Petition for Writ of Certiorari — George A. Pilola, Petitioner v. Craig Koenig, Acting Warden
Supreme Court briefJun 24, 2022
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No.
In the
Supreme Court of the United States
GEORGE A. PILOLA,
Petitioner -Appellant
v.
CRAIG KOENIG, Acting Warden
Respondent-Appellee
On Petition for Writ of Certiorari to the United States Court of
Appeals for the Ninth Circuit 20-55756
PETITION FOR WRIT OF CERTIORARI
Charles R. Khoury Jr.
P.O. Box 791
Del Mar, California, 92014
State Bar Nr. 42625
Telephone: (858) 764-0644
Fax: (858) 876-1977
charliekhouryjr@yahoo.com
Attorney for Petitioner
QUESTION PRESENTED
Should CERTIORARI be granted to review the
following issues:
1)
The failure of the prosecution to turn over the fingerprint showing no
MAKE to Pilola was a violation of Brady v. Maryland;
`2)
The untruthfulness of both the detective and the
prosecutor about the recovery of the fingerprint was a violation of Due Process
and Napue v. Illinois;
3)
This petition additionally should be granted on the basis
that the Ninth Circuit panel deciding this case refused to stay the appeal long
enough to have the beer bottle examined and the expert retained by the defense,
explain the meaning of NO MAKE referring to a print on the bottle. The petition
was denied but with NO PREJUDICE to the filing of a motion in the Ninth
Circuit to have that examination done by the defense expert. Then, when the
motion was made by counsel for such an examination, it was denied by the Ninth
Circuit panel. That was unreasonable. It deprived petitioner a chance of
exculpation.
PARTIES TO THE PROCEEDINGS
There are no parties to the proceeding other than those named in the
caption of the case.
ii
TABLE OF CONTENTS
Page
QUESTION PRESENTED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii
PARTIES TO THE PROCEEDINGS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii
TABLE OF CONTENTS.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii
TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . viii
PETITION FOR WRIT OF CERTIORARI.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
WHY THIS PETITION SHOULD BE GRANTED. . . . . . . . . . . . . . . . . . . . . . . . 2
OPINIONS BELOW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
JURISDICTION.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
STATUTORY AND CONSTITUTIONAL PROVISIONS
INVOLVED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
SUMMARY OF RELEVANT FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
ARGUMENT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
I
AS STATED IN THE DECLARATION FROM THE LAB, THE
FINGERPRINT WAS TAKEN OFF THE BEER BOTTLE WHICH WAS
THE SUBJECT OF THIS CASE AND IF IT WAS SUCH A POOR
PRINT, LOGIC DEMANDS THAT WOULD HAVE MADE IT
LABELED AS “UNUSABLE” AND THERE WOULD HAVE BEEN NO
ATTEMPT TO SEE IF THERE COULD BE A “MAKE” OF THAT
PRINT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
A.
II
The Conclusion of the District Court That There Was a Merits
Decision of No Prima Facie Case Is Belied By the CSC’s Own
Statement of the Meaning of a Bare Denial of a Petition for Review.
10
THE BRADY /NAPUE VIOLATION WHICH OCCURRED HERE WAS
iii
PREJUDICIAL REQUIRING THE GRANTING OF THIS WRIT . . . . . 10
A.
Preliminary Statement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
B.
Applicable Law re A Brady/Napue Violation. . . . . . . . . . . . . . . . 11
1.
Brady Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
2.
Napue Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
C.
Petitioner Established the Elements of Both a Brady and Napue
Violation and Those Violations Were Material Ones. . . . . . . . . . 15
1.
The Brady Violation Was Material. . . . . . . . . . . . . . . . . . 15
2.
The Napue Violation Was Material. . . . . . . . . . . . . . . . . . 18
3.
