviction for first-degree murder.

But it failed to include several of Acker’s convictions, and it

incorrectly stated that Acker was sentenced to life without

parole for the murder when he was actually sentenced to life

with possibility of parole. Acker’s initial statement to investi-

gators provided no impeachment material because Acker told

them basically the same story he later told at trial.

Bencangey was thus severely limited in his ability to

impeach Acker. During cross-examination in the guilt-phase

trial, Acker admitted he was hopeful that in exchange for his

testimony he would be transferred to an out-of-state prison.

He said he was interested in such a transfer because he hated

gangs, and the gangs hated him in return. Acker also admitted

that he had given information to the police about crimes on

two prior occasions. First, he gave information about his

wife’s involvement in a murder that he and his wife had com-

mitted in Hawaii. Second, he spoke with the police about a

murder that had taken place on his row in jail. Everyone on

his row, however, had been required to speak to the police

about that murder.

By the time of the first penalty-phase trial, Acker had given

information in several more cases. In addition to having given

information about his wife and the jailhouse murder, Acker

20744 GONZALEZ v. WONG

admitted giving information to the police in the cases of four

other criminal defendants: Anthony Davis, Raymond LaScola,

Edwin Guy Williams, and Johnny Torres. In violation of

Brady, the prosecutor had not disclosed to Gonzales Acker’s

involvement in these cases. Bencangey had nonetheless

learned of Acker’s involvement when he discovered the tran-

script of Acker’s testimony in the preliminary hearing in the

LaScola case. In all four of the cases, Acker claimed the

defendant confessed to him. In some of them, Acker testified

in court, and in some he only spoke to the police. Although

Bencangey did not know it during trial, we now know that the

LaScola case was dropped because then-Head Deputy District

Attorney (now our colleague) Stephen Trott had concluded

that Acker was an unreliable witness. Judge Trott’s view,

expressed in a deposition taken in connection with Gonzales’s

federal habeas petition, was that Acker’s testimony was “cer-

tainly nothing that a jury ever should rely on if that’s all there

was to convict Dr. La Scola.” Judge Trott described Acker as

a “classic psychopath” and “a truly evil guy who delighted in

sticking guns in people’s mouths to try to get them to, quote,

‘crap in their pants.’ ”

To justify his practice of informing, Acker testified that not

only was he giving information in order to obtain a transfer

to an out-of-state prison, but he was also seeking a new

“moral balance.” He testified that he wanted to “do something

right for a change, to do something real.” “I’m trying to bal-

ance out the wrong that I’ve been through, you know, stop

somebody else from going out and killing someone again.”

In the second penalty-phase trial, Acker again discussed the

information he had provided in the other cases, and he dis-

cussed his involvement in yet another case. He again testified

that his reason for providing this information was both his

desire to transfer to an out-of-state prison and his desire to

“start a different direction for myself.” Before the second

penalty-phase trial, Bencangey had discovered that the state

had promised Acker that they would remove a tattoo from his

GONZALEZ v. WONG 20745

back that read “Paramount.” When Bencangey attempted to

question Acker about the tattoo, Bowers objected. In a confer-

ence with the judge, Bowers said he wanted to prevent ques-

tioning about Acker’s tattoo because “we have tried to change

the identity of this informant, for his own safety.” Bencangey

replied that “up until this hearing, until I found out, I’d asked

that witness if anything else was offered to him in exchange

for his testimony, and the district attorney’s office has never

been forthcoming in telling me that they had promised to

change his identity and surgically remove tattoos off him and

give him a different name. I’ve only found this out recently.”

The trial judge allowed Bencangey to question Acker about

the tattoo. Bencangey attempted to impeach Acker by sug-

gesting that the tattoo was a symbol of Acker’s gang member-

ship, and that the tattoo removal and the identity change was

another part of what the state had offered him in exchange for

testifying. Acker denied that he was in a gang, claiming that

he had the tattoo to represent that he was from the city of Par-

amount.

The second penalty-phase jury, consisting of eleven women

and one man, returned a unanimous verdict in favor of death.

