Phillips v. Ornoski

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

RICHARD LOUIS ARNOLD PHILLIPS,  No. 04-99005

Petitioner-Appellant, D.C. No.

v.  CV-F-92-05167-

STEVEN W. ORNOSKI, REC

Respondent-Appellee.

 OPINION

Appeal from the United States District Court

for the Eastern District of California

Robert E. Coyle, Senior District Judge, Presiding

Argued and Submitted

March 25, 2009—San Francisco, California

Withdrawn from Submission July 1, 2010

Resubmitted August 31, 2011

Filed March 16, 2012

Before: Betty B. Fletcher, Stephen Reinhardt, and

Andrew J. Kleinfeld, Circuit Judges.

Opinion by Judge Reinhardt;

Partial Concurrence and Partial Dissent by Judge Kleinfeld

3155

PHILLIPS v. ORNOSKI 3161

COUNSEL

Richard Phillips, San Quentin, California, appearing pro se;

Katherine L. Hart, Fresno, California, advisory counsel, for

the petitioner-appellant.

Catherine Chatman, Supervising Deputy Attorney General,

Sacramento, California; Robert Todd Marshall, Assistant

Attorney General, Sacramento, California, for the respondent-

appellee.

3162 PHILLIPS v. ORNOSKI

OPINION

REINHARDT, Circuit Judge:

In this case we consider a capital habeas corpus petition

filed prior to the effective date of the Antiterrorism and Effec-

tive Death Penalty Act (AEDPA) and thus governed by pre-

AEDPA law. Petitioner Richard Louis Arnold Phillips appeals

the district court’s denial of his habeas corpus petition on

three grounds. First, he contends that the district court’s pro-

cedural rulings improperly denied him a full evidentiary hear-

ing. Second, he asserts that his trial counsel provided

constitutionally ineffective assistance under the Sixth Amend-

ment by allowing him to proceed with a manifestly uncon-

vincing alibi defense without first investigating any

alternative defenses. Third, he argues that the prosecution’s

failure to reveal that a key prosecution witness received sig-

nificant benefits in exchange for her testimony after the wit-

ness falsely testified she had been promised no such benefits,

coupled with the prosecutor’s false representation to the jury

that there was no agreement promising such benefits, violated

his due process rights. We conclude that the district court did

not err in its rulings governing the evidentiary hearing below,

and we affirm its denial of Phillips’s ineffective assistance of

counsel claim.

With respect to Phillips’s due process claim, we conclude,

first, that, although the prosecution engaged in a deceptive

ruse that this court has described as “a pernicious scheme

without any redeeming features,” Hayes v. Brown, 399 F.3d

972, 981 (9th Cir. 2005) (en banc) (quoting Willhoite v.

Vasquez, 921 F.2d 247, 251 (9th Cir. 1990) (Trott, J., concur-

ring)), the evidence withheld from Phillips and misrepre-

sented to the jury was not material to Phillips’s convictions

for attempted and first-degree murder, nor to his convictions

for robbery, and we accordingly affirm these convictions. We

hold, however, that the prosecution violated Phillips’s due

process rights by depriving him of, and willfully misleading

PHILLIPS v. ORNOSKI 3163

the jury as to, critical evidence that was material to the special

circumstance finding that the murder was committed during

the course of a robbery (rather than vice versa). We therefore

vacate the jury’s special circumstance finding that rendered

Phillips death-eligible, and, accordingly, Phillips’s death sen-

tence.

I. Factual Background

A. The events of December 7, 1977

In September of 1977, Phillips met Ronald Rose and Bruce

Bartulis, two partners in a general contracting business who

were building a pair of houses on property adjacent to Phil-

lips’s beachfront home in Newport Beach, California. The

three men became acquainted when Phillips offered the con-

tractors use of his electrical outlets to power their construction

tools. Phillips and the contractors became friendly, and Phil-

lips began to visit the construction site regularly to speak with

them.

On the first or second day of November 1977, Phillips

asked Rose and Bartulis if they wanted to invest in a cocaine

deal with him. Under the deal as Phillips described it, Rose

and Bartulis would contribute $25,000 to purchase cocaine

that would be smuggled into the United States from Peru, and

would receive a five-fold return on their investment. Rose and

Bartulis agreed to the illegal investment and provided Phillips

with $10,000 on November 2, 1977, with the $15,000 balance

to be provided at a later date. Over subsequent weeks, Phillips

inquired regarding the remaining balance multiple times.

Approximately three to four weeks after the first payment,

Rose provided Phillips with an additional $1,500. Rose

explained to Phillips that he and Bartulis had intended to

finance the transaction using funds derived from their con-

tracting business, and that the business had encountered finan-

cial difficulties. Rose at one point suggested that Phillips

either use only the $11,500 already provided to finance Rose

3164 PHILLIPS v. ORNOSKI

and Bartulis’s share of the cocaine deal or return the money,

and Phillips agreed to use the funds he had already received.

During the course of these discussions it emerged that Rose

and Bartulis were having difficulty obtaining insulation for

various construction projects. In late November or early

December 1977, Phillips informed Rose that he was capable

of acquiring stolen insulation and offered to arrange a sale of

such material. Rose and Bartulis accepted Phillips’s offer.

According to Rose’s testimony at Phillips’s trial, Phillips told

Rose “that his brother was a part of this deal,” that the insula-

tion was stored in a warehouse in Fresno, and that Rose and

Bartulis would have to receive the insulation there.

Shortly thereafter, on December 7, Phillips informed Rose

and Bartulis of the arrangements for the insulation transac-

tion. Phillips told the two men to meet him that evening at a

prearranged location in Fresno, a city in central California

approximately four hours north of Newport Beach. From that

location, they would drive to a second rendezvous point to

meet Phillips’s insulation source. That day, prior to leaving

Newport Beach, Rose executed a notarized promissory note in

the amount of $25,000 that he tendered to Phillips. Rose

believed the note to be secured by property he owned,

although he never signed the accompanying deed of trust. Of

the $25,000 sum covered by the note, $13,500 constituted the

balance on the cocaine deal and the remainder was intended

as a down payment on a portion of the stolen insulation. Rose

and Bartulis were unsure as to the total quantity of insulation

they would ultimately purchase from Phillips’s source, and

Phillips therefore instructed them to bring as much additional

cash to the meeting as possible.

After Rose gave Phillips the promissory note, they parted

ways with plans to meet that evening in Fresno. Rose and

Bartulis drove to Fresno in a two-door Ford Ranchero truck

purchased by Rose for the construction firm and regularly

used by Bartulis. In accordance with Phillips’s suggestion that

PHILLIPS v. ORNOSKI 3165

he bring extra cash, Rose carried with him to Fresno between

$3,500 and $5,000 in $100 bills inside the left breast pocket

of his jacket. Rose also brought a .44 magnum pistol.

Phillips flew to Sacramento, where his mother lived,

intending to borrow his mother’s car and drive to Fresno.

Fresno is approximately two and half hours south of Sacra-

mento by car. That same day, Sharon Colman, Phillips’s girl-

friend of two months, flew directly to Fresno. Colman had

previously dated and lived with Phillips’s best friend since

childhood, Richard Graybill. Colman, a prostitute, had

arranged to be picked up at the Fresno airport by a client. Her

flight, however, was delayed, and her client was not there

when she landed. She therefore called Phillips at his mother’s

house in Sacramento and asked him to pick her up at the

Fresno airport, which he did.

From the Fresno airport, Phillips and Colman drove to meet

Rose and Bartulis at a gas station. The four proceeded from

there in two separate vehicles to Chowchilla, a town approxi-

mately thirty-five miles north of Fresno along Highway 99.

Phillips and Colman led the way; Bartulis and Rose followed.

Along the way, both cars stopped at a second gas station so

that Phillips could use the restroom. Returning to his car from

the restroom, Phillips stopped to talk to Rose, from whom he

requested a pack of matches. Both cars then continued north

on Highway 99.

Sometime after midnight, both cars pulled off the highway

in Chowchilla and parked in a vacant lot. The lot was in a

deserted area, with no buildings nearby. The vehicles parked

alongside one another, with Phillips’s car to the left so that the

passenger door of his car was in line with and a few feet from

the driver-side door of the Ranchero. Phillips sat in the driv-

er’s seat of his car with Colman in the passenger seat; in the

adjacent Ranchero, Bartulis sat in the driver’s seat, with Rose

in the passenger seat.

3166 PHILLIPS v. ORNOSKI

According to Colman, Phillips got out of his car and went

to talk to Rose and Bartulis for a period of time through the

driver-side window of the Ranchero before reentering his car

through the passenger side, asking Colman to slide over. Col-

man testified that at some point approximately thirty to forty-

five minutes after their arrival at the lot—after Rose and Bar-

tulis had each finished some beers and smoked a marijuana

cigarette—Phillips again exited his car and went to talk to

Rose and Bartulis, leaning into the Ranchero’s open driver-

side window. Rose, however, stated that Phillips came and

spoke to him and Bartulis through the driver-side window

only once, and that the conversation occurred within five min-

utes, not thirty to forty-five minutes, of their arrival at the

vacant lot.

This discrepancy as to timing aside, both Colman and Rose

agree that, at some point after arriving at their destination,

Phillips was leaning into the Ranchero’s driver-side window

talking to Rose and Bartulis when he fired six shots at the two

men using his .45 automatic pistol. Colman saw the shots

being fired from the gun in Phillips’s left hand. Rose did not

see the shots being fired, but he heard the shots come from his

left. Rose was hit five times, with one bullet grazing his skull,

another piercing his arm, and the remaining three entering his

abdomen. Bartulis was shot a single time through his heart

and died almost instantly.

Immediately after the shooting ceased, Phillips hit Bartulis

on the head with the end of his gun, reached through the Ran-

chero’s window and, without opening the truck door, pulled

Bartulis’s wallet out of the truck. He then walked to Rose’s

side of the vehicle and removed Rose’s wallet and a handgun.

Phillips returned to his car and handed both wallets, as well

as his and Rose’s handguns, to Colman. In addition to Rose

and Bartulis’s identifications, the two wallets contained a total

of between $120 and $150. Phillips did not remove from the

Ranchero approximately $162 from Rose’s pants pocket, nor

did he take the $3,500 to $5,000 wad of one-hundred-dollar

PHILLIPS v. ORNOSKI 3167

bills that was in the breast pocket of Rose’s jacket. Phillips

then directed Colman to open the trunk of his car, from

which, according to Colman, he retrieved a gas can, and pro-

ceeded to pour gasoline over Rose and Bartulis’s bodies

inside the Ranchero. As Colman moved Phillips’s car across

the street, Phillips lit the two bodies on fire and made his way

back to his car.

Upon being lit on fire, Rose (who had been shot five times)

jumped out of the now burning Ranchero, and removed his

flaming jacket. He was unable to remove the rest of his burn-

ing clothing and began to run around in pain. Phillips, upon

seeing that Rose was still alive, drove toward him and hit him

with his mother’s car, cracking the windshield. Phillips and

Colman then drove back to Phillips’s mother’s house in Sac-

ramento.

Shortly after Phillips and Colman left the scene, Madera

County Sheriffs discovered Rose (who was remarkably still

alive), extinguished his burning clothing, and transported him

to the hospital, where he underwent surgery followed by three

months of burn treatment and rehabilitation. The deputies also

found Rose’s smoldering jacket, which still contained the

packet of $100 bills that Rose had carried with him from

Newport Beach.

The morning after the shootings, Phillips took his mother’s

car to a shop to have the cracked windshield repaired. Within

a week, Rose was able to communicate to the Madera sheriffs

the names of the people who accompanied him to the vacant

lot. Arrest warrants for Phillips and Colman were issued on

December 14th. Upon learning of the warrants, Colman and

Phillips drove in a Corvette borrowed from Phillips’s brother-

in-law to Salt Lake City, where Phillips got a job and assumed

a false identity. Colman stayed with Phillips in Utah for one

or two weeks and then returned to Sacramento in the Cor-

vette. Shortly thereafter she turned herself in to the Madera

County Sheriff’s Department.

3168 PHILLIPS v. ORNOSKI

Colman was taken into custody and was appointed counsel

on December 27, 1977, three weeks after the shooting. The

next day, December 28, Colman and her counsel met with the

lead investigating officers from the Madera sheriff’s depart-

ment and with the district attorney, David Minier. During that

meeting, Colman gave a detailed account of the shooting and

the events leading up to it. Notably, during this hour-long

interview, Colman did not indicate that Phillips had searched

Rose for any length of time, nor did she say that he mentioned

being unable to find the money that Rose had brought with

him, or that he was disappointed by the absence of cash. To

the contrary, she stated that on the ride back from Chowchilla

Phillips disclosed to her his motive for the murder. That

motive, according to Colman, was not robbery but a desire to

eliminate Rose and Bartulis because he was concerned that

they were setting him up, that they would double-cross him,

and that they knew “too much about where the coke was com-

ing from.” In a subsequent interview with police on January

4, 1978, Colman changed her story on these points com-

pletely, now stating that Phillips complained after he returned

to the car that he was disappointed not to have found Rose’s

money. She adhered to and indeed embellished upon the latter

version of her story at trial, testifying that Phillips had spent

“a lot longer” searching Rose than he had spent searching

Bartulis, that upon returning to the car Phillips stated “that he

couldn’t find the money that [Rose] had on him,” and that

during the drive to Sacramento Phillips repeatedly expressed

frustration that he had been unable to find the cash brought by

Rose. Although Colman was at the time of her second police

interview subject to the same capital charges as Phillips, two

months after she gave her statement to the District Attorney

she was released on bail without explanation, and her bail sta-

tus was eventually adjusted to personal recognizance.

Once she was released from pre-trial custody, Colman

moved back in with Richard Graybill, her former boyfriend.

On March 13, 1978, just a few weeks after her release, Col-

man and Graybill were arrested for selling heroin to an under-

PHILLIPS v. ORNOSKI 3169

cover Fresno police officer. After the Madera County

Sheriff’s Department made multiple calls to the Fresno police

department on Colman’s behalf requesting that charges

against her not be pursued because she was an important wit-

ness in a homicide investigation, the charges against her were

dropped.

With the assistance of Graybill, the Madera sheriffs and the

FBI located Phillips in Salt Lake City. Phillips was arrested

and was eventually extradited to California to face prosecu-

tion. He was charged with the first degree murder of Bruce

Bartulis, the attempted murder of Ronald Rose, and the rob-

bery of both Bartulis and Rose. The prosecution also alleged

as a special circumstance that the murder was committed in

furtherance of a robbery. An affirmative jury finding with

respect to the special circumstance was a necessary precondi-

tion to the holding of a capital sentencing proceeding and

imposition of the death penalty. Phillips’s trial began in Janu-

ary of 1980.

