Colin Dickey v. Ron Davis

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

COLIN RAKER DICKEY, No. 19-99009

Petitioner-Appellant, D.C. No.

1:06-cv-00357-

v. AWI-SAB

RONALD DAVIS, Warden, San

Quentin State Prison, OPINION

Respondent-Appellee.

Appeal from the United States District Court

for the Eastern District of California

Anthony W. Ishii, District Judge, Presiding

Argued and Submitted June 21, 2022

Pasadena, California

Filed May 31, 2023

Before: Mary H. Murguia, Chief Judge, and William A.

Fletcher and Morgan Christen, Circuit Judges.

Opinion by Judge Christen

2 DICKEY V. DAVIS

SUMMARY*

Habeas Corpus / Death Penalty

On Colin Raker Dickey’s appeal from the district court’s

denial of his 28 U.S.C. § 2254 habeas corpus petition

challenging his California conviction and death sentence, the

panel reversed and remanded to the district court with

instructions to grant a conditional writ of habeas corpus as

to the special-circumstances findings and the imposition of

the death penalty, and affirmed the district court’s holding as

to Dickey’s certified guilt-phase claims.

Dickey was sentenced to death in 1991 after a California

state jury convicted him of robbery, burglary, and felony

murder.

Dickey raised several certified claims, including claims

that the prosecutor knowingly used false and misleading

testimony in violation of Napue v. Illinois, 360 U.S. 264

(1959), and failed to disclose favorable material evidence in

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

The panel wrote that this is an exceptional case in which

the prosecutor deliberately elicited, and then failed to

correct, false and misleading testimony from the State’s star

witness, Gene Buchanan. The prosecutor went on to exploit

Buchanan’s false testimony in his closing argument. He also

failed to produce evidence to the defense team that would

have seriously impeached Buchanan’s testimony. These

*

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

DICKEY V. DAVIS 3

points were uncontested; the central issue in this appeal was

the materiality of the State’s Napue and Brady violations.

To obtain the death penalty, the State was required to

prove special circumstances. The panel wrote that the record

makes clear that the State’s special-circumstances evidence

depended on Buchanan’s testimony. It also makes clear that

the prosecutor recognized the jury would have ample reason

to doubt Buchanan. To shore up Buchanan’s testimony, the

State asked the court to read aloud a California statute that

put Buchanan on notice that he would subject himself to the

death penalty if he lied under oath and Dickey was

wrongfully convicted and executed. What the jury did not

know—because the prosecutor did not correct the false

testimony—is that Buchanan did lie to them under oath, even

given the potential consequences for doing so in a capital

case.

Reviewing under the deferential standard afforded to

state-court decisions by the Antiterrorism and Effective

Death Penalty Act (AEDPA), 28 U.S.C. § 2254(d), the panel

concluded it was objectively unreasonable for the state court

to decide that the prosecutor’s misconduct was immaterial to

the jury’s special-circumstances findings. The panel

reached this conclusion because the State’s case for the death

penalty unquestionably hinged on Buchanan’s testimony,

and applying Napue’s materiality standard through the lens

of AEDPA, it was objectively unreasonable to conclude that

correcting Buchanan’s false testimony could not have

changed the jury’s decision to impose the death

penalty. Because the panel held that the requirement of

§ 2254(d) is satisfied, the panel resolved Dickey’s claim

without the deference AEDPA otherwise requires. On de

novo review, the panel held that Dickey is entitled to relief.

4 DICKEY V. DAVIS

The panel therefore reversed and remanded to the district

court with instructions to grant a conditional writ as to the

jury’s special-circumstances findings and imposition of the

death penalty. The panel did not reach the merits of any of

Dickey’s other penalty-phase claims.

The panel affirmed the denial of Dickey’s certified guilt-

phase claims related to his conviction for aiding and abetting

the underlying robbery. First, the panel concluded the state

court reasonably determined that the State’s Napue and

Brady violations were not material to the jury’s guilt-phase

verdict and that trial counsel’s failure to investigate and

impeach Buchanan was not prejudicial in the guilt

phase. Separately, the panel separately concluded the

California Supreme Court could have reasonably determined

that Dickey failed to show guilt-phase prejudice stemming

from counsel’s strategy of seeking to select jurors who were

predisposed to vote for the death penalty. Third, the panel

concluded the California Supreme Court could have

reasonably denied Dickey’s claim that trial counsel should

have withdrawn based on an irreconcilable conflict. The

panel did not reach the merits of any of Dickey’s uncertified

guilt-phase claims.

COUNSEL

David Senior (argued), Matthew L. Weston, and Ann K.

Tria, McBreen & Senior, Los Angeles, California, for

Petitioner-Appellant.

Justain P. Riley (argued) and Kimberley A. Donohue,

Deputy Attorneys General; Kenneth N. Sokoler, Supervising

Deputy Attorney General; Michael P. Farrell and James

DICKEY V. DAVIS 5

William Bilderback II, Senior Assistant Attorneys General;

Xavier Becerra, Attorney General of California; Office of

the California Attorney General; Sacramento, California; for

Respondent-Appellee.

OPINION

CHRISTEN, Circuit Judge:

Colin Raker Dickey was sentenced to death in 1991 after

a California state jury convicted him of robbery, burglary,

and felony murder. He appeals the district court’s denial of

his federal habeas corpus petition filed pursuant to

28 U.S.C. § 2254. Dickey raises several certified claims,

including claims that the prosecutor knowingly used false

and misleading testimony in violation of Napue v. Illinois,

360 U.S. 264 (1959), and failed to disclose favorable

material evidence in violation of Brady v. Maryland, 373

U.S. 83 (1963).

This is an exceptional case in which the prosecutor

deliberately elicited, and then failed to correct, false and

misleading testimony from the State’s star witness, Gene

Buchanan. The prosecutor went on to exploit Buchanan’s

false testimony in his closing argument. He also failed to

produce evidence to the defense team that would have

seriously impeached Buchanan’s testimony. These points

are uncontested; the central issue in this appeal is the

materiality of the State’s Napue and Brady violations.

To obtain the death penalty, the State was required to

prove special circumstances, and the record makes clear that

the State’s special-circumstances evidence depended on

6 DICKEY V. DAVIS

Buchanan’s testimony. It also makes clear that the

prosecutor recognized the jury would have ample reason to

doubt Buchanan. To shore up Buchanan’s testimony, the

State asked the court to read aloud a California statute that

put Buchanan on notice that he would subject himself to the

death penalty if he lied under oath and Dickey was

wrongfully convicted and executed. What the jury did not

know—because the prosecutor did not correct the false

testimony—is that Buchanan did lie to them under oath, even

given the potential consequences for doing so in a capital

case.

Reviewing under the deferential standard afforded to

state-court decisions by the Antiterrorism and Effective

Death Penalty Act (AEDPA), 28 U.S.C. § 2254(d), we

conclude it was objectively unreasonable for the state court

to decide that the prosecutor’s misconduct was immaterial to

the jury’s special-circumstances findings. We reach this

conclusion because the State’s case for the death penalty

unquestionably hinged on Buchanan’s testimony, and

applying Napue’s materiality standard through the lens of

AEDPA, it was objectively unreasonable to conclude that

correcting Buchanan’s false testimony could not have

changed the jury’s decision to impose the death penalty.

Because we hold that the requirement of § 2254(d) is

“satisfied,” we “resolve [Dickey’s] claim without the

deference AEDPA otherwise requires.” Panetti v.

Quarterman, 551 U.S. 930, 953 (2007). On de novo review,

we hold that Dickey is entitled to relief.

We therefore reverse and remand to the district court

with instructions to grant a conditional writ of habeas corpus

as to the jury’s special-circumstances findings and

imposition of the death penalty. We deny relief on Dickey’s

DICKEY V. DAVIS 7

guilt-phase claims and do not reach his remaining penalty-

phase claims.

I

A

Marie Caton and Louis Freiri were attacked at Caton’s

Fresno, California residence in November 1988. People v.

Dickey, 111 P.3d 921, 928 (Cal. 2005). Caton’s daughter,

Lavelle Garratt, went to check on her mother on November

8 and discovered Caton unconscious in her bedroom. Id.

Caton had been beaten and had multiple stab wounds. Id.

She died of her injuries eleven days later. Id. Garratt found

Freiri dead from stab wounds in the archway between the

dining room and the living room. Id. When the police

arrived, they discovered two suspicious knives in Caton’s

kitchen and a venetian blind cord wrapped around Freiri’s

neck. Id. The venetian blinds in Caton’s house were all

intact, and no usable fingerprints were found at the scene of

the crime. Id. at 928 & n.2. Garratt told the police that she

suspected her son, Richard Cullumber, had attacked Caton

and Freiri. Id. at 928. Garratt explained that Cullumber was

a drug addict who frequently asked Caton for money, and

that Caton was known to hide large amounts of cash

throughout her house. Id.