B. Report of the 1989-90 Los Angeles County Grand Jury

Gonzales was sentenced to death in May 1981. In October

1988, Los Angeles Sheriff’s Department deputies learned that

a jailhouse informant, Leslie White, was writing an article in

which he planned to explain how informants were acquiring

knowledge about defendants they had never met in order to

fabricate those defendants’ confessions. Report of the 1989-

90 Los Angeles County Grand Jury, June 26, 1990, at 69

[hereinafter “Grand Jury Report”]. White agreed to demon-

strate the technique to the Sheriff’s Department. The report of

what White did is worth repeating in full. The report does not

identify White by name, but refers to him as “the informant.”

20746 GONZALEZ v. WONG

The sergeant gave the informant the name of an

inmate who was being held in the Hall of Justice Jail

on murder charges. The informant, representing him-

self to be an employee of a bail bond company, cal-

led the jail’s Inmate Reception Center and was able

to obtain the inmate’s booking number, date of birth,

color of eyes and hair, height, weight, race (Cauca-

sian), bail ($100,000), case number, date of arrest,

arresting agency (Sheriff’s Special Enforcement

Bureau), next court date, and where the inmate was

housed in the jail.

The informant next called the records section of

the District Attorney’s Office. He said he was a Dep-

uty District Attorney and asked for information on

the inmate’s case. He was given the name of the

Deputy District Attorney prosecuting the case, the

Deputy District Attorney’s telephone number, and

the name of a witness.

A few calls later, the informant called Sheriff’s

Homicide and said he was “Sergeant Stevens” at the

Central Jail. He was able to obtain the name of the

murder victim, and the victim’s age and race.

The informant then called the Deputy District

Attorney who was handling the case, initially identi-

fying himself as “Sergeant Williams” with the Los

Angeles Police Department. The Deputy District

Attorney responded to the informant’s questions by

stating, “I’ll tell you anything you want to know

about the case,” and proceeded to provide details

about what the victim was wearing, where his body

was found, the fact that the coroner’s report said that

death resulted from suffocation and/or drugs, that the

victim’s blood contained a fatally high amount of

methamphetamine, that the defendant confessed to

stuffing the victim in a trunk, and the prosecutor’s

GONZALEZ v. WONG 20747

personal opinion of the likely defense in the case.

Near the end of the conversation, the informant gave

his name as “Sergeant Johnson.”

At this point, the informant said he had obtained

enough details about the case to enable him to fabri-

cate a jail house confession which would be accepted

by detectives. He then proceeded to demonstrate

how he could arrange for contact between himself

and the inmate to support the fabricated confession.

The informant called a department of the Superior

Court in Van Nuys, identifying himself as Deputy

District Attorney “Michaels” with the Organized

Crime Unit downtown. In response to the infor-

mant’s request, the court bailiff ordered the infor-

mant and the inmate to be transported to Van Nuys

the following day.

Id. at 69-71. White indicated that a fabricated confession

based on this information would be sufficient to get him a

“hell of a deal” with prosecutors. Id. at 71. His information

was believable both because he knew many facts about the

defendant that he apparently could only have obtained from

the defendant, and because he had arranged to be in the same

place as the defendant so that it was possible that the defen-

dant could have confessed to him. White said that the “key”

to the operation is that the District Attorneys

want to win. So if I come forward with the informa-

tion as detailed as that they’re gonna use it. Because

the jury not knowing the system or how it works, is

going to believe when I get up there with all these

details and facts, that this guy sat in the jail cell, or

he sat on the bus, or he sat in the holding tank some-

where, or told me through a door or something,

they’re gonna believe me.

20748 GONZALEZ v. WONG

Id. at 72.

White’s demonstration led to the empanelling of an investi-

gatory Grand Jury to look into the improper use of informant

testimony by the Los Angeles County District Attorney’s

Office. The Grand Jury’s investigation took place between

1989 and 1990, and covered the period from 1979 through

1990. The grand jurors and their investigators spoke to

twenty-five informants. The Grand Jury concluded that “the

experiences and perceptions of these informants generally

reflect those of the informant population at large.” Id. at 8.

The grand jurors also spoke to and heard testimony from a

large number of people in the Los Angeles County Sheriff’s

Department (which administers the jails where the informants

were housed), the Los Angeles District Attorney’s Office, and

the defense bar. The Grand Jury’s 150-page report paints a

harrowing picture of the role of jailhouse informants in the

Los Angeles County criminal justice system during this

period.