B. The Trial

The prosecution’s theory at trial was that Phillips conned

Rose and Bartulis from the start in order to rob them. Minier,

the Madera County District Attorney who prosecuted Phillips,

argued that he never had any intention to import cocaine and

there never was any stolen insulation, but rather Phillips had

used the promised deals as ruses in order to steal tens of thou-

sands of dollars from Rose and Bartulis before attempting to

murder them and steal more. The prosecution argued that on

December 7, the night of the shooting, Phillips lured the two

men to the remote lot in Chowchilla with the intention of kill-

ing them, stealing the cash they brought with them to the

meeting, and keeping the money that he had already received

from them without ever having to produce a profit on the non-

existent cocaine deal.

3170 PHILLIPS v. ORNOSKI

To support this theory, the prosecution highlighted a num-

ber of facts, drawn almost exclusively from the testimony of

Rose and Colman, to show the careful planning that went into

the killings. As evidence of that planning, the prosecutor

argued that Phillips sought to manufacture an alibi by flying

to his mother’s house in Sacramento prior to driving to

Fresno, rather than simply flying to Fresno directly as Colman

did. As further evidence of premeditation, the prosecutor

emphasized that, prior to meeting up with Rose and Bartulis,

Phillips put a gasoline can in the trunk of his mother’s car,1

and that Phillips had asked Rose for matches when the two

cars stopped en route to the vacant lot, actions that the prose-

cution argued showed Phillips intended in advance to burn his

victims.2

The prosecutor likewise underscored evidence indicating

that Phillips acted in a particularly methodical and cold-

blooded manner. For example, he argued that Phillips sought

to cover his tracks, not only by burning the bodies, but by

picking up the bullet shell casings off the ground after the

shooting, as there was only one shell recovered from the

scene despite multiple shots being fired. He further argued

that Phillips’s cold-blooded manner was evidenced by Col-

man’s testimony that Phillips struck Rose and Bartulis in the

head after shooting them.

In addition to emphasizing facts suggesting premeditation

and extensive advanced planning, the prosecutor highlighted

evidence supporting the contention that Phillips’s cocaine and

insulation scheme was a ruse orchestrated to steal money

from Rose and Bartulis. He emphasized that Phillips told

Rose and Bartulis that the stolen insulation was going to be

1

Phillips’s mother testified that she did not normally carry a gasoline

can in the car.

2

In a subsequent penalty phase retrial, Rose explained that he gave Phil-

lips a marijuana cigarette along with the matches, but at Phillips’s initial

guilt trial he testified only that Phillips had requested matches.

PHILLIPS v. ORNOSKI 3171

supplied by his brother even though Phillips does not have a

brother.3 The prosecutor also argued that the fact that Phillips

told Rose to bring “as much money as he could get a hold of”

to Fresno showed that Phillips planned to rob Rose and Bar-

tulis once they got to the deserted lot. Similarly, the prosecu-

tor stressed that Phillips searched the bodies after the shooting

and took Rose and Bartulis’s wallets. He also stressed that,

according to Colman, Phillips said that he was upset that he

could not find the money he expected Rose to be carrying.

Phillips’s primary defense at trial was that he was not at the

crime scene at all. This alibi rested almost exclusively on

Phillips’s own testimony. Phillips took the stand and testified

that on the night of the shooting he was at an illicit business

meeting at a disco. He claimed that he had helped set up the

insulation deal, but that the deal itself was attended only by

Rose, Bartulis, and Graybill (who was to supply the insula-

tion). He further claimed that the real killers were Colman and

Graybill, to whom he had loaned his mother’s car on the night

of the shooting. Phillips testified that Graybill returned to

Phillips’s mother’s house at approximately 4:30 a.m. the

morning of the shooting and that the windshield of the car

was smashed. Finally, Phillips claimed that at some point he

decided to take the fall for Graybill, thinking that he could

plead guilty to second degree murder and thereby keep his

longtime friend out of prison. Phillips did not offer a single

witness to corroborate his alibi, and, when pressed for any

details or specifics supporting it, such as the names of the

people at his supposed meeting, he refused to respond, opting

instead to plead the Fifth Amendment or asserting that if he

gave any details regarding his criminal associates he

“wouldn’t be alive.”

3

Ever since Phillips abandoned his alibi testimony, he has maintained

that the reference to “his brother” was intended to refer to his childhood

friend Graybill. Rose could not remember at trial if Phillips had said “my

brother” or “a brother.”

3172 PHILLIPS v. ORNOSKI

Phillips’s attorney, Paul Martin, emphasized two arguments

in addition to Phillips’s improbable alibi. First, Martin repeat-

edly highlighted evidence suggesting that Bartulis’s murder

did not occur during the course of a robbery, stating in his

closing argument, for example, that,

This would be a dumb way to pull a plain, ordinary

robbery, to meet two people in a rural area not

knowing if they had any money or how much

money, if any, . . . this is no way to pull a robbery.

This is a poor theory in my opinion, . . . particularly

when one of the individuals owes the man charged

$25,000.

Later in his argument, Martin noted, regarding Phillips’s fail-

ure to find the cash stashed in Rose’s jacket pocket, that

“[i]t’s hard to miss a wad the size of a cigarette package in the

upper breast pocket. If the pocket has something in it the size

of a package of cigarettes, it’s not easily missed if someone

is a cool criminal.”

Second, Martin insinuated that Colman was lying in

exchange for offers of leniency from the prosecution. Martin

introduced evidence that Colman—who, like Phillips, had

been charged with capital murder in connection with the

events of December 7, 1977—had been granted an unusual

number of continuances for her preliminary hearing, and been

released on her own recognizance notwithstanding the capital

murder charges against her. In his closing statement, Martin

emphasized that:

She’s threatened with the charge of murder. Why has

it been continued for two years, more or less? . . .

[S]he’s now on her own recognizance; doesn’t even

have to post a bail bond. She’s out on the street.

. . . What’s the purpose in continuing it for two

years? Her case could have been resolved with what-

ever deal they’re going to make, and there’s, obvi-

PHILLIPS v. ORNOSKI 3173

ously, a deal of some kind anticipated. . . . [T]hey’re

holding a murder charge over her head to compel her

to testify, and she’s singing like a bird, the tune that

they call.

Colman, however, flatly denied having received any benefi-

cial treatment in exchange for her testimony, and stated only,

“I’m expecting that they would take into consideration that I

am willing to cooperate.” Colman further stated, “My attorney

has advised me to testify and to put my confidence in my

attorney,” explaining, “She asked me if I had confidence in

her, and if I had confidence in her that — to go under her

advisement, and that her advisement was to testify.” In his

closing statement, the prosecutor, Minier, reaffirmed Col-

man’s denial that she had been promised any benefits, empha-

sizing that she had testified “she has never been promised

anything for her testimony in this case,” and that any efforts

by the defense to insinuate she had received a deal were

“sheer fabrication, just pulled out of the air, totally meaning-

less.”

The jury convicted Phillips on all counts, including the

first-degree murder of Bartulis, and found the special circum-

stance of murder during the commission of a robbery to be

true. At the subsequent penalty phase of the trial, Phillips was

sentenced to death.

C. Post-Conviction Proceedings

Phillips appealed his conviction and sentence directly to the

California Supreme Court. See People v. Phillips, 711 P.2d

423 (Cal. 1985). Five years after the appeal was filed, the

court affirmed Phillips’s conviction but reversed his death

sentence. The case was remanded for a new penalty phase

trial. Id. at 459. While he awaited a penalty phase retrial, Phil-

lips filed a state habeas corpus petition making the claim,

among others, that the trial prosecutor, Minier, had offered a

plea deal to Colman’s attorneys with the proviso that the deal

3174 PHILLIPS v. ORNOSKI

not be communicated to Colman herself and that the deal was,

in fact, communicated to Colman. Phillips argued that Minier

violated his obligations under Brady v. Maryland, 373 U.S. 83

(1963) by failing to disclose the benefits that Colman received

in exchange for her testimony, and violated Napue v. Illinois,

360 U.S. 264 (1959) by failing to correct Colman’s false testi-

mony regarding those benefits. The state court denied Phil-

lips’s Brady/Napue claim for failure to demonstrate

materiality.

In October 1991, Phillips received a penalty phase retrial,

and was again sentenced to death. On March 4, 1992, he filed

this federal habeas petition in the district court, advancing his

Brady/Napue claims and a claim of ineffective assistance of

counsel, among others. The district court declined to entertain

Phillips’s petition because his appeal from his penalty retrial

was at that time still pending in the California state courts.

This panel reversed that decision on May 26, 1995, holding

that Phillips could file a habeas petition as to the guilt phase

separately from any petition as to the penalty phase. Phillips

v. Vasquez, 56 F.3d 1030 (9th Cir. 1995). On remand and

after briefing, the district court denied Phillips’s petition with-

out an evidentiary hearing, holding that Phillips had not set

forth any colorable claims for relief. We again reversed, hold-

ing that Phillips was entitled to an evidentiary hearing on both

his ineffective assistance and Brady/Napue claims. Phillips v.

Woodford, 267 F.3d 966 (9th Cir. 2001).

On remand, the district court scheduled a three-day eviden-

tiary hearing to begin on November 6, 2002. The date was

later continued to December 4, 2002, and then to February 4,

2003. On October 15, 2002, Philips moved to be rehoused in

the Madera County jail to better assist his counsel in prepar-

ing for the hearing.4 The district court denied his request, find-

4

Phillips stated that because his counsel during the state habeas proceed-

ings had suffered from a nervous breakdown, no one other than himself

had the knowledge of the case necessary to assist his appointed counsel

in preparing the files for the scheduled hearing.

PHILLIPS v. ORNOSKI 3175

ing that “the convenience of counsel is not sufficient to justify

the risk and expense involved with a federal court ordering a

state entity to move a prisoner.” The district court denied

reconsideration on November 19, 2002.

On December 30, 2002, the district court issued an order

stating: “After careful consideration, it is ORDERED that

depositions in lieu of testimony be taken of David Minier,

Paul Martin, Ron Rose, Sharon Colman, Tom Peterson, and

Casandra Dunn.” Neither party objected to the order.

Depositions were conducted between January 6th and Janu-

ary 13th, 2003. On January 16, 2003, Phillips filed a motion

for a temporary protective order to prevent his deposition

from being taken. On January 21, 2003, the district court

denied his request, finding no basis for the protective order.

The court then ruled, apparently acting sua sponte, that “all

evidence in the upcoming evidentiary hearing will be pre-

sented by deposition . . . and the evidentiary hearing set to

begin February 4, 2003 [is] vacated.” The district judge

asserted that this ruling was “[b]ased on prior agreement of

the parties.”5

On October 21, 2003, Phillips filed a motion requesting

permission to file supplemental exhibits. Phillips then filed a

motion on November 5, 2003, asking the district court to

reconsider its order vacating the evidentiary hearing. The dis-

trict court refused to reconsider its order, stating that, “[b]ased

on prior representations by both parties, no witnesses

remained to testify at a hearing, so written argument was

determined to be more effective than oral argument and more

effective than oral argument and briefs.” In that same order,

the court refused Phillips’s request to file supplemental exhib-

its, holding that the documents were “untimely” and, in any

5

Evidence of such an agreement does not exist in the record, although

the status conferences held on May 13 and August 27 of 2002 were not

transcribed.

3176 PHILLIPS v. ORNOSKI

event, were either duplicative or irrelevant. On February 20,

2004, the district court denied Phillips’s guilt-phase claims,

ruling on the merits that Phillips had not been prejudiced by

any violations that occurred with respect to either his ineffec-

tive assistance of counsel claim or his Brady/Napue claims.

II. Standard of Review

Because Phillips filed his federal habeas petition before the

effective date of the Anti-Terrorism and Effective Death Pen-

alty Act (AEDPA), “AEDPA’s substantive provisions do not

apply to this appeal.” Phillips, 267 F.3d at 973 (citing Lindh

v. Murphy, 521 U.S. 320, 327 (1997)). We therefore review

de novo questions of law or mixed questions of law and fact

decided by the district court or by the state courts. Jackson v.

Brown, 513 F.3d 1057, 1069 (9th Cir. 2008). We review the

district court’s factual findings for clear error, and accord

state court factual findings a presumption of correctness. Id.

The district court’s procedural rulings, including its decision

to limit the evidentiary hearing to written evidence, are

reviewed for abuse of discretion. Wade v. Calderon, 29 F.3d

1312, 1326 (9th Cir. 1994).

III. Adequacy of the Evidentiary Proceeding Below

Phillips claims that, in conducting the evidentiary hearing

below, the district court abused it discretion by: (1) refusing

to order Phillips transferred from death row in San Quentin to

the Madera County jail; (2) canceling the live hearing sched-

uled for February 4, 2003; and (3) refusing to accept his “Sup-

plemental Guilt Exhibits.” We now address each contention.

A. Denial of Transfer

[1] Although Phillips presented several compelling reasons

to justify his transfer from San Quentin to Madera, the district

court did not abuse its discretion in denying this motion. A

prisoner has no right to be housed in a particular institution.

PHILLIPS v. ORNOSKI 3177

Rizzo v. Dawson, 778 F.2d 527, 530 (9th Cir. 1985); see also

Meachum v. Fano, 427 U.S. 215, 224 (1976). Moreover, as

Phillips acknowledged in his motion for relocation, the power

to order a prisoner transferred is to “be exercised at the sound

discretion of the court.” The district court’s holding that the

risks and costs of relocation so outweighed the inconvenience

suffered by Phillips’s defense team does not constitute a

“clear error of judgment,” as is required to find an abuse of

discretion. See SEC v. Coldicutt, 258 F.3d 939, 941 (9th Cir.

2001).

B. Vacatur of the Live Hearing

[2] Applying pre-AEDPA law, we conclude that the dis-

trict court’s decision to limit the evidentiary hearing to written

evidence likewise did not constitute reversible error. This

court has held that such a decision is within the district court’s

discretion. Williams v. Woodford, 306 F.3d 665, 688 (9th Cir.

2002) (“[A] district court in a habeas proceeding ‘need not

conduct full evidentiary hearings,’ but may instead ‘expand

the record . . . with discovery and documentary evidence.’ ”)

(quoting Watts v. United States, 841 F.2d 275, 277 (9th Cir.

1988) (per curiam)). Because, as the district court observed,

“no witnesses remained to testify at [the] hearing” who had

not already been deposed, avoiding the time and expense of

the live hearing was a legitimate reason to vacate the earlier

order. See Chang v. United States, 250 F.3d 79, 86 (2d Cir.