Fair Minded Judges Could Not Disagree that An Order to
Show Cause Had to be Issued by the State Courts.. . . . . . 20
III
CERTIORARI SHOULD BE GRANTED BECAUSE ONCE THE
FEDERAL DISTRICT COURT CONCLUDED THAT “NO MAKE”
WAS TOO AMBIGUOUS TO GIVE RELIEF, THEN THIS COUNSEL
WAS OBLIGATED TO RETURN TO STATE COURT WITH EXPERT
OPINION AS TO THE MEANING OF NO MAKE. THE NINTH
CIRCUIT FRUSTRATED THAT PATH BY REFUSING SIGN THE
ORDER ALLOWING THE EXPERT ACCESS TO THE FINGERPRINT
AND REFUSING TO STAY THE APPEAL IN THE NINTH CIRCUIT.26
IV
THE NINTH CIRCUIT COULD NOT PROPERLY DECIDE THIS CASE
WITHOUT CLEARING UP WHAT RESPONDENT HAS CONCEDED
IS AN AMBIGUITY WHICH GOES TO THE MAJOR ISSUE IN THE
APPEAL, NAMELY WHAT IS THE MEANING OF “NO MAKE”
DESCRIBING THE FINGERPRINT ON THE BOTTLE. THAT
AMBIGUITY CAN BE SETTLED BY APPELLANT’S EXPERT
EXAMINING THE BOTTLE IF THE COURT HAD GRANTED THE
REQUESTED ORDER TO THE LA SHERIFF TO ALLOW THE
EXAMINATION TO OCCUR BUT THEY DID NOT. . . . . . . . . . . . . . 29
CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
CERTIFICATE OF COMPLIANCE PURSUANT TO SUPREME COURT
RULES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
PROOF OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
iv
APPENDICES IN SEPARATE VOLUME
A. Memorandum Opinion of the Ninth Circuit Affirming the District Court
Judgment
B. Ninth Circuit Order Denying Petition for Rehearing
C. Denial of Petition by the District Court and Grant of Certificate of
Appealability
D. Magistrate’s Report and Recommendation with State Court Appellate
decision attached
E. Civil Dockets for Ninth Circuit and District Court.
v
TABLE OF AUTHORITIES
PAGE (S)
CASES
Banks v. Dretke 540 U.S. 668 (2004). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Brady v. Maryland 373 U.S. 83 (1963). . . . . . . . . . . . . . . . . . . . . . . . . . . . . Passim
Browning v. Baker, 875 F.3d 444 (9th Cir. 2017). . . . . . . . . . . . . . . . . . . . . . . . . 13
Burt v. Yarborough, 313 Fed.Appx. 23 (9th Cir. 2008). . . . . . . . . . . . . . . . . . . . 22
Cullen v. Pinholster, 563 U.S. 170 (2011).. . . . . . . . . . . . . . . . . . . . . . . . 20, 21, 25
Earp v. Ornoski, 431 F.3d 1158 (9th Cir. 2005). . . . . . . . . . . . . . . . . . . . 22, 24-26
Giglio v. United States, 405 U.S. 150 (1972). . . . . . . . . . . . . . . . . . . . . . 14, 18, 19
Hayes v. Brown, 399 F.3d 972 (9th Cir. 2005). . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Hohn v. United States, 524 U.S. 236 (1998). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
In re Brown 17 Cal.4th 873 (1998). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 20
In re Sassounian, 9 Cal.4th 535 (1995). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11-13
Jackson v. Brown, 513 F.3d 1057 (9th Cir. 2008). . . . . . . . . . . . . . . . . . . . . . . . . 18
Kyles v. Whitley, 514 U.S. 419 (1995). . . . . . . . . . . . . . . . . . . . . . . . . . . . 13, 17, 20
Libberton v. Ryan, 583 F.3d 1147 (9th Cir. 2009).. . . . . . . . . . . . . . . . . . . . . . . . 18
Napue v. Illinois, 360 U.S. 264 (1959). . . . . . . . . . . . . . . . . . . . . . . . . . . . . Passim
Nunes v. Mueller, 350 F.3d 1045 (9th Cir. 2003). . . . . . . . . . . . . . . . . . . 20, 22-26
People v. Duvall, 9 Cal. 4th 464 (1995). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 21
People v. Earp, 20 Cal.4th 826 (1999). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
People v. Kasim, 56 Cal.App.4th 1360 (1997). . . . . . . . . . . . . . . . . . . . . . . . . . . 12
People v. Morris, 46 Cal.3d 1 (1988). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
vi
People v. Racy, 148 Cal.App.4th 1327 (2007).. . . . . . . . . . . . . . . . . . . . . . . . . . . 17
People v. Soojian, 190 Cal.App. 4th 491 (2010). . . . . . . . . . . . . . . . . . . . . . . . . . 18
Sivak v. Hardison, 658 F.3d 898 (9th Cir. 2011).. . . . . . . . . . . . . . . . . . . . . . . . . 18
Smith v. Phillips, 455 U.S. 209, 102 S. Ct. 940 (1982). . . . . . . . . . . . . . . . . . . . . 19
Strickland v. Washington, 466 U.S. 668 (1984).. . . . . . . . . . . . . . . . . . . . . . . . . . 18
Strickler v. Greene, 527 U.S. 263 (1999).. . . . . . . . . . . . . . . . . . . . . . . . . 12, 15, 17
Taylor v. Maddox, 366 F.3d 992 (9th Cir. 2004).. . . . . . . . . . . . . . . . . . . . . . . . . 22
United States v. Agurs, 427 U.S. 97 (1976). . . . . . . . . . . . . . . . . . . . . . . . 11, 16, 19
United States v. Bagley, 473 U.S. 667 (1985). . . . . . . . . . . . . . . . . . . . . . . . . 11, 13
Youngblood v. West Virginia, 547 U.S. 867 (2006).. . . . . . . . . . . . . . . . . . . . . . . 12
CONSTITUTION
United States Constitution
Fifth Amendment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Fourteenth Amendment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 15
USC
28 U.S.C. Section 2254. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
28 U.S.C. section 2254(d). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 20-25
28 USC Section 1254 (1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
RULES
FRAP
Rule 312.2(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
vii
No.
