Petition for Writ of Certiorari — Jason Keith Walker, Petitioner v. United States

Supreme Court briefJun 26, 2019

Ask Donna

What actually matters in this document.

Text

NO.__________

IN THE SUPREME COURT OF THE UNITED STATES

JASON KEITH WALKER,

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

___________________________________________________________

Carolyn D. Phillips, (CA 103045)

Attorney at Law

P.O. Box 5622

Fresno, CA 93755-5622

Telephone: (559) 248-9833

Email: cdp18@sbcglobal.net

Member of the Bar of this Court

Counsel for Petitioner Jason Walker

QUESTIONS PRESENTED

Whether the petitioner, Jason Keith Walker, is entitled to a

certificate of appealability on his claim that his trial counsel provided

ineffective assistance of counsel in derogation of Walker’s Sixth Amendment

rights in three respects: (1) during plea negotiations when trial counsel

advised Walker that he faced a maximum penalty of 20 years instead of life;

(2) providing erroneous advise that co-defendants’ plea agreements could not

be used against Walker at trial or sentencing; and, (3) trial counsel’s

assessment that the government would not be able to prove its case because

it was based on unreliable witnesses, known perjurers, and lack of evidence

that Pitch Dark Family (PDF) was a criminal enterprise.

Whether the petitioner, Jason Keith Walker, is entitled to a

certificate of appealability on his claim that his appellate counsel provided

ineffective assistance in derogation of Walker’s due process rights under the

Fifth Amendment in two respects: (1) failing to assert the trial evidence was

insufficient to establish that PDF was an ongoing organization composed of

associates functioning as a continuing unit; and, (2) failing to challenge

prosecutorial misconduct or evidence based on perjured and unreliable

testimony.

Whether the petitioner, Jason Keith Walker, is entitled to a

certificate of appealability on his claim that the Government violated his due

process rights under the Fourteenth Amendment by: (1) failing to disclose the

fact that a Government witness was a paid informant then failing to correct

the informant’s false trial testimony that he had received no money from the

Government; and, (2) knowingly allowing five Government witnesses to

provide perjured trial testimony.

Whether the denial of petitioner’s request for a certificate of

appealability improperly condoned the prosecutor’s profligate misconduct in

not only failing to disclose to the defense before trial that a Government

witness had been paid as an informant in violation of Brady v. United States,

397 U.S. 742 (1970), but also by not correcting the informant’s false trial

testimony that he received no money from the Government, in violation of

Napue v. Illinois, 537 U.S. 322 (2003), and Giglio v. United States, 405 U.S.

150 (1972)?

PARTIES TO THE PROCEEDING

All parties appear in the caption of the case on the title page.

iii

TABLE OF CONTENTS

QUESTIONS PRESENTED ............................................................................................i

PARTIES TO THE PROCEEDING ............................................................................. iii

TABLE OF CONTENTS ................................................................................................ iv

TABLE OF CONTENTS FOR APPENDIX ................................................................... v

TABLE OF AUTHORITIES .......................................................................................... vi

JURISDICTIONAL STATEMENT ................................................................................ 1

OPINIONS BELOW

.................................................................................................... 2

CONSTITUTIONAL AND STATUTORY PROVISIONS AT ISSUE .......................... 4

INTRODUCTION

.................................................................................................... 6

STATEMENT OF THE CASE ........................................................................................ 8

Walker’s Prosecution, Verdict and Sentencing ........................................ 8

Trial Evidence ............................................................................................ 9

Post-Trial Proceedings ............................................................................ 11

REASONS FOR GRANTING THE PETITION ........................................................... 12

Ineffective Assistance of Counsel .......................................................... 12

Ineffective Assistance of Trial Counsel .................................................. 13

During Plea Negotiations

Ineffective Assistance of Appellate Counsel .......................................... 18

Failure to Challenge the Sufficiency of the Evidence ..................... 18

Failure to Challenge Prosecutorial Misconduct and the ................ 20

Insufficiency of the Evidence Based on Perjured and

Unreliable Testimony

Extreme Prosecutorial Misconduct Under Brady, ................................. 24

Giglio, and Napue

Derrick Shields ................................................................................. 25

Charles McClough ............................................................................ 36

Conclusion ................................................................................................ 38

Certificate of Compliance with Rule 33.2 .................................................................... 39

TABLE OF CONTENTS FOR APPENDIX

Order of United States Court of Appeals for the

Ninth Circuit in United States v. Walker, U.S.C.A. 18-16286,

April 2, 2019, Denying Motion for Reconsideration ........................................ A1

Order of United States Court of Appeals for the

Ninth Circuit in United States v. Walker, U.S.C.A. 18-16286

Denying request for a certificate of appealability ........................................... B1

Order of the United States District Court for the Eastern

District of California, July 3, 2018, denying certificate of

appealability, Case No. 2:03-cr-0042............................................................. C1-2

Order of the United States District Court for the Eastern

District of California, June 15, 2018, denying §2255 motion,

Case No. 2:03-cr-0042 .................................................................................... D1-2

Magistrate’s Findings and Recommendations, United States

District Court for the Eastern District of California,

August 10, 2017, denying §2255 motion, Case No. 2:03-cr-0042 ............ E1-E81

United States Supreme Court denial of Jason Walker’s

petition for writ of certiorari, Walker and Greer v. United States,

562 U.S. 1245, S10-8425, dated February 22, 2011 ........................................ F1

Memorandum Opinion, United States Court of Appeals for the

Ninth Circuit in United States v. Walker, U.S.C.A. 06-10643,

dated July 12, 2010 ..................................................................................... G1-G5

Judgment and Sentence of the District Court, United States v.

Walker, Eastern District of California, Case No. 2:03-cr-0042

(E.D. Cal. October 23, 2006) ...................................................................... H1-H6

Jason Walker’s February 14, 2012 Affidavit in Support of Motion

to Amend the §2255 Petition ........................................................................I1-I6

Excerpts of Reporter’s Transcripts, Jury Trial, United States v.

Walker, E.D. Cal., 2:03-cr-0042 (March 1, 2006) ........................................ J1-J7

Excerpts of Reporter’s Transcripts, Jury Trial, United States v.