The report gave a detailed description of jailhouse infor-

mants’ “astonishing ability to discover information about

crime in order to concoct a confession by another inmate.” Id.

at 31. Credibility of jailhouse informants is often based on the

supposed fact that they could only have obtained certain

information about a crime from the defendant himself. The

report describes cases in which law enforcement officers

either fed information about other inmates to informants, or

left informants in a room with documents from other inmates’

cases. Id. at 27-28. Sometimes law enforcement officials

would signify to informants that a new inmate was “hot,”

thereby giving the informants an implicit instruction to pro-

vide testimony inculpating the inmate. Informants would

sometimes obtain information by getting friends who were not

incarcerated to go to a defendant’s preliminary hearing and

get information, or would simply get unwitting defendants to

describe crimes. In one case, a defendant described to an

informant a crime he had witnessed, but not committed, and

GONZALEZ v. WONG 20749

the informant turned it into a confession. Id. at 30. Often

informants would “offer to assist [a] defendant in his case and

thereby elicit the defendant’s knowledge of law enforce-

ment’s version of the crime.” Id. at 31 n.16.

The Grand Jury found that the Sheriff’s Department facili-

tated informants’ collection of information by placing infor-

mants near defendants from whom it wanted a confession.

According to the Grand Jury:

It has long been suspected that Sheriff’s Department

deputies intentionally placed informants with

inmates “from whom law enforcement could use a

confession.” The Sheriff’s Department denies such a

practice has ever existed, however, the Grand Jury

received evidence which indicated the placing of

inmates for the purpose of gathering information has

occurred.

Id. at 58 (quoting letter of Nov. 1, 1988, from a supervisory

Deputy District Attorney to the District Attorney’s Director of

Bureau, Branch and Area Operations). The Grand Jury went

on to describe numerous instances in which it concluded that

informants had been placed near defendants from whom

authorities wanted confessions. Id. at 60-68.

In addition to their ability to discover information about

defendants, the informants had no scruples about perjuring

themselves.

An appalling number of instances of perjury or other

falsifications to law enforcement during the past ten

years were described by informants. Undeniably, a

significant number of informants do not tend to feel

constrained by external or internal values to refrain

from lying, regardless of the consequences to other

inmates.

20750 GONZALEZ v. WONG

Id. at 18-19. One informant confessed in the mid-1970s to a

crime he had not committed. In 1979, a psychiatrist diagnosed

this informant as a pathological liar. Prosecutors subsequently

used this informant’s testimony against defendants in either

five or six cases. Id. at 16.

The number of informants was staggering. One defense

attorney described a case in which, at the preliminary hearing,

eight jailhouse informants claimed his client made incriminat-

ing statements. Other informants called the attorney and

offered to testify on his client’s behalf. The attorney described

the preliminary hearing as “a dream world where everybody

was either lying or fabricating or then recanting a prior lie or

then making something up. It got to be a nightmare where you

couldn’t believe one person or the other.” Id. at 39.

High profile cases attracted the most informants. In some

cases, up to twenty informants would come forward claiming

to have heard a confession. Id. at 111. The Grand Jury found

a general consensus among defense attorneys that “jail house

informants seemed to invariably be available to testify in

important cases.” Id. at 37. Of all the death penalty cases tried

in Los Angeles from 1978 through 1990, approximately one

third involved a jailhouse informant testifying that the defen-

dant had confessed to him. Id.

The Grand Jury found that informants were given numer-

ous benefits. Examples include being transferred to a cell with

a TV, coffeepot, and other amenities, being taken outside the

jail for lunch, having witness protection money paid to an

informant’s wife, and having a girlfriend being held on a one

million dollar bail released on her own recognizance. Id. at

13-15. At least two informants testified to instances where

they or an informant they knew were transferred to a jail per-

ceived to be more desirable. Id. at 14. The Grand Jury also

found many examples of prosecutors dropping charges, writ-

ing letters on informants’ behalf to the parole board, or asking

a court to impose a lower sentence. Id. at 13.