In the
Supreme Court of the United States
GEORGE A. PILOLA,
Petitioner -Appellant
v.
CRAIG KOENIG, Acting Warden
Respondent-Appellee
On Petition for Writ of Certiorari to the United States Court of
Appeals for the Ninth Circuit 20-55756
PETITION FOR WRIT OF CERTIORARI
Petitioner George Pilola, respectfully petitions the Court for a writ of
certiorari to review the Memorandum Opinion of the United States Court of
Appeals for the Ninth Circuit affirming the district court’s denial of the section
2254 petition for a writ of habeas corpus. That court in turn upheld as reasonable
the denial by the California Supreme Court of a petition for writ of habeas corpus
raising as a prosecutorial and law-enforcement falsehood that there were no prints
on the beer bottle used in the assault.
1
WHY THIS PETITION SHOULD BE GRANTED
1)
Because the failure of the prosecution to turn over the fingerprint showing
no MAKE to Pilola was a violation of Brady v. Maryland;
2)
Because the untruthfulness of both the detective and the
prosecutor about the recovery of the fingerprint was a violation of Due Process
and Napue v. Illinois;
3)
This petition additionally should be granted on the basis
that the Ninth Circuit panel deciding this case refused to stay the appeal long
enough to have the beer bottle examined and the expert retained by the defense,
explain the meaning of NO MAKE referring to a print on the bottle. The petition
was denied but with NO PREJUDICE to the filing of a motion in the Ninth
Circuit to have that examination done by the defense expert. Then, when the
motion was made by counsel for such an examination, it was denied by the Ninth
Circuit panel. That was unreasonable.
It is argued here that when the prosecutor and his law enforcement witness
both lie that there were no fingerprints on a beer bottle used to commit a sex
offense against a victim it cannot be harmless error. This is especially so because
of the fact that the victim recanted her testimony after testifying.
2
OPINIONS BELOW
On January 26, 2022, the Ninth Circuit Court of Appeals, (Ninth Circuit)
in a five page Memorandum Opinion, affirmed the district court denial of
petitioner’s habeas corpus petition filed under 28 U.S.C. 2254. (Dkt 62-1.)
Appendix A, 9th Ckt. Memorandum Opinion .
On April 11, 2022, the Ninth Circuit denied petitioner’s petition for
rehearing and rehearing en banc. Appendix B; Dkt. 70.
Preceding that denial was the Order of the United States District Court for
the Central District of California denying the petition but granting a Certificate of
Appealability. Appendix C, Dkts 66-67.
The Magistrate’s Report and Recommendation is attached hereto along
with the California Court of Appeal Opinion as Appendix D for both.
The Civil Dockets of both District Court and Ninth Circuit are in
Appendix E.
JURISDICTION
The Ninth Circuit affirmed the denial of the habeas corpus petition an on
January 26, 2022 and on April 11, 2022, denied a petition for rehearing. See
above
The jurisdiction of this Court is, thus timely invoked under 28 USC
Section 1254 (1). Hohn v. United States, 524 U.S. 236 (1998).
STATUTORY AND CONSTITUTIONAL PROVISIONS INVOLVED
3
A defendant in a criminal case must have the right to Due Process of Law,
and the Fifth and Fourteenth Amendment to the U.S. Constitution.