2001) (“[A district court] may avoid the necessity of an

expensive and time consuming evidentiary hearing in every

[federal habeas] case. It may instead be perfectly appropriate,

depending upon the nature of the allegations, for the district

court to proceed by requiring that the record be expanded to

include letters, documentary evidence, and . . . even affida-

vits.”) (quoting Raines v. United States, 423 F.2d 526, 529-30

(4th Cir. 1970)). Although Phillips argues that he was preju-

diced by this ruling because had he known there would be no

hearing he would have conducted his depositions differently,

he had notice by at least December 30, 2002, that depositions

3178 PHILLIPS v. ORNOSKI

would be used in lieu of live testimony for all witnesses, save

one, then known to the court.6

C. Refusal to Admit Supplemental Exhibits

[3] Finally, the district court did not abuse its discretion by

refusing to admit Phillips’s supplemental exhibits. The district

court, in an order filed on January 21, 2003, set a clear brief-

ing schedule for its decision on the merits of Phillips’s habeas

petition: Phillips’s opening brief and supporting documenta-

tion were due on January 31, 2003, and his reply was due on

February 14, 2003. In a previous order, the court had ruled

that the deadline for the end of discovery was January 15,

2003. Phillips attempted to file his supplemental exhibits on

October 21, 2003, over eight months after the deadline for

post-deposition filings and discovery had passed. All of the

documents Phillips sought to introduce existed prior to 1991.

Phillips argued to the district court that the delay was due to

the disarray of his former attorney’s files, but “[g]iven the dis-

cretion of the district court to ‘control proceedings before it,’

the district court did not abuse its discretion in finding that

[the] motion . . . came too late in the proceedings.” United

States v. Alisal Water Corp., 370 F.3d 915, 922 (9th Cir.

2004) (quoting United States v. Oregon, 913 F.2d 576, 588

(9th Cir. 1990)).

IV. Ineffective Assistance of Counsel

Phillips’s ineffective assistance claim is straightforward:

“[he] contends that his trial counsel, Paul Martin, rendered

ineffective assistance by presenting [a] patently meritless alibi

defense to the jury without investigating any other defenses

6

Phillips also contends that the district court erred by denying his right

to be present at the evidentiary hearing. The district court had ruled that

Phillips could not attend the hearing two months before it vacated it.

Because we hold that the district court did not abuse its discretion in

vacating the hearing itself, this claim must also fail.

PHILLIPS v. ORNOSKI 3179

— notably, the defense that Bartulis was killed during a

shoot-out” between Phillips and Rose. Phillips, 267 F.3d at

976.

In our 2001 opinion reversing the district court’s denial of

an evidentiary hearing, we held that “Phillips’s defense coun-

sel did not reasonably select the alibi defense used at trial. In

this case, . . . the defense used at trial was not selected on the

basis of a reasonable investigation or strategic decision.” Id.

at 980. Martin’s performance in this case was, indeed, ques-

tionable. Without investigating any alternative defenses, Mar-

tin allowed his client, who was charged with capital murder,

to present an improbable alibi defense despite the fact that his

client was unwilling to divulge, as part of that defense,

exactly where he was or what he was doing at the time of the

murder. What is more, Martin apparently committed to the

alibi defense based upon his questionable conclusion that he

was ethically prohibited from investigating a shoot-out theory

once Phillips, in his very first discussion with him about the

facts of the case, said he was not at the scene of the crime.

[4] However, after we issued our opinion holding that

Martin performed deficiently when he failed to investigate

alternatives to Phillips’s alibi defense, the Supreme Court

held that the Sixth Amendment does not impose a strict “con-

stitutional duty to investigate” upon attorneys working in cap-

ital cases. Cullen v. Pinholster, 131 S.Ct. 1388, 1406-07

(2011). In so doing, it relied on “the constitutionally protected

independence of counsel and . . . the wide latitude counsel

must have in making tactical decisions,” id. at 1406 (quoting

Strickland v. Washington, 466 U.S.668, 689 (1984)), as well

as the “strong presumption that counsel made all significant

decisions in the exercise of reasonable professional judg-

ment,” id. at 1407 (citations and internal quotation marks

omitted).

[5] Here, although Martin’s strategic decision to proceed

with an alibi defense was highly questionable at best, the

3180 PHILLIPS v. ORNOSKI

record suggests that Martin did attempt to explain to Phillips

that alibi defenses generally are not feasible when the defen-

dant refuses to account for his whereabouts at the time of the

crime. Moreover, Martin’s investigation did yield a witness

whose testimony provided modest support for Phillips’s alibi

defense: the proprietor of a business not far from the scene of

the crime testified that the morning after the shootings, an

individual other than Phillips loitered in his establishment

brandishing a .45 automatic weapon of the sort used in the

shootings, and that the individual’s car had multiple bullet

holes in it. In short, Martin attempted to confront his client

with the shortcomings of his alibi defense and, remarkably,

found a witness whose testimony tended to corroborate that

defense. Although Martin’s decision to pursue the defense at

trial was most assuredly ill-advised, we cannot, in light of

Pinholster, maintain our conclusion that his decision to pur-

sue the strategy urged by his client did not fall within the

“wide latitude counsel must have in making tactical deci-

sions.” 131 S.Ct. at 1406. Accordingly, in light of the

Supreme Court’s intervening decision, we are compelled to

overrule our 2001 holding that Martin’s performance at Phil-

lips’s trial was constitutionally ineffective, and to now hold

that his shortcomings were not such as to overcome the

“strong presumption that counsel made all significant deci-

sions in the exercise of reasonable professional judgment.” Id.

at 1407.

V. Violation of Phillips’s Due Process Rights

[6] It is a fundamental principle of the American criminal

justice system that “deliberate deception of a court and jurors

by the presentation of known false evidence is incompatible

with [the] rudimentary demands of justice.” Giglio v. United

States, 405 U.S. 150, 153 (1972) (internal quotation marks

omitted). When the government obtains a criminal conviction

and deprives an individual of his life or liberty on the basis

of evidence that it knows to be false, it subverts its fundamen-

tal obligation, embodied in the Due Process Clauses of the

PHILLIPS v. ORNOSKI 3181

Fifth and Fourteenth Amendments, to provide every criminal

defendant with a fair and impartial trial. The Supreme Court

has accordingly held that the government may not knowingly

suppress evidence that is exculpatory or capable of impeach-

ing government witnesses. See Banks v. Dretke, 540 U.S. 668,

691 (2004) (discussing Brady v. Maryland, 373 U.S. 83

(1963)). Similarly, it has held that the government is obligated

to correct any evidence introduced at trial that it knows to be

false, regardless of whether or not the evidence was solicited

by it. See Napue v. Illinois, 360 U.S. 264, 269 (1959); Alcorta

v. Texas, 355 U.S. 28 (1957); Pyle v. Kansas, 317 U.S. 213

(1942).7 These duties provide fundamental protections that are

vital to the successful operation of an adversarial system of

criminal justice; they embody the state’s obligation not to

obtain the accused’s conviction at all costs, but rather to do

justice by furthering the truth-finding function of the court

and jury.

[7] In this case, the state went to elaborate lengths to sug-

gest to the jury that Colman, whose testimony was critical to

securing a finding that Phillips murdered Bartulis during the

commission of a robbery, had received no benefits in

exchange for her testimony, when in fact her attorney had

entered into an agreement on her behalf that would allow her

to escape prosecution on capital murder charges, and all other

charges related to the offenses allegedly committed by her

and Phillips, in exchange for her testifying against him. More-

over, in furtherance of that agreement, Colman had testified

against Phillips in reliance on her attorney’s recommendation

that she do so. She also, as a result of the Sheriff’s Depart-

ment’s intervention on her behalf regarding a major drug traf-

7

Napue prohibits the government from knowingly using false evidence

to obtain a criminal conviction, while Alcorta and Pyle obligate the gov-

ernment to correct false evidence thus presented. See Hayes v. Brown, 399

F.3d 972, 978 (9th Cir. 2005) (en banc). For simplicity, we refer to the

state’s failure to fulfill its obligation not to present false evidence, and to

correct it once presented, as a Napue violation.

3182 PHILLIPS v. ORNOSKI

ficking offense she committed while on bail, was allowed to

escape prosecution for that crime.

At trial, Colman responded to questions from Phillips’s

defense attorney Paul Martin by denying that she had been

promised lenient treatment in exchange for her testimony:

Q And you expect to receive some benefit for testi-

fying here today?

A No.

Q You don’t expect to receive any consideration

whatsoever for testifying?

A I’m hoping that there will be consideration but

—

Q You really expecting to receive some consider-

ation?

A Are you asking me if I have been promised or is

that —

Q I’m asking you for your expectation.

A I’m expecting that they would take into consid-

eration that I am willing to cooperate. . . .

Q So you expect to receive some credit or benefit

in giving testimony here?

A I’m hoping that they will take that into consider-

ation.

Minier, the prosecutor who entered into the immunity

agreement on behalf of the state, emphasized Colman’s testi-

mony to the jury in his closing argument:

PHILLIPS v. ORNOSKI 3183

If the defense, in their arguments, suggests she is a

liar, she is motivated by her desire for leniency, and

you can’t trust her . . . . Well, look at what she said.

She testified . . . that she has never been promised

anything for her testimony in this case. She also tes-

tified that she was hoping for consideration . . . . And

it only seems reasonable that she would hope and

anticipate that she would be treated leniently, and, of

course, that’s why she’s testifying.

Likewise, in his rebuttal closing Minier told the jury:

[Defense counsel] Martin suggested that on the day

of the defendant’s arrest . . . that was the day the bar-

gain was struck with Colman. What bargain we

don’t know. It doesn’t even make any sense. I’d sug-

gest to you, that that kind of an argument is sheer

fabrication, just pulled out of the air, totally mean-

ingless.

Over the course of his habeas proceedings Phillips has

established that, contrary to her testimony and Minier’s state-

ments, Colman was offered and received significant benefits

from the state in exchange for testifying as she did. Phillips

points to substantial, possibly life-saving benefits that Colman

received in exchange for her testimony, and claims that the

prosecution’s failure to disclose these benefits or correct Col-

man’s statements that she expected no such benefits, and per-

haps even more important Minier’s deliberate efforts to

mislead the jury and the court as to the existence of an immu-

nity agreement, violated his due process rights under Napue

and Brady. We examine the benefits cited by Phillips, and

conclude that they involved violations of both Napue and

Brady. We also consider a separate Brady violation that arises

from the state’s failure to divulge a prior plea offer and Col-

man’s possible initial acceptance of it. Because these viola-

tions constitute a deprivation of Phillips’s right to due process

only if they were material to Phillips’s various convictions,

3184 PHILLIPS v. ORNOSKI

we then consider whether Phillips was prejudiced as to any of

them by the prosecution’s failure to comply with the dictates

of Napue and Brady.

A. Colman’s Immunity Agreement

The principal undisclosed benefit that Colman received for

her testimony flowed from an immunity agreement struck

between Minier and her trial lawyer, Cassandra Dunn, on Col-

man’s behalf. This agreement was reached after Dunn

replaced Colman’s first lawyer, Tom Peterson.8 As Minier

acknowledged in a 1990 declaration, “I did have an agreement

with [Dunn] about the benefit Colman would receive for testi-

fying.” Under the terms of that deal all charges, including

capital murder, against Colman relating to her role as Phil-

lips’s accomplice would be dropped completely if and when

she testified against Phillips. Dunn, in a 2003 deposition, con-

firmed the nature and existence of this agreement with Minier,

and testified that, after asking Minier to put the agreement in

writing, she “shortly thereafter” received a letter in which he

“confirmed that he had met with [Dunn] and that he had

agreed that [her] client would receive immunity if she testi-

fied truthfully.” Although neither Minier nor Dunn could

recall during postconviction proceedings exactly when they

had negotiated this deal, Dunn testified that it was reached

some time before Phillips’s preliminary hearing in July 1979.

Consistent with Minier’s practice at the time, the deal was

offered to Dunn on the condition that it not be communicated

to Colman, so that Colman would be capable of “truthfully”

8

Peterson represented Colman from when she first turned herself in to

the police on December 27, 1977, until Dunn took over her representation

in February 1978. Peterson had also engaged in negotiations with the pros-

ecution. As is discussed further below, the prosecution offered Peterson a

deal, which he communicated to Colman, that would allow her to plead

guilty to a charge carrying a one year sentence if she testified against Phil-

lips. See infra Section V.C. The difference between the two deals is essen-

tially that under the Dunn version Colman was not required to serve any

time.

PHILLIPS v. ORNOSKI 3185

representing to the jury that she had received no offers of

leniency in exchange for her testimony. Both Dunn and Col-

man contend that Dunn acceded to Minier’s wishes, and did

not communicate the existence of the offer to Colman. Dunn

did, however, urge Colman to put her confidence in her, and

then advised her to testify. Colman stated at trial that she did

testify against Phillips in reliance on Dunn’s advice to do so.9

All charges against Colman were dropped within a month of

Phillips’s conviction.

[8] Hayes v. Brown, 399 F.3d 972 (9th Cir. 2005) (en

banc) controls this case. It compels us to hold that the prose-

cution’s failure to disclose the existence of the agreement to

dismiss the charges against Colman, and to correct her and

Minier’s own statements at trial that no such deal existed, vio-

lated both Napue and Brady. The facts in Hayes are virtually

identical. In Hayes, as here, the prosecutor had reached a deal

with the attorney for a key state witness, James, providing for

the dismissal of all felony charges against him—including

those relating to the murder with which the defendant Hayes

was charged—if he testified against Hayes at trial. Id. at 977.

As in this case, the prosecution elicited a promise from

James’s attorney that James would not be informed of the

deal, and at trial James testified that he had received no prom-

ise of benefits in exchange for his testimony. Id. at 977, 980.

As we observed in Hayes, and as is equally applicable here,

that a witness may have been unaware of the agreement

entered into on his behalf may mean that his testimony deny-

ing the existence of such an agreement is not knowingly false

9

We might note that it appears highly improbable that Colman, who was

offered a one year sentence through her first lawyer if she testified against

Phillips, never asked her second lawyer before she testified what the con-

sequences to her might be if she did not testify or if she testified without

immunity. Nor does it seem likely or at all reasonable that she would have

failed to ask before testifying whether any offer had been made regarding

the disposition of the charges, including the capital charges, which she

faced.

3186 PHILLIPS v. ORNOSKI

or perjured, but it does not mean it is not false nevertheless.

As we explained in Hayes:

[T]hat the witness was tricked into lying on the wit-

ness stand by the State does not, in any fashion, insu-

late the State from conforming its conduct to the

requirements of due process. . . . It is reprehensible

for the State to seek refuge in the claim that a wit-

ness did not commit perjury, when the witness

unknowingly presents false testimony at the behest

of the State. “This saves [the witness] from perjury,

but it does not make his testimony truthful.” Willho-

ite v. Vasquez, 921 F.2d 247, 251 (9th Cir. 1990)

(Trott, J., concurring). The fact that the witness is

not complicit in the falsehood is what gives the false

testimony the ring of truth, and makes it all the more

likely to affect the judgment of the jury. That the

witness is unaware of the falsehood of his testimony

makes it more dangerous, not less so.