Cullumber lived in an apartment on Harvard Avenue in

Fresno with Dickey and four other roommates, including

Gail Goldman and Richard Buchanan. Id. Cullumber’s

roommates told the police that Cullumber had packed a bag

and left the apartment on the night of the murders. Id. Five

days later, Cullumber commandeered a car after the police

tried to stop him, warning the driver: “I need the car; I’ve

already killed a woman.” Id. He was cornered after a high-

8 DICKEY V. DAVIS

speed chase and killed himself with a pistol registered to

Freiri. Id.

Several months after the murders, Buchanan saw a flyer

at a convenience store announcing that Caton’s relatives

were offering a $5,000 reward for information leading to

conviction of the perpetrator of the murders.1 Id. at 929 n.3,

930–31, 937. Buchanan left his name with the store clerk,

and he was put in touch with Detective Doug Stokes. Id. at

930–31. Buchanan told Stokes that Dickey had been

involved in the murders, and Stokes circled back to the

Harvard Avenue apartment to continue his investigation.

Stokes spoke to Goldman, who had initially denied knowing

anything about the murders. Id. at 930. This time, she

shared more information about events that night. Id. at 929–

30.

Goldman died before the trial began, but her sworn

testimony from Dickey’s preliminary hearing was read into

the record at trial.2 Id. at 929 n.4. In her preliminary hearing

testimony, Goldman said that on the night of the murders she

saw Cullumber take a venetian blind out of the hall closet in

their apartment and go into the bedroom with it. Id. at 929.

Later, she noticed the blind had been returned to the closet

and a blind in the bedroom was missing a cord. Id. Goldman

said that she saw Dickey walk into the kitchen that same

night and open a drawer. Id. She initially testified that

Dickey looked in a knife-and-silverware drawer, but she

1

The reward was originally $3,000 but was later raised to $5,000.

2

The State also presented testimony from Detective Stokes, who gave

his account of what Goldman told him during the investigation. Id. at

929. Stokes’s version of Goldman’s account differed from Goldman’s

own testimony in several respects. See infra Part IV.C.

DICKEY V. DAVIS 9

later clarified that she did not see which drawer Dickey had

opened. Id. at 929 & n.5. According to Goldman, Dickey

and Cullumber soon left the apartment. Id. at 929. Goldman

believed the men had no money when they left because

Cullumber had asked her for money to buy cigarettes. Id.

When the two men returned to the apartment later that

evening, Cullumber packed his bags, gave Goldman $40 or

$50 in cash to repay a debt, and left. Id. Goldman testified

that when Detective Stokes showed her one of the knives

found at Caton’s home, she told him, “I have a knife exactly

like that knife, or they are twins[,] . . . . [b]ut mine is in

storage with all my stuff that I have in storage.” When the

prosecutor followed up by asking whether she had “a knife

exactly like that in the apartment on Harvard,” Goldman

responded, “I -- yes,” without specifying when the knife was

at the apartment or whether it was at the apartment but in

storage on the night of the murders.

Goldman also testified that she and Dickey were

watching the news together shortly after the murders and

saw a story reporting that Freiri was dead and Caton was still

alive but near death. Id. Dickey became upset and told

Goldman that he wanted to talk to her in the bedroom, and

Buchanan followed them. Id. In the bedroom, Dickey told

Goldman that he had accompanied Cullumber to Caton’s

house to “help [him] get the money,” but he had nothing to

do with the two murders. Id. (alteration in original).

Goldman recalled Dickey saying that Cullumber had assured

him “nothing was going to happen,” and that at Caton’s

house, Dickey searched for money in Caton’s bedroom with

Caton present. Id. When Dickey stepped out of Caton’s

bedroom, he saw Freiri slumped over in a chair in the living

room and “knew something had happened.” Id. Cullumber

then “went beserk” and “came into the bedroom and started

10 DICKEY V. DAVIS

beating up on [Caton].” Id. The two men found $700, which

they split. Id.

Dickey was charged in Fresno County Superior Court

with robbery, burglary, and aiding and abetting murder.

Dickey v. Davis, 231 F. Supp. 3d 634, 653 (E.D. Cal. 2017).

He pled not guilty to all the charges. Id. There was no

physical evidence linking Dickey to the crime scene and no

living witnesses to the crime. The State did not argue at trial

that Dickey killed Caton or Freiri. It argued only that he was

guilty under an aiding-and-abetting theory. Id. at 714–15.

The State sought the death penalty and alleged a number of

special circumstances that allowed imposition of the death

penalty under California law. See Cal. Penal Code

§ 190.2(a)(3), (17)(A) & (G). The jury was instructed that

in order to find any of the special circumstances true, it must

find that Dickey “intended either to kill a human being or to

aid another in the killing of a human being.”

B

Goldman’s preliminary hearing testimony was read to

the jury, but her death left Buchanan as the State’s primary

living witness at trial.

Buchanan’s trial testimony mirrored Goldman’s

preliminary hearing testimony in some respects. He too

testified that Dickey and Cullumber left the apartment on the

night of the murders, that they had no money when they left

but had money when they returned, and that Dickey saw a

news story about the crime a couple days later and admitted

that he had been involved in the robbery. Dickey, 111 P.3d

at 930.

But in key respects, Buchanan’s testimony was much

more incriminating than Goldman’s. He testified that it was

DICKEY V. DAVIS 11

Dickey, not Cullumber, who removed a cord from a venetian

blind in the apartment on the night of the murders. Id. He

also told the jury that when he looked into the bedroom after

Dickey had returned a blind to the closet that night, he saw a

knife identical to Goldman’s on the bed. Id. Buchanan

added that when Dickey and Cullumber had returned to the

apartment, Dickey asked Buchanan to take him and

Cullumber for a drive. Id. According to Buchanan, Dickey

threw a pair of shoes and his jacket out the car window

during the drive. Id.

Buchanan described following Goldman and Dickey into

a bedroom at the Harvard Avenue apartment a couple days

after the murders and hearing Dickey tell Goldman that:

him and [Cullumber] had been over to

[Cullumber]’s grandmother’s house, and that

they had entered the house -- how he had

done it, how he had walked up to the door,

knocked, faked like [Cullumber] was going

to be in jail, needed to use the phone, and then

[Cullumber] sneaked in, they were supposed

to tie him them [sic] up, get this money and

everything. And while [Dickey] is

supposedly in the bedroom looking for the

money he hears a commotion, looked out the

bedroom door, sees an elderly man with his

head slumped down, considers him dead, and

that if you kill one you might as well kill them

both.

When asked to clarify what he meant by the last statement,

Buchanan said, “[Dickey] said that he—only what he

thought, he didn’t say what he did. He said that, ‘If you kill

12 DICKEY V. DAVIS

one you might as well kill them both.’” Id. According to

Buchanan, Dickey “didn’t say he said it to [Cullumber], he

just said it as that was his opinion.” Id. Notably, in

Goldman’s preliminary hearing testimony recounting the

conversation she had with Dickey in the bedroom of the

Harvard Avenue apartment, she said nothing at all about

Dickey making this statement.

The jury heard testimony explaining that Buchanan did

not come forward until he saw a flyer announcing the

reward, several months after he heard Dickey’s conversation

with Goldman. Id. Buchanan testified that he came forward

because of his Christian upbringing, not because of the

reward money. Id. at 931. However, in her preliminary

hearing testimony, Goldman said that Buchanan told her he

intended to turn in Dickey so that he could collect the

reward. Id. at 930. The jury also heard testimony from

Dickey, Goldman, and the defense investigator that Dickey

and Buchanan strongly disliked each other. Id. at 931. The

defense investigator testified that Buchanan mentioned his

dislike for Dickey every time they met, and Dickey and

Buchanan both testified that Buchanan was particularly

angry with Dickey because Dickey had torn up the only

photo Buchanan had of his youngest daughter. Id. Adding

to his credibility problems, Buchanan admitted at trial that

he frequently used heroin and cocaine, that he had used

drugs an hour or two before he heard Dickey admit his

involvement in the robbery, and that he had continued using

drugs as recently as the day before his trial testimony.

C

The prosecutor, Ken Hahus, labored throughout the trial

to mitigate Buchanan’s credibility issues. To buttress

Buchanan’s credibility, Hahus asked Buchanan to confirm

DICKEY V. DAVIS 13

on re-direct examination that he was aware of California

Penal Code § 128, which provides that “[e]very person who,

by willful perjury or subornation of perjury procures the

conviction and execution of any innocent person, is

punishable by death or life imprisonment without possibility

of parole.” At Hahus’s request, the trial court took judicial

notice of that statute and read it aloud to the jury.

