Petition for Writ of Certiorari — William Dye, Petitioner v. Ron Barnes, Warden

No._________

_________________________

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 2017

WILLIAM DYE, Petitioner

vs.

RON BARNES, Warden, Respondent

__________________

PETITION FOR WRIT OF CERTIORARI TO THE

COURT OF APPEALS FOR THE NINTH CIRCUIT

__________________

BARRY L. MORRIS, SBN #48368

Attorney at Law

1407 Oakland Blvd. #200

Walnut Creek, CA 94596

(925) 934-1100

fax: (925) 934-1122

barrymorris@mac.com

Attorney for Petitioner

WILLIAM DYE

Question Presented

1.

Where the State has wrongfully withheld exculpatory

evidence of a meeting between the prosecutor, the police, and the

principal witness where a deal for testimony was made and which it

was required to disclose sua sponte pursuant to this Court’s decision

in Brady v. Maryland, 373 US 83 (1963), did the district court err in

refusing to issue a subpoena for an audio recording of that meeting,

relying on this Court’s decision in Cullen v. Pinholster, 563 U.S. 170

(2011)?

Table of Contents

Table of Authorities

iii

Judgement Below

1

Jurisdiction

2

List of Parties

2

Constitutional Provision Involved

2

Statement of the Case

2

Statement of Facts

5

A. Introduction

5

B. Christopher Johns Makes a Deal for Testimony

6

C. The Prosecutor Doesn’t Tell the Defense about

the March 4th Meeting, Withholds the Report

and the CD recording of that Meeting,

Lies to the Trial Judge, Lies to Defense Counsel,

and Suborns Perjury

10

D. Mr. Johns Received the Promised

Consideration for Testimony When He was Sentenced

14

I.

Prosecution’s Refusal to Acknowledge that Mr. Johns

Received Consideration for his Testimony, the District

Court’s Denial of Petitioner’s Motion for the Issuance

of a 17(c) Subpoena for the CD of the March 4, 2009

Meeting Violated Petitioner’s Right to Due Process of Law

and a Fair Trial

18

i

A. There is a Conflict Among the Circuits Over

Whether or Not, Subsequent to This Court’s

Decision in Cullen v, Pinholster, 563 U.S.

170 (2011), The District Court Retains the

Authority to Issue a Subpoena Pursuant

to Rule 17(c) in a §2254 Case

18

B. Cullen v, Pinholster, 563 U.S. 170 (2011) Did

Not Abrogate a District Court’s Authority to

Issue a Subpoena Pursuant to Rule 17(c) in

Connection With a §2254 Habeas Petition

19

C. This Court Should Grant the Petition for

Certiorari and Remand this Case to the Court

of Appeals for the Ninth Circuit

24

ii

Table of Authorities

Bracy v. Gramley

520 U.S. 899 (1997)

20, 21

Cullen v. Pinholster

563 U.S. 170 (2011)

4

Dominguez v. Williams

2014 U.S. Dist. LEXIS 113559 (D. Nev. 2014)

21

Ervin v. Cullen

2011 U.S. Dist. LEXIS 100976 (N.D. Cal. 2011)

22

Gibson v. Wetzel

2016 U.S. Dist. LEXIS 44418 (E.D. Pa. 2016)

23

Harris v Nelson

394 US 286 (1969)

20

Jamerson v. Runnels

713 F.3d 1218 (9th Cir. 2013)

24, 26

Jones v. Bagley

696 F.3d 475 (6th Cir. 2012)

23

Lujan-Armendariz v. INS

222 F.3d 728 (9th Cir. 2000)

22

Radzanower v. Touche Ross & Co.

426 U.S. 148 (1976)

22

Sample v. Colson

958 F. Supp. 2d 865 (W.D. Tenn. 2013)

21

iii

No._________

_________________________

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 2017

WILLIAM DYE, Petitioner

vs.

RON BARNES, Warden, Respondent

__________________

PETITION FOR WRIT OF CERTIORARI TO THE

COURT OF APPEALS FOR THE NINTH CIRCUIT

________________

Petitioner WILLIAM DYE respectfully prays that a writ of

certiorari issue to review the opinion of the Court of Appeals for

the Ninth Circuit rendered on June 27, 2017. A Petition for

Rehearing was denied on October 24, 2017.