Id. at 981.

[9] Minier’s effort to “insulate” Colman from her own

immunity agreement was a deliberate effort to deceive the

jury—a ruse that flagrantly violated basic due process princi-

ples. As in Hayes, Colman’s denial that she expected to

receive benefits for testifying carried with it a necessarily

implied falsehood: it created the impression that she was not

the beneficiary of any sort of deal. Id. at 981, 983; see also

Alcorta, 355 U.S. at 31 (holding that a habeas petitioner had

been denied due process of law when a prosecutor allowed a

witness to give the jury a “false impression” of his relation-

ship with the petitioner’s wife). In fact, there was a deal, one

that would allow her to escape prosecution entirely after hav-

ing confessed in open court to being an accomplice to capital

murder. This deal was not only not disclosed to the defense,10

10

The district court found that “all parties understood [Minier] had a

deal with Dunn but Colman had not been told about it.” Martin’s argu-

PHILLIPS v. ORNOSKI 3187

see Giglio, 405 U.S. at 154, but it also served to facilitate the

presentation of false testimony to the jury by inducing Col-

man to testify that she had received no promise of benefits in

exchange for her testimony, when, in fact, her attorney, who

was her agent, had accepted the immunity agreement on her

behalf.11

ments at trial suggest that he suspected that a deal of some sort existed,

but there is no indication in the record that he in fact knew of the deal. The

state finds evidence of Martin’s knowledge in Minier’s statement in his

2003 deposition that Martin “was not an idiot. Obviously, any defense

attorney in that position would know that there was going to be a benefit.

. . . [T]o suggest that he had no inkling would be total nonsense.” But

Minier also acknowledged, “I don’t believe I ever told Mr. Martin what

the agreement was,” and that if Martin knew there was “going to be a ben-

efit, . . . he probably didn’t know just what it was.” In any event, it is “ ‘ir-

relevant’ whether the defense knew about the false testimony.” Sivak v.

Harrison, 658 F.3d 898, 909 (9th Cir. 2011) (quoting N. Mariana Islands

v. Bowie, 243 F.3d 1109, 1122 (9th Cir. 2001)). That Phillips’s attorney

might have had a generalized suspicion that a deal between Minier and

Colman’s attorney existed did not relieve the state of its Brady obligation

to actually disclose the existence of that deal as well as its terms, nor did

it permit the state to violate its Napue obligation and allow false testimony

to go uncorrected. Certainly, it did not excuse the prosecutor’s deliberate

effort to mislead the jury and the court by making false statements of his

own.

The state also observes that the trial court had ruled that, even if a deal

between Minier and Colman’s attorney existed, the defense could not

introduce evidence of it. The California Supreme Court has held that the

trial court’s ruling was in error because “[t]he defense counsel is entitled

to discover the terms of any agreement for lenient treatment negotiated on

behalf of a prosecution witness.” People v. Phillips, 711 P.2d 423, 433

(Cal. 1985). More important, the trial court’s ruling is irrelevant to

whether the prosecution had a constitutional duty to disclose the existence

of the deal to Phillips, or to whether it had the duty to affirmatively correct

the falsehoods in Colman’s testimony and refrain from making its own

misrepresentations to the jury.

11

That Colman’s attorney went along with the prosecutor’s scheme is

troubling in itself. As we noted in our 2001 opinion granting Phillips an

evidentiary hearing on his claims,

3188 PHILLIPS v. ORNOSKI

In Hayes we made clear in no uncertain terms that the prac-

tice of “insulating” a witness from her own immunity agree-

ment so that she can profess ignorance of the benefits

provided in exchange for her testimony is an egregious viola-

tion of the prosecution’s obligations under Napue. We

explained that:

There is nothing redemptive about the sovereign’s

conspiring to deceive a judge and jury to obtain a

tainted conviction. This is, as Judge Trott put it, “a

pernicious scheme without any redeeming features.”

Napue forbids the knowing presentation of false evi-

dence by the State in a criminal trial, whether

through direct presentation or through covert subor-

nation of perjury.

Hayes, 399 F.3d at 981 (internal citation omitted). We con-

cluded such deception violates Napue because, regardless of

whether or not the prosecution’s offer is communicated to the

witness prior to her testimony, the practice poses “the distinct

risk that, in preparing [a witness] for his testimony . . .

counsel—who did know about the deal—might have influ-

enced the content of that testimony, deliberately or not.” Id.

at 981 n.1. Here, Dunn’s advice to Colman almost certainly

it was not only the prosecutor whose conduct was deplorable, but

the second defense attorney as well. If Dunn indeed concealed

from her client the existence of a plea bargain or immunity agree-

ment, and allowed her client—who faced capital murder charges

—to testify without any knowledge of the agreement she had

reached on her behalf, she plainly violated her ethical duty to

“keep [Colman] reasonably informed of significant develop-

ments” regarding her case, Cal. Bus. and Prof.Code § 6068(m),

and failed to “explain [the] matter to the extent reasonably neces-

sary to permit [Colman] to make informed decisions regarding

[her] representation.” Model Code of Professional Conduct Rule

1.4 (1983).

Phillips, 267 F.3d at 984 n.11.

PHILLIPS v. ORNOSKI 3189

conveyed the implicit message that she would be treated

favorably by the prosecution if she testified, and may well

have led her to testify in a manner she believed would satisfy

the prosecution’s wishes: only an expectation on Colman’s

part that she would receive treatment similar to or more favor-

able than that embodied in the earlier offer of a one year term12

could explain her decision not to accept that offer and then

proceed to incriminate herself in open court of being an

accomplice to capital murder. Indeed, if Minier did not expect

that the offer would affect Colman’s willingness to testify or

influence the contents of her testimony, it is hard to fathom

why he made an immunity deal at the time he did for the ben-

efit of an individual charged as an accomplice to capital mur-

der. See id. at 987.

Viewed in the most favorable light to the prosecution,

Minier’s deplorable tactic allowed Colman to falsely deny

having received any promise of beneficial treatment in

exchange for her testimony without knowing that her testi-

mony was false. It resulted in Minier arguing to the jury in the

most unequivocal terms (albeit in terms designed to deliber-

ately mislead the jury and the court) that Colman had received

no leniency or other promise of benefits in exchange for her

testimony, emphasizing that “[s]he testified . . . that she has

never been promised anything for her testimony in this case,”

and that any attempts by the defense to intimate that an agree-

ment existed were “sheer fabrication, just pulled out of the air,

totally meaningless.” In this respect, the prosecution’s mis-

conduct went even beyond that which this court held to be

reprehensible in Hayes, where the prosecution vouched for

the truthfulness of its key witness but did not directly deny to

the jury that a deal had been reached granting him immunity

from all pending charges. See id. at 980.

12

See supra note 9 and infra Section V.C for discussion of the earlier

offer made to Colman’s first attorney, Tom Peterson.

3190 PHILLIPS v. ORNOSKI

[10] Minier not only failed to disclose the agreement

reached with Colman’s counsel, thus contravening Brady, but

even more significant, he violated Napue by allowing Colman

to falsely testify that no such deal existed, failing to correct

that false testimony, and then wilfully, deliberately and

unequivocally falsely representing to the jury in his closing

argument that Colman had “never been promised anything for

her testimony in this case.” In doing so, Minier violated his

fundamental obligation to ensure that convictions be obtained

in a manner compatible with the “rudimentary demands of

justice.” Giglio, 405 U.S. at 153.

B. State Assistance With Respect to Colman’s Heroin Arrest

Next, Phillips established through depositions before the

district court that, within weeks of her release on bail in 1978,

Colman was arrested for participating in the sale of heroin to

an undercover Fresno police officer, and that the Madera

County Sheriff’s Department subsequently made multiple

calls to the Fresno police department on Colman’s behalf

advising it that she was an important cooperating witness in

a homicide investigation and requesting that charges against

her not be pursued. Ultimately no charges against Colman

were filed.

[11] That the police officers investigating the Phillips case

interceded on Colman’s behalf multiple times with respect to

an unrelated felony offense was a tangible benefit to Colman

in consideration for her testimony against Phillips. The receipt

of such a benefit could have been used to impeach Colman’s

credibility. The state was thus not only obligated under Brady

to disclose to Phillips that such an intervention had occurred,

but also obligated under Napue to correct Colman’s claim that

she had been promised no benefits, along with Minier’s asser-

tion that any intimation that she had received such treatment

was “sheer fabrication”: contrary to these statements, Colman

had already received substantial benefits for her testimony in

PHILLIPS v. ORNOSKI 3191

the form of direct assistance that enabled her to escape prose-

cution for a serious drug-trafficking offense.

The state insists that Minier was unaware of any calls made

by the Madera sheriff’s department to the Fresno police on

Colman’s behalf. However, even if true, “[t]he Supreme

Court has made abundantly clear . . . that the prosecutor’s

duty to disclose evidence favorable to the accused extends to

information known only to the police.” Jackson v. Brown, 513

F.3d 1057, 1072 (9th Cir. 2008) (citing Kyles v. Whitley, 514

U.S. 419, 438 (1995)). We have thus held that the Constitu-

tion “compel[s] prosecutors to disclose evidence favorable to

the accused, even when that evidence was known only to the

police and not to the prosecutor.” Id. at 1074; see also Giglio,

405 U.S. at 154 (holding that the duty to correct false evi-

dence under Napue extends to evidence not known to be false

by a particular prosecutor but known to be false by the gov-

ernment). Thus, even if Minier himself did not know about

the phone calls made on Colman’s behalf—a somewhat dubi-

ous proposition—it is immaterial to the state’s duty to dis-

close those phone calls and to correct Colman’s false

testimony, and Minier’s false statements, that she had

received no benefits in exchange for her testimony.

The state likewise notes that Colman has testified that she

“never had any understanding that there was any connection

between her status as a witness in Madera County and her

treatment in Fresno County.” Brief of Respondent-Appellee at

134. The record reflects otherwise—in particular, the Fresno

Police Department officer who investigated Colman’s heroin

offense testified that Colman knew that the Madera County

Sheriff’s Department had interceded on her behalf. However,

even if, contrary to the testimony of the police, Colman had

been unaware of the intercession, and thus did not realize that

she provided the jury with misleading testimony when she

stated that she would not receive any benefit in exchange for

testifying against Phillips, her own ignorance of the benefits

she had been granted did not relieve the state of its obligation

3192 PHILLIPS v. ORNOSKI

to correct her false testimony, nor, certainly, did it make the

prosecution’s conduct in deliberately misrepresenting the

facts to the jury and the court any less egregious. See Hayes,

399 F.3d at 981.

C. Plea Offer to Tom Peterson

The separate Brady violation arises out of a plea offer made

to Colman’s first attorney, Tom Peterson. Peterson, in state

post-conviction hearings, testified that three weeks after the

murder Minier orally offered him a plea agreement for Col-

man that would have allowed her to plead guilty as an acces-

sory to murder for a one-year sentence if she testified against

Phillips. Peterson further stated that he communicated the

agreement to Colman, who accepted it. Colman disputes that

she accepted the offer, and the state argues that the behavior

of Minier, Colman, and Colman’s trial attorney, Dunn, indi-

cates that the offer did not survive the termination of Peter-

son’s representation of Colman in February of 1978.13

However, the key parties—Peterson, Minier, and Colman—

all appear to be in agreement that such an offer was, in fact,

extended.14 Its existence was, they acknowledge, never com-

municated to Phillips or his attorney.

13

The state emphasizes, in particular, that there is “no evidence to show

that Dunn was aware of any offer by Peterson to Colman,” and argues that

the fact that Minier and Dunn negotiated a new deal for Colman (of which

according to their testimony they did not inform Colman prior to her

appearance as a witness) demonstrates that they did not view the Peterson

offer as binding. Brief of Respondent-Appellee at 117.

14

Colman testified that Peterson communicated the offer to her but that

she did not accept it, while Minier submitted a 1989 declaration that

appears to accept as true Peterson’s assertion that such a plea agreement

was offered, stating: “It was at all times my position, which I clearly com-

municated both to Mr. Peterson and to Cassandra Dunn, who later repre-

sented Sharon Colman, that Colman should not be informed of the

agreement.” In a 2003 deposition Minier stated, “I recall discussions, but

I don’t recall a fixed agreement [with Peterson].”

PHILLIPS v. ORNOSKI 3193

[12] That such an offer was extended was indisputably evi-

dence “favorable to the accused . . . because it is impeaching,”

and was clearly subject to the duty of disclosure established

in Brady. See Jackson, 513 F.3d at 1071 (citing Strickler v.

Greene, 527 U.S. 263, 281-82 (1999)). Evidence of the offer

would have allowed Phillips to challenge Colman’s credibility

by providing the jury with concrete evidence that she had

good reason to expect beneficial treatment in exchange for her

testimony. Such an expectation of leniency in and of itself

would have provided valuable impeachment of Colman’s

credibility.

[13] Contrary to Phillips’s contention, however, the exis-

tence of the Peterson offer did not obligate the prosecution

under Napue to correct Colman’s testimony that she had not

been promised any benefits. The existence of the offer pro-

vided evidence from which a jury could conclude that Colman

had testified falsely when she denied expecting any benefit in

exchange for her testimony, but because, viewing the facts

most generously from the state’s standpoint, the offer was

never accepted, its existence did not render Colman’s testi-

mony inherently false. We therefore hold that the prosecu-

tion’s failure to divulge the Peterson offer amounted to a

violation of its duty under Brady, but did not implicate its

Napue obligation to correct false evidence.

D. Prosecutorial Misconduct

[14] Before proceeding to consider the materiality of the

Napue and Brady violations, we note that the prosecutor’s

statements in his closing argument that any contention that a

bargain had been struck with Colman was “sheer fabrication,

just pulled out of the air, totally meaningless” also likely con-

stituted the separate due process violation of prosecutorial

misconduct. Unconstitutional prosecutorial misconduct occurs

where the prosecutor engages in actions that “so infec[t] the

trial with unfairness as to make the resulting conviction a

denial of due process.” Greer v. Miller, 483 U.S. 756, 765

3194 PHILLIPS v. ORNOSKI

(1987) (quoting Donnelly v. DeChristoforo, 416 U.S. 637,

643 (1974)) (alteration in original). Minier vouched for the

credibility of a crucial witness by assuring the jury that Col-

man had not received any sort of immunity agreement in

exchange for her testimony. See United States v. Weather-

spoon, 410 F.3d 1142, 1146 (9th Cir. 2005) (finding improper

vouching where prosecutor had told the jury in closing argu-

ments that testifying officers had “no reason to come in here

and not tell . . . the truth,” because by lying they would risk

losing their jobs and face possible perjury charges). That

Minier’s assurances were, in fact, false only heightens the

extent to which this prosecutorial misconduct violated Phil-

lips’s right to due process. Because neither party has

expressly raised the issue of whether Minier’s representations

in his closing argument that no deal with Colman existed con-

stituted prosecutorial misconduct, but both have argued the

issue in terms of Napue, and because Minier’s reenforcement

of the false testimony of a key witness is what renders his

statements particularly egregious, we consider the statements

in terms of a Napue violation rather than in terms of prosecu-

torial misconduct.