Walker, E.D. Cal., 2:03-cr-0042 (February 9, 2006) .................................. K1-K2

TABLE OF AUTHORITIES

Cases

Page(s)

Barefoot v. Estelle ................................................................................................. 6

(1983) 463 U.S. 880

Berger v. United States ...................................................................................... 23

(1934) 295 U.S. 78

Brady v. United States ..................................................... 7, 11, 24, 26, 28-33, 35

(1970) 397 U.S. 742

Cunningham v. Wong ......................................................................................... 32

(9th Cir.2013) 704 F.3d 1143

Giglio v. United States ......................................................... 24, 26, 28, 30, 31, 33

(1972) 405 U.S. 150

Hayes v. Brown .................................................................................................. 33

(9th Cir.2005) 399 F.3d 972

Hayward v. Marshall ........................................................................................... 6

(9th Cir.2010) 603 F.3d 546

Hill v. Lockhart .................................................................................................. 13

(1985) 474 U.S. 52

Jackson v. Brown ............................................................................................... 26

(9th Cir.2008) 513 F.3d 1057

Kyles v. Whitley .................................................................................................. 26

(1995) 514 U.S. 419

Lafler v. Cooper ............................................................................................ 13, 16

(2012) 566 U.S. 156

Miller-El v. Cockrell ....................................................................................... 8, 12

(2003) 537 U.S. 322

Missouri v. Frye ............................................................................................ 13, 16

(2012) 566 U.S. 134

vii

Montejo v. Louisiana .......................................................................................... 13

(2013) 556 U.S. 778

Napue v. Illinois .......................................................................... 24-28, 31-33, 35

(2003) 537 U.S. 322

Nunes v. Miller .................................................................................................. 12

(9th Cir.2003) 350 F3d 1045

Padilla v. Kentucky ............................................................................................ 13

(2010) 559 U.S. 356

Raley v. Ylst

.................................................................................................. 32

(9th Cir.2006) 470 F.3d 792

Schriro v. Landigan ........................................................................................... 14

(2007) 465 U.S. 474

Smith v. Robbins ................................................................................................ 18

(2000) 528 U.S. 259

Strickland v. Washington ...................................................................... 12-14, 16

(1984) 466 U.S. 668

Swarthout v. Cooke............................................................................................... 6

(2011) 562 U.S. 216

United States v. Al Mudarris ............................................................................. 22

(9th Cir.) 695 F.2d 1182

United States v. Bagley ................................................................................ 24, 35

(1985) 473 U.S. 667

United States v. Brown ...................................................................................... 32

(2d Cir.1978) 582 F.2d 197

United States v. Butler ................................................................................. 22, 28

(9th Cir.1978) 567 F.2d 885

United States v. Kennedy ................................................................................... 30

(9th Cir.1989) 890 F.2d 1056

United States v. Necoechea ................................................................................ 21

(9th Cir.1993) 986 F.2d 1273

viii

United States v. Price ......................................................................................... 30

(9th Cir.2009) 566 F.3d 900

United States v. Reynolds .................................................................................. 23

(1953) 345 U.S. 1

United States v. Samango .................................................................................. 21

(9th Cir.1979) 607 F.2d 877

United States v. Sedaghaty ................................................................................ 30

(9th Cir.2013) 728 F.3d 885

United States v. Shaffer ..................................................................................... 29

(9th Cir.1986)

United States v. Skurdal .................................................................................... 12

(9th Cir.2003) 341 F.3d 921

United States v. Wade ........................................................................................ 13

(1967) 388 U.S. 218

United States v. Walker........................................................................................ 2

(2017) No. 2:03-cr-0042, 2017 WL 3438763 (unpublished)

United States v. Walker........................................................................................ 2

(2019) 391 Fed.Appx. 638

United States v. Zuno-Arce ................................................................................ 33

(9th Cir.2005) 399 F.3d 972

Walker and Greer v. United States ................................................................ 2, 11

(2011) 562 U.S. 1245

United States Constitution

Fifth Amendment .............................................................................. 11, 12

Fourteenth Amendment .......................................................................... 11

Sixth Amendment .............................................................................. 11-13

Statutes

18 U.S.C. §1959(a) ................................................................................................ 9

18 U.S.C. §1962(d) .......................................................................................... 9, 14

18 U.S.C. §1963(a) .............................................................................................. 14

28 U.S.C. §1254(1) ................................................................................................ 1

28 U.S.C. §2253(c)(2) ............................................................................................ 6

28 U.S.C. §2255 ................................................................................ 11, 13, 23, 27

Rules

Supreme Court Rule 13(3) ................................................................................... 1

IN THE SUPREME COURT OF THE UNITED STATES

JASON KEITH WALKER,

Petitioner,

-vUNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Jason Keith Walker respectfully petitions this Court for a writ of

certiorari to review the judgment of the United States Court of Appeals for

the Ninth Circuit.

JURISDICTIONAL STATEMENT

The United States Court of Appeals for the Ninth Circuit denied

Walker’s request for a certificate of appealability February 27, 2019.

Walker’s motion for reconsideration was denied on April 2, 2019. This

petition is timely filed within 90 days after the entry of the judgment.

Sup.Ct.Rule 13(3).

This Court has jurisdiction pursuant to 28 U.S.C. §1254(1).

OPINIONS BELOW

The April 2, 2019 order of the Ninth Circuit denying Walker’s motion

for reconsideration is unpublished and is reproduced in the appendix at A1.

The February 27, 2019 order of the Ninth Circuit denying Walker’s request

for a certificate of appealability of the District Court’s denial of his 28 U.S.C.

section 2255 motion is unpublished and is reproduced in the appendix to this

petition at B1. The order of the District Court denying Walker’s request for a

certificate of appealability is unpublished and is reproduced in the appendix

at C1-C2.

The order of the District Court denying Walker’s 28 U.S.C. section

2255 motion is unpublished and is reproduced in the appendix at D1-D2. The

United States District Court for the Eastern District of California

magistrate’s August 17, 2017, Findings and Recommendation denying

Petitioner’s Section 2255 Motion is unpublished and available at United

States v. Walker, No. 2:03-cr-0042, 2017 WL 3438763, and is reproduced in

the appendix at E1-E81. The United States Supreme Court denial of

Walker’s petition for writ of certiorari, S10-8425, dated February 22, 2011 is

published at Walker and Greer v. United States, 562 U.S. 1245 and is

reproduced in the appendix at F1. The opinion of the Ninth Circuit affirming

Walker’s conviction and sentence is unpublished and available at United

States v. Walker and Greer, 391 Fed.Appx. 638 (2010 ), and is reproduced in

the appendix at G1-G5. The judgment and sentence in United States District

Court, United States v. Walker, Case No. 2:03-cr-0042-MCE, filed October 23,

2006 is reproduced in the appendix at H1-H6.

CONSTITUTIONAL AND STATUTORY PROVISIONS AT ISSUE

The Fifth Amendment to the United States Constitution provides:

No person shall be held to answer for a capital, or otherwise

infamous crime unless on a presentment or indictment of a Grand

Jury, except in cases arising in the land or naval forces, or in the

Militia, when in actual service in time of War or public danger;

nor shall any person be subject for the same offence to be twice

put in jeopardy of life or limb; nor shall be compelled in any

criminal case to be a witness against himself, nor be deprived of

life, liberty, or property, without due process of law; nor shall

private property be taken for public use, without just

compensation.

U.S. Const. amend. V.

The Sixth Amendment to the United States Constitution provides:

In all criminal prosecutions, the accused shall enjoy the right to a

speedy and public trial, by an impartial jury of the state and

district wherein the crime shall have been committed, which

district shall have been previously ascertained by law, and to be

informed of the nature and cause of the accusation; to be

confronted with the witnesses against him; to have compulsory

process for obtaining witnesses in his favor, and to have the

assistance of counsel for his defense.

U.S. Const. amend. VI.