GONZALEZ v. WONG 20751

Benefits to informants were not generally disclosed to the

defense. The prosecutors’ rationale for failing to disclose the

benefits was that there was only an implicit understanding

that the authorities would help the informant in exchange for

his testimony. The Grand Jury explained:

The entire circumstances regarding benefits and the

expectations of benefits, in many cases, are not ade-

quately presented to the judge or jury for them to

have the necessary factual basis to evaluate the testi-

mony of the informant. This is particularly so when

an agreement on the extent of benefits is not made

with the informant until after the testimony.

Id. at 76. Later, along similar lines, the Grand Jury found:

The practice of waiting until after the testimony is

provided, before the informant’s pending case is

dealt with, may lend itself to some troubling results.

This may provide the informant with a basis for

assuming that his sentence will be measured by the

assistance he provides the prosecution by his testi-

mony. In view of the benefits that he may be seeking

by his testimony, the potential for perjury or shading

of testimony for the prosecution must be recognized.

Id. at 95 (emphasis omitted). One defense attorney, in testi-

mony to the Grand Jury, described the system as being like

a ‘secret society’ where even though nothing is said,

the prosecutors and the informants know that some

benefit will flow to the informant for his testimony.

The defense attorney explained it was extremely dif-

ficult to try to impeach jail house informants when

there was nothing in the record relating to benefits

they were to receive from their testimony.

Id. at 39.

20752 GONZALEZ v. WONG

The Grand Jury concluded that the Los Angeles District

Attorney’s office was aware of abuses concerning jailhouse

informants well before Leslie White’s 1988 revelations. Evi-

dence supporting this conclusion went back to the late 1970s.

Id. at 97. The Grand Jury was particularly critical of the Dis-

trict Attorney’s office’s failure to keep any database of jail-

house informants. Id. at 105-117. It noted that in the high

profile cases in which twenty informants would claim to have

heard a confession, the informants “were narrowed to a very

few, sometimes to only one or two witnesses. No record was

kept of those who were rejected and the reasons for that deter-

mination. If the informants were again to offer testimony in

other cases, there existed no systematic means to review the

knowledge obtained by the earlier prosecutor.” Id. at 111.

The Grand Jury report discussed a proposal to create a

repository of very basic information about jailhouse infor-

mants. The District Attorney’s office rejected this proposal.

“The reason consistently offered by officials for deciding

against the informant system was that defendants might dis-

cover information contained in the index.” Id. at 115. The

report found that “[n]either a defendant’s rights to know about

information affecting the credibility of an informant, nor a

prosecutor’s obligation to disclose such information to a

defendant, was ever mentioned during the discussion of the

pros and cons of an informant index, according to all sources

of evidence presented to the Grand Jury.” Id. at 117.

The Grand Jury reached two overarching conclusions:

A. The Los Angeles County District Attorney’s

Office failed to fulfill the ethical responsibilities

required of a public prosecutor by its deliberate

and informed declination to take the action nec-

essary to curtail the misuse of jail house infor-

mant testimony.

B. The Los Angeles County Sheriff’s Department

failed to establish adequate procedures to con-

GONZALEZ v. WONG 20753

trol improper placement of inmates with the

foreseeable result that false claims of confes-

sions or admissions would be made.

Id. at 6.

The Grand Jury discussed potential relief for defendants,

like Gonzales, who had been convicted based on informants’

potentially false testimony during the period covered by the

report. “Because the judgments are final, the review must be

sought by Petition for Writ of Habeas Corpus. In filing such

petitions, certain factual allegations must be made which are

legally sufficient to support the relief sought. It is difficult and

in some cases likely not possible to allege sufficient facts

without discovery.” Id. at 152. The Grand Jury noted that the

question of whether defendants could get such post-judgment

discovery was currently before the California Supreme Court.

Id. The Grand Jury was almost certainly referring to Gon-

zales’s case which was then pending in that Court. The Grand

Jury noted that the District Attorney’s office had been cooper-

ative during the investigation. It expressed the hope that “[i]n

the event post-conviction discovery is denied by the [Califor-

nia] Supreme Court . . . the District Attorney will be equally

cooperative in considering the needs of affected parties for the

information necessary to pursue their remedies.” Id. at 153.