Immediately after the trial court read § 128 aloud, Hahus

asked Buchanan about his interactions with defense

investigator Melvin King and whether King ever bought him

anything. Buchanan testified that King bought him beer on

about three occasions, lunch, and a pair of shoes. Hahus then

asked Buchanan leading questions that compared

Buchanan’s interactions with King to Buchanan’s

interactions with the district attorney’s office:

Q. At anytime have you spoken with anybody

who’s told you they were from my office, from

the D.A.’s Office?

A. No, sir, only when they’ve come to pick

me up for court.

Q. You’ve talked to me a couple of times; is

that right?

A. Yes, sir.

Q. At anytime have the folks who’ve come to

pick you up from my office or me, have we

bought you anything?

A. Not a single thing, sir.

Hahus and Buchanan both knew this testimony was

false, but Hahus made no move to correct it. Instead, in his

14 DICKEY V. DAVIS

closing argument, Hahus reminded the jury of this

testimony, emphasizing that King, the defense investigator,

was the “only investigator who supplied Buchanan with

money or alcohol.” In line with Buchanan’s false testimony

that Buchanan and Hahus had met only “a couple of times,”

Hahus also argued in closing that “[i]t’s pretty clear

Buchanan was not prepared to testify, that he was not

scripted to testify.”

Hahus also acknowledged in his closing argument that

there were multiple reasons to doubt Buchanan’s word. But

he gave the jury his own opinion of Buchanan’s truthfulness:

“Do you think Gene Buchanan would lie for $5,000?

Maybe. Do you think Gene Buchanan would lie to send a

man to prison? I don’t think so.” Dickey’s lawyer objected,

and the judge duly instructed the jury to ignore Hahus’s

statement.

Hahus then emphasized to the jury that Buchanan knew

that under § 128 he could face life in prison or the death

penalty for perjuring himself in a capital case. Hahus told

the jury that Buchanan was a “street-wise,” “con-wise” drug

addict, and a “hype” who used hypodermic needles. But

Hahus argued that Buchanan still “deserves to have you

listen to what he says when he comes into this courtroom”:

He’s still a street person, he’s still a con, he

didn’t change just because he heard a man

admit to burglary, robbery and murder; he’s

still the same man. But that doesn’t mean

that the truth cannot come out of the mouth of

a drug addict. It can come out of the mouth

of a drug addict just as well as it can come

out of the mouth of a priest.

DICKEY V. DAVIS 15

***

Do you think Gene Buchanan would lie to

send a man to prison? Perhaps. Do you

think Gene Buchanan would lie to send a man

to prison that he doesn’t like? Even more

perhaps. Do you think Gene Buchanan

would lie to send a man to prison behind a

murder charge where Gene Buchanan

himself could face a capital case for it?

There’s honor among thieves. There’s also

something else; some things are more

important than others, and even though he

might be a sleazy hype, do you really think he

made all this up for 5,000 bucks when it’s this

serious?

The jury convicted Dickey of two counts of robbery, one

count of burglary, and two counts of felony murder. It also

found true several special circumstances: (1) felony-murder

robbery; (2) felony-murder burglary; and (3) multiple

murder. Dickey, 231 F. Supp. 3d at 653. At the penalty

phase, defense counsel presented no mitigation evidence but

argued that Dickey did not deserve the death penalty because

the State’s theory of the case was limited to Dickey acting as

an aider and abettor. The jury imposed the death penalty.

II

After Dickey was sentenced, the trial court appointed

substitute counsel to represent him. Id. His new counsel

filed motions for a new trial and to modify the verdict. Id.

The motions argued that Buchanan’s testimony concerning

whether the prosecution provided him favors had been false

and misleading.

16 DICKEY V. DAVIS

At the hearing on Dickey’s motion for a new trial, the

defense team discovered that the prosecution had known

Buchanan gave false testimony, and rather than correcting it,

the prosecutor had used it in his closing argument. Dickey

learned that it had been the State’s investigator who arranged

a deal with the proprietor of a local boarding house to

provide room and board for Buchanan pending receipt of the

reward for his trial testimony. The jury had heard that

Buchanan was living in a boarding house on credit, but it did

not know that the State had brokered the arrangement.

The defense team also learned from Hahus that he had

met with Buchanan “probably a dozen times before the

trial,” not “a couple of times” as Hahus had posited in the

leading question he had posed to Buchanan.

Hahus further disclosed at the post-trial hearing that

Buchanan had lied to him about a consequential matter

during their very first phone call. Hahus testified that

Buchanan called him approximately a year and a half before

trial and said that he had failed to appear at a hearing on

felony drug charges. Buchanan wanted to know if a warrant

had issued for his arrest and, if so, whether Hahus could get

it withdrawn. Hahus recalled Buchanan telling him that he

and his lawyer had met with Barbara Dotta, the prosecutor

handling Buchanan’s felony drug case, that Dotta had agreed

to dismiss the charges against Buchanan because he was “a

prime witness in the Dickey case,” and that Dotta

purposefully kept this agreement off the record so Dickey’s

counsel would not know about it.

Hahus testified that he “came unglued” after receiving

this call from Buchanan and “began yelling at [Buchanan]

that that was a load of BS,” that no deal had been made, and

that any deals made with witnesses in the Dickey trial would

DICKEY V. DAVIS 17

go through Hahus. Hahus testified that he “was a little

peeved, frankly, that [Buchanan] thought [he] was so big of

an idiot that [he] would believe [Buchanan] telling [him] that

another DA had made some type of deal and was

purposefully trying to keep it from a defense attorney.”

Hahus took notes about this conversation with Buchanan but

testified that he did not disclose them to Dickey’s counsel

until “shortly before the hearing on the motion for a new

trial.” Dickey, 111 P.3d at 937.

Based on this newly discovered evidence and

information, Dickey argued that the prosecutor had

knowingly solicited and used false testimony in violation of

Napue, 360 U.S. 264, and also failed to disclose favorable

material evidence in violation of Brady, 373 U.S. 83. The

trial court denied the motion for a new trial without

addressing whether the State’s knowing use of false

testimony might have affected the jury’s decision. Dickey,

111 P.3d at 944. Instead, the court focused on whether

Buchanan had created a false impression in the minds of the

jury about whether the State bought him anything. The trial

court reasoned that the State “only acted as a conduit” and

had not been involved in providing the benefit Buchanan

received from the boarding house arrangement. Dickey, 231

F. Supp. 3d at 750. The court did not discuss Buchanan’s

false testimony that he had met with Hahus only a couple of

times. Dickey’s post-trial motions were denied, and he was

sentenced to death in 1992. See id. at 653–54.

In 2005, the California Supreme Court considered

Dickey’s direct appeal, which included his Napue and Brady

claims. Dickey, 111 P.3d 921. It affirmed his conviction and

sentence. Id. Dickey also raised these claims in his first state

habeas petition, which the California Supreme Court denied.

The court denied the claims on the merits and also stated that

18 DICKEY V. DAVIS

they were barred because they had been raised and rejected

on direct appeal.3

Dickey filed his federal habeas petition in 2007. The

district court denied relief on his guilt-phase claims in 2017,

Dickey, 231 F. Supp. 3d 634, and denied relief on his

penalty-phase claims in 2019, Dickey v. Davis, No. 1:06-cv-

00357-AWI-SAB, 2019 WL 4393156 (E.D. Cal. Sept. 13,

2019). The court granted a certificate of appealability

(COA) as to whether the prosecution knowingly used false

evidence in violation of Napue and failed to disclose

favorable impeachment evidence in violation of Brady

(Claim XIII).4 Id. at *153. Dickey timely appealed the

district court’s rulings. We have jurisdiction pursuant to 28

U.S.C. § 1291 and § 2253(a).

III

We review de novo a district court’s denial of habeas

relief. Avena v. Chappell, 932 F.3d 1237, 1247 (9th Cir.

2019). Because Dickey filed his federal habeas petition after

3

Dickey argues that, because the California Supreme Court denied his

first state habeas petition summarily, there was no adjudication on the

merits, and this court should review his claim de novo. This is incorrect.

The California Supreme Court expressly stated that all of Dickey’s

claims were denied on the merits, and the Supreme Court has held that a

state court’s unexplained denial is assumed to be an adjudication on the

merits. See Cullen v. Pinholster, 563 U.S. 170, 187–88 (2011);

Harrington v. Richter, 562 U.S. 86, 100 (2011).