The Fourteenth Amendment to the United States Constitution

provides:

All persons born or naturalized in the United States, and subject

to the jurisdiction thereof, are citizens of the United States and of

the State wherein they reside. No State shall make or enforce

any law which shall abridge the privileges or immunities of

citizens of the United States; nor shall any State deprive any

person of life, liberty, or property, without due process of law; nor

deny to any person within its jurisdiction the equal protection of

the laws.

U.S. Const. amend. XIV.

The pertinent section of the Anti-Terrorism and Effective Death

Penalty Act provides:

(1)

(2)

Unless a circuit justice or judge issues a certificate

of appealability, an appeal may not be taken to the

court of appeals from(A)

the final order in a habeas corpus proceeding

in which the detention complained of arises

out of process issued by a State court; or

(B)

the final order in a proceeding under section

2255.

A certificate of appealability may issue under

Paragraph (1) only if the applicant has made a

substantial showing of the denial of a constitutional

right.

28 U.S.C. § 2253(c).

INTRODUCTION

This case presents important questions relating to the standard for a

court to apply when weighing whether a certificate of appealability should

issue in cases involving constitutional violations of a criminal defendants’

rights. The governing statute states that when there is a “substantial showing

of the denial of a constitutional right” a certificate of appealability may issue.

28 U.S.C. §2253(c)(2). The Ninth Circuit has held that “[t]he standard for a

certificate of appealability is lenient,” and a certificate should issue when it is

established “that reasonable jurists could debate the district court’s resolution

or that the issues are adequate to deserve encouragement to proceed further.”

Hayward v. Marshall, 603 F.3d 546, 553 (9th Cir.2010) (en banc), overruled on

other grounds by Swarthout v. Cooke, 562 U.S. 216 (2011), (citation and

internal quotation marks omitted). The standard “requires something more

than the absence of frivolity but something less than a merits determination.”

Id. (internal quotation marks omitted.) However, the appellant “need not show

that he should prevail on the merits.” Barefoot v. Estelle, 463 U.S. 880, 893 n.

4 (1983).

Petitioner Walker established that his trial counsel provided

constitutionally inadequate representation during plea negotiations by failing

to provide correct advice that Walker faced a potential life sentence not a

maximum sentence of twenty years. Walker also established that his trial

counsel misled him by underestimating the evidence against Walker and

providing erroneous advice that co-defendants’ plea agreements could not be

used against Walker at trial or sentencing.

Based on these erroneous

advisements, Walker rejected a twelve-year plea offer and chose to go to trial,

something he would not have done if he had been provided accurate

information and advice.

Walker’s appellate counsel provided ineffective

assistance when she failed to challenge on direct appeal prosecutorial

misconduct or the sufficiency of the evidence which consisted of known

perjured and unreliable testimony thus precluding de novo review and a

reasonable probability of success.

Walker’s allegations regarding the

ineffective assistance provided by his attorneys presented questions of “some

substance” and set forth a “substantial showing of the denial of a constitutional

right.” These issues warranted the issuance of a certificate of appealability.

A certificate of appealability should also have issued regarding the

government’s violation of its Brady obligations and its violations of the

Fourteenth Amendment by allowing witnesses to knowingly provide perjured

testimony during Grand Jury and trial testimony.

As this Court has clarified:

At the COA stage . . ., a court need not make a definitive inquiry

into [the merits of the habeas petition]. As we have said, a COA

determination is a separate proceeding, one distinct from the

underlying merits. The Court of Appeals should have inquired

whether a “substantial showing of the denial of a constitutional

right” had been proved. Deciding the substance of an appeal in

what should only be a threshold inquiry undermines the concept

of a COA. The question is the debatability of the underlying

constitutional claim, not the resolution of that debate.

Miller-El v. Cockrell, 537 U.S. 322, 342 (2003) (citations omitted).

Petitioner Walker met this “modest standard.”

STATEMENT OF THE CASE

A. Walker’s Prosecution, Verdict and Sentencing

Petitioner Jason Keith Walker was charged and convicted of one count

of a four-count indictment, conspiring to conduct the affairs of an enterprise,

the Pitch Dark Family or PDF, through a pattern of racketeering activity, 18

U.S.C. section 1962(d). Seven of his eight co-defendants were indicted on

several other charges which carried the possibility of the death penalty

pursuant to 18 U.S.C. sections 1959(a)(1) and 2.

On December 17, 2004, the Government filed a notice of its intent not

to seek the death penalty against any of the defendants. ECF 248. Until this

decision there had been no plea offers in the case. With the Government’s

decision that it would not seek the death penalty, the Government began to

make offers for the defendants to plead guilty to the conspiracy charge, the

only count alleged against Walker. Five of Walker’s codefendants accepted

plea offers to the conspiracy count and received sentences between twentyseven and sixty months. During this period of time Walker’s trial counsel

advised him that the government had made an offer of twelve years for the

Section 1962(d) conspiracy charge and advised Walker he faced a maximum

sentence of twenty years. Based on counsel’s advice, Walker rejected the

offer. Walker and co-defendant Shango JaJa Greer were tried together before

a jury.

On April 7, 2006, the jury returned a verdict finding Walker guilty of

the sole conspiracy count. With respect to this count the jury found that

Walker had agreed to a pattern of racketeering activity which involved

attempted murder, possession of a controlled substance with the intent to

distribute and conspiring to distribute illegal narcotics. The jury also

concluded that Walker committed or aided and abetted in the attempted

murder of Hickerson, committed or aided and abetted in the murders of

Roberts and Garrett and committed the crime of conspiracy to distribute

illegal narcotics.

The district court sentenced Walker to life in prison. App. H1-H2.

B. Trial Evidence

The government alleged “Pitch Dark Family” was a criminal enterprise

that operated in Vallejo, California, from 1994 through 2000, selling drugs,

protecting drug turf, and committing a number of unconnected murders the

state never prosecuted. No evidence established the nature of PDF, it’s

alleged structure, or whether it had any rules, bylaws, agendas, chain of

command, or leadership.

Several witnesses testified regarding their version of how Pitch Dark

Family began on the west side of Vallejo. Witnesses, some of them paid

informants and others with a history of perjury, testified regarding the sale of

controlled substances, persons killed, and other activities in and around west

Vallejo where Pitch Dark Family lived and hung out. The government relied

principally on the testimony of Detective Steven Fowler of the Vallejo Police

Department (VPD) to establish that PDF was a RICO “enterprise.” Over

repeated defense objections, Fowler was permitted to tell the jury that he

relied on two main sources for his opinion: the word on the street from

persons involved in criminal activity, which he called “street intelligence,”

and admissions made by codefendants as part of their plea agreements.

Although both of those sources were inadmissible hearsay, the jury was never

told that they could use that information only to evaluate the expert’s

opinion, not to establish guilt.1

The trial evidence showed a hodgepodge of unrelated crimes that were

never proven to have been committed by PDF, acting as a “continuing unit”

with a “common purpose, as part of a “pattern of racketeering activity.”

Amazingly, appellate counsel on direct appeal never challenged the

sufficiency of the evidence. No evidence was presented establishing that

PDF, as an organization, purchased cocaine, distributed it to members to sell,

collected the profits and used the proceeds for any other illegal activity.