E. Materiality

[15] The prosecution’s multiple Napue and Brady viola-

tions warrant reversal of the jury’s verdicts only if they were

material to (1) Phillips’s convictions for first degree murder

and attempted murder, (2) his robbery convictions, or (3) the

jury’s finding that the special circumstance of murder in the

commission of a robbery had been proven. The test for mate-

riality under Napue is distinct from that under Brady: a Napue

violation is material when there is “any reasonable likelihood

that the false testimony could have affected the judgment of

the jury,” United States v. Agurs, 427 U.S. 97, 103 (1976)

(emphasis added); in contrast, a Brady violation is material to

a jury’s verdict when “there is a reasonable probability that

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

but for the violation, United States v. Bagley, 473 U.S. 667,

PHILLIPS v. ORNOSKI 3195

682 (1985) (emphasis added).15 Where, as here, the prosecu-

tion has violated its constitutional obligations under both

Napue and Brady,

we first consider the Napue violations collectively

and ask whether there is “any reasonable likelihood

that the false testimony could have affected the judg-

ment of the jury.” If so, habeas relief must be

granted. However, if the Napue errors are not mate-

rial standing alone, we consider all of the Napue and

Brady violations collectively and ask whether “there

is a reasonable probability that, but for [the errors],

the result of the proceeding would have been differ-

ent.” At both stages, we must ask whether the defen-

dant “received . . . a trial resulting in a verdict

worthy of confidence.”

Sivak v. Hardison, 658 F.3d 898, 912 (9th Cir. 2011) (quoting

Jackson, 513 F.3d at 1076).16

15

Because the “Supreme Court has declared a materiality standard . . .

for this type of constitutional error, there is no need to conduct a separate

harmless error analysis” under Brecht v. Abrahamson, 507 U.S. 619

(1993): “the required finding of materiality necessarily compels the con-

clusion that the error was not harmless.” Hayes, 399 F.3d at 984 (citing

Kyles v. Whitley, 514 U.S. 419, 435 (1995)).

16

There is no basis for the dissent’s assertion that we should require

Phillips to show by “clear and convincing evidence” that he was preju-

diced by the Napue and Brady violations. The two cases the dissent cites

in support of this proposition — Sawyer v. Whitley, 505 U.S. 333 (1992)

and Calderon v. Thompson, 523 U.S. 538 (1998) — are wholly inapposite.

These decisions define the “miscarriage of justice” standard, which, if

met, would permit a federal Court of Appeals to recall the mandate to

revisit its denial of a state prisoner’s habeas petition, Thompson, 523 U.S.

at 558-59, or to entertain the defaulted or successive petition of a state

prisoner claiming he is “actually innocent” of the penalty to which he was

sentenced. Sawyer, 505 U.S. at 335-36. The miscarriage of justice stan-

dard serves to provide a “narrow exception” to the ordinary rules of final-

ity in federal habeas corpus proceedings, representing “a kind of ‘safety

valve’ for the ‘extraordinary case.’ ” Harris v. Reed, 489 U.S. 255, 271

3196 PHILLIPS v. ORNOSKI

In this case, we have found that there are two important

facts that the government was obligated to provide to the jury

under Napue: first, that an immunity agreement had been

entered into at the time of Colman’s testimony ensuring that

no charges whatsoever relating to the events in Chowchilla

would be brought against her; second, that the Sheriff’s

Department had already arranged for charges stemming from

a heroin offense committed by her in Fresno to be dropped in

order to facilitate her testimony against Phillips. We also con-

sider the prosecutor’s deliberate lies regarding the existence

of the immunity agreement. For each of the jury’s findings,

we begin our analysis by examining whether there was “any

reasonable likelihood” that the prosecution’s Napue violations

“could have affected the judgment of the jury.” Agurs, 427

U.S. at 103.17 If we conclude that there is no reasonable likeli-

(1989) (O’Connor, J., concurring). It has no application to a case such as

this, in which we consider the non-defaulted claims a state prisoner raised

in his first federal habeas petition, claims as to which this court has never

rendered a final judgment. See Phillips, 267 F.3d at 973-74. In such cir-

cumstances, we have, in conformance with Supreme Court precedent, con-

sistently applied the less onerous Agurs and Bagley standards in

determining whether Brady and Napue violations were prejudicial with

respect to “either the guilt or penalty phase” of a state habeas petitioner’s

trial. Sivak, 658 F.3d at 912.

17

The state contends that Phillips conceded that he was not prejudiced

by Colman’s testimony. See Phillips v. Woodford, 267 F.3d at 985. In fact,

in his 2000 brief appealing the district court’s denial of an evidentiary

hearing in support of his habeas petition, Phillips conceded only the issue

of whether he was prejudiced by Colman’s failure to divulge the plea offer

that Minier had extended to her first lawyer, Peterson. As is explained

above, that agreement did not implicate the prosecutor’s constitutional

obligation under Napue, and is therefore not at issue in our analysis of

whether the prosecution’s Napue violations were material. See supra Sec-

tion V.C. Our analysis of the prosecution’s Napue violations addresses the

state’s failure to inform the court and the jury both that an immunity

agreement with Colman through her lawyer to drop all charges relating to

the murder offenses had been entered into, and that Colman had already

benefitted from the Madera County Sheriff’s Department’s assistance with

respect to her heroin arrest. It also addresses the prosecutor’s deliberate

PHILLIPS v. ORNOSKI 3197

hood that these violations alone could have affected the jury’s

judgment, we then must ask whether they in combination with

the prosecution’s failure to disclose to the defense the plea

deal offered to Colman’s first attorney, Peterson—a Brady

violation—would satisfy Brady’s higher standard of material-

ity.

We proceed to examine: first, whether the government’s

Napue violations, or, if not, its Napue and Brady violations

together, were material to Phillips’s conviction for first-

degree murder; second, whether they were material to his con-

victions for robbery; and third, whether they were material to

the jury’s special circumstance finding that the murder was

committed during the commission of a robbery.

i. First-Degree Murder

[16] We hold that the prosecution’s Napue violations,

although “pernicious” and “reprehensible,” Hayes, 399 F.3d

at 981, were not material to Phillips’s conviction of first-

degree murder. The disclosure of the benefits Colman

received in exchange for her testimony could not have had

any effect on the jury’s determination that Phillips was guilty

of the murder of Bartulis. Rose provided extensive testimony

identifying Phillips as the culprit, and the prosecution played

at trial an audio tape of a phone conversation recorded after

lies with respect to the agreement. Phillips did not concede prejudice with

respect to these violations. We can, moreover, consider the issue whether

the government’s failure to divulge the Peterson offer was material regard-

less of any prior concession by Phillips because the concession was not

prejudicial to the state, which continued to develop facts and legal argu-

ments in response to this Brady claim. See United States v. Gabriel, 625

F.2d 830, 832 (9th Cir. 1980) (“We may consider an issue conceded or

neglected below . . . when the party against whom the issue is raised

would not be prejudiced and would not have tried his case differently

either by developing new facts in response to or advancing distinct legal

arguments against the issue.”); Glaziers & Glassworkers v. Custom Auto

Glass Dist., 689 F.2d 1339, 1342 n.1 (9th Cir. 1982).

3198 PHILLIPS v. ORNOSKI

Bartulis’s murder but before Phillips’s arrest in which he

described to his friend Richard Graybill that “a .45 sure did

put a big hole right through him. I mean, it didn’t fuck

around.” In addition, Phillips’s flight to another state and his

effort to conceal his identity provided further significant evi-

dence of his guilt. Thus, even had the government disclosed

the evidence showing that aspects of Colman’s testimony and

the prosecutor’s statements were false, and had Phillips suc-

ceeded in undermining Colman’s credibility, a reasonable

juror, in order to conclude that Phillips was not proven guilty

of murdering Bartulis, would not only have had to disregard

Phillips’s recorded statement to Graybill, his flight, and other

post-murder conduct, but would also have had to conclude

that Rose was wrong when he identified the individual who

shot him multiple times, set him on fire and ran him over with

his car, despite the fact that he knew the individual well and

had traveled with him from Fresno to the site of the shooting.

It is unimaginable that the jury could have come to such a

conclusion with or without Colman’s testimony, and we

therefore hold that the state’s Napue violations were not mate-

rial to the jury’s finding that Phillips was guilty of Bartulis’s

murder.

[17] Although whether the state’s Napue violations were

material to the jury’s finding that Phillips had premeditated

Bartulis’s murder is a closer question, we hold that the evi-

dence of premeditation the prosecution presented was suffi-

ciently powerful and abundant that there is not a “reasonable

likelihood” that the prosecution’s failure to correct Colman’s

testimony, and its deliberate falsehood in telling the jury that

there was no agreement, could have affected the jury’s judg-

ment that Phillips premeditated the murder.18 Again, with or

18

A finding that Phillips had premeditated Bartulis’s murder was one of

two possible grounds on which Phillips could be found guilty of first

degree murder, with the other ground being felony murder. The jury, how-

ever, made a special finding that Phillips had premeditated Bartulis’s mur-

der, and we presume here that this finding was the basis for its verdict that

PHILLIPS v. ORNOSKI 3199

without Colman’s testimony, the jury’s conclusion would

undoubtedly have been the same. The prosecution pointed

out: that Phillips sought to manufacture an alibi by flying to

his mother’s house in Sacramento prior to driving to Fresno,

rather than simply flying to Fresno directly; that Phillips lured

Rose and Bartulis to an isolated remote lot, far from his

hometown where he might have been a suspect for the shoot-

ings; that Phillips asked Rose for matches when the two cars

stopped en route to the vacant lot, suggesting that Phillips

intended in advance to set the victims and their car on fire in

order to conceal their identities;19 and that Phillips told Rose

and Bartulis that the stolen insulation was going to be sup-

plied by his brother even though Phillips does not have a

brother, and no insulation was ever produced. The state also

presented evidence that Phillips methodically attempted to

hide his role in the murder, not only by concealing his vic-

tims’ identities by pouring gas on them and lighting them on

fire after shooting them, but also by removing the bullet shell

casings from the scene after the shooting.

[18] The prosecution did offer Colman’s testimony to aug-

ment its case that the murder had been premeditated. Col-

man’s statement that Phillips had pulled a gas can out of the

trunk of his mother’s car supported a finding of premeditation

Phillips was guilty of murder in the first degree. Because we hold that the

prosecution’s Napue and Brady violations were not material to the jury’s

determination that Phillips premeditated Bartulis’s murder, we need not

consider whether Phillips could have been convicted of first-degree felony

murder. In any event, a finding of premeditation is necessary to the deter-

mination in this case that special circumstances existed that rendered Phil-

lips death-eligible. See Cal. Penal Code § 190.2(c)(3) (Deering 1978). As

the judge instructed the jury with respect to special circumstances, the jury

must find that the “murder was wilful, deliberate and premeditated, and

was committed during the commission or attempted commission of Rob-

bery.”.

19

In contrast to his testimony at the penalty-phase retrial, Rose did not

explain at the initial trial that he gave Phillips a marijuana cigarette along

with the matches.

3200 PHILLIPS v. ORNOSKI

in light of Phillips’s mother’s testimony that she did not ordi-

narily keep a gas can in the car. Likewise, the prosecution

sought to demonstrate Phillip’s cold-blooded manner by high-

lighting Colman’s testimony that Phillips struck Rose and

Bartulis in the head after shooting them, which buttressed the

testimony of the doctor who treated Rose that Rose had a

wound “that was probably due to a blow on the head.” Given

the extensive evidence of planning, however, and of the

methodical manner in which the murder was committed, there

is not a “reasonable probability” that, had the jury learned of

the benefits Colman had received and of the prosecutor’s

deliberate falsehood as to the immunity agreement, it might

have found that there was a reasonable doubt as to whether

Phillips had premeditated the murder. We therefore conclude

that the prosecution’s Napue violations were not material to

the jury’s conclusion that Phillips premeditated Bartulis’s kill-

ing, or to its attendant conclusion that Phillips was guilty

beyond a reasonable doubt of first-degree murder.

Having found that the Napue violations were not, standing

alone, material to Phillips’s first-degree murder conviction,

we must consider the Napue violations collectively with the

Brady violation, asking whether “there is a reasonable proba-

bility that, but for [the state’s violations], the result of the pro-

ceeding would have been different.” Jackson, 513 F.3d at

1076 (citations and quotation marks omitted). As is explained

above, the only piece of evidence in this case that was subject

to disclosure under Brady but not Napue was the fact that

prior to trial, while still represented by her first attorney, Col-

man had received a plea offer that would have limited her jail

sentence to one year. Because Colman’s testimony was not

material to the conviction on the first-degree murder count,

this additional violation is of no consequence.20

20

For the same reasons that the prosecution’s violations of Napue and

Brady were not material to Phillips’s conviction for first degree murder of

Bartulis, they were not material to his conviction on the count of

attempted murder of Rose.

PHILLIPS v. ORNOSKI 3201

ii. Robbery

[19] We likewise hold that the prosecution’s Napue and

Brady violations were not material to Phillips’s convictions

for the robberies of Rose and Bartulis. California law defines

“robbery” as “the felonious taking of personal property in the

possession of another, from his person or immediate presence,

and against his will, accomplished by means of force or fear.”

Cal. Penal Code § 211 (Deering 1977). The only items that

Phillips was alleged to have taken from the persons or pres-

ence of Rose and Bartulis were their wallets and Rose’s gun.21

Rose testified directly that Phillips had taken his wallet, and

the jury had no reason not to credit his testimony. Although

Colman’s testimony was the primary direct evidence that

Phillips took Bartulis’s wallet, substantial circumstantial evi-

dence supported Phillip’s conviction for this crime, including

his attempt to destroy the car and the bodies inside it. The

only plausible explanation of the occurrences on December 7,

1977 is that if Phillips took one wallet he took them both; no

rational explanation would support taking one but not the

other. Given all of the circumstances present in this case, we

cannot conclude that the jury’s verdict that Phillips was guilty

of the robberies “could” have been different but for the prose-

cution’s Napue violations, nor that it “would” have been dif-

ferent but for the prosecution’s Napue violations and its

additional Brady violation.

iii. Special Circumstance Finding

We turn now to the question whether the prosecution’s

Napue violations were material to the jury’s special circum-

stance finding that Bartulis’s murder was committed during

21

Phillips would be guilty of robbery regardless of his motive in taking

these items. It is not a necessary element of robbery that “the taking be for

the purpose of gain.” People v. Green, 609 P.2d 468, 503 (Cal. 1980).