4

The district court also granted a COA on whether counsel was

ineffective for intentionally seeking to empanel a pro-death jury (Claim

I); whether counsel was ineffective for failing to investigate and impeach

Buchanan (Claim II(E)); and whether the trial court should have held a

Marsden hearing and whether counsel should have withdrawn from his

representation of Dickey (Claims V and II(I)). Dickey, 2019 WL

4393156, at *153.

DICKEY V. DAVIS 19

April 24, 1996, the Antiterrorism and Effective Death

Penalty Act (AEDPA) applies. See Pub. L. No. 104-132,

110 Stat. 1214 (1996). AEDPA prohibits a federal court

from granting a petition for a writ of habeas corpus unless

the state court’s decision was “contrary to, or involved an

unreasonable application of, clearly established Federal law

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

or the state court’s decision “was based on an unreasonable

determination of the facts in light of the evidence presented

in the State court proceeding.” 28 U.S.C. § 2254(d)(1)–(2).

“In determining whether a state court decision is contrary

to federal law, we look to the state’s last reasoned decision .

. . as the basis for its judgment.” Avila v. Galaza, 297 F.3d

911, 918 (9th Cir. 2002). When there is no reasoned state-

court decision addressing a habeas claim, there is a

rebuttable presumption that the state court adjudicated the

claim on the merits. See Harrington, 562 U.S. at 99–100. In

that circumstance, federal courts must consider what

arguments could have supported the state court’s decision

and then ask whether it is possible fairminded jurists could

disagree that those arguments or theories are inconsistent

with a prior Supreme Court holding. See id. at 102.

A state court’s decision is contrary to clearly established

federal law if it “‘applies a rule that contradicts the

governing law set forth in [Supreme Court] cases’ or if it

‘confronts a set of facts that are materially indistinguishable

from a decision of [the Supreme] Court and nevertheless

arrives at a result different from [this] precedent.’” Cook v.

Kernan, 948 F.3d 952, 965 (9th Cir. 2020) (alterations in

original) (quoting Williams v. Taylor, 529 U.S. 362, 405–06

(2000)). “Clearly established federal law” refers to the

Supreme Court’s holdings “as of the time of the relevant

state-court decision.” Avena, 932 F.3d at 1247 (alterations

20 DICKEY V. DAVIS

omitted) (quoting Lockyer v. Andrade, 538 U.S. 63, 71

(2003)). Circuit precedent does not clearly establish federal

law for purposes of § 2254(d)(1). Marshall v. Rodgers, 569

U.S. 58, 64 (2013). If a petitioner overcomes the §

2254(d)(1) bar by showing the state court’s decision was

contrary to clearly established federal law, “he must also

demonstrate that he is entitled to relief without the deference

required by AEDPA.” Jones v. Ryan, 52 F.4th 1104, 1115

(9th Cir. 2022); see also Johnson v. Williams, 568 U.S. 289,

303 (2013).

IV

Before the California Supreme Court, Dickey argued that

the State violated Napue by presenting and failing to correct

false or misleading testimony. Specifically, Dickey argued

that the prosecutor elicited false testimony from Buchanan

that: (1) the State had not provided any favors to Buchanan;

and (2) Buchanan met with Hahus only “a couple of times”

prior to trial. The California Supreme Court agreed that

Buchanan’s testimony created the false impression that the

prosecution had not provided him any favors, but it did not

address Buchanan’s testimony concerning the number of

pretrial meetings he had with Hahus. Dickey, 111 P.3d at

937–38. The court decided the State’s Napue violation

regarding favors was not material, reasoning that the

prosecutor’s failure to correct Buchanan’s testimony could

not have made a difference at trial. Id. at 938.

For nearly ninety years, it has been established Supreme

Court precedent that a conviction violates due process if it is

obtained through knowing presentation of perjured

testimony. See Mooney v. Holohan, 294 U.S. 103, 112–13

(1935) (per curiam). In 1957, the Supreme Court held that a

prosecutor’s failure to correct a material false impression

DICKEY V. DAVIS 21

also violates due process. See Alcorta v. Texas, 355 U.S. 28,

31 (1957) (per curiam). Dickey’s habeas petition

specifically invokes Napue, in which the Supreme Court

established that a conviction is invalid if the State is aware

of a material falsity and fails to correct it, regardless of

whether the State intentionally solicited the false evidence or

testimony. See Napue, 360 U.S. at 269–70. This is so

because the State’s knowing use of false testimony prevents

“a trial that could in any real sense be termed fair.” Id. at

270 (quoting People v. Savvides, 136 N.E.2d 853, 855 (N.Y.

1956)). “The principle that a State may not knowingly use

false evidence, including false testimony, to obtain a tainted

conviction . . . does not cease to apply merely because the

false testimony goes only to the credibility of the witness.”

Id. at 269.

To prevail on his Napue claim, Dickey bore the burden

of showing that: “(1) testimony (or evidence) was actually

false, (2) the prosecution knew or should have known that

the testimony was actually false, and (3) . . . the false

testimony was material.” Hayes v. Brown, 399 F.3d 972,

984 (9th Cir. 2005) (en banc) (alteration in original) (quoting

United States v. Zuno-Arce, 339 F.3d 886, 889 (9th Cir.

2003)); see Napue, 360 US. at 269–71. The Supreme Court

has repeatedly acknowledged that the introduction of false

testimony is corrosive to the “truth-seeking function” of our

adversarial system. United States v. Agurs, 427 U.S. 97,

103–04, 103 n.8 (1976) (collecting cases). The Court has

thus explained that the materiality analysis for a Napue

violation requires that a conviction “must be set aside if there

is any reasonable likelihood that the false testimony could

have affected the judgment of the jury.” Id. at 103–04

(emphasis added); see also Giglio v. United States, 405 U.S.

150, 154 (1972).

22 DICKEY V. DAVIS

Napue’s materiality standard is considerably less

demanding than the standard for Brady claims, which

requires that a petitioner show “there is a reasonable

probability that, had the evidence been disclosed to the

defense, the result of the proceeding would have been

different.” Strickler v. Greene, 527 U.S. 263, 280 (1999)

(emphasis added) (quoting United States v. Bagley, 473 U.S.

667, 682 (1985) (opinion of Blackmun, J.)). The Supreme

Court has explained that Napue’s materiality threshold is

lower “not just because [Napue cases] involve prosecutorial

misconduct, but more importantly because they involve a

corruption of the truth-seeking function of the trial process.”

Agurs, 427 U.S. at 104; see also Mooney, 294 U.S. at 113

(“[A] deliberate deception of court and jury by the

presentation of testimony known to be perjured . . . is as

inconsistent with the rudimentary demands of justice as is

the obtaining of a like result by intimidation.”). Napue’s

more lenient materiality standard, and the Supreme Court’s

explanation of the rationale for this standard, are pivotal to

the decision we reach in Dickey’s appeal.

A

Dickey argues that the California Supreme Court recited

the correct legal standard for his Napue claim, but based its

decision on an incomplete assessment of Buchanan’s false

testimony, a misapplication of the Napue materiality

standard, and an unreasonable determination of the facts.5

5

Dickey argues that the California Supreme Court’s decision was

premised on an unreasonable determination of the facts because the court

“substantially and unreasonably misstated its factual record regarding

the extent of Buchanan’s indebtedness [to Margie Strickland, who

operated the boarding house at which he was staying].” Because we

DICKEY V. DAVIS 23

As recounted above, to buttress Buchanan’s credibility

before the jury, Hahus asked Buchanan to confirm on re-

direct examination that he was aware of California Penal

Code § 128. Hahus then requested that the trial court read

that statute aloud to the jury6 and immediately followed the

court’s reading with a series of leading questions designed

to contrast Buchanan’s interactions with defense

investigator King against his contacts with the district

attorney’s office:

Q. At anytime have you spoken with anybody

who’s told you they were from my office, from

the D.A.’s Office?

A. No, sir, only when they’ve come to pick

me up for court.

Q. You’ve talked to me a couple of times; is

that right?

A. Yes, sir.

Q. At anytime have the folks who’ve come to

pick you up from my office or me, have we

bought you anything?

A. Not a single thing, sir.

grant relief on Dickey’s penalty-phase Napue claim on other bases, we

do not reach this argument.

6

The trial court stated: “The court will take judicial notice of Penal Code

Section 128. Ladies and -- members of the jury: Penal Code Section 128

provides as follows, and I quote: ‘Every person who, by willful perjury

or subornation of perjury procures the conviction and execution of any

innocent person, is punishable by death or life imprisonment without

possibility of parole. The penalty shall be determined pursuant to

Sections 190.3 and 190.4.’”