Likewise, no evidence established beyond a reasonable doubt that any

particular murder was committed by or on behalf of PDF. At best, the

1 This issue was raised unsuccessfully on direct appeal by Walker’s former appointed

appellate counsel.

unrelated predicate-act murders alleged in the indictment were for separate,

independent drug debts to individual street dealers.

Post-Trial Proceedings

A direct appeal was filed June 30, 2008 with the Ninth Circuit Court

of Appeals, 06-10643. In an unpublished Memorandum Disposition, August

5, 2010, the Ninth Circuit affirmed Walker’s sentence and conviction. App.

G1-G5. A petition for panel rehearing and for rehearing en banc was filed

September 17, 2010 and denied October 31, 2010. A petition for writ of

certiorari was filed with the Supreme Court, 10-8425, and denied. Walker v.

United States, 562 U.S. 1245 (2/22/2011). App. F1.

On February 14, 2012, petitioner Walker filed a motion to vacate, set

aside or correct sentence under 28 U.S.C. §2255. The motion included claims

under the Sixth and Fifth Amendments for ineffective assistance of both

trial and appellate counsel, Brady violations, violation of due process under

the Fifth Amendment based on the government’s knowledge that the

indictment was based partially but materially on perjured Grand Jury

testimony, and violations of the Fourteenth Amendment based on Walker’s

conviction as obtained through known false evidence.

On August 10, 2017, the magistrate filed its Findings and

Recommendations, recommending the denial of appellant’s §2255 motion.

App. E1-E81. The district court adopted the findings and recommendations

to deny the §2255 motion and on July 3, 2018 declined to issue a certificate

of appealability. App. C, D.

Petitioner Walker timely filed a Notice of Appeal July 11, 2018 and

filed a request for the Ninth Circuit Court of Appeals to issue a certificate of

appealability. The Ninth Circuit Court of Appeals denied petitioner’s

request for a certificate of appealability because “appellant has not made a

‘substantial showing of the denial of a constitutional right,’” citing 28 U.S.C.

§ 2253(c)(2), and Miller-El v. Cockrell, supra, 537 U.S.322 at p. 327. App. B.

On April 2, 2019, the Ninth Circuit issued its order granting petitioner

Walker’s request to file an addendum to the motion for reconsideration but

denying the motion for reconsideration. App. A1.

REASONS FOR GRANTING THE PETITION

A. Ineffective Assistance of Counsel

The Sixth Amendment guarantees the effective assistance of trial

counsel. Under the Due Process Clause of the Fifth Amendment, an

appellant has the right to representation by effective counsel in his direct

appeal. United States v. Skurdal, 341 F.3d 921, 926 (9th Cir.2003). The

United States Supreme Court set forth the test for demonstrating ineffective

assistance of counsel in Strickland v. Washington, 466 U.S. 668 (1984).

The benchmark for assessing claims of ineffective assistance of counsel

is “whether counsel’s conduct so undermined the proper functioning of the

adversarial process that the trial cannot be relied on as having produced a

just result.” Nunes v. Mueller, 350 F.3d 1045, 1051 (9th Cir.2003) (quoting

Strickland, 466 U.S. at 686). A criminal defendant must first show both that

his counsel’s representation fell below an objective standard of

reasonableness, and that there is a reasonable probability that, but for his

counsel’s unprofessional errors, the result of the proceedings would have been

different. Strickland, at 687-688.

It is well settled that the right to the

effective assistance of counsel applies at critical stages of the criminal

proceedings including trial preparation, trial, plea negotiations, and appeal.

Montejo v Louisiana, 556 U.S. 778, 786 (2013) (quoting United States v.

Wade, 388 U.S. 218, 227-228 (1967); Padilla v. Kentucky, 559 U.S. 356, 373

(2010); Missouri v. Frye, 566 U.S. 134, 145 (2012); Hill v. Lockhart, 474 U.S.

52 (1985); Lafler v. Cooper, 566 U.S. 156, 165 (2012).

A petitioner shows prejudice due to ineffective assistance of counsel

when “there is a reasonable probability that, but for counsel’s unprofessional

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

probability is a probability sufficient to undermine confidence in the

outcome,” but a defendant need not show that counsel’s deficient conduct

more likely than not altered the outcome in the case.” Strickland v.

Washington, supra, 466 U.S. at p. 693 (1984).

Ineffective Assistance of Trial Counsel During Plea

Negotiations

Petitioner Walker raised ineffective assistance of trial counsel in his

motion to amend his section 2255 motion and in his affidavit. App. I1-I6. In

the affidavit Walker declared under penalty of perjury that his trial counsel

did not explain the sentencing guidelines. The attorney had advised him that

he faced a maximum penalty of twenty years for a violation of 18 USC section

1962(d), not a life sentence. App. I4-I5. Walker declared that had he known

he faced a maximum sentence of life imprisonment he would have accepted

the government’s twelve-year offer. Id., at 5, ¶22. There was no admission or

denial of this error and omission from counsel. Petitioner Walker was

entitled to an evidentiary hearing because he has set forth a colorable claim

for relief; the allegations if true, would entitle him to relief. Schriro v.

Landrigan, 550 U.S. 465, 474 (2007), but the district court ordered no

hearing.

During pretrial the lead counsel in Walker’s defense advised Walker

that the Government had offered twelve years if he pled guilty to Count Two,

the conspiracy charge. It was Walker’s understanding from reading section

1963(a), that he faced a maximum penalty of twenty years for a violation of

section 1962(d). Trial counsel did not disabuse Walker of this understanding

and did not inform Walker that he faced a maximum sentence of life

imprisonment. Walker knew his co-defendants had received much lower

offers despite being charged with multiple counts which included the death

penalty: Defendant Villafan had faced the death penalty for Count Three,

Violent Crime in Aid of Racketeering Activity, and Aiding and Abetting,

Defendant Villafan accepted a plea to Count Two, and was sentenced to FiftyTwo months; Defendant Elliot Cole who had been charged with Counts One,

Two and Three, and had faced the death penalty, pled guilty to Count Two

and was sentenced to Forty-Three months; Defendant Eric Jones who had

been charged with Counts One, Two and Three and had faced the death

penalty, pled guilty to Count Two and was sentenced to Sixty months;

Defendant Oscar Gonzales who had been charged with Counts One, Two and

Three and had faced the death penalty, pled guilty to Count Two and was

sentenced to Fifty-Seven months; Defendant Louis Walker who had been

charged with Counts One, and Two and had faced the death penalty, pled

guilty to Count Two and was sentenced to Thirty –Three months; and,

Defendant Marc Tarver who, like Walker, had only been charged with Count

Two, entered a plea and was sentenced to Twenty-Seven months. Within this

context a twelve-year offer seemed unreasonable, and his counsel did not

advise him otherwise.