Judgment Below

The unpublished opinion of the Court of Appeals for the

Ninth Circuit in is attached as Appendix A. The denial of the

Petition for Rehearing by the Court of Appeals for the Ninth

Circuit is attached as Appendix B.

1

Jurisdiction

The jurisdiction of this Court is invoked under 28 U.S.C.

§1254(1).

List of Parties (Rule 28.1)

The parties to the proceedings below were petitioners,

WILLIAM DYE, and RON BARNES, Warden, respondent.

Constitutional Provision Involved

United States Constitution, Fifth Amendment:

“No person shall be…deprived of life, liberty, or property,

without due process of law…”

Statement of the Case

Appellant was convicted of attempted murder (Cal. Pen.

Code §187/664) with a use of a firearm clause (Cal. Pen. Code

§12022.53). He was sentenced of 15 years imprisonment plus

a consecutive term of 25 to life. On March 11, 2011, Mr. Dye’s

conviction was affirmed by the Court of Appeal for the Third

Appellate District. People v. Dye, 2011 Cal. App. Unpub. LEXIS

1824. (ER 292) A petition for review was denied by the California

Supreme Court on May 18, 2011. (ER 26)

2

On, appellant filed a timely pro se petition for a Writ of

Habeas Corpus in the Eastern District of California on August

23, 2012. (ER 593) Subsequently, with the assistance of an

inmate writ writer, petitioner filed a First Amended Petition in

the Eastern District having previously exhausted all claims in

the state courts. (ER 403) The filing of that amended petition

was occasioned by the discovery of the Confidential Report of a

March 4, 2009 meeting between Mr. Johns, Ms. Caraway, and

the investigating officer, Det. Moore. That report was attached

to the First Amended petition presented to the state court. (ER

355)

On September 13, 2013, present counsel was appointed

by the district court of the Eastern District of California.

Counsel filed a Second Amended Petition on March 28, 2014,

incorporating the claims made in the original petition, the first

amended petition, and several additional claims growing out of

and relating back to previously asserted timely filed claims. (ER

225)

In examining the March 4, 2009 Confidential Report,

counsel noticed that there was a notation on the last page

3

indicating that the meeting that was the subject of that report,

was recorded on a CD. Counsel filed a motion in the district

court requesting the issuance of a Rule 17(c) subpoena to obtain

the CD recording of the March 2009 meeting. (See Appendix

C)(ER 87) The magistrate denied that request with a bare

citation to Cullen v. Pinholster, 563 U.S. 170 (2011). (ER 32)

“It is also recommended that petitioner’s related motion

for the issuance of a subpoena duces tecum to obtain a

compact disc of the March 4, 2009 meeting described in the

confidential report be denied. See Cullen v. Pinholster, 563

U.S. ___, 131 S. Ct. 1388, 1398 (2011) (holding that federal

review of habeas corpus claims under § 2254(d)(1) is

‘limited to the record that was before the state court that

adjudicated the claim on the merits.’).” (See Appendix D)

On September 9, 2015, the magistrate issued his Findings

and Recommendation recommending that the Second Amended

Petition be denied.

(ER 2) Objections to the district court’s

Findings and Recommendations were filed.

(ER 62) The

magistrate’s findings were adopted in full by the district court.

(ER 1)

The district court granted a Certificate of Admissibility

“on Petitioner's claims of prosecutorial misconduct.”

4

On October 24, 2017, the Ninth Circuit affirmed the denial

of petitioner’s writ in an unpublished memorandum opinion

finding that “there was no abuse of discretion in the denial of

Petitioner’s request for a subpoena.” (See Appendix A) A timely

Petition for Rehearing and Rehearing en banc was filed and

denied on January 3, 2018) (See Appendix B).

Statement of Facts

A.

Introduction

In order to put the district court’s denial of petitioner’s

request for a subpoena duces tecum for the CD recording of the

March

4,

investigating

2009

meeting

officer,

and

between

the

Christopher

prosecutor,

Johns,

the

the

only

eyewitness who identified petitioner, into proper perspective, it

is necessary to set forth in some detail the facts underlying the

charges against petitioner to show [1] just how important the

CD was, [2] why it was likely to contain exculpatory evidence of

a deal for testimony between Mr. Johns and Butte County law

enforcement, [3] why the prosecution’s failure to disclose the

5

CD denied petitioner a fair trial, and [4] why the district court

erred in refusing to issue a Rule 17 subpoena.