24 DICKEY V. DAVIS

Unbeknownst to the jury, this testimony was false—and

the State knew it. It was not until the post-trial hearing on

Dickey’s motion for a new trial that the State’s investigator,

Willie Martin, revealed that Buchanan contacted Martin

because he “needed food and a place to stay” after he had

been released from jail for an unrelated drug charge in March

1989 and wanted to know what the district attorney’s office

could do to help him. The district attorney’s office had no

funds available to assist Buchanan with housing, but Martin

was aware of the $5,000 reward. Martin contacted Margie

Strickland, a boarding house operator, and asked whether

she would consider allowing Buchanan to stay at her

boarding house and forego paying rent until he received the

anticipated reward. Strickland agreed, and Martin

memorialized the agreement on the Fresno District

Attorney’s Office letterhead. Buchanan signed the

agreement, and Martin and another district attorney’s office

employee witnessed it. Strickland periodically sent running

tallies to Martin at the district attorney’s office indicating

how much money Buchanan owed her. These tallies

included sums for separate loans totaling several hundred

dollars that Strickland made to Buchanan for incidentals like

cigarettes and “personal needs.”7 At the post-trial hearing

on Dickey’s motion for a new trial, Hahus conceded that

when he questioned Buchanan at trial, he was aware of

Buchanan’s housing arrangement and Martin’s role in

brokering the agreement. Dickey, 111 P.3d at 938. Hahus

also revealed that he had “probably a dozen” pretrial

7

After the trial court heard at the post-trial hearing that the district

attorney’s office had arranged housing for Buchanan, the court stated,

“That’s a favor.” The prosecutor conceded, “Well, sure it’s something,

yeah, absolutely, absolutely.”

DICKEY V. DAVIS 25

meetings with Buchanan, not the “couple of” meetings he

posited in the questions he had posed to Buchanan at trial.

B

The last reasoned state-court decision addressing

Dickey’s Napue claim is the California Supreme Court’s

decision denying his direct appeal. Dickey, 111 P.3d at 936–

38. The court rejected Dickey’s Napue claim based on

Buchanan’s false and misleading testimony that personnel

from the prosecutor’s office had not bought him “a single

thing.” Id. at 937–38. Focusing on the trial colloquy in

which Hahus elicited responses to contrast the favors

Buchanan received from the defense (beer on three

occasions, lunch, and a pair of shoes) with the benefits

provided to Buchanan by the prosecution, the court agreed

that the prosecutor had knowingly created the false

impression “that unlike the defense, the prosecution had

done nothing for Buchanan that might reflect on his

credibility.” Id. The California Supreme Court observed

that the prosecutor “sought to exploit the false impression he

had created” in his closing argument, but concluded that

Dickey had not met his burden of showing the false

testimony was material. Id. at 937–38. The court reasoned,

“in light of other information the jury had about Buchanan’s

arrangement with the proprietor of the boarding house, as

well as other indications of his interest in obtaining the

reward, the prosecutor’s action was harmless beyond a

reasonable doubt.” Id. at 937; see also Bagley, 473 U.S. at

679–80, 679 n.9 (opinion of Blackmun, J.). The court did

not mention Buchanan’s false testimony that he had met with

Hahus only “a couple of times.”

In a separate section of its decision discussing Dickey’s

challenge to the sufficiency of the evidence supporting the

26 DICKEY V. DAVIS

special circumstances, the California Supreme Court also

observed that “Buchanan’s testimony as to [Dickey’s]

statement did not occur in a vacuum.” Dickey, 111 P.3d at

934. The court concluded there was other evidence

sufficient to support an intent-to-kill finding, although the

prosecution did not rely on it. Id. The court explained:

Under the evidence, the jury was entitled to

reach the following conclusions: The cord

found around Mr. Freiri’s neck came from

the venetian blind in defendants [sic]

apartment, and defendant was responsible for

bringing it to Mrs. Caton’s house. Defendant

was also responsible for bringing the knife

used to stab Mrs. Caton and Mr. Freiri.

Defendant knew his intended victims were

elderly and that Mr. Freiri was partially

paralyzed, and so he could not have believed

he and Cullumber, both younger men, needed

the knife to commit the robberies. Therefore,

defendant intended to kill, and not just rob,

Mrs. Caton and Mr. Freiri. Moreover,

defendant knew he could not escape justice if

Mr. Freiri were left alive. Defendant had

gained entry by saying he needed to use the

phone because Cullumber was going to jail.

Even if Mr. Freiri did not recognize

defendant, he must have known Cullumber,

who was an almost daily visitor to his

grandmother’s home. Mr. Freiri would have

led the police to Cullumber, and Cullumber

would have led them to defendant.

Id.

DICKEY V. DAVIS 27

Though the decision on Dickey’s direct appeal did not

address the Napue claim premised on the number of pretrial

meetings Buchanan had with Hahus, id., the State did not

contest at oral argument before our court that the prosecutor

knowingly failed to correct Buchanan’s false or misleading

testimony that he met with Hahus only “a couple of times”

before trial. We therefore assume the California Supreme

Court denied Dickey’s Napue claim regarding Buchanan’s

pretrial meetings with Hahus on the merits, see Cullen, 563

U.S. at 187–88; Richter, 562 U.S. at 99–100, and in light of

Hahus’s post-trial testimony that he met with Buchanan

“probably a dozen times before the trial,” we assume the

California Supreme Court relied on materiality.8

8

Contrary to its position at oral argument, the State’s brief suggests

Hahus had no duty under Napue to correct Buchanan’s statement that

personnel from the prosecutor’s office had not given him “a single

thing.” This suggestion seems to be premised on the theory that because

the State had produced the housing agreement, defense counsel could

have cross-examined Buchanan and established that his testimony was

false. The only authority the State cites for its argument that “failure to

disclose” is a “necessary part of [a] Napue claim” is a footnote in Imbler

v. Pachtman, 424 U.S. 409 (1975). In that footnote, the Supreme Court

merely made the point that Napue violations can be reframed as Brady

violations if the prosecution does not disclose evidence that shows

testimony is false. See Imbler, 424 U.S. at 431 n.34. The State’s

suggestion that there was no Napue violation here is unsupported by

Supreme Court authority and contrary to our decision in United States v.

LaPage, 231 F.3d 488, 492 (9th Cir. 2000) (“[T]he government’s duty

to correct perjury by its witnesses is not discharged merely because

defense counsel knows, and the jury may figure out, that the testimony

is false.”). See also Soto v. Ryan, 760 F.3d 947, 968 n.11 (9th Cir. 2014);

Sivak v. Hardison, 658 F.3d 898, 909 (9th Cir. 2011); United States v.

Alli, 344 F.3d 1002, 1007 (9th Cir. 2003). We agree with the California

Supreme Court’s conclusion that the prosecutor did not fulfill his duty to

correct Buchanan’s false and misleading testimony. See Napue, 360

U.S. at 269–70.

28 DICKEY V. DAVIS

C

Two backdrops inform our analysis of Dickey’s penalty-

phase Napue claims. The first is the egregious lie Buchanan

told Hahus, months before trial, that another prosecutor in

Hahus’s office had agreed to drop felony charges against

him and keep that deal off the record so Dickey’s counsel

would not learn of it. The prosecutor’s failure to produce his

notes of their conversation is the basis of one of Dickey’s

Brady claims. The episode is a critical backdrop to the

Napue claim because it put Hahus on notice that Buchanan

was willing to lie if doing so served his own interests, even

if the lie concerned a matter of considerable importance and

even if the lie would inevitably be discovered.

The second backdrop for Dickey’s Napue claims is the

undeniable centrality of Buchanan’s testimony to the State’s

special-circumstances case. The State’s case for imposition

of the death penalty depended on showing that Dickey

harbored an intent to kill, and by Hahus’s admission, “[t]he

special circumstance finding came from the testimony of

Buchanan.” Dickey points to the State’s thin circumstantial

evidence of his role, and argues that the entire basis for the

State’s argument that he harbored an intent to kill was

Buchanan’s testimony attributing to Dickey the thought: “if

you kill one you might as well kill them both.” Buchanan

was clear that this was something Dickey thought, not

something he said when the crimes were committed, but the

meaning and circumstances under which Dickey allegedly

had this thought were never explained. Importantly,

Goldman’s account of the conversation she had with Dickey

in the bedroom of the Harvard Avenue apartment made no

mention of Dickey expressing this thought.

DICKEY V. DAVIS 29

The importance of Buchanan’s testimony was not lost on

the trial court. In response to Dickey’s mid-trial motion for

acquittal based on insufficient evidence, the court discussed

with counsel whether Buchanan’s testimony regarding

Dickey’s thought was sufficient by itself to show intent to

kill. In response, Hahus initially pointed to evidence that

either Cullumber or Dickey took weapons with them on the

night of the murder and argued such evidence also “clearly

show[ed] intent to kill.” But Hahus backtracked moments

later and clarified that he “misspoke” and that “[t]he physical

evidence [was] not directed at the intent to kill” but rather

“show[ed] an aiding or abetting in the deaths.” Before our

court, however, the State backtracks again and argues that

the California Supreme Court reasonably relied on both the

physical evidence and Goldman’s testimony as supporting

the State’s case that Dickey acted with the requisite intent to

kill.