Further, Walker’s counsel advised him that the Government would not

be able to use the factual basis for the co-defendant’s plea agreements against

Walker at trial or sentencing, and that the Government would not be able to

prove its case which was based on unreliable witnesses, known perjurers, and

lack of evidence that PDF was an enterprise. Walker understood that

witness Uvonda Parks’ grand jury testimony was the basis for the death

penalty charges. Knowing that Parks had repeatedly perjured herself before

the grand jury, Walker believed his attorneys’ assessment of the weakness of

the Government’s case. Given the sentences of his co-defendants of five years

or less, and his maximum exposure of twenty years of imprisonment, Walker

did not agree to a plea. Had Walker known he risked a life sentence he would

have accepted the twelve-year offer and avoided the risk of a lifetime in

prison.

It was during trial after the plea offer had been withdrawn, when

Walker learned that he faced a maximum sentence of life, and that he could

be held accountable as a co-conspirator, or aider and abettor for the alleged

predicate acts committed by others.

Trial counsel’s failure to properly advise Walker of the risks of trial

during plea negotiations was constitutionally deficient representation. To

prevail on a claim of ineffective assistance of counsel, petitioner must show

that: (1) his trial counsel’s performance “fell below an objective standard of

reasonableness”; and, (2) “there is a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have been

different.” See Strickland v. Washington, supra, 466 U.S at 688.

Where a plea offer is rejected based on erroneous advice, Walker must

show prejudice in the following way: (1) a “reasonable probability” that he

would have accepted the plea offer; (2) that the plea would have been entered

without the prosecutor canceling it or the trial court refusing to accept it; and

(3) that the offer was more favorable than the sentence actually imposed. See

Missouri v. Frye, supra, 566 U.S. at p. 147; Lafler v. Cooper, supra, 566 U.S.

at pp. 164-166 (2012). Petitioner Walker satisfied the Strickland prejudice

prong as evidenced by his sworn statement that had he received the proper

advice, he would have accepted the plea and not exercised his right to trial.

App. I5, ¶¶22-23. In addition, as a result of not accepting the plea and being

convicted at trial, Walker received a life sentence, far lengthier than the

twelve-years he would have received under the plea offer. Trial counsel’s

failure to advise Walker he faced a maximum sentence of twenty years was

constitutionally deficient legal representation, resulting in prejudice to

Walker.

The record does not reflect that Walker had been advised as to the

maximum penalty at any time prior to trial or during plea negotiations. The

Government cited the Reporter’s Trial Transcript from February 6, 2006,

when Greer’s counsel referenced the life sentences faced by co-defendants

who accepted plea offers. However, these statements were made on Day 34 of

the jury trial. Whether Walker had previously been advised of this maximum

sentence is not reflected in this transcript or in any earlier transcript, and the

Government did not present any evidence of such an advisement. A

transcript of a statement made long after an offer has been rejected is not

relevant as to whether Walker had been properly advised as to the maximum

penalty when he was considering the Government’s 12-year offer. Further,

whether or not Walker’s attorneys were aware of the maximum penalty does

not establish that this information was provided by counsel to Walker during

plea negotiations.

C. Ineffective Assistance of Appellate Counsel

1. Failure To Challenge The Sufficiency of the Evidence

Appellate counsel in the opening brief on direct appeal described the

trial evidence that “PDF was an ongoing organization composed of various

associates function[ing] as a continuing unit” as “slim”, yet despite this

assessment appellate counsel failed to raise this argument for review

precluding de novo consideration of an issue which had a reasonable

probability of success. Smith v. Robbins, 528 U.S. 259, 285 (2000).

The court records revealed the vague, inconclusive, contradictory,

and faulty evidence used by the government during trial was insufficient to

support a RICO conviction beyond a reasonable doubt. The evidence was

insufficient and could not satisfy the elements necessary to establish PDF

was an “enterprise”, “engaged in a pattern of conduct, including murder,

attempted murder, and sales of controlled substances” as required by

statute. The facts presented to the jury was that PDF was a group of young

men trying to become rap stars. No evidence was presented which

established any form of coherent leadership, structure, chain of command,

operation, or organization. There was no money trail, no infrastructure, no

headquarters, no records, no membership lists and no profit sharing, and the

Findings do not identify such evidence. Vague testimony about PDF being a

“gang”, did not satisfy the required evidence of an “enterprise” that

functioned with a “common purpose” as a “continuing unit”.

The evidence at trial fell far short of establishing proof beyond a

reasonable doubt that PDF was (1) an “enterprise,” having (2) a “common

purpose,” (3) that PDF functioned as a “continuing unit” and (4) that Walker

conspired to participate in a “pattern of racketeering activities” conducted by

PDF. Appellate counsel aware of these fatal evidentiary shortcomings, was

ineffective by not challenging the sufficiency of the evidence in favor of

presenting objections to the Government’s expert testimony. If the evidence

was insufficient, the testimony of the Government’s expert was irrelevant.

However, if the challenges of the Government’s expert had been successful,

the RICO convictions could still be upheld in the absence of a challenge to

the sufficiency of the evidence. Therefore, it was objectively unreasonable

for appellate counsel to concede the sufficiency of the evidence supporting

the RICO charges.

Failure To Challenge Prosecutorial Misconduct

and The Insufficiency of The Evidence Based On

Perjured and Unreliable Testimony

Appellate counsel failed to raise any challenge to the Government’s

highly improper conduct during grand jury proceedings which resulted in the

issuance of the indictment, or to the use of known perjured testimony and

failure to disclose remuneration for testimony, i.e., Derrick Washington,

Derrick Shields, Dante Webster, Uvonda Parks, Jason Hickerson, and

Charles McClough, at trial.

The outrageous conduct of AUSA Jodi B. Rafkin during the grand jury

proceedings vouching for the veracity of Derrick Washington, testifying to

“falsehoods” and “untruths” “flagrantly” and “deliberately deceiving” the

grand jury, undermined the independent grand jury process and tainted the

prosecution from beginning to end. For example, Rafkin told the grand jury

that Washington had “severe learning disabilities”, was not an intelligent

person and then used the Larry Rude shooting as an example, stating that

“it’s the only thing like this he’s (Washington) has ever been involved in.”

This was a deliberate falsehood used by the Government to mislead the

grand jury, because Rafkin knew Washington had participated in a prior

murder in 1991 before becoming a witness for the State in that case.

Washington was a key witness for the Government in establishing two

predicate acts, the murders of Keith Roberts and Richard Garret. However,

Washington was a known suspect not only in the Keith Roberts murder, but

the Richard Garret murder as well. Witnesses Cherise Johnson, Brian

Anderson and Terry Chargualuf (unbiased witnesses) testified they saw a

six-foot-one dark-skinned man exit the right front passenger seat of Teresa

Williams’ car with a gun in his hand, walk up to Richard Garrett and shoot

him. Washington admitted he was the person in that right front passenger

seat. Further, the description of Garret’s assailant matched Washington not

Walker. Nevertheless, Washington was offered help from the Government to

avoid prosecution for these murders and for perjury if he helped the FBI.