Thus, Phillips’s taking of the wallets and gun in order to conceal his vic-

tims’ identities would warrant his conviction for robbery.

3202 PHILLIPS v. ORNOSKI

the commission or attempted commission of a robbery, a find-

ing that was a necessary prerequisite to Phillips’s being eligi-

ble for the death penalty. We hold that the violations were

material to that finding.

[20] To prove that Phillips murdered Bartulis “during the

commission” of a robbery or attempted robbery, the state bore

the burden of proving beyond a reasonable doubt not just that

Phillips had taken the property of Rose or Bartulis unlawfully,

but that Phillips had the independent purpose of robbing Rose

and Bartulis when he lured them to the lot in Chowchilla.

Under the special circumstance statute that was applied at

Phillips’s trial, the jury was required to make two findings:

first, that Phillips was guilty of the underlying offense of

attempted or completed robbery; second, that the murder had

been committed “in order to advance an independent feloni-

ous purpose” of robbery. Green, 609 P.2d at 505 (interpreting

Cal. Penal Code § 190.2(c)(3) (Deering 1978)); see also Peo-

ple v. Morris, 756 P.2d 843, 854 (Cal. 1988). In Green, the

California Supreme Court held that the “goal” of the special

circumstance statute “is not achieved . . . when the defen-

dant’s intent is not to steal but to kill.” 609 P.2d at 505.22

Green illustrates the distinction between a robbery that is

merely a “second thing to” a murder and murder committed

in order to advance the felonious purpose of robbery. Id. In

Green, the defendant, before killing his wife, took her clothes,

ring and purse in order to conceal her identity when her body

was found. Id. at 501. The court held that there was sufficient

evidence to find the defendant guilty of robbery. Id. at 503.

It then held, however, that the special circumstance of murder

during the commission of a robbery had not been proven

because the murder and the taking of property “was not . . .

a murder in the commission of a robbery but the exact oppo-

site, a robbery in the commission of a murder.” Id. at 505.

22

Green continues to serve as the controlling case with respect to the

special circumstance issue, despite the statute’s subsequent amendment.

See especially People v. Abilez, 161 P.3d 58, 87 (Cal. 2007).

PHILLIPS v. ORNOSKI 3203

Here, likewise, proof that Phillips had robbed his victims was

not enough: the state bore the burden of proving beyond a rea-

sonable doubt that the robbery was a motivating purpose of

Phillips’s criminal actions, that Phillips had led his victims to

an isolated location and shot them because, inter alia, he

intended to rob them. In the words of the California Supreme

Court, the prosecution’s obligation was to prove beyond a rea-

sonable doubt that what occurred in Chowchilla was a “mur-

der in the commission of a robbery, [not] the exact opposite,

a robbery in the commission of a murder.” Id.

[21] Considerable evidence in the record suggests that

Phillips had not, in fact, orchestrated the events of December

7, 1977 for the purpose of robbing Rose and Bartulis, i.e., that

the murder was not committed in order to further the robbery,

but rather that the robbery was incidental to the murder. For

example, although Rose testified that Phillips told him to

bring as much cash as possible to the putative insulation deal,

there is no evidence that Phillips ever followed up on this

request or otherwise attempted to confirm that Rose planned

to or actually brought cash, despite the fact that, as Rose testi-

fied, he had told Phillips over the preceding month that he

was experiencing financial difficulties that limited his access

to funds. Similarly, the evidence at trial indicated that after

shooting Rose and Bartulis, Phillips did not search them thor-

oughly; rather, he conducted a search of Rose so cursory that

he failed to find the wad of bills totaling $3,500 – $5,000 that

Rose had placed in his jacket’s breast pocket,23 and did not

enter the truck to search either Rose or Bartulis. As Phillips’s

attorney, Martin, repeatedly pointed out to the jury, these facts

are inconsistent with the notion that Phillips committed mur-

der in order to further a scheme to rob Rose and Bartulis. One

would generally expect an individual who, for the purpose of

robbing his victims had elaborately planned a double murder,

23

Phillips also failed to take approximately $162 from Rose’s pants

pocket, a fact disclosed in the filed police reports of the incident intro-

duced at pre-trial proceedings but not brought before the jury.

3204 PHILLIPS v. ORNOSKI

developed an alibi, flown from Orange County to Sacramento,

driven from Sacramento to Fresno, and shot two men, to, at

the very least, confirm that they had or had not brought cash

with them, instead of setting their bodies on fire and leaving

the scene with only the minimal funds contained in their wal-

lets and without conducting a thorough search of their persons

or vehicle. As Martin noted at the conclusion of his closing

argument, “this would be a stupid way to plan a robbery, tak-

ing potluck [sic] on what you might get, if anything,” and, we

might add, without even seriously looking for the intended pro-

ceeds.24

[22] Given the minimal evidence that the government pres-

ented in support of its theory that Phillips lured Rose and Bar-

tulis to Chowchilla in order to rob them, Colman’s testimony

was essential to the prosecution’s special circumstance case.

24

The dissent contends that the evidence establishing that Phillips told

his victims to bring money, shot them, and took their wallets “overwhelm-

ingly supported the conclusion that Phillips possessed the intent to rob

these men.” Dis. op. at 3224. Our colleague relies on the California

Supreme Court’s dictum in People v. Marshall, 931 P.2d 262 (Cal. 1997).

In Marshall, the Court first found that no robbery had occurred at all —

the defendant took only an insignificant piece of paper. Id. at 280. The

Court then commented by way of dictum that if a wallet is taken after a

murder a jury “may reasonably infer” that the murder was committed for

the purpose of obtaining money, provided that the evidence establishing

this motive is “reasonable, credible and of solid value.” Id. A jury may

also, however, reasonably infer to the contrary where the evidence is not

such as to require the conclusion that the defendant necessarily committed

the murder in furtherance of a robbery, including where there is evidence

suggesting other motives for the murder, or where some of the prosecu-

tion’s evidence is revealed to be false. Marshall’s hypothetical does not

include any of the facts present in this case that would negate the inference

that the murder was committed for the purpose of robbing the victims.

Moreover, Marshall’s dictum speaks only to what evidence might be

legally sufficient for a jury to find true the special circumstance allegation,

not to what evidence would leave no “reasonable probability” that the jury

“could” have reached the opposite conclusion if statements made by the

prosecution and a key witness were revealed to be false. See Agurs, 427

U.S. at 103; Sivak, 658 F.3d at 917-18.

PHILLIPS v. ORNOSKI 3205

Especially crucial to that case, and emphasized in its closing

argument, was Colman’s testimony that, when Phillips

returned to his car after the shooting, and then again while

driving back to Fresno from Chowchilla, he told her that he

was “disturbed” by the absence of the money he had asked

Rose to bring, and complained about his failure to find any

cash. Also integral was Colman’s testimony that Phillips had

searched Rose extensively for the money, which was other-

wise uncorroborated (Rose testified only that he felt hands

“moving [him] around such as searching [his] pockets,” but

did not testify as to the duration or thoroughness of these

actions). Colman’s testimony “was not only the prosecution’s

most specific evidence” regarding Phillips’s intent to rob Bar-

tulis and Rose, “it was also the most powerful.” Silva v.

Brown, 416 F.3d 980, 987 (9th Cir. 2005). As the prosecution

stated when it appeared that Colman might not be available to

testify during Phillips’s penalty-phase retrial, “[If] Miss Col-

man declined to show up, I don’t even know if we can pro-

ceed. . . . Without her testimony, we have about half a case.

If she didn’t show up, I think we would re-evaluate our case.”

[23] Were Colman’s testimony discredited as a result of

the revelation of her false testimony and her motivation for

lying, the jury could and likely would have concluded that the

theft of the wallets, or any minimal unsuccessful attempt to

steal any other cash on Rose’s person, was simply a “second

thing to” the murder, and thus not a special circumstance

under California law. Had the defense been able to impeach

Colman and cross-examine her regarding her false testimony

and her secret deal, the jury might well have concluded that

in planning the murder Phillips was motivated by unrelated

purposes, such as to cover up his prior narcotics dealings with

Rose and Bartulis and to prevent them from double-crossing

him, as Colman told the investigators prior to the deal but

never told the jury.25 Alternatively, the jury might have con-

25

Minier’s secret deal with Colman’s attorney may have had just the

sort of pernicious effect that led us to condemn this tactic in Hayes:

3206 PHILLIPS v. ORNOSKI

cluded that Phillips was motivated by a desire to retain the

payments Rose and Bartulis had already made to him — the

prosecution itself repeatedly argued for this motivation at

trial, observing that “if he killed Mr. Rose and Mr. Bartulis,

he’d not only have the $11,500 [Rose and Bartulis had ini-

tially given him in cash], but he would have a note for an

additional $25,000.”26 The evidence presented at trial, apart

from Colman’s testimony, was entirely consistent with each

of these alternative motivations, and offered little if any sup-

port for the theory that Phillips’s reason for luring Rose and

Bartulis to Chowchilla was to rob them, and that the murder

was in furtherance of that objective: Phillips may have told

Rose to bring money with him to the putative insulation deal

in order to render the existence of that deal more believable

to Rose, and he may have taken his victims’ wallets in order

to conceal their identities (an interest he also furthered by set-

ting their car on fire). There were, indeed, various possible

namely, it may have induced changes in Colman’s testimony. See 399

F.3d at 981 n.1. During a lengthy December 28, 1977 interview conducted

the day after she turned herself in to the police, Colman stated that Phil-

lips’s only apparent concern after the shooting was his belief that Rose

may not have been killed. Colman said that Phillips told her he shot Rose

and Bartulis not out of any desire to rob them, but rather because he was

concerned that Rose and Bartulis were setting him up, might double-cross

him, and knew too much about his cocaine dealings. It was not until Col-

man’s subsequent January 4, 1978 interview with the police that, after

very specific prompting from investigators, Colman changed her story and

said that Phillips had been disappointed about having been unable to find

Rose’s money. Disclosure of the benefits that Colman received for testify-

ing would have allowed Phillips’s attorney to argue to the jury that the

development of Colman’s inconsistent account—from her initial state-

ments that Phillips was motivated by a concern that Rose and Bartulis

were setting him up, might double-cross him, and knew too much, to her

testimony at trial that Phillips appeared concerned primarily with his

inability to find Rose’s cash—occurred in direct response to the state’s

inducements.

26

Phillips’s retention of these funds would not, of course, constitute a

“robbery” under California law because he did not take these amounts

from the “person or immediate presence” of Rose or Bartulis. See Cal.

Penal Code § 211 (Deering 1977).

PHILLIPS v. ORNOSKI 3207

explanations for why the murder took place, but only Col-

man’s testimony purported to provide an explanation offered

by Phillips himself, one that served as the foundation for the

jury to find that the special circumstance had been proved.

Disclosure of either Colman’s secret deal or the assistance

she received with respect to her heroin arrest would have

allowed Phillips’s counsel to impeach and discredit a witness

whose testimony was absolutely crucial to the state’s special

circumstance case. As we explained in Hayes, and as is

equally true here:

The jury was not permitted to assess whether [the

critical prosecution witness] had an expectation of

favorable treatment that could have affected [her]

testimony because the State affirmatively placed

false evidence before the jury that there was no deal.

. . . If [the witness] had known of the secret deal and

had testified about it [s]he would have been subject

to impeachment—not only on the existence of the

favorable deal, but also on the State’s attempts to

keep the deal from the jury. The State could not have

falsely buttressed [her] credibility before the jury.

Thus, the violation of Napue was material.

399 F.3d at 987-88.

The district court came to a contrary determination regard-

ing the materiality of the state’s violations of its constitutional

obligations by concluding that Colman’s credibility was suffi-

ciently put before the jury by Phillips’s counsel, Martin. The

dissent also embraces this reasoning. Martin introduced evi-

dence that Colman had been released on her own recogni-

zance and had received an unusual number of continuances,

and repeatedly intimated that Colman had negotiated some

sort of deal with the prosecution. But as we explained in Benn

v. Lambert, 283 F.3d 1040 (9th Cir. 2002), “In cases in which

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

3208 PHILLIPS v. ORNOSKI

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. Therefore, the sup-

pressed impeachment evidence . . . takes on even greater

importance.” Id. at 1055. Here, hard evidence that a deal had

actually been agreed upon that would allow Colman to escape

prosecution would have had far more persuasive force than

Martin’s assertions, wholly unsupported by any evidence, that

such a deal might have existed, especially in light of the pros-

ecution’s sarcastic and false dismissal of Martin’s suspicions

as “sheer fabrication.” See Jackson, 513 F.3d at 1077

(“[A]lthough the witness had been cross-examined about his

own attempts to benefit from his cooperation, evidence of an

explicit promise of assistance by the trial prosecutor likely

would have carried far greater weight than any speculative

benefit [the witness] might have thought he could achieve on

his own.” ). “The disclosure of a . . . secret deal would not

have been merely cumulative impeachment,” because “[i]t

would have demonstrated that the State was going to great

lengths to give [Colman] a powerful incentive to testify favor-

ably, to the point of letting [her] go free on” capital murder

charges. Hayes, 399 F.3d at 987.

[24] In sum, Colman’s testimony and credibility were criti-

cal to the success of the prosecution’s argument that Phillips

lured Rose and Bartulis to Chowchilla with the independent

purpose of robbing them, and that the robbery was not merely

incidental to the murder, contrary to what the bulk of the evi-

dence other than Colman’s testimony suggested. The false

testimony by Colman that she had received no promise of

benefits in exchange for her testimony—which, in violation of

Napue, the prosecution not only failed to correct but also

affirmatively and falsely reinforced before the jury—directly

implicated Colman’s credibility, and was far more powerful

than all the innuendo and speculation that Phillips’s counsel

was able to offer. Because Phillips was denied a fair opportu-

nity to impeach the credibility of a witness whose testimony

was essential to the jury’s special circumstance finding, we

PHILLIPS v. ORNOSKI 3209

conclude that there is “a reasonable likelihood that the false

testimony could have affected the judgment of the jury,”

Agurs, 427 U.S. at 103, with respect to the finding that Bar-

tulis’s murder occurred during the commission of a robbery.

Even were the standard that which is applicable for a Brady

violation, we would hold that there is a “reasonable probabili-

ty” that the jury’s special circumstance finding “would have

been different” but for the state’s violations. Bagley, 473 U.S.

at 682. Accordingly, we conclude that the state’s multiple vio-

lations of Napue were material to the special circumstances

finding and thus deprived Phillips of his right to due process.