There is no question the State’s case that Dickey acted

with intent to kill was weak and circumstantial. There was

no direct testimony or physical evidence of Dickey’s

involvement in the killing of either Caton or Freiri. The

State identified Dickey’s thumbprint on a blind collected

from the Harvard Avenue apartment, but it is neither

surprising nor incriminating that Dickey’s thumbprint would

be found on a blind taken from the home where he lived,9

and the State’s expert was unable to conclude a cord sample

9

Investigator Mike Hall was able to locate and lift only one identifiable

fingerprint from a slat on the venetian blind, and it matched Dickey’s

thumbprint. Dickey testified that his thumbprint was on the slat of the

blind because he picked it up when it fell off the door and he placed it in

the hall closet.

30 DICKEY V. DAVIS

from the Harvard Avenue apartment blinds matched the cord

used in the crime.

The circumstantial evidence that Dickey took a weapon

to Caton’s house was scant and contradicted. Detective

Stokes testified that Goldman told him she saw Dickey

remove a knife from the silverware drawer on the night of

the murders, but the jury heard Goldman’s testimony that she

saw Dickey look in a drawer, that she was not sure which

drawer, and that there was nothing unusual about Dickey’s

behavior. Goldman did not testify that she saw Dickey take

a knife—or anything else—from the kitchen drawer on the

night of the murders. Buchanan testified that the knife found

at Caton’s house looked similar to one Goldman owned and

that he had last seen that knife lying on a bed at the Harvard

Avenue apartment. This certainly implied that the knife used

in the murders may have come from the Harvard Avenue

apartment, but Buchanan’s statement about the knife does

not account for Goldman’s sworn testimony that she told

Stokes that: “[My knife] is in storage with all my stuff that I

have in storage.”10

Worse for the State, Detective Stokes testified that

Goldman told him Dickey retrieved a blind from the hall

closet on the night of the murders, but the jury heard

Goldman’s recorded pretrial testimony that she saw

Cullumber, not Dickey, get a blind out of the hall closet and

take it into the bedroom. Detective Stokes’s testimony also

conflicted with Goldman’s concerning the origin of the

missing cord; he testified that Goldman told him the blind

from the hall closet was missing a cord, but Goldman

10

The California Supreme Court’s opinion did not mention Goldman’s

testimony that her knife was in storage. See Dickey, 111 P.3d at 928–29.

DICKEY V. DAVIS 31

testified the blind from the bedroom was missing a cord.

And as explained, the jury heard criminalist Gary Cortner

testify that he could not conclude the cord found at the crime

scene was the same cord or from the same spool as any of

the samples taken from the blinds at the Harvard Avenue

apartment.

The record provides little support for the State’s

argument that Goldman’s testimony provided evidence that

Dickey acted with intent to kill. Much of Goldman’s actual

testimony was not favorable to the prosecution, and the State

relied heavily on Detective Stokes’s account of what

Goldman told him about the night of the murders. See

Dickey, 111 P.3d at 929. Stokes’s testimony was

problematic for the State, not only because it was

contradicted in several key respects by Goldman’s pretrial

testimony, but also because Stokes was forced to retract

some of it. Most notably, the jury heard Stokes testify in

some detail that Goldman told him she overheard Cullumber

and Dickey talking about an “easy ripoff” and “money being

hid” while getting dressed to go out together on the night of

the murders. But Stokes acknowledged on cross-

examination that Goldman had never said these things and

abruptly recanted this part of his testimony:

Q. And yesterday you testified that she -- that

she said she heard them talk about an easy

ripoff?

A. Yes.

Q. That’s not in your report, is it?

A. Not in this area, no.

32 DICKEY V. DAVIS

Q. Is it -- attributed as a statement from Gail

[Goldman], is that in your report anywhere?

A. No.

Q. Gail [Goldman] didn’t say that, did she?

A. No.

Q. Gail [Goldman] didn’t say she saw

anybody getting dressed to go out, did she?

A. Getting dressed to go out?

Q. Yeah, putting on hats and gloves and stuff

like that?

A. No.

Q. That was your testimony yesterday,

wasn’t it?

A. Yes.

Q. That was wrong, wasn’t it?

A. Yes.

In short, this is not a case in which the State’s star witness

had credibility problems that were rendered harmless by

physical evidence or the testimony of other witnesses.

Buchanan’s ambiguous statement that Dickey thought to

himself—at some point, before or after the murders—“if you

kill one you might as well kill them both” was the State’s

best evidence that Dickey acted with intent to kill, and

Buchanan’s testimony on this point was unsupported by

other evidence. As Hahus testified at the hearing on

Dickey’s motion for a new trial, “[t]he special circumstance

finding came from the testimony of Buchanan.” Because

Buchanan was the only one who testified that Dickey

DICKEY V. DAVIS 33

expressed that thought, Buchanan’s credibility was

absolutely critical to the State’s special-circumstances case.

On multiple occasions, the Supreme Court has found

perjured testimony material under Napue when it bore on the

credibility of a witness upon whom “the Government’s case

depended almost entirely.” Giglio, 405 U.S. at 154. In

Napue itself, for example, the Court concluded the perjured

testimony was material because it concerned the credibility

of the State’s “principal witness,” whose testimony “was

extremely important because the passage of time and the dim

light [at the scene of the crime] made eyewitness

identification very difficult and uncertain, and because some

pertinent witnesses had left the state.” 360 U.S. at 265–66;

see also Giglio, 405 U.S. at 154–55 (finding Napue’s

materiality standard satisfied when a prosecutor falsely

stated the State’s star witness had not been promised

immunity because this evidence “would be relevant to [the

witness’s] credibility and the jury was entitled to know of

it”); Alcorta, 355 U.S. at 29–32 (finding Napue violation

material because correcting false testimony from the only

eyewitness to a murder would have impeached his credibility

and corroborated the defendant’s “sudden passion” defense).

Here, the California Supreme Court concluded the

State’s failure to correct Buchanan’s false and misleading

testimony about his housing-on-credit arrangement was

immaterial because the jury already knew of the arrangement

and Buchanan’s desire to obtain the $5,000 reward. Dickey,

111 P.3d at 937–38. The court also noted that the jury heard

evidence of Buchanan’s drug addiction and that Buchanan

and Dickey intensely disliked each other. Id. at 931, 937–

38. The State argues on appeal that the California Supreme

Court’s materiality finding was reasonable because “there

was already ample impeachment of Buchanan’s credibility

34 DICKEY V. DAVIS

before the jury,” including (1) Buchanan’s chronic use of

illegal drugs; (2) the fact that he admitted using drugs close

to the time he heard Dickey’s statement to Goldman in the

bedroom; (3) Buchanan’s motivation to get the $5,000

reward; and (4) Buchanan’s admitted antipathy toward

Dickey.

We disagree. Our starting point is recognition of

Buchanan’s role as the State’s star witness. In Napue, the

Supreme Court held that false and misleading testimony

from the State’s star witness was not rendered cumulative or

insignificant merely because the jury already had other

reasons to distrust the witness. See Napue, 360 U.S. at 270.

The prosecutor in Napue failed to correct the State’s primary

witness’s false testimony that the State’s Attorney had not

promised him consideration in exchange for his testimony.

Id. at 266–67. The Illinois Supreme Court had ruled that the

prosecutor’s misconduct was immaterial because “the jury

had already been apprised that someone whom [the witness]

had tentatively identified as being a public defender ‘was

going to do what he could’” to help the witness, and “‘was

trying to get something [done]’ for him.” Id. at 268. The

Supreme Court reversed. The Court explained, “[W]e do not

believe that the fact that the jury was apprised of other

grounds for believing that the witness . . . may have had an

interest in testifying against petitioner turned what was

otherwise a tainted trial into a fair one.” Id. at 270.

In the case before us, to conclude Buchanan’s false and

misleading testimony was harmless, it was necessary for the

state court to decide there was no reasonable likelihood that

his testimony could have made a difference to the jury’s

imposition of the death penalty. The California Supreme

Court did not expressly acknowledge Buchanan’s pivotal

role at trial, but we must assume this was factored into its

DICKEY V. DAVIS 35

materiality analysis. The state court’s decision did recognize

that Hahus “knowingly exploited” Buchanan’s false and

misleading testimony about his housing arrangement by

repeatedly relying on it to bolster Buchanan’s otherwise

tarnished credibility, see Dickey, 111 P.3d at 937, and the

court’s materiality ruling considered that the prosecutor’s

closing argument contrasted Buchanan’s testimony that he

received no favors from the prosecution with his testimony

that the defense investigator bought him things like beer,

lunch, and a pair of shoes, id. at 938. The court did not

acknowledge Buchanan’s false testimony, in answer to

Hahus’s leading question, that he had met with Hahus only

“a couple of times.” Id. at 937–38.