The willingness of the prosecution to procure and present such tainted

testimony should have given appellate counsel pause in choosing which

issues to raise on appeal. This glaring misconduct exemplified the worst of

prosecutorial misconduct and overreaching by the Government. Appellate

counsel was responsible for challenging the sufficiency of the evidence

derived from grand jury abuses. Rafkin’s deliberate introduction of perjured

testimony exemplifies “perhaps the most flagrant example of misconduct”

which can cause “improper influence and usurpation of the grand jury’s

role,” resulting in a violation of due process. United States v. Samango, 607

F.2d 877, 881-882 (9th Cir.1979).

The Government admitted AUSA Rafkin’s conduct was not behavior

they would endorse. However, this diminishment of the pervasiveness of

Rafkin’s misconduct is not supported by the record. Rafkin intentionally

interfered with and undermined the grand jury’s role to independently and

objectively evaluate the evidence when she included the grand jury in

brainstorming ways in which to bolster Washington’s tainted testimony and

obtain an indictment. Rafkin’s vouching was especially problematic because

the credibility of the witnesses was crucial for persuading the grand jury to

indict. United States v. Necoechea, 986 F.2d 1273, 1276 (9th Cir.1993).

This misconduct placed in jeopardy the integrity of the criminal trial

and resulting convictions, however, appellate counsel failed to challenge

these issues on appeal, precluding petitioner Walker from obtaining de novo

review. There was a reasonable probability that the Ninth Circuit Court of

Appeals would have determined that the Government’s conduct by engaging

the grand jury in strategy to convict Petitioner before the grand jury had

made a determination that there was sufficient evidence for indictment,

caused the failure of the grand jury to remain neutral and objective, and

resulted in an abuse of the broad prosecutorial discretion in grand jury

proceedings. United States v. Al Mudarris, 695 F.2d 1182, 1185 (9th Cir.),

cert. denied, 461 U.S. 932 (1983). And further would have found this

prosecutorial overreaching impinged the grand jury’s autonomy and

unbiased judgment resulting in the denial of a fair and just process. The

failure of appellate counsel to raise this issue violated Petitioner’s right to

effective assistance of counsel on direct appeal.

This same constitutionally deficient performance of appellate counsel

is apparent in the failure to raise the insufficiency of the evidence reliant on

the perjured and unreliable testimony of Derrick Washington, Derrick

Shields, Jason Hickerson, Uvonda Parks, Charles McClough, and Dante

Webster.

It was objectively unreasonable for appellate counsel to concede the

sufficiency of the evidence supporting the charges against Petitioner Walker.

The words of Judge J. Ely’s concurring opinion in United States v. Butler,

567 F.2d 885, 893 (9th Cir.1978), could have been written about the manner

in which the Government prosecuted its case against Walker and Greer.

The Government, and particularly the United States Attorney’s

office, is charged not only with the duty to prosecute the accused,

but also with the paramount duty to ensure that justice is done.

United States v. Reynolds, 345 U.S. 1, 12 (1953); Berger v. United

States, 295 U.S. 78, 88 (1934). (T)he interest of the prosecution is

not that it shall win the case, but that it shall bring forth the true

facts surrounding the commission of the crime so that justice shall

be done. . . . Surely, conduct such as that indulged in here by the

Government cannot in any imaginable way promote the just

administration of the laws in the United States, and, in fact,

affirmatively obstructs the pursuit of justice, the very lofty

mission with which the government is charged. The appellant has

been forced to pursue two new trial motions and a 28 U.S.C. §2255

petition, as well as separate appeals from the denials thereof. The

heart of these motions and appeals is that Butler’s convictions

were obtained, in part, through Durden’s perjury and the

Government’s failure to disclose leniency agreements with

Durden.

Because of the Government’s conduct, the

administration of justice has been delayed seven years. Even to

this point, the Government adamantly refuses to admit

culpability. Consequently, I am driven to the conclusion that the

prosecution’s intolerable misconduct has so permeated these

proceedings that the indictment ought to be dismissed as a

prophylactic measure to deter such conduct in the future. All

federal courts are endowed with certain inherent supervisory

powers over the administration of justice in the courts of the

United States and must utilize that power, which comprehends

the power to dismiss an indictment, whenever the pursuit of truth

and justice becomes tainted.

The Government’s misconduct in Walker’s prosecution has resulted in

a conviction based on deceit and half-truths, known to the Government and

left unchecked when the evidence was presented to the jury.

If appellate counsel had challenged the sufficiency of the evidence and

had documented the numerous inconsistencies and unreliability of grand jury

and trial testimony of Washington, Hickerson, Shields, Parks, McClough, and

Webster, it is reasonably probable that the court would have agreed and would

have reversed Walker’s convictions for insufficiency of the evidence.

EXTREME PROSECUTORIAL MISCONDUCT

UNDER BRADY, GIGLIO AND NAPUE

This Court has repeatedly explained the Government’s obligation to

disclose material evidence to the defense, whether bearing on guilt,

impeachment of a witness, or punishment:

Impeachment evidence, however, as well as

exculpatory evidence, falls within the Brady rule.

See Giglio v. United States, 405 U.S. 150, 154

(1972). Such evidence is “evidence favorable to

an accused,” Brady, 373 U.S. at 87, so that, if

disclosed and used effectively, it may make the

difference between conviction and acquittal. Cf.

Napue v. Illinois, 360 U.S. 264, 269 (1959) (“The

jury’s estimate of the truthfulness and reliability

of a given witness may well be determinative of

guilt or innocence, and it is upon such subtle

factors as the possible interest of the witness in

testifying falsely that a defendant’s life or liberty

may depend”).

United States v. Bagley, 473 U.S. 667, 676 (1985).

This Court condemned the Government’s failure to correct false

testimony sixty years ago:

The principle that a State may not knowingly use

false evidence, including false testimony, to obtain a

tainted conviction, implicit in any concept of ordered

liberty, does not cease to apply merely because the false

testimony goes only to the credibility of the witness.

The jury's estimate of the truthfulness and reliability of

a given witness may well be determinative of guilt or

innocence, and it is upon such subtle factors as the

possible interest of the witness in testifying falsely that

a defendant's life or liberty may depend….

It is of no consequence that the falsehood bore upon the

witness' credibility, rather than directly upon

defendant's guilt. A lie is a lie, no matter what its

subject, and, if it is in any way relevant to the case, the

district attorney has the responsibility and duty to

correct what he knows to be false and elicit the truth. . .

. That the district attorney's silence was not the result

of guile or a desire to prejudice matters little, for its

impact was the same, preventing, as it did, a trial that

could in any real sense be termed fair.

Napue v. Illinois, 360 U.S. 264, 269-270.

Derrick Shields

Prosecution witness Derrick Shields testified petitioner Walker was a

member of PDF and sold drugs. He also testified that Shango Greer had

confessed to the murder of Larry Cayton, but the material fact that Shields

was paid by the FBI for information and testimony was not disclosed to

defense counsel before trial. This crucial impeachment information was not

revealed until 2013, after Walker filed his 2255 motion in the District Court.

In response to the 2255 motion, the Government provided a copy of a June 1,

2001 letter documenting Shields’ cooperation with the FBI. The letter proves

Shields (1) received thousands of dollars from the FBI, (2) a reduction in

prison time and (3) assistance relocating to a different prison. The letter

further explained funds were provided for “operating expenses, “motel

accommodations,” “food,” and “entertainment in furtherance of the

investigation…” as well as funds for “clothing and incidental expenses.”