B.

Christopher Johns Makes a Deal for Testimony

On

September

1,

2007,

Donnie

Powell

Jr.,

a

methamphetamine dealer, was shot in his apartment in Chico.

Although five people in addition to the shooter were present in

the apartment at the time of the shooting -- Donnie III, Christy

Scarbrough, Donnie Jr., Teresa Spohr, and Christopher Johns

-- only Mr. Johns purported to identify petitioner William Dye

as the shooter.

Mr. Johns was arrested a few hours after the shooting.

Shortly thereafter, he was interrogated by Detective Moore of

the Chico Police Department1 and asked if he was willing to

cooperate with the investigation, Mr. Johns told Detective Moore

his willingness to talk “depend[ed].” (ER 330) In order to

“encourage” his cooperation, Det. Moore, the investigating

officer, focused on the two felony strikes in Mr. Johns’ resume.

“If you had two strikes and were to get another felony of any

1 Hereinafter, “2007 interrogation.”

6

kind, um, then that’s what you’ve got to be careful about.” (ER

330)

As Mr. Johns undoubtedly already knew, if he was

convicted of another felony conviction for his participation in

the drug deal/shooting at the Powell residence, he would be

facing a life sentence under California’s “three strike” law. At

the time of his arrest, conviction of any felony with two

statutorily specified prior felony convictions (“strikes”) would

result in a life sentence.

Second, Det. Moore told Mr. Johns that his future was in

the detective’s hands. “[L]ater on, someone is going to ask me if

you get convicted or plead guilty to something behind this

case…what I think should happen to you…What do I think you

ought to get sentenced to?” (ER 336)

Det. Moore explicitly assured Mr. Johns that if he would,

at

a

minimum,

receive

sentencing

consideration

if

he

cooperated. “[I]f you tell me everything, I will do my best to get

you the best possible sentence.” (ER 336) After first conferring

with his girlfriend, Christy Scarbrough, who was also arrested

with him, and whispering in her ear, “depends” became “sure”

7

and Mr. Johns proceeded to accuse petitioner of being the

shooter. He was the only eyewitness to do so.

Despite the fact that, by his statement, Mr. Johns

admitted liability for the attempted drug deal and the associated

shooting, as a result of his cooperation, Mr. Johns was not

charged. Neither was Ms. Scarbrough.

Eighteen

months

after

he

was

released

on

the

robbery/attempted murder charges, Mr. Johns was again

arrested, this time for felony drug sales, a drug deal gone sour.

He was charged with drug dealing and, given his two prior

strikes and the fact that he was on parole at the time of the

offense, held on $135,000 bail. (ER 248, 395)

As one might expect, because he was on parole, Mr. Johns

had a parole hold flowing from this most recent arrest. In a ten

page “confidential” memo prepared by a police officer that the

prosecutor failed to disclose to the defense -- and that only

surfaced after the trial was over -- it was revealed that, a few

weeks after Mr. Johns was arrested on the new charges and

prior to appellant’s trial, there had been a meeting, on March 4,

8

2009, between Ms. Caraway (the prosecutor), Det. Moore (the

investigating officer), and Mr. Johns. (ER 355)

At that meeting, a deal for testimony was arranged.

Despite the fact that Mr. Johns had two felony priors, both

“strikes” under California’s “three-strikes” law, and faced a life

sentence, per Mr. John’s request, Det. Moore agreed to attempt

to get Mr. Johns’ parole hold dropped. It was.

At that meeting, Mr. Johns’ prospective testimony in

appellant’s case was discussed.

Mr. Johns stated that he

expected that his most recent drug charges would be dropped.

After the meeting, the

*****

3/4/09 “Confidential” Statement, (ER 360)

9

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original statement. Christy was not sure exactly what Grady Davis wanted her to say. She did feet

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It wasreduced

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DDA Caraway asked Christy if she ever felt that any of her family members may be in danger.

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$0. concerned

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family. the disclosure requirements of Brady v.

In order

Both of the above Interviews were recorded onto a CD-R. Refer to the recordings for

complete details.

Maryland,

the report of the March 4th--'«meeting was marked

“Confidential. Do not make any copies of this report.” (ER 364)

Recommendations: Confidential, Do not make any cobles of this report.

(ER 364)

C.