We therefore vacate that finding.27 We also vacate the death

penalty sentence that resulted from that finding, as without the

special circumstance determination Phillips would not have

been death-eligible. See Green, 609 P.2d at 514 (“[B]ecause

. . . the special circumstances findings must . . . be vacated,

the punishment of death likewise cannot stand under the stat-

ute.”).

VI. Conclusion

[25] We conclude that the district court did not abuse its

discretion in its conduct of the evidentiary hearings below,

and affirm its holding that Phillips’s trial counsel was not

ineffective, as well as its holding that the prosecution’s Brady

and Napue violations were not material to Phillips’s first-

degree murder conviction, his attempted murder conviction,

or his robbery convictions. We reverse, however, the district

court’s holding that the prosecution’s Napue violations were

not material to the jury’s special circumstances finding.

Accordingly, we reverse and remand with instructions to

grant a conditional writ of habeas corpus, with instructions to

the state court either to grant Phillips a new trial on the special

27

Because we find that the Napue errors alone compel vacation of the

special circumstances finding, we do not reach the materiality of the pros-

ecution’s Brady violation, specifically the failure to disclose the plea offer

made to Colman’s first attorney, Peterson.

3210 PHILLIPS v. ORNOSKI

circumstance allegation within ninety days or to sentence him

to a penalty other than death in conformance with state law.

See, e.g., People v. Horton, 906 P.2d 478, 484 (Cal. 1995).

AFFIRMED, in part, REVERSED, in part, and

REMANDED.

KLEINFELD, Senior Circuit Judge, concurring in part and

dissenting in part:

Phillips murdered Bruce Bartulis at a vacant lot in 1977. He

did his best to also murder Bartulis’s companion, Robert

Rose. He shot Rose five times with a .45, poured gasoline on

him, set him on fire with matches he had borrowed from Rose

himself when they had stopped at a gas station (even though

Phillips was a non-smoker), and ran him over with a car. Phil-

lips had told Bartulis and Rose, falsely, that he was going to

make them a lot of money if they gave him $25,000 to buy

cocaine for sale, and then told them he was going to sell them

a lot of stolen insulation (they were builders). He did not have

$25,000 worth of cocaine and did not have the stolen insula-

tion. He told them to bring with them all the money they

could get together, and to follow him to the deserted location

he picked. After he shot them both, he took their wallets,

picked up the brass from his cartridges, and went on the lam

under a false name.

Rose amazingly survived the five bullets Phillips shot into

his head, stomach, and arm, survived being set on fire, and

survived being run over. He was the star witness against Phil-

lips at trial, testifying to the events of the murder and

attempted murder, and to the dealings leading up to them.

Phillips’s then-girlfriend, Sharon Colman, who was present at

the crime scene, testified to what Phillips had told her and

what she had seen. The jury heard a tape recording of a phone

call Phillips made to his childhood friend Richard Graybill, in

PHILLIPS v. ORNOSKI 3211

which he bragged about how his “.45 sure did put a big hole

right through him,” referring to one of his victims. Phillips’s

mother testified to the time of his arrival home the night of the

murder, which impeached Phillips’s perjured alibi testimony.

Before trial, Phillips had gone so far as to put out contracts

to kill old friend Graybill, former girlfriend Colman, survivor

Rose, and even Phillips’s own mother, but they also failed to

die on his schedule. The jury viewed as evidence the letter

Phillips wrote to the hit man, providing descriptions, habits,

and residences for his intended victims.

Phillips insisted on testifying at trial, claiming he was not

even there when the murder occurred, having been at a “busi-

ness meeting” elsewhere at the time. He has since admitted

this testimony was a lie, and that he was in fact at the scene

of the crime. But Phillips insisted on the alibi at trial. Phil-

lips’s counsel argued that Graybill must have been the mur-

derer. He showed there was a high likelihood that Colman and

Graybill were getting freedom or lenience in exchange for tes-

timony satisfactory to the prosecution, so they had good rea-

son to testify favorably for the prosecution, truthfully or not.

He even managed to come up with an argument for why Rose,

the victim, might be lying.

Phillips’s counsel also explained to the jury that even if

Phillips had committed the murder and attempted murder, the

jury should not find the “special circumstance” to be true.1

1

Cal. Penal Code § 190.2(a)(17)(A) (“The penalty for a defendant who

is found guilty of murder in the first degree is death or imprisonment in

the state prison for life without the possibility of parole if one or more of

the following special circumstances has been found . . . to be true . . . The

murder was committed while the defendant was engaged in, or was an

accomplice in, the commission of, attempted commission of, or the imme-

diate flight after committing, or attempting to commit . . . Robbery

. . . .”; Cal. Penal Code § 190.4(a) (“In case of reasonable doubt as to

whether a special circumstance is true, the defendant is entitled to a find-

ing that it is not true.”); see also Pulley v. Harris, 465 U.S. 37, 51-53

(1984) (rejecting constitutional challenge to this sentencing scheme and

3212 PHILLIPS v. ORNOSKI

The special circumstance in this case was that “the murder [of

Bartulis] was committed while [Phillips] was engaged in the

commission or attempted commission of a robbery.”2 Phil-

lips’s counsel skillfully wove his special circumstance argu-

ment into the alibi theory, a challenging task. He gave a

reason why Phillips had an interest in keeping Bartulis and

Rose alive, that it would not make sense to kill the goose who

was about to lay the $25,000 egg. It is hard to argue persua-

sively to a jury that “my client wasn’t even there and didn’t

do it, but if he did, his purpose wasn’t robbery,” but counsel

figured out a way to keep the special circumstance issue in the

case as a potential barrier to the death penalty.

Now the majority vacates the jury’s special circumstance

explaining, “Under [California’s] scheme, a person convicted of first

degree murder is sentenced to life imprisonment unless one or more ‘spe-

cial circumstances’ are found, in which case the punishment is either death

or life imprisonment without parole. Special circumstances are alleged in

the charging papers and tried with the issue of guilt at the initial phase of

the trial. At the close of evidence, the jury decides guilt or innocence and

determines whether the special circumstances alleged are present. Each

special circumstance must be proved beyond a reasonable doubt. If the

jury finds the defendant guilty of first degree murder and finds at least one

special circumstance, the trial proceeds to a second phase to determine the

appropriate penalty. Additional evidence may be offered and the jury is

given a list of relevant factors. After having heard all the evidence, the

trier of fact shall consider, take into account and be guided by the aggra-

vating and mitigating circumstances referred to in this section, and shall

determine whether the penalty shall be death or life imprisonment without

the possibility of parole. If the jury returns a verdict of death, the defen-

dant is deemed to move to modify the verdict. The trial judge then reviews

the evidence and, in light of the statutory factors, makes an independent

determination as to whether the weight of the evidence supports the jury’s

findings and verdicts. The judge is required to state on the record the rea-

sons for his findings. If the trial judge denies the motion for modification,

there is an automatic appeal.” (citations, brackets, and quotations omit-

ted)).

2

California Jury Instruction—Criminal (“CALJIC”) No. 8.81.17; Cal.

Penal Code § 190.2(a)(17)(A).

PHILLIPS v. ORNOSKI 3213

finding, speculating that if only the jury had been able to find

out more about the inducements to Colman, the girlfriend, to

say what the prosecutor wanted, the jury might have con-

cluded that the murder was motivated by purposes other than

robbery. The majority speculates that Phillips might have shot

Bartulis and Rose to cover up Phillips’s prior dealings with

them, or to prevent them from double-crossing him, or to

retain the payments Bartulis and Rose had already made to

him. These theories were unsupported by any evidence at

trial. Even if the jury had decided Colman was not worthy of

belief (it may well have, because she was effectively

impeached and her motivation to testify was brought painstak-

ingly before the jury), Colman’s alleged perjured testimony

could not have affected the verdict. The evidence of an intent

to rob by killing came from facts not dependent on anything

Phillips’s girlfriend said.

The purpose of robbery was proved by overwhelming evi-

dence. Rose testified that Phillips instructed him to come up

with as much cash as he could get, that Phillips lured the men

to a deserted location, shot them, then took their wallets. The

jury also learned of Phillips’s motive to rob. He lived in a

$600,000 Newport Beach beachfront house ($600,000 in 1977

dollars), drove an expensive sports car, flew about in private

planes, and dated a beautiful young woman, despite having no

money and needing to borrow $125 from his mother the day

after the murder. If the jury had the slightest doubt that Phil-

lips would murder in cold blood just to get some cash, their

doubts would have been allayed by the proof that he put out

a “contract” on his girlfriend, his old friend, his surviving vic-

tim, and even his own mother.

The majority concludes that none of the prosecutorial mis-

conduct could have made any difference to whether the jury

would have found Phillips guilty of attempted murder, first-

degree murder, and robbery, and that defense counsel was not

constitutionally ineffective. I concur in those conclusions. I

also concur in the characterization of prosecutorial miscon-

3214 PHILLIPS v. ORNOSKI

duct. I do not concur in the attacks on defense counsel’s assis-

tance. The reasons appear more fully in my previous dissent,

found at, Phillips v. Woodford, 267 F.3d 966, 988 (9th Cir.

2001) (Kleinfeld, J., dissenting). Defense counsel appears

from the record to be a very fine lawyer who did an excellent

job for Phillips. The majority now concedes that under Cullen

v. Pinholster,3 defense counsel was not constitutionally inef-

fective, overruling its holding to the contrary in Phillips v.

Woodford.4 I dissent from the portion of the majority’s opin-

ion vacating the jury’s special circumstance finding that the

murder of Bartulis was “committed during the commission or

attempted commission of a robbery.”

Phillips was sentenced to death in 1980. Since then he has

evaded his sentence by means of more than three decades of

additional litigation. And now he succeeds again, on the

meritless claim adopted by the majority that had the jury been

aware of additional impeachment evidence as to the girl-

friend’s motivation for testifying, it might have reasonably

concluded that the robbery was merely incidental to the mur-

der.

The majority appropriately labels the prosecutor’s tactics in

this case as deplorable, but as the United States Supreme

Court has expressly directed:

We do not [ ] automatically require a new trial when-

ever a combing of the prosecutors’ files after the trial

has disclosed evidence possibly useful to the defense

but not likely to have changed the verdict . . . . A

new trial is required if the false testimony could in

any reasonable likelihood have affected the judg-

ment of the jury.5

3

Cullen v. Pinholster, ___ U.S. ___, 131 S. Ct. 1388, 1406-07 (2011).

4

Phillips v. Woodford, 267 F.3d 966, 980 (9th Cir. 2001).

5

Giglio v. United States, 405 U.S. 150, 154 (1972) (citations and quota-

tions omitted).

PHILLIPS v. ORNOSKI 3215

Thus, it is not enough to find constitutional error. Instead, the

court is required to consider all of the evidence and determine

whether the false evidence was material to the jury’s judgment.6

The “any reasonable likelihood” of an effect on the jury

standard applies to direct appeals. This is not a direct appeal.

This is a habeas proceeding, best characterized as a second or

successive habeas proceeding. Probably the correct standard

is that a federal court cannot grant relief unless the evidence

is “clear and convincing” that, had the Colman deal been dis-

closed to defense counsel and the jury, “no reasonable juror

would have found him eligible for the death penalty.”7 Like

the petitioner in Calderon v. Thompson, Phillips’s false alibi

was “devastating to his defense,”8 under any standard.

Because this is a habeas proceeding, we are constrained not

only by the requirement of prejudice, but also by the require-

ment of deference to the state courts. Phillips was convicted

and sentenced in state court. On direct appeal, the California

Supreme Court carefully weighed the prejudicial effect of the

prosecutor’s wrongful nondisclosure of the deal between the

prosecutor and the girlfriend’s lawyer. The Court found, and

the transcript fully supports its finding, that “the jury was

made well aware of the possible impact of Colman’s expecta-

6

See also Smith v. Cain, 565 U.S. ___, 132 S. Ct. 627, 630 (2012) (“We

have observed that evidence impeaching an eyewitness may not be mate-

rial if the State’s other evidence is strong enough to sustain confidence in

the verdict.”).

7

See Sawyer v. Whitley, 505 U.S. 333, 350 (1992) (holding petitioner is

required to “show by clear and convincing evidence that but for constitu-

tional error at his sentencing hearing, no reasonable juror would have

found him eligible for the death penalty”); Calderon v. Thompson, 523

U.S. 538, 560 (1998) (“To the extent a capital petitioner contests the spe-

cial circumstances rendering him eligible for the death penalty, the Sawyer

‘clear and convincing’ standard applies, irrespective of whether the special

circumstances are elements of the offense of capital murder or, as here,

mere sentencing enhancers.”).

8

Calderon v. Thompson, 523 U.S. 538, 561 (1998).

3216 PHILLIPS v. ORNOSKI

tion of leniency on her credibility.”9 The California Supreme

Court further noted, after thorough discussion of the evidence,

that “the key witness against defendant was Ronald Rose,” his

testimony was well-corroborated, the evidence against Phil-

lips was “overwhelming,” and the jury’s verdict “a foregone

conclusion”:10

While the defense should have been given a fuller

opportunity to discover evidence that might have

permitted a stronger attack on Colman’s credibility,

closing arguments on both sides demonstrate that the

jury was made well aware of the possible impact of

Colman’s expectation of leniency on her credibility.

The prosecutor noted that “it wouldn’t make any

sense if she came in here and testified unless she

were hoping for consideration . . . that’s why she’s

testifying.” Defense counsel emphatically brought

home to the jury the potentially coercive effect of the

prosecution’s tactics, declaring that “they’re holding

a murder charge over her head to testify, and she’s

singing like a bird, the tune that they call.” In this

situation, the jury could properly assess Colman’s

credibility even without testimony on a specific

agreement between her attorney and the prosecution.

Furthermore, the evidence against defendant with

respect to the charged offense was overwhelming.

While Colman was an important prosecution wit-

ness, the key witness against defendant was Ronald

Rose, the victim who miraculously survived despite

being shot, set on fire and run over by a car. Given

Rose’s testimony, and the considerable amount of

corroborating evidence, the jury verdict as to guilt

and the special circumstance allegation was virtually

9

People v. Phillips, 41 Cal. 3d 29, 48 (1985).

10

Id. at 49.

PHILLIPS v. ORNOSKI 3217

a foregone conclusion. Under the circumstances,

there was no prejudice to the defendant.11

In addition, the Superior Court of California, County of Mad-

era, in its order denying Phillips’s writ of habeas corpus,

made factual findings and concluded, “Clearly [Colman’s]

credibility because of a ‘deal,’ and a pending murder charge

was put before the jury, and, as stated by the Supreme Court,

the jury had sufficient facts with which to evaluate Sharon

Colman’s testimony.” The federal district court also con-

cluded in a thorough sixty-one page order denying Phillips’s

federal habeas petition that any constitutional errors at trial

could not have reasonably affected the judgment of the jury,

because of the overwhelming evidence against Phillips other

than Colman’s testimony.