The state-court decision analyzed Buchanan’s false and

misleading testimony only as cumulative evidence that

Buchanan was biased against Dickey and motivated to

ensure his conviction. Evidence that Buchanan had actually

lied on the witness stand was an entirely new category of

impeachment evidence that could have gutted the State’s use

of § 128 to shore up Buchanan’s credibility. It would have

given the jury reason to doubt Buchanan’s veracity in

court—not just his reliability as an addict, or his impartiality

as a person motivated by a reward. None of the evidence the

state court identified in its materiality analysis gave the jury

reason to know that Buchanan was willing to lie to them

under oath—or to know that he had lied to them under oath.

The significance of the State’s star witness having done so,

immediately after being advised in open court of the stark

consequences of § 128, is hard to overstate. Hahus’s

deliberate solicitation of, and failure to correct, Buchanan’s

false testimony was entirely contrary to Napue’s directive

that courts safeguard the “truth-seeking function of the trial

process.” Agurs, 427 U.S. at 103.

36 DICKEY V. DAVIS

The State argues the state court could have reasonably

decided that, if the jury had learned about the prosecution’s

role in Buchanan’s housing arrangement, the jury would

have simply “concluded that the prosecutor’s office has a

generally applicable policy to offer non-monetary housing

assistance for its witnesses before the trial” and that “any

housing assistance was for the purpose of keeping track of

witnesses, not as an inducement to stray from the [] duty to

testify truthfully.” Regarding the number of pretrial

meetings with Hahus, the State contends the court’s

materiality finding was reasonable because the jury still

would have concluded that Buchanan was “neither prepared

nor scripted” because his trial testimony was “fraught with

inconsistencies, tangents and biases.” But the Supreme

Court has emphasized the opposite.

The Court has explained that, when considering

materiality under the more demanding Brady standard, “if

the verdict is already of questionable validity, additional

evidence of relatively minor importance might be sufficient

to create a reasonable doubt.” Id. The other inconsistencies

and evidence of Buchanan’s bias therefore reinforce the

conclusion that, if the jury had known that at least some of

Buchanan’s testimony had in fact been false, it could have

easily made a difference to the outcome. Even “subtle

factors” may be enough to find Napue materiality when

“[t]he jury’s estimate of the truthfulness and reliability of a

given witness may well be determinative of guilt or

innocence.” Napue, 360 U.S. at 269. Here, the jury’s

special-circumstances finding certainly turned on its

assessment of Buchanan’s veracity.

In light of Buchanan’s pivotal role at trial and the weak

evidence that Dickey acted with intent to kill, we are

persuaded that this is the rare case in which AEDPA’s

DICKEY V. DAVIS 37

deferential standard is satisfied. The conclusion that there

was no reasonable likelihood that correcting Buchanan’s

false testimony could have changed the jury’s special-

circumstances decision was both clearly incorrect and an

objectively unreasonable application of clearly established

federal law.

D

On de novo review of Dickey’s Napue claim, we reach

the same result. See Panetti, 551 U.S. at 953; Jones, 52 F.4th

at 1115. The prosecution’s failure to correct Buchanan’s

false and misleading testimony was material because

Buchanan’s testimony was the centerpiece of the State’s case

in support of the special-circumstances finding. We can see

no room to doubt that, if the jury had known Buchanan

testified falsely, there was a reasonable likelihood that this

could have affected its decision to impose a capital sentence.

See Agurs, 427 U.S. at 103; Bagley, 473 U.S. at 678 (opinion

of Blackmun, J.). This conclusion accords with our circuit

precedent holding that “[t]here is a substantial difference

between ‘general evidence of untrustworthiness and specific

evidence that a witness has lied.’” Sivak, 658 F.3d at 916

(quoting Benn v. Lambert, 283 F.3d 1040, 1056–57 (9th Cir.

2002)); see also Jackson v. Brown, 513 F.3d 1057, 1077 (9th

Cir. 2008) (finding Napue materiality because revealing a

key witness’s “obvious willingness to lie under oath” would

have “cast doubt on his entire testimony”). As we explained

in Sivak, correcting a witness’s false sworn testimony can

make a powerful difference in the jury’s assessment of the

witness’s trustworthiness:

[I]f a witness’s false testimony is corrected

by the prosecution, his “willingness to lie

under oath” is exposed and his credibility is

38 DICKEY V. DAVIS

irreparably damaged. There is a substantial

difference between “general evidence of

untrustworthiness and specific evidence that

a witness has lied.” “All the other evidence

used by the defense to punch holes in the

informant’s credibility amount[s] only to

circumstantial reasons why the informant

might alter the truth to continue to feather his

own nest. A lie would be direct proof of this

concern, eliminating the need for inferences.”

658 F.3d at 916 (second alteration in original) (citations

omitted) (first quoting Jackson, 513 F.3d at 1077; then

quoting Benn, 283 F.3d at 1056–57; and then quoting id. at

1057). Here, if Hahus had corrected Buchanan’s testimony,

there is clearly a “reasonable likelihood that the false

testimony could have affected the judgment of the jury.”

Agurs, 427 U.S. at 103.

We are particularly troubled that Hahus used leading

questions to elicit Buchanan’s false testimony. Unlike

Napue violations in cases where witnesses have

unexpectedly blurted out a misstatement or surprised a

prosecutor with an embellished or volunteered response,

Buchanan’s false and misleading testimony came in the form

of affirmative answers to Hahus’s prompts—hence, the

California Supreme Court’s apt description that the

prosecutor’s closing argument “sought to exploit the false

impression he had created.” Dickey, 111 P.3d at 938

(emphasis added). Given the weight the prosecutor put on

Buchanan’s credibility in his closing argument, imploring

the jury that Buchanan deserved for them to believe him, and

the prosecutor’s frank assessment at the post-trial hearing

that Buchanan’s testimony comprised nearly the entirety of

DICKEY V. DAVIS 39

the State’s evidence of intent to kill, we do not hesitate to

conclude there was a reasonable likelihood that the State’s

failure to correct Buchanan’s testimony could have affected

the jury’s special-circumstances finding.11 We therefore

reverse the district court’s decision as to Dickey’s penalty-

phase Napue claim and do not reach the merits of any of

Dickey’s other penalty-phase claims.

V

We affirm the denial of Dickey’s certified guilt-phase

claims related to his conviction for aiding and abetting the

11

To grant habeas relief on a claim of trial error, we generally assess the

error’s prejudicial effect under Brecht v. Abrahamson, which requires

“actual prejudice.” 507 U.S. 619, 637 (1993) (quoting United States v.

Lane, 474 U.S. 438, 449 (1986)); see also Brown v. Davenport, 142 S.

Ct. 1510, 1519 (2022). We recognize, however, that the circuits have

split on whether the Brecht standard applies when reviewing a state

court’s Napue determination. Compare Haskell v. Superintendent

Greene SCI, 866 F.3d 139, 150 (3d Cir. 2017) (declining to apply Brecht

to a claim of Napue error), and Hayes, 399 F.3d at 984, with United

States v. Clay, 720 F.3d 1021, 1026–27 (8th Cir. 2013) (applying Brecht

to a Napue claim), Trepal v. Sec’y, Fla. Dep’t of Corr., 684 F.3d 1088,

1111–13 (11th Cir. 2012), Rosencrantz v. Lafler, 568 F.3d 577, 587–90

(6th Cir. 2009), Douglas v. Workman, 560 F.3d 1156, 1173 n.12 (10th

Cir. 2009) (per curiam), and Gilday v. Callahan, 59 F.3d 257, 268 (1st

Cir. 1995). Our circuit has continued to apply the materiality standard

specific to Napue claims, reasoning that “there is no need to conduct a

separate harmless error analysis” when “the required finding of [Napue]

materiality necessarily compels the conclusion that the error was not

harmless.” Hayes, 399 F.3d at 984 (citing Kyles v. Whitley, 514 U.S.

419, 435 (1995)). Regardless, applying Brecht would not change our

materiality conclusion here because the State’s failure to correct

Buchanan’s false testimony leaves us with “grave doubt” about whether

the error had “substantial and injurious effect or influence in determining

the jury’s verdict.” Davis v. Ayala, 576 U.S. 257, 268 (2015) (quoting

O’Neal v. McAninch, 513 U.S. 432, 436 (1995)).