The Government’s failure to disclose the letter to Walker before trial

was a beach of Brady and Giglio. Shields was permitted to lie to the jury,

and Walker was unable to impeach him without the June 1, 2001 letter. Even

worse, perhaps, the Government failed to correct Shields’ lies:

Q. All right. Now, let me ask you this: You told us

that the FBI didn't do anything for you to get your

testimony; is that right?

A. Yes. [False.]

Q. You're sure about that, right?

A. Yes. [False.]

Q. All right. Now, let me ask you this: You told us that the

FBI didn't do anything for you to get your testimony; is

that right?

A. Yes. [False.]

Q. You're sure about that, right?

A. Yes. [False.]

App. K 2; RT Feb. 9, 2006, 7337:1-6.

The undisclosed June 1, 2001 letter proves Shields was lying. Both the

magistrate judge and the Government noted Shield’s cooperation with the

FBI and the benefits he received.

The combination of Shields’ lies and the Government’s failure to

correct them severely erodes confidence in the jury’s verdicts. “Because each

additional Napue and Brady violation further undermines our confidence in

the decision-making process, we analyze the claims "collectively," Kyles v.

Whitley, 514 U.S. 419, 436, (1995), and proceed to consider the other asserted

prosecutorial violations.” Jackson v. Brown, 513 F.3d 1057 1072 (9th Cir.

2008).

Shields’ testimony was unquestionably “material,” as he, like the

witness in Napue, connected Walker to PDF as a member and drug dealer.

Shields’ testimony was false in material respects, including his denial that

the government had paid him any money.

The Government admitted the crucial letter was not provided to the

defense before trial. The magistrate judge also noted Shields’ undisputed

cooperation with the government.

Shields cooperated with the government’s investigation of

this case. He was in custody on May 9, 2000, on unrelated

charges when the FBI interviewed him about the murder

of Larry Cayton. Ex. A, (FBI-302). He told the FBI agents

what he knew at that time, which was consistent with his

testimony at trial. Id. The FBI arranged for Shields to be

released from custody for two weeks, for the purpose of

wearing a wire on Greer, Walker, White, and others, after

which Shields returned to custody and completed his

sentence.

App. E22. Footnote omitted.

The Government in its opposition to Walker’s §2255 motion, more

accurately documented Shields’ extensive cooperation and agreement, which

was not disclosed before trial:

In a prior case against Petitioner Jason Walker, 2:00-CR386, a felon in possession charge in which Shields was a

witness and, in fact, based on the same time period in

which he was working on the Government’s investigation

of PDF, the government provided to Walker a June 1,

2001, letter from the FBI outlining almost $3,500 in

operational expenses paid to Shields for motel

accommodations, food, transportation, clothing,

and incidental expenses necessary to the work he

was performing. Ex. G, hereto. It appears that Walker

shared this letter, produced on June 4, 2001, with his

colleagues on the street, resulting in Greer approaching

Shields sometime in December 2001 to confront him about

getting paid and in Greer’s attorney using information

from the letter to impeach Shields in 2006.

Contrary to the Government’s speculation, Greer’s trial counsel did not

rely on the June 2001 letter when cross-examining Shields. The crossexamination makes no refence to the content of the letter. Rather, trial

counsel expressly referenced the FBI-302 reports and agents French and

Butler.

Instead of correcting Shields’ false denials per the requirement of

Napue, the Government allowed the lies to go unchallenged. The

Government’s failure to correct Shields’ lies violated Napue and Giglio.

In Giglio, the witness testified for the government at trial, stating that

he had not received any promise that he would not be indicted. Id. at 151-152.

Writing for the Court, Chief Justice Berger found reversible error under

Napue and Brady: “[w]hether the nondisclosure was a result of negligence or

design, it is the responsibility of the prosecutor. The prosecutor's office is an

entity and as such it is the spokesman and for the Government. A promise

made by one attorney must be attributed, for these purposes, to the

Government.” Id. at 154. (Cites omitted.) Giglio’s focus on the responsibility

of the prosecutor to investigate all promises made on behalf of the

Government extends to promises made by the police, who also make any such

promises as spokespersons for the Government, and for whom the prosecutor

bears responsibility. United States v. Butler, supra, 567 F.2d at p. 891.

The Court should grant review to remedy these disturbing abuses.

The magistrate found erroneously:

The government’s position that defendants’ trial counsel

had seen the June 1, 2001 letter, with its mention of a

$3,1500 payment to Shields, finds support in the record.

As set forth above, Greer’s trial counsel specifically asked

Shields whether Greer told him “word’s out on the street

that you got $3500 from the FBI.” 19 RT Feb. 9, 2006 at

7337. Thus, it is apparent that defense counsel was

aware of the pertinent information and able to use

it on cross-examination.

App. E80. Emphasis added.

Contrary to the magistrate’s speculation, trial counsel’s questions to

Derrick Shields were not and could not have been based on the June 1, 2001

letter, as it had not been disclosed to Walker or Greer before trial, and the

transcript of the cross-examination makes no reference to the benefits in the

undisclosed letter.

Moreover, the Government's disclosure of the letter to Walker defense

counsel in a separate prior case did not satisfy the Government's Brady

obligations. As the Ninth Circuit explained in 1986, “However, because the

trial strategies of co-defendants often conflict (i.e., each may seek to place

liability solely on the other), we do not think it prudent to allow the

government to satisfy its due process requirements to each of several

defendants by merely giving exculpatory evidence to one defendant.” United

States v. Shaffer 789 F. 2d 682, 690 (9th Cir. 1986).

The letter was not disclosed to Walker until May 31, 2013, seven years

after Walker was convicted. Additionally, contrary to the magistrate judge's

finding, this claim was not waived, as Walker did not know about the

undisclosed evidence until May 31, 2013 and, therefore, could not have

waived a claim of which he was unaware.

The Government knew that Shields lied. In exchange for his

cooperation, he received money, was given a reduction on his parole violation

term, and was relocated to a prison closer to his family. This information was

never disclosed to Walker during discovery, and the Government has been

unable to document that the information was “formally produced.” The

Government’s failure to correct Shields’ lies was highly prejudicial.

Moreover, the information suppressed by the Government would have

provided co-defendants Walker and Greer with an effective means of

impeachment. “Payments to a government witness are no small thing.”

United States v. Sedaghaty, 728 F.3d 885, 901 (9th Cir.2013); United States v.

Price, 566 F.3d 900, 911-12 (9th Cir. 2009) (stating, “to be ‘material’ under

Brady/Giglio, ‘undisclosed information or evidence acquired through that

information must be admissible,’ United States v. Kennedy, 890 F.2d 1056,

1059 (9th Cir. 1989), or capable of being used “to impeach a government

witness.”)

Here, although Shields had been cross-examined by the defense and

denied receiving payments, the jury did not know about his agreement with

the Government to cooperate in exchange for money, relocation, and reduced

prison time. The Government’s failure to disclose its arrangement with

Shields violated Brady, Napue and Giglio, among other cases. These were

material facts relevant to Shields’ credibility. Both Greer’s and Walker’s

counsel should have been provided with this information before trial.