The Prosecutor Doesn’t Tell the Defense about the

March 4th Meeting, Withholds the Report and the

CD recording of that Meeting, Lies to the Trial

Judge, Lies to Defense Counsel, and Suborns

Perjury

10

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Once petitioner’s case reached the trial court, the lies and

prosecution complicity in those lies accelerated. First, when the

pretrial discussion turned to the question of whether there had

been consideration given to Mr. Johns in his then-pending drug

case in return for testimony, Ms. Caraway lied to the judge,

telling him that she had been “intentionally ke[pt] away from

that case.” (ER 776) That was a bald-faced lie. She had been in

the middle of the deal for

(ER 357)

testimony discussions. The trial judge, perhaps accepting the

prosecutor’s lie at face value, obstructed any inquiry by trial

counsel in this area. The trial court ruled that defense counsel

could not present evidence that Mr. Johns had made a

cooperation agreement “by showing that actual consideration

was provided, because that’s not a logical connection.” (ER 662)

“The way the People framed the case, filed the case,

charged Mr. Johns, even if it mirrors what Detective Moore

was saying, you can’t establish that inference unless

there’s specific discussion of, ‘If you cooperate, we’ll do

11

this. Cooperate, we’ll do that.’ You can’t create

circumstantial evidence to attack credibility in this case by

how the People charge Mr. Johns in the new case.” (ER

662)

When Mr. John’s testified, the prosecutor deliberately

suborned perjury when she elicited Mr. Johns’ denial of having

received any consideration in return for his testimony.

(ER 675)

Mr. John’s testimony was suffused with perjury, all of

which was known to the prosecutor, unknown to the defense,

and was never corrected by the prosecutor. For example, Mr.

Johns denied that Det. Moore told him if he cooperated, it might

help him. The transcript of the 2007 interrogation makes it

clear that Det. Moore told Mr. Johns that if he cooperated, that

if “you tell me everything” Det. Moore would “do my best to get

you the best possible sentence.” (ER 338)

12

(ER 338)

Still not quite convinced that he would get something for cooperating,

Mr. Johns told Det. Moore, ‘[i]f I do tell, testify and all that, then the DA

could still screw me.” Det. Moore reassured him. “…I don’t think that that doesn’t - that’s not my experience.” (ER 338)

Compare that with the perjury that the prosecutor elicited.

(ER 680)

Although the prosecutor knew full well that Mr. Johns was

lying under oath, she ignored her constitutional obligations and

made no effort to correct him.

Secure in the belief that his lies would not be corrected by

the prosecutor, Mr. Johns went even further and denied that he

had ever discussed both cases – his and appellant’s -- at the

13

same time with the prosecutor or anyone else in law

enforcement.

(ER 701)

The exact opposite of the truth has rarely been stated with

greater precision. Once again, although the prosecutor knew

from her own personal knowledge that this testimony was false

-- she was there -- the prosecutor made no effort to correct Mr.

Johns’ perjury.

D.

Mr. Johns Received the Promised Consideration

for Testimony When He was Sentenced

After petitioner’s trial was over Mr. Johns appeared for

sentencing on his own case.

Despite the fact that he was

statutorily ineligible for probation2 because of his three strike

2

Cal. Pen. Code §667(c)(2).

14

priors, only one of which was charged, he still got straight

probation with no additional time.

At Mr. Johns’ sentencing hearing, his attorney indicated

that he and the prosecutor had negotiated a disposition, despite

the fact that plea-bargaining is not allowed in a case were

strikes are alleged.3 The district attorney who appeared at

sentencing4 obliquely told the court that this was an “unusual

case” for “reasons…involving a jury trial.” The sentencing court

was told that the prosecution and the defense had agreed to a

probationary sentence, even though such a sentence is also

statutorily barred. In response, the judge indicated that his

“intended ruling was mid-term.” (ER 562)

In what most reasonably be viewed as a continuing effort

to keep secret the fact that Mr. Johns was receiving sentencing

consideration per the deal for his testimony, the prosecutor

asked to approach the bench where, in an unreported

conversation, the parties undoubtedly explained to the court

Cal. Pen. Code §1192.7(a)(2); People v. Barao, 218 Cal. App. 4th 769,

775 (2013).

4 Not Ms. Caraway.

3

15

that it should ignore California law that barred the proposed

sentence because of the value of Mr. Johns’ testimony.