40 DICKEY V. DAVIS

underlying robbery. Dickey makes five claims relevant to

the guilt phase: (1) the State violated Napue by knowingly

using false testimony; (2) the State withheld favorable and

material evidence in violation of Brady; (3) his trial counsel,

Marvin Schultz, rendered ineffective assistance of counsel

by failing to investigate and impeach Buchanan and,

relatedly, by failing to interview and call Strickland as a

witness regarding the housing arrangement; (4) Schultz was

ineffective for seeking to empanel a pro-death jury; and (5)

Schultz was ineffective for failing to withdraw as counsel

due to an irreconcilable conflict with Dickey.12 The

California Supreme Court rejected the first three of these

claims on direct review. See Dickey, 111 P.3d at 936–38,

937 n.9. Dickey raised the first four claims in his first state

habeas petition and the last claim in his second petition. The

California Supreme Court denied all five claims on the

merits without offering its reasoning.

We first conclude the state court reasonably determined

that the State’s Napue and Brady violations were not

material to the jury’s guilt-phase verdict and that Schultz’s

failure to investigate and impeach Buchanan was not

prejudicial in the guilt phase. Unlike the special-

circumstances finding, Buchanan did not provide the only

key evidence of Dickey’s participation in the robbery and

burglary. Goldman’s statements corroborated some of

12

Dickey also argues, based on the facts underlying the fifth claim, that:

(1) the trial court erred by failing to conduct a Marsden hearing and order

substitute counsel for the penalty phase when it learned after the guilt

phase that Dickey’s relationship with Schultz had deteriorated; and (2)

Schultz rendered ineffective assistance of counsel by failing to know the

law regarding Marsden or request substitute counsel for Dickey.

Because we grant relief on Dickey’s Napue claim pertaining to

imposition of the death penalty, we do not reach these claims.

DICKEY V. DAVIS 41

Buchanan’s testimony and linked Dickey to the crimes. For

example, Goldman’s observations of Dickey on the night of

the crimes corroborated Buchanan’s testimony that Dickey

admitted going to Caton’s house to steal money. Goldman

also corroborated Buchanan’s testimony that Cullumber and

Dickey left the apartment together and did not have any

money, but when they returned, one or both of them had

money. Both Buchanan and Goldman recalled that two days

after the crimes, Dickey confessed that he and Cullumber

went to Caton’s house to steal money and when Dickey was

in the bedroom of the house, he heard a commotion and then

saw Freiri slumped over in a chair.

Because Buchanan was not the sole witness who

provided critical evidence that Dickey confessed to

Goldman that he aided and abetted the robbery and burglary,

the California Supreme Court did not unreasonably

determine that there was no reasonable likelihood the

prosecution’s Napue and Brady violations could have

changed the jury’s guilty verdicts. For the same reason, the

California Supreme Court reasonably concluded that

Schultz’s failure to investigate and impeach Buchanan and

his failure to call Strickland as a witness regarding the

housing arrangement did not result in guilt-phase prejudice.

See Richter, 562 U.S. at 105; Strickland v. Washington, 466

U.S. 668, 694 (1984).

Separately, we conclude the California Supreme Court

could have reasonably determined that Dickey failed to show

guilt-phase prejudice stemming from Schultz’s strategy of

seeking to select jurors who were predisposed to vote for the

death penalty. Schultz explained that he pursued this

strategy because he felt that jurors who “tend to be more pro

death once they f[ind] guilt” also “demand[] they be

absolutely positively convinced of the defendant’s guilt” and

42 DICKEY V. DAVIS

therefore are “more demanding of the quantum and quality

of prosecution evidence” during the guilt phase. Because the

California Supreme Court did not address this claim on

direct review, we consider what arguments could have

supported the court’s rejection of the claim. See Richter, 562

U.S. at 99–102. Dickey asserts that he need not show

prejudice because Schultz’s jury-selection strategy falls

under an exception to the Strickland prejudice requirement

that applies when “counsel entirely fails to subject the

prosecution’s case to meaningful adversarial testing.” See

United States v. Cronic, 466 U.S. 648, 659 (1984). But the

exception Dickey relies upon is only applicable “when the

attorney’s failure to oppose the prosecution goes to the

proceedings as a whole—not when the failure occurs only at

specific points in the trial.” Gallegos v. Ryan, 820 F.3d

1013, 1034 (9th Cir. 2016) (emphasis added) (quoting

United States v. Thomas, 417 F.3d 1053, 1057 (9th Cir.

2005)). Assuming that Schultz’s strategy constituted

deficient performance, Dickey therefore still must show the

strategy resulted in prejudice.

Dickey argues that Schultz’s strategy was prejudicial

because studies have found that pro-death-penalty jurors are

also more prone to vote for conviction.13 Without more, this

speculative argument is insufficient. Establishing prejudice

“in the context of juror selection” requires a “showing that,

as a result of trial counsel’s failure to exercise peremptory

challenges, the jury panel contained at least one juror who

13

Dickey also suggests that Schultz’s strategy was prejudicial because it

resulted in a jury that was not “reflective of a cross-section of society.”

This argument is foreclosed by the Supreme Court’s decision in Lockhart

v. McCree, which held that the representative cross-section requirement

does not apply to petit juries. 476 U.S. 162, 174 (1986).

DICKEY V. DAVIS 43

was biased.” Davis v. Woodford, 384 F.3d 628, 643 (9th Cir.

2004). A juror is biased if he or she has “such fixed opinions

that [he or she] could not judge impartially the guilt of the

defendant.” United States v. Quintero-Barraza, 78 F.3d

1344, 1349 (9th Cir. 1995) (quoting Patton v. Yount, 467

U.S. 1025, 1035 (1984)). All seated jurors in Dickey’s trial

stated they could “follow the law and the trial court’s

instructions; put aside personal feelings and remain open-

minded and consider all facts and circumstances of the

crimes in making the penalty determination; and stated that

the possibility of a death sentence would not affect his or her

guilt phase determination.” Dickey, 231 F. Supp. 3d at 671;

see also Lockhart, 476 U.S. at 178 (rejecting the argument

that a jury composed of jurors willing to impose the death

penalty is biased because “an impartial jury consists of

nothing more than ‘jurors who will conscientiously apply the

law and find the facts’” (emphasis omitted) (quoting

Wainwright v. Witt, 469 U.S. 412, 423 (1985))). We

therefore conclude the California Supreme Court could have

reasonably determined that Dickey failed to show guilt-

phase prejudice resulting from Schultz’s jury-selection

strategy.14

Third, we conclude the California Supreme Court could

have reasonably denied Dickey’s claim that Schultz should

have withdrawn based on an irreconcilable conflict. The

14

The State asserts that Dickey’s claim that Schultz’s strategy resulted

in a biased jury is procedurally barred because it was not timely

presented in state court. We do not address the State’s argument because

we conclude this claim fails on the merits. See Franklin v. Johnson, 290

F.3d 1223, 1232 (9th Cir. 2002) (“[A]ppeals courts are empowered to,

and in some cases should, reach the merits of habeas petitions if they are

. . . clearly not meritorious despite an asserted procedural bar.”); see also

Ayala v. Chappell, 829 F.3d 1081, 1095–96 (9th Cir. 2016).

44 DICKEY V. DAVIS

Supreme Court “has never held that an irreconcilable

conflict with one’s attorney constitutes a per se denial of the

right to effective counsel,” Carter v. Davis, 946 F.3d 489,

508 (9th Cir. 2019) (per curiam), and Dickey does not

identify how Schultz’s failure to withdraw prior to the guilty

verdict resulted in prejudice. Because AEDPA “conditions

habeas relief on a determination that the state-court decision

unreasonably applied ‘clearly established Federal law’ as

pronounced by the U.S. Supreme Court,” Dickey is not

entitled to relief on this claim. Id. (quoting 28 U.S.C.

§ 2254(d)(1)).

VI

We reverse and remand to the district court with

instructions to grant a conditional writ of habeas corpus as

to the special-circumstances findings and the imposition of

the death penalty. The State may either grant Dickey a new

trial on the special-circumstances allegations within ninety

days or agree that he may be sentenced to a penalty other

than death in conformance with state law. See Phillips v.

Ornoski, 673 F.3d 1168, 1197 (9th Cir. 2012). We affirm

the district court’s holding as to Dickey’s certified guilt-

phase claims, but do not reach the merits of any of Dickey’s

uncertified guilt-phase claims or his non-Napue penalty-

phase claims.

AFFIRMED IN PART, REVERSED IN PART, AND

REMANDED.15

15

Costs are taxed against the State. See Fed R. App. P. 39(a)(4).