The majority rejects the conclusion of every other court to

have addressed this case. “This readiness to attribute error is

inconsistent with the presumption that state courts know and

follow the law.”12 Even assuming “any reasonable likelihood”

of an effect on the jury is the correct standard, this Court is

still required to presume the correctness of state court factual

findings,13 and to review the findings of the district court for

clear error.14 The majority disregards these standards, and

11

Id. at 48-49.

12

Woodford v. Visciotti, 537 U.S. 19, 23 (2002) (per curiam) (citing pre-

and post- AEDPA authority, and reinstating capital sentence for California

prisoner convicted of first-degree murder, attempted murder, and armed

robbery).

13

Sumner v. Mata, 455 U.S. 591, 591-92 (1982) (“28 U.S.C. § 2254(d)

requires federal courts in habeas proceedings to accord a presumption of

correctness to state-court findings of fact”); id. at 592-93 (“the presump-

tion of correctness is equally applicable when a state appellate court, as

opposed to a state trial court, makes the finding of fact”); id. at 595 n.5

(noting rule applies to state court findings of fact on direct appeal and in

state habeas proceedings).

14

Jackson v. Brown, 513 F.3d 1057, 1069 (9th Cir. 2008) (“The district

court’s factual findings are reviewed for clear error. We therefore accept

its findings absent a firm conviction that a mistake has been committed.”

(internal quotations omitted)).

3218 PHILLIPS v. ORNOSKI

instead takes upon itself the role of a jury of two, in an imagi-

nary trial that never occurred.

I need not base my dissent on the precise standard applica-

ble to the constitutional error, limitations of our habeas

authority, or our duty of deference to state court findings and

the presumption of their correctness. The question of how,

precisely, to formulate the standard is quite complex. Should

Phillips have been permitted to raise his new argument at all,

after his many past proceedings? Should the petition raising

the new argument be treated as pre-AEDPA or post-AEDPA?15

To what extent may the state findings be viewed as mixed

questions of fact and law? Did we have authority to direct the

district court to take new evidence, evidence not before the

state courts? Do we have authority to grant a petition based

on evidence so obtained? Should the proper standard for us be

whether Phillips has offered “clear and convincing” evidence

that “no reasonable juror” would have found him to be subject

to the robbery special circumstance, had the jury known of the

prosecutor’s deal with the girlfriend’s lawyer? These complex

questions need not be answered because no matter what, pre-

cisely, our proper standard and our deference obligation to the

state courts may be, the result would be the same. Even were

we reviewing directly, as though we were a state supreme

court, we would have to reach the same conclusion as the Cal-

ifornia Supreme Court reached in this case.

I assume for purposes of discussion that the standard most

favorable to Phillips applies. That standard is whether there is

any reasonable likelihood that the arguably false testimony

Colman gave “could have” affected the judgment of the jury

on the special circumstance finding. The majority concedes

that “[i]t is unimaginable” that the jury could have reached a

different verdict on the first-degree murder charge, despite the

15

See Phillips v. Woodford, 267 F.3d 966, 989 (9th Cir. 2001) (Klein-

feld, J., dissenting) (noting Phillips filed his petition after the AEDPA

went into effect).

PHILLIPS v. ORNOSKI 3219

prosecutor’s wrongdoing. Likewise “[i]t is unimaginable” that

the jury could have reached a different conclusion as to the

special circumstance of the murder occurring “during the

commission of a robbery.” Had the jury been fully informed

of the prosecutor’s agreement with Colman’s lawyer, and that

she had escaped prosecution on unrelated charges, it would

have made no difference to the verdict. The jury was well-

informed of the reasons for skepticism about her testimony.

Colman candidly admitted at trial that she expected the prose-

cution to take her willingness to cooperate into consideration.

The prosecutor admitted during his closing argument that Col-

man was an accomplice who expected leniency, and her testi-

mony should be viewed with distrust:

She also testified that she was hoping for consider-

ation, and that is only understandable; as a matter of

fact, it wouldn’t make any sense if she came in and

testified unless she were hoping for consideration.

Naturally, she’s hoping for consideration. Naturally,

she’s hoping for leniency. And it only seems reason-

able that she would hope and anticipate that she

would be treated leniently, and, of course, that’s why

she’s testifying. And, of course, that’s why her attor-

ney told her to cooperate and to testify. But it

doesn’t mean she’s lying.

. . . . Under the law it is true that Miss Colman is

what’s called an accomplice . . . . That means that

you really stand back and you look at it and you

decide, now, is this girl really telling the truth . . . .

You have to have what’s called corroboration; in

other words, the Defendant could never be convicted

on the testimony of Miss Colman alone.

The judge then instructed the jury that Colman was an accom-

plice and that her testimony should be viewed with distrust:

. . . Sharon Colman was an accomplice . . . . The tes-

timony of an accomplice ought to be viewed with

3220 PHILLIPS v. ORNOSKI

distrust. This does not mean that you may arbitrarily

disregard such testimony, but you should give to it

the weight to which you find it to be entitled after

examining it with care and caution and in the light

of all the evidence in the case.

The jury did not need Colman’s testimony, that Phillips was

disappointed in how little money he got, to conclude that the

murders were committed “during the commission of a rob-

bery.” Indeed, she did not even say that robbery was Phillips’s

purpose. Phillips probably lost his own case by lying to the

jury, and Rose certainly established the state’s case with his

powerful and highly credible testimony. Colman was not the

critical witness for the robbery special circumstance finding.

Rose was.

Rose, the miraculously surviving victim, testified that Phil-

lips “told me to get as much cash together as I could and what

time to meet him and where to meet him in Fresno; that was

early in the morning on the 7th.” That night, Phillips led Rose

to a remote location and shot him five times. Rose testified

that he then felt “someone moving me around such as search-

ing my pockets” and that he heard “a male voice” next to him

while his pockets were being searched. Although Phillips took

Rose’s wallet, which was in his rear pocket, Phillips never

found the “thirty-five hundred to five thousand dollars in

cash” in Rose’s “upper coat pocket.” Phillips then poured gas-

oline on Rose, set him ablaze, and ran him over with his

mother’s car after Rose began running around the dark, empty

parking lot to which Phillips had led him, trying to shed his

burning clothes. The majority speculates that Phillips’s pur-

pose may not have been to take Rose’s and Bartulis’s money,

because he did a poor job of searching them and missed the

wad of cash “the size of a cigarette pack” that Rose had in the

breast pocket of his bloody jacket. Many criminals do slip-

shod work, and many robbers are disappointed with the pro-

ceeds, but “I wouldn’t have robbed and killed him had I

known that was all I would get,” or “I wish I’d searched his

PHILLIPS v. ORNOSKI 3221

other pockets,” is not the same as “I did not kill him as part

of my robbery.”

California law defines robbery as “the felonious taking of

personal property in the possession of another, from his per-

son or immediate presence, and against his will, accomplished

by means of force or fear.”16 Taking a man’s money by killing

him fits the definition whether the robbery victim is dead or

alive when the killer takes his wallet.17 If the jury believed

Rose, as it plainly did, the only reasonable inference was that

Phillips shot and robbed him and Bartulis for their money.

Scratching around for some authority, the majority relies on

the distinction drawn in People v. Green,18 between murders

occurring during the commission of a robbery and murders

where the robbery was incidental to the murder. The distinc-

tion is correct, but the majority errs in applying that distinc-

tion to Phillips’s crimes. In Green, the defendant shot his wife

in the face with a sawed-off shotgun, killing her, because he

thought she was “fooling around” and was going to leave him.19

He had made her take off her clothes, and he removed the

wedding rings from her corpse, took her purse, and got rid of

the shotgun.20 The Court held that he had killed his wife on

account of jealousy or as revenge for “snitching,” without any

purpose of stealing from her, and that he took the clothes,

rings, and purse to leave her unidentifiable, not to steal her prop-

erty.21 The Court held that the special circumstance did not

apply because taking the clothes, rings, and purse “was not in

16

Cal. Penal Code § 211.

17

People v. Navarette, 30 Cal. 4th 458, 499 (2003) (“While it may be

true that one cannot rob a person who is already dead when one first

arrives on the scene, one can certainly rob a living person by killing that

person and then taking his or her property.”).

18

People v. Green, 27 Cal. 3d 1 (1980).

19

Id. at 13-14.

20

Id. at 15-16.

21

Id. at 56.

3222 PHILLIPS v. ORNOSKI

fact a murder in the commission of a robbery but the exact

opposite, a robbery in the commission of a murder.”22 The

robbery aggravator, the Court held, was not a mere matter of

chronology, but a legislative choice to increase the punish-

ment available for criminals “who killed in cold blood to

advance an independent felonious purpose.”23 The Court’s

phrasing of the distinction squarely puts Phillips on the wrong

side, because he killed Bartulis in cold blood in order to steal

his money.

The majority cites two other California cases on this issue,

People v. Abilez,24 and People v. Morris.25 In Abilez, the

defendant raped his 68-year-old mother anally, strangled her,

and took items of value from her house.26 He hated his mother

because she gave him up to his aunt to be raised, even though

his mother raised her other nine children.27 Applying the

Green distinction, Abilez upheld the robbery special circum-

stance finding. The Court distinguished Green because Abilez

had made remarks about needing money, his mother would

not lend him her car or give him money when he asked for it,

she accused him of stealing from her, and he took the car, ste-

reo, and other items from the house after killing her.28 From

these facts, the Court held, the jury could reasonably infer a

concurrent intent to kill, rob, and sodomize.29

In Morris, the defendant was a prostitute who solicited gay

men and killed one of his customers. He said the reason he

22

Id. at 60.

23

Id. at 61.

24

People v. Abilez, 41 Cal. 4th 472 (2007).

25

People v. Morris, 46 Cal. 3d 1 (1988), overruled on other grounds by

In re Sassounian, 9 Cal. 4th 535, 543 n.5 (1995).

26

People v. Abilez, 41 Cal. 4th 472, 483-84 (2007).

27

Id.

28

Id. at 511-12.

29

Id. at 512.

PHILLIPS v. ORNOSKI 3223

killed his customer was that “he had to kill one.”30 The special

circumstance was held not to apply because there was insuffi-

cient evidence that the defendant had taken anything from the

customer when he killed him.31 There was no robbery, so

there was no special circumstance of murdering during the

commission of a robbery.

The majority misses the point in People v Marshall,32 a

highly relevant California Supreme Court decision applying

and expanding upon Green. Marshall had raped and murdered

a woman, and took a letter from her. The letter was from a

grocery store responding to the victim’s request for a “check-

cashing card,” and was of no interest to the murderer. He took

the letter as a souvenir of the crime.33 The reason that the spe-

cial circumstance did not apply was that there was no evi-

dence that he killed the woman “for the purpose of obtaining

the letter.”34 Contrasting Morris’s case with one where the

special circumstance would apply, the Court explained the

Green distinction with a hypothetical case in which, under

Green, the special circumstance would be appropriate. And

the hypothetical is the Phillips case, a murderer who takes the

victim’s wallet:

If a person commits a murder, and after doing so

takes the victim’s wallet, the jury may reasonably

infer that the murder was committed for the purpose

of obtaining the wallet, because murders are com-

monly committed to obtain money. In this case,

30

People v. Morris, 46 Cal. 3d 1, 21 (1988), overruled on other grounds

by In re Sassounian, 9 Cal. 4th 535, 543 n.5 (1995).

31

Id. at 22.

32

People v. Marshall, 15 Cal. 4th 1 (1997).

33

Id. at 12.

34

Id. at 34.

3224 PHILLIPS v. ORNOSKI

however, the letter taken by defendant was, in the

prosecutor’s words, an “insignificant piece of paper.”35

Here, the jury concluded that Phillips committed murder for

the purpose of obtaining Rose’s and Bartulis’s money. Phil-

lips took their wallets, which is where men typically carry

their money. Unlike the murderer in Marshall, he did not take

a worthless memento. The majority comes up with some

notions of why Phillips may have shot and robbed Rose and

Bartulis for some reason other than to take their money, even

though he needed and took the $150 in their wallets. But as

the Supreme Court of California has stated, “we need not dis-

cern the[ ] various mental states in too fine a fashion; a con-

current intent to kill and to commit an independent felony will

support a felony-murder special circumstance.”36 The evi-

dence in this case overwhelmingly supported the conclusion

that Phillips possessed the intent to rob these men. He needed

the money, he told them to bring it, he shot them, and he took

it. The majority’s suggestion that had the jury been fully

informed of Colman’s inducements, it maybe would have

concluded otherwise, “is an insult to the jury.”37

The majority’s willingness to disrupt the well-founded

decision of the California Supreme Court also disturbs “the

State’s interest in the finality of convictions that have sur-

vived direct review within the state court system.”38 As the

United States Supreme Court has stated in overturning similar

decisions:

Finality also enhances the quality of judging. There

is perhaps ‘nothing more subversive of a judge’s

35

Id.

36

People v. Abilez, 41 Cal. 4th 472, 560 (2007).

37

Thompson v. Calderon, 120 F.3d 1045, 1073 (9th Cir. 1997) (en banc)

(Kleinfeld, J., dissenting), rev’d, Calderon v. Thompson, 523 U.S. 538

(1998).

38

Calderon v. Thomas, 523 U.S. 538, 555 (1998).

PHILLIPS v. ORNOSKI 3225

sense of responsibility, of the inner subjective con-

scientiousness which is so essential a part of the dif-

ficult and subtle art of judging well, than an

indiscriminate acceptance of the notion that all the

shots will always be called by someone else.’39

Juries are too likely to impose the death penalty lightly if they

reasonably infer, from decisions like this one, that it will

almost never actually be carried out.

The question the majority addresses seems to be “is there

any conceivable, speculative possibility we can think of that

would make Phillips guilty but without the special circum-

stance?” Whatever the proper standard may be, that is not it.

To determine whether the prosecutor’s wrongdoing was prej-

udicial, the most Phillips could demand would be whether

there is “any reasonable likelihood that the false testimony

could have affected the judgment of the jury.”40 The only

answer to the question is “no.”

The majority correctly concludes that “[i]t is unimaginable”

that the prosecutor’s wrongful conduct could have affected

the first-degree murder guilty verdict. It is likewise unimagin-

able that it could have affected the special circumstance find-

ing. We should affirm.

39

Id. (quoting Bator, Finality in Criminal Law and Federal Habeas Cor-

pus for State Prisoners, 76 Harv. L. Rev. 441, 451 (1963)).

40

United States v. Agurs, 427 U.S. 97, 103 (1976).