C. State Court Proceedings After the Grand Jury Report

The Grand Jury’s hope went unfulfilled. As I describe

below, the District Attorney’s office did not remain “equally

cooperative” in Gonzales’s case, and the California Supreme

Court denied post-conviction discovery.

Gonzales was sentenced to death on May 7, 1981. Shortly

thereafter, Gonzales filed a habeas petition in the California

Supreme Court. He filed an amended habeas petition on June

10, 1986. Between the time of his death sentence and his

habeas filings, Gonzales had been able to obtain almost no

20754 GONZALEZ v. WONG

additional information concerning Acker. He raised a Brady

claim in his state habeas petition, but his discussion of the

claim was brief, occupying only six of seventy-seven pages.

In this initial habeas petition, Gonzales claimed that the prose-

cutor had not disclosed the extent of Acker’s cooperation with

the police in other cases. Gonzales argued that this violated

Brady because such information would have allowed him to

argue that Acker’s testimony violated the Sixth Amendment

based on Massiah v. United States, 377 U.S. 201 (1964), and

United States v. Henry, 447 U.S. 264 (1980). See People v.

Gonzalez, 800 P.2d 1159, 1192 (Cal. 1990).

In October 1988, after Gonzales filed his amended state

habeas petition, Leslie White triggered the informant scandal

and subsequent Grand Jury investigation. The information

that came out during the investigation suggests strongly that

Acker was involved in the schemes described in the Grand

Jury report. First, Acker’s informing fit the time frame of the

report. The report covered 1979 through 1990. Gonzales’s

case, in 1979, was the first case in which Acker gave informa-

tion concerning an alleged confession. Acker then gave infor-

mation about five more alleged confessions over the next two

years. Second, Acker was placed near Gonzales for two

weeks shortly after Gonzales was arrested. Gonzales was

arrested on May 29, 1979. He had been shot and taken from

the scene in an ambulance, then later taken to the jail. His

conversations with Acker took place in early July 1979. This

sequence of events is consistent with the Grand Jury’s finding

that the Sheriff’s Department placed informants near inmates

from whom they wanted a confession. Third, the Sheriff’s

Department would have been particularly interested in a con-

fession from Gonzales because he had shot a Sheriff’s Depart-

ment deputy. Fourth, the Grand Jury found that jailhouse

informants were more likely to have allegedly heard confes-

sions in death penalty cases. Finally, Acker claimed to have

been helping Gonzales check the accuracy of his attorneys’

work when Gonzales allegedly confessed to him. The Grand

Jury found that informants would offer to assist inmates,

GONZALEZ v. WONG 20755

based on their purported legal experience, in order to obtain

information about the inmates’ crimes. Grand Jury Report at

31.

Starting in November 1988, while the Grand Jury investi-

gation was still ongoing, the District Attorney’s office began

to address its use of perjured testimony by jailhouse infor-

mants. In various memoranda, the office indicated that any

problems with the reliability of past jailhouse informants

would be revealed to the state courts. On November 17, 1988,

Chief Deputy District Attorney Gregory Thompson sent a

memorandum to the Deputy District Attorneys, alerting them

to the pending review of the office’s use of jailhouse infor-

mants. With respect to informants who had been used in the

past, Thompson wrote that “the most objective way to do this

is on a case by case basis before the court. This will insure an

independent review on the merits of each case.” On Novem-

ber 30, 1988, in a letter to various defense attorneys, includ-

ing Gonzales’s attorney, Thompson again emphasized his

intention to make information obtained available through

court proceedings:

[W]e planned from the outset to make the informa-

tion we obtained [through internal investigations]

available to defense counsel on individual cases and

anticipated that, in appropriate cases, that informa-

tion would be thoroughly aired in open court. . . .

The best forum for an objective, thorough examina-

tion of the issues is in open court. . . . Further, the

court is the only forum where any wrongs can be

righted, where any breach in procedure can be

assessed, where any prejudice can be weighed,

where any injustice can be addressed. It is our aim

that every pertinent, relevant issue on each contested

case receive the careful and thorough attention of the

court.