Back in open court, the judge’s explanation of the factors

he considered in imposing sentence was truly bizarre, perhaps

reflecting both the judge’s awareness that Mr. Johns was

statutorily ineligible for probation and whatever the prosecutor

and defense counsel had convinced him to do in the unreported

bench conference.

First the court announced that probation was only

possible in Mr. Johns’ case if it were “unusual.” The court then

noted that it had reviewed the criteria for declaring a case to be

“unusual” for sentencing purposes and concluded that Mr.

Johns’ case did not “meet[] any of the criteria set forth therein.”

So far, so good. (ER 564)

The sentencing court then denied probation. Even if Mr.

Johns were eligible for probation, the court made it plain that it

would not grant probation because of a “pattern of regular

criminal conduct” and “poor performance” on prior probations.

(ER 564)

16

The

court

then

found

that

the

circumstances

in

aggravation outweighed those in mitigation, noting that Mr.

Johns’ prior convictions were “numerous or of increasing

seriousness,” that he was on parole when the offense was

committed, and that his past performance on parole and

probation was “unsatisfactory.” As for mitigation, “the court

finds no factors in mitigation.” ((ER 565)

The sentence that followed was a true deus ex machina.

Although the court had previously announced its intention to

impose a base term of six years, a three-year term was imposed.

However, despite having previously declared in a decisive

manner that left no room for doubt that Mr. Johns was ineligible

for

probation,

the

trial

court

stayed

the

state

prison

commitment, imposed no jail time, and placed Mr. Johns on 36

months straight probation, further ordering 120 hours of

community service. (ER 566)

17

I

Given the Brady/Giglio Allegations in this Case and the

Prosecution’s Refusal to Acknowledge that Mr. Johns Received

Consideration for his Testimony, the District Court’s Denial of

Petitioner’s Motion for the Issuance of a 17(c) Subpoena for the CD

of the March 4, 2009 Meeting Violated Petitioner’s Right to Due

Process of Law and a Fair Trial

A.

There is a Conflict Among the Circuits Over

Whether or Not, Subsequent to This Court’s

Decision in Cullen v, Pinholster, 563 U.S. 170 (2011),

The District Court Retains the Authority to Issue a

Subpoena Pursuant to Rule 17(c) in a §2254 Case

In Cullen v. Pinholster, supra, though this Court held that

“evidence introduced in federal court has no bearing

on §2254(d)(1) review. If a claim has been adjudicated on

the merits by a state court, a federal habeas petitioner must

overcome the limitation of § 2254(d)(1) on the record that

was before that state court.” Id. 563 U.S.at 185.

In his concurrence, Justice Breyer reasoned that if, while

litigating his claims in federal court, a petitioner discovers new

evidence that had not been presented to the state courts, “[h]e

can always return to state court presenting new evidence not

previously presented. If the state court again denies relief, he

might be able to return to federal court to make claims related

18

to the latest rejection…” Cullen v. Pinholster, supra, 563 U.S. at

206.

The Ninth Circuit adopted Justice Breyer’s procedure for

exhausting facts in Gonzalez v. Wong, 667 F.3d 965, 971 (9th

Cir. 2011). “We follow the suggestion offered by Justice Breyer

in his concurring opinion in Pinholster that a petitioner ‘can

always return to state court presenting new evidence not

previously presented.’” Id. 667 F.3d at 980.

The Sixth Circuit has taken contrary position. In Carter v.

Mitchell, 829 F.3d 455 (6th Cir. 2016), the Sixth Circuit rejected

the Ninth Circuit’s decision in Gonzalez, supra. “Carter seeks

to use Rhines5 as an end-run around Pinholster…” the Sixth

Circuit held that the “stay and abey” procedure authorized by

Rhines to return to state court to exhaust claims did not

encompass a return to state court to exhaust "unexhausted

evidence." Id. 829 F.3d at 467.

5

Rhines v. Weber, 544 U.S. 269 (2011)

19

B.