The Government’s knowledge about Shields’ payment and cooperation

was particularly within the Government’s information, unlike the cases cited

in the Findings and Recommendations, which involved defense counsel’s

failure to obtain records from a third party. Clearly, the Government violated

its obligation under Brady.

The Government allowed Shields to commit perjury during his Grand

Jury and trial testimony when he testified that he had “never” received any

money or anything of benefit for his cooperation. This was a momentous lie

that Walker should have been able to prove to the jury and violated Walker’s

Due Process rights.

The Findings and Recommendations acknowledge, “Government

counsel concedes, in the absence of evidence to the contrary, that the June 1,

2001 letter (indicating Shields had been paid and received a sentence

reduction in exchange for his cooperation) was not ‘formally produced’ to

either Greer or Walker in the instant case.” App. E 79. The Magistrate

Judge, however, excused the Government’s Brady violation, stating: “But

even if the claim had not been waived, it lacks merit. ‘[W]here the defendant

is aware of the essential facts enabling him to take advantage of any

exculpatory evidence, the Government does not commit a Brady violation by

not bringing the evidence to the attention of the defense.’ Raley v. Ylst, 470

F.3d 792, 804 (9th Cir. 2006) (quoting United States v. Brown, 582 F.2d 197,

200 (2d Cir. 1978)). At the very least, Walker’s [Greer’s] trial counsel had

enough information to alert him to the fact that Shields had been

compensated for his cooperation and to seek these documents through

discovery. (App. E 80.)

The district court’s voluminous docket clearly establishes that Walker

did seek all such information in discovery. Despite seeking all relevant

discovery, the Government breached its duty to disclose its confidential

agreement with Shields.

The Magistrate Judge’s reliance on Cunningham v. Wong, 704 F.3d

1143, 1154 (9th Cir. 2013), is misplaced as Cunningham involved disclosure of

third party records, not records in the Government’s possession. Accordingly,

Cunningham is irrelevant to the facts in this case, in which the Government

suppressed information within its exclusive possession. For the same

reasons, Raley v. Ylst, supra, 470 F.3d at p. 804. (App. E 80) is inapplicable to

Walker’s Brady claim.

The result of the Government’s failure to disclose the June 1, 2001

letter was Shields’ false grand jury and trial testimony, which the

prosecution never corrected. "To prevail on a claim based on Mooney-

Napue, the petitioner must show that (1) the 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) quoting United States v.

Zuno-Arce, 339 F.3d 886, 889 (9th Cir. 2003).

The Government’s misconduct in not correcting Shields’ false

testimony violated the precedents cited above. This Court should grant

review to remedy this abuse and reaffirm prosecutorial duties to provide

discovery to the defense under Brady. Moreover, the Court should grant

review to reinforce and reaffirm the prosecution’s obligation to disclose

agreements with cooperating witnesses and its duty to prevent and correct

false testimony under Giglio and Napue.

Charles McClough

Prosecution witness McClough testified regarding PDF, its structure

and membership, and that he had seen PDF members selling guns and

drugs. McClough also implicated appellant Walker in the murder of Keith

Roberts. A month after McClough provided this testimony the defense called

him to the witness stand. McClough recanted his trial testimony, admitting

he had lied on the stand and had been coerced to testify by FBI through

threats and official misconduct. McClough testified that FBI Agent Peter

French had told him what to say during trial regarding the Robert's murder:

Well, let me ask you this: Did anybody in the FBI, Agent French,

anybody, other agents try to get you to change any parts of your

statements?

Yes. Exactly.

All right. Now, who did that?

That was Pete French.

What did he try to get you to change?

The statement about they already know that it was a lie because

when Charles White made—I told them, you know, he was lying.

So they told me the scenario about the incident in the alley with

Roberts. They told me that - don't say certain things.

Like what?

Like where the incident took place.

You mean, an alley?

Yeah. They told me, Don't say that it took place in the alley,

because it didn't.

Who's they?

Pete French.

Do you remember if anybody asked you about how many times

Roberts was shot?

I got a good indication that - you know, I remember that Pete

French told me he was shot a lot of times. And he said, Man, you

should see the pictures. It's horrible. And I don't even know

nothing about this.

You mentioned the word scenarios.

Uh-huh.

The FBI would give you scenarios. What do you mean by that?

Like, you know - they say like, you know, well, you know, he

was shot here, you remember that, or - or, you know, it was

multiple times and, you know, stuff like that to lead me on to

thinking like I knew -1 don't know nothing about nothing.

Did the FBI - anybody in the FBI ever tell you anything about

somebody getting shot with a gage?

Exactly.

And an unfired shell popping out?

Exactly.

Who told you that?

Pete French.

What was said about that?

He said to make sure that I said that Charles White popped a live

round out because they needed to put that in the - in the umm part of my statement because, I guess, it must have been part of

what happened or whatever. He said - said make sure I put that in

the statement.

Is this what you referred to like as a scenario?

Exactly.

Well, did anybody - did you have any knowledge about this live

round?

No. I didn't have no knowledge about no live rounds.

App. J1-J7; RT 8556-8558, March 1, 2006 a.m.

Government witnesses McClough, Uvonda Parks, Jason Hickerson

and Derrick Washington each committed perjury which the government

knew was false and yet the government failed to correct any of the false

testimony, including the false testimony that these witnesses had not

received promises in exchange for their cooperation in the case against

appellant Walker. These nondisclosures violated Brady and Napue, knowing

use of false evidence, or failure to correct false evidence. Napue, 360 U.S. at

269.

The district court concluded in its findings that there was insufficient

evidence of the actual falsity of the testimony and no “reasonable likelihood

that the false testimony could have affected the judgment of the jury.” ECF

1213 75, citing United States v. Bagley, supra, 473 U.S. at 670, n.9.

Certainly, this conclusion is debatable among jurists of reason and a court

could resolve in a different manner, making this issue appropriate for

certification on appeal.

CONCLUSION

The petition for writ of certiorari should be granted.

Dated:

June 26, 2019

Respectfully submitted,

Carolyn D. Phillips (CA 103045)

Attorney at Law

P.O. Box 5622

Fresno, CA 93755-5622

Tel: (559)248-9833

cdp18@sbcglobal.net

Attorney for Petitioner

Jason Keith Walker

CERTIFICATE OF COMPLIANCE WITH RULE 33.2

I, Carolyn D. Phillips, counsel for petitioner, certify that this document

is prepared in accordance with the requirements of Supreme Court Rule 33.2,

and contains 8,190 words, exclusive of the table of contents, table of

authorities, signature lines, and certificates of service and compliance, as

counted by the word count program of Microsoft Word, version 16.26.

I certify that this brief complies with typeface requirements and has a

proportionately spaced typeface of 12 points Century Schoolbook font.

Dated: June 26, 2019

_________________________

CAROLYN D. PHILLIPS

Attorney for Petitioner

JASON KEITH WALKER

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.