Thompson also sent letters specifically addressed to attor-

neys representing clients in whose trials jailhouse informants

20756 GONZALEZ v. WONG

had testified. The letter to Gonzales’s attorney informed him

of the investigation into the use of informants. The letter con-

cluded, “[S]ince the courtroom is the appropriate forum in

which to fully explore this issue, our office will join with you

in expediting the hearing of any appropriate motion you may

wish to bring.” Based in part on this letter, on March 29,

1989, Gonzales’s attorneys filed a 77-point discovery motion

with the state court judge who had presided over Gonzales’s

trial. The motion sought discovery of information that would

reveal whether the prosecution had violated its obligations

under Brady to disclose information concerning Acker.

Among the information requested was, “Any and all Califor-

nia Department of Corrections Health and Welfare Agency

records pertaining to WILLIAM GERALD ACKER.” The

primary basis for the motion was the information that had

come to light during the Grand Jury investigation of the infor-

mant scandal.

The state court trial judge held an initial hearing on Gon-

zales’s discovery motion in June 1989. Despite the Los Ange-

les County District Attorney’s repeated prior statements that

it wanted to air in open court whatever information it pos-

sessed concerning jailhouse informants, it now argued that

because there was no proceeding currently before the trial

court, that court had no jurisdiction over the case. In response,

the judge noted the “very unique factual situation that’s

involved in this case.” He said that “if all of the information

is true with respect to the allegations that have been made by

[Gonzales’s attorneys], I think it puts this case in an entirely

different posture.” He stated that “fundamental fair play in

this case would indicate that [Gonzales] ought to get that

information.” In a second hearing in August, the trial judge

granted the discovery motion. He made clear his belief that

“the District Attorney’s Office has got to accept much of the

responsibility for what occurred, in the sense that . . . at no

time did your office ever maintain any coordinated effort . . .

so that the problems which arose could have been prevented.”

GONZALEZ v. WONG 20757

The state filed a writ of mandate with the California

Supreme Court, seeking to reverse the trial judge’s discovery

order. The state argued not only that the judge had no jurisdic-

tion to issue the discovery order, but also that “Gonzalez did

not make the showing necessary for a grant of discovery.”

The California Supreme Court consolidated the writ of man-

date appealing the trial judge’s discovery order with Gon-

zales’s habeas petition then pending in the Supreme Court.

Gonzales offered to drop his discovery motion if a repre-

sentative of the District Attorney’s office would swear under

penalty of perjury that the state’s files contained no material

evidence relating to Acker’s testimony. The District Attor-

ney’s office did not accept the offer. Gonzalez, 800 P.2d at

1219 n.8 (Broussard, J., dissenting). Gonzales’s habeas attor-

ney wrote in one of her filings to the California Supreme

Court, referring to Thompson’s November 30, 1988, letter,

“For close to one year, Counsel in this case as well as other

cases, all of which are in differing procedural postures, have

attempted to ascertain the name of the mysterious but ‘appro-

priate motion’ that the District Attorney would join in. These

efforts have met with overwhelming silence.”

The California Supreme Court granted the state’s writ of

mandate, reversing the trial judge’s discovery order. It con-

cluded that “the trial court lacked jurisdiction to order ‘free-

floating’ post-judgment discovery when no criminal proceed-

ing was then pending before it.” Gonzalez, 800 P.2d at 1203.

The Supreme Court also refused to grant discovery in the

pending state habeas petition Gonzales had filed directly in

the Supreme Court. Id. at 1205. The Court wrote that a habeas

corpus proceeding does not “trigger a right to unlimited dis-

covery.” Id. A habeas petition “must set forth specific facts

which, if true, would require issuance of the writ. Any peti-

tion that does not meet these standards must be summarily

denied, and it creates no cause or proceeding which would

confer discovery jurisdiction.” Id. Even treating the discovery

request and grand jury report as an amendment to the habeas

20758 GONZALEZ v. WONG

petition, the Court concluded that Gonzales had failed to set

forth facts requiring the issuance of the writ. It wrote:

At most, there are new indications that during the

period 1979-1988, various residents of the Los

Angeles County jail developed successful schemes

for fabricating jailhouse confessions by other

inmates, and that these practices were ignored or

even encouraged by the authorities. However, noth-

ing in the materials before us identifies Acker as a

participant in the schemes alleged. Nor is there any

specific indication that the prosecution’s files would

yield information that substantially undermines

Acker’s testimony. . . . [T]here is no postconviction

right to “fish” through official files for belated

grounds of attack on the judgment, or to confirm

mere speculation or hope that a basis for collateral

relief may exist.