Cullen v, Pinholster, 563 U.S. 170 (2011) Did Not

Abrogate a District Court’s Authority to Issue a

Subpoena Pursuant to Rule 17(c) in Connection

With a §2254 Habeas Petition

Rule 6 of the Rules Governing Section 2254 Cases

provides, in pertinent part, that “[a] judge may, for good cause,

authorize a party to conduct discovery under the Federal Rules

of Civil Procedure…” Bracy v. Gramley, 520 U.S. 899 (1997);

Harris v Nelson, 394 US 286 (1969). The Advisory Committee

observed in its Note to Rule 6 that,

“where specific allegations before the court show reason

to believe that the petitioner may, if the facts are fully

developed, be able to demonstrate that he is confined

illegally and is therefore entitled to relief, it is the duty of

the court to provide the necessary facilities and

procedures for an adequate inquiry.”

In upholding the right to discovery in habeas cases, in

Harris v. Nelson, supra, the high court stated that “[t]he very

nature of the writ demands that it be administered with the

initiative and flexibility essential to insure that miscarriages of

justice within its reach are surfaced and corrected.” Id. 394

U.S. at 291.

20

“[W]here specific allegations before the court show reason

to believe that the petitioner may, if the facts are fully

developed, be able to demonstrate that he is…entitled to

relief, it is the duty of the courts to provide the necessary

facilities and procedures for an adequate inquiry.” Id. 394

U.S. at 299.

Rule 6 “is meant to be ‘consistent" with Harris.” Bracy v.

Gramley, supra, 520 U.S. at 909. Pinholster neither concerned

nor considered discovery in habeas cases. In fact, the word

“discovery” and the words “Rule 6” nowhere appear in the body

of this Court’s opinion in Pinholster.

“This Court made no

holding in Pinholster as to whether a district court may grant

leave for discovery before it determines whether §2254(d)(1) has

been satisfied on the merits.” Dominguez v. Williams, 2014 U.S.

Dist. LEXIS 113559, *8, 2014 WL 4092263 (D. Nev.

2014);

Sample v. Colson, 958 F. Supp. 2d 865, 889 (W.D. Tenn. 2013).

Given that neither Rule 6 nor “discovery” is discussed in

Pinholster, that case cannot stand for the proposition that Rule

6 was expressly overruled, abrogating the access to discovery in

habeas cases. Moreover, there is no basis for concluding that

Pinholster repealed Rule 6 by implication. “It is, of course, a

21

cardinal principle of statutory construction that repeals by

implication are not favored.” Radzanower v. Touche Ross & Co.,

426 U.S. 148, 154 (1976); Lujan-Armendariz v. INS, 222 F.3d

728, 743 (9th Cir. 2000).

Simply put, discovery was not

discussed in Pinholster and nothing in that opinion supports

the notion that Rule 6 was impliedly abrogated.

It should be noted that the Advisory Committee Note to

Rule 6 makes it clear that the availability of an evidentiary

hearing is not a prerequisite to permitting discovery.

"Discovery may, in appropriate cases, aid in developing

facts necessary to decide whether to order an evidentiary

hearing or to grant the writ following an evidentiary

hearing…While

proceedings

requests

normally

for

follow

discovery

the

in

granting

habeas

of

an

evidentiary hearing, there may be instances in which

discovery would be appropriate beforehand…” Rules

Governing § 2254 Cases, Rule 6(a). Ervin v. Cullen, 2011

U.S. Dist. LEXIS 100976, *11, 2011 WL 4005389 (N.D. Cal.

2011)

Moreover, in Brady/Giglio cases, such as this case, such

a rule precluding discovery in federal habeas litigation “would

mean that the State could thwart any adjudication of facts

underlying a federal claim simply by withholding the facts

22

during the state-court proceeding.” Gibson v. Wetzel, 2016 U.S.

Dist. LEXIS 44418, *11 (E.D. Pa. 2016),[ “Pinholster has not

changed the inapplicability of Section 2254(d) to discovery

motions under Rule 6(a). Section 2254(d) should not be applied

to Petitioner's discovery request.”]; Jones v. Bagley, 696 F.3d

475, 486 (6th Cir. 2012), [“If Jones were able to show a Brady

violation, introduction of new evidence not considered by the

state court would not violate the rule announced by the Court

in Cullen v. Pinholster.”].

Moreover, the fact that this Court has ruled that the

evidence upon which a federal habeas court may consider is

limited to the evidence that was before the state court when the

issue was raised in state court, as a matter of logic, does not

lead to the conclusion that Rule 6’s discovery provisions have

been abrogated.

There is nothing in Pinholster precluding a federal

petitioner from continuing to investigate his claims after the

federal petition has been filed nor is there anything in Pinholster

distinguishing between discovery and investigation dehors the

federal discovery procedures set forth in Rule 6. All Pinholster

23

held is that a federal court may not consider any newly

discovered facts proffered to support a habeas claim unless they

have first been presented to the state court. In Pinholster this

Court was simply concerned

“with preventing ‘habeas-by-sandbagging’ and with

promoting comity between state and federal courts by

ensuring that the state's consideration of a petitioner's

claims were the ‘main event’ rather than a ‘tryout on the

road’ to federal court.” Jamerson v. Runnels, 713 F.3d 1218,

1226 (9th Cir. 2013).

C.

This Court Should Grant the Petition for Certiorari

and Remand this Case to the Court of Appeals for

the Ninth Circuit

Brady cases present a special problem in this postPinholster world.

Brady is premised on the notion that the

prosecution has an obligation disclose exculpatory evidence.

Administration of the Brady rule depends upon the good faith

of the prosecution. By its very nature, except in the rarest of

cases, the defense has no way of knowing what is in the

prosecutor’s file. If a prosecutor chooses to hide what he should

disclose, unless the defense gets lucky, it is highly unlikely that

24

the defense will ever learn of the exculpatory evidence it is

entitled to receive.

In the case at bar, the prosecution withheld the report of

the March 4, 2009 meeting. Petitioner did not obtain a copy of

the report until well after his trial was over, until well after his

direct appeal was adjudicated. When petitioner, who has little

education, filed his first state petition, he was acting as his own

lawyer. It wasn’t until he made contact with an inmate writwriter that he was able to obtain the report and file an amended

state petition.

Now that we know that there was a CD of that March 2009

meeting – by far the best and most accurate account of what

was said and, based on the written summary, most likely proof

positive of the deal for testimony, it seems anomalous at the

very least to preclude access. The state should not be able to

defy Brady with impunity.

In the case at bar, permitting discovery would not sandbag

the state court. The report of the March 4, 2009 meeting was

attached as an exhibit to petitioner’s First Amended Petition

which was timely filed the California Supreme Court. Thus the

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state court had before it the broad outline of what took place

during that meeting when it denied the writ.

Permitting

petitioner to obtain the verbatim record of what happened will

not be ‘habeas-by-sandbagging’ as described in Pinholster,

supra. The state court is already aware of the report of the

meeting; the CD is simply a more accurate and unbiased

account of what happened.

Moreover, petitioner is not suggesting that the CD of that

meeting be submitted directly to the District Court. Rather,

petitioner is requesting that the subpoena duces tecum be

issued, the CD obtained, and thereafter, the “stay and abey”

procedure outlined in Gonzales v. Wong, supra, be followed so

that the state court could first crack at the case, this time with

a complete, verbatim record of the Mr. Johns’ agreement to

cooperate. “Pinholster itself precluded review only of evidence

that was never revealed in any state court proceeding.”

Jamerson v. Runnels, supra, 713 F.3d at 1227.

Finally, there is something wrong when a district court

denies the habeas claim by a state petitioner on the grounds

that he hasn’t presented enough evidence to support his

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Napue/Giglio/Brady claim, as the district court did in this case,

and at the same time, refuse petitioner the means to obtain the

Brady evidence improperly secreted by the prosecution.

All

petitioner wanted was to exhaust the facts in the state court

before presenting them to the district court. Comity would then

be respected, the state would have first crack at the Brady

evidence, and justice would be served. After all, isn’t that what

Pinholster was all about?

Dated: April 3, 2018

Barry Morris

Attorney for Petitioner

WILLIAM DYE

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Proof of Service by Federal Express

Petition for Certiorari

I, Barry Morris, declare that I am a citizen of the United States

of America, over the age of 18 years; my business address and

place of business is 1220 Oakland Blvd., #200, Walnut Creek,

California, 94596; and I am not a party to the within action. On

the date shown below, I delivered a true copy of the aboveentitled document to Federal Express in Walnut Creek

addressed as follows:

Office of the Attorney General of California

1300 I Street, Suite 125

Sacramento, CA 94244-2550

Executed on April 3, 2018 at Walnut Creek, California

I declare under penalty of perjury that the foregoing is true and correct.

/s/Barry Morris

BARRY MORRIS