Id. (footnotes omitted).

The California Supreme Court thus concluded that despite

the revelations of the District Attorney’s massive use of per-

jured testimony of jailhouse informants; despite the District

Attorney’s failure to establish any database system concern-

ing jailhouse informants for fear that such a system would

undermine the effectiveness of their testimony at trial; despite

the similarities between Acker’s story and the schemes

detailed in the Grand Jury report; and despite the state’s assur-

ance in its letters to defense attorneys that it wanted any prob-

lems concerning jailhouse informants to be aired in court,

Gonzales’s attempt to discover potential Brady material con-

cerning the jailhouse informant’s testimony in his case was a

fishing expedition. The Court ended its opinion: “We expect

and assume that if the People’s lawyers have [Brady] infor-

mation in this or any other case, they will disclose it promptly

and fully.” Id. at 1206.

GONZALEZ v. WONG 20759

D. Psychiatric Reports

The Court’s stated expectation and assumption were wrong.

The state disclosed nothing to Gonzales voluntarily. Gonzales

finally obtained a discovery order in his habeas proceeding in

federal court. Under compulsion of the federal court order, the

state finally revealed previously undisclosed information

about Acker. The most damning information was contained in

six psychiatric reports prepared while Acker was incarcerated

in California prisons. If the California Supreme Court had

allowed the discovery that Gonzales had sought — and indeed

had been granted by the trial court — these reports would

have been in the state court record on state habeas.

These psychiatric reports could have been used to impeach

Acker in three ways. First, they demonstrate that Acker was

willing to lie and manipulate prison medical staff in order to

get what he wanted. Psychiatric evaluations reveal that Acker

admitted attempting or faking suicide on three occasions in

order to obtain prison transfers. A 1972 Psychiatric Evalua-

tion reported that Acker admitted that he had faked suicide at

the Norwalk Receiving Center in order to be placed in the

hospital, from which it would be easier to escape. A 1973

Psychiatric Evaluation reported an attempted hanging, this

time in the California Men’s Colony (“CMC”) East Facility.

The Evaluation noted that Acker “stated that that was only a

gesture designed to prevent his egress from CMC East.”

Finally, a 1974 report describes another suicide attempt in

April or May of that year at K-Wing of the Duel Vocational

Institution (“D.V.I.”). Acker stated “that he made a suicidal

gesture in order to get out of K-Wing at D.V.I.” He claimed

that “his suicidal gesture was the only way that he could get

out of D.V.I.’s K-Wing. Claims that if he ever goes back [to]

that madness again at D.V.I. he will attempt the same thing

again; namely, a suicidal gesture.”

Many of the psychiatric evaluations specifically noted

Acker’s manipulative behavior. One psychiatrist reported that

20760 GONZALEZ v. WONG

Acker asked, “and it was my distinct impression that this was

made in all seriousness, as to ‘how much money would it take

to give me a good report.’ ” Another psychiatrist described

Acker as “the type of an individual who was constantly test-

ing me.” In a diagnostic study prepared for Acker’s sentenc-

ing for his murder conviction, Dr. Flanagan, who examined

Acker, recommended that Acker be “considered capable of

any measure of brutality in the service of achieving what he

wants to do.” He further described him as “intelligent, manip-

ulative, [and] unscrupulous.” The Social Evaluation included

in the diagnostic study noted that Acker had been “offered

therapy in the past and has used it as a tool to get out of prison

early and has not attempted to use it as a tool to change his

own behavior.” This evidence of Acker’s lying and manipula-

tion would have been extremely valuable to Gonzales, as Ben-

cangey had no examples during trial of Acker either lying or

manipulating to his own advantage. The evidence shows the

extent to which Acker was willing to go to obtain prison

transfers, the precise reason he testified he was informing

against Gonzales. Jurors could easily have concluded that if

Acker was willing to repeatedly fake suicide to obtain a

prison transfer, he would be willing to fabricate a confession

to obtain such a transfer.

Second, these reports could have been used to impeach

Acker on his claim that he had started testifying because he

wanted to achieve a new “moral balance.” As I describe

above, Acker had testified that one of his primary motivations

for giving information to the authorities in Gonzales’s case

was to turn his life around and to do the right thing. In 1972,

Acker had told Dr. Land that he was now on the right path

because he had “undergone a religious experience” and he

“believes he has found the true religion.” After this claimed

conversion, Acker was released from prison. Acker then com-

mitted first-degree murder and numerous robberies. That

Acker had previously lied about turning his life around in

order to obtain his release from prison, and that in fact he had

not turned his life around, would have substantially under-

GONZALEZ v. WONG 20761

mined his claim at Gonzales’s trial that he was testifying

because he wanted to achieve a new “moral balance.”

Third, these reports could have been used as evidence of

Acker’s mental illness. Acker was diagnosed with “schizo-

phrenia, chronic, undifferentiated type” as early as 1974. In

1975, he was diagnosed with “[s]chizophrenia, residual type.”

A 1977 report noted that Acker “has a severe personality dis-

order, and he has previously been diagnosed as schizophre-

nic.” It further described him as “mentally unstable.” We have

repeatedly recognized the impeachment power of mental ill-

ness. See, e.g., Silva v. Brown, 416 F.3d 980 (9th Cir. 2005).

During discovery for his federal habeas claim, Gonzales

was allowed to take Acker’s deposition. Acker’s response to

being confronted with these reports in his deposition suggests

how he would have responded on the witness stand during

trial. First, Acker repeatedly denied making suicidal gestures

to obtain transfers and denied bribing prison psychiatrists.

When confronted with the report from Dr. Land that he had

admitted to having faked suicide in order to be placed in the

hospital, Acker responded, “I don’t even know this dude,” and

denied that this had occurred. When confronted with another

report about the same incident, Acker described the report as

“a totally bogus statement right there.” When confronted with

the report in which he had admitted that his suicidal gesture

was the only way to get out of D.V.I.’s K-Wing, Acker denied

making the statement, saying, “That never happened, man.”

When confronted with another report about the K-Wing inci-

dent, Acker said, “I don’t think I ever said that. And if I did,

I lied.” Finally, in responding to Dr. Malloy’s report, which

recounted Acker’s attempt to bribe him, Acker denied the

incident, describing the report as “full of shit, man.” Second,

Acker attacked the psychiatrists who evaluated him. When

asked whether Dr. Flanagan was lying when he stated that

Acker would do anything to get what he wanted, Acker

responded, “Dr. Flanagan is full of crap.” He further stated,

while Gonzales’s federal habeas attorney was preparing a

20762 GONZALEZ v. WONG

question, “If they’re psychiatrist things, don’t go there, man,

because they’re all mostly bogus.”

Acker’s psychiatric reports, combined with his response to

those reports, would have severely undermined Acker’s credi-

bility at trial. The reports would have revealed that obtaining

a prison transfer was so important to Acker that he was will-

ing to fake suicide, manipulate medical professionals, and

bribe a prison psychiatrist. Acker’s responses to these reports

on the stand would have revealed Acker as a liar, consistently

denying events reported by prison psychiatrists.

Gonzales, however, did not have these reports during trial,

for the state had successfully concealed them. Gonzales also

did not have these reports during his state habeas proceeding,

for the state, assisted by the ruling of the California Supreme

Court, had again successfully concealed them.

E. Pinholster

I believe we can consider the six psychiatric reports consis-

tent with the Supreme Court’s decision in Pinholster. I would

hold that when a petitioner’s inability to present Brady evi-

dence to the state courts is due to the refusal of the state court

to allow appropriate discovery, Pinholster does not bar fed-

eral courts from considering that evidence in the first instance.

Pinholster does not answer the question whether federal

courts can consider evidence that a petitioner tried to discover

in state court, but was prevented from discovering by the state

court. Justice Sotomayor stated in her dissent in Pinholster, “I

assume that the majority does not intend to suggest that

review is limited to the state-court record when a petitioner’s

inability to develop the facts

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