28 U.S.C. section 2254(d) provides:
(d)
An application for a writ of habeas corpus on behalf of a
person in custody pursuant to the judgment of a State court
shall not be granted with respect to any claim that was
adjudicated on the merits in State court proceedings unless
the adjudication of the claim(1)
resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly
established Federal law as determined by the
Supreme Court of the United States; or
(2)
resulted in a decision that was based on an
unreasonable determination of the facts in light of
the evidence presented in the State court
proceeding.
This certiorari petition responds to the denial of petitioner’s appeal to the
9th Circuit Court of Appeal.
INTRODUCTION
"A rule . . . declaring 'prosecutor may hide, defendant must seek,' is not
tenable in a system constitutionally bound to accord defendants due process."
Banks v. Dretke 540 U.S. 668, 696 (2004).
Citations below are to the California Court of Appeal (CCA) appellate
record, CT being Clerk’s Transcript and RT the Reporter’s Transcript.
Additionally there are parallel citations to the Ninth Circuit Except of Record
(ER).
4
SUMMARY OF RELEVANT FACTS
George Pilola was charged with the August 9, 2001 forcible sexual
penetration and aggravated mayhem of his wife, L.P., and residential burglary of
the home in which she resided.
At trial, the facts that crimes had been committed against Pilola’s wife
were never in dispute.
What was contested was the identity of the criminal. Mr. Pilola testified it
was not him.
Mr. Pilola was convicted of all charges except the residential
burglary.
The detective assigned to the case, during the trial, in December 2001,
testified that no fingerprints were recovered from the items taken from the crime
scene. (A beer bottle, tape and knife.)( 3-ER-4110, 2-RT-425, Exhibit D attached
to First Amended Petition.)
During summation by the prosecutor, he told the jury that Mr. Pilola had
not shown there were any fingerprints of the person who committed the crime
against petitioner’s wife. (4-ER-595; 3-RT-774, Exhibit E attached to FAP.)
The problem with these statements by the detective and the prosecutor was
that they were not true.
There was a fingerprint on the beer bottle which had been used by the
intruder to penetrate petitioner’s wife. (1-ER-97-99, Exhibit C, attached to FAP,
declaration identifying print as taken from beer bottle.)
5
That fingerprint was examined and did not match petitioner’s prints on
August 24, 2001. (1-ER-92-93, Exhibit A attached to the FAP, Request for Print
Comparison by Detective Inskeep attached hereto.)
Yet, on September 5, 2001 the prosecutor responded to the defense preprelim discovery request that “Fingerprint results from beer bottle and packing
tape used to tie up the victim was not yet available.” (1-ER-94-96, Exhibit B,
attached to FAP, item 26 of response to defense discovery request.)
The failure to turn over the results of the analysis to Mr. Pilola’s attorney
pre-trial was a violation of Brady v. Maryland 373 U.S. 83 (1963).
What is worse is that both the detective and prosecutor were not truthful in
their testimony and the prosecution was able, in summation, to use that falsehood
to destroy Mr. Pilola’s defense of third party culpability.
“Mr. Silva’s, [defense counsel who has since deceased] the defense theory
is, it wasn’t the defendant. Okay. If it wasn’t the defendant, then show us
something. Give us something concrete to prove it wasn’t.” (4-ER-589, 3-RT768.)
In rebuttal, the prosecutor went further: “You haven’t heard one shred of
evidence that indicates that somebody did this crime other than the defendant.
And if she’s lying, why is that? There were no prints. The person was wearing
gloves. She just keeps lucking out. Sometimes the truth just stares us in the face,
in spite of someone wanting us not to believe it.” (1-ER-102-103,3-ER-595; 36
RT-774 emphasis added.)
The Brady violation is clear as is the violation of Napue v. Illinois, 360
U.S. 264 (1959). There is a reasonable chance that one juror could have found that
non-matching fingerprint supportive of petitioner’s defense of third party
culpability.
The facts of this case are set forth in greater detail at pages 3-14 in the
CCA opinion which itself is attached to the Report and Recommendation,
Appendix D.
7
ARGUMENT
I
AS STATED IN THE DECLARATION FROM THE LAB, THE
FINGERPRINT WAS TAKEN OFF THE BEER BOTTLE WHICH WAS
THE SUBJECT OF THIS CASE AND IF IT WAS SUCH A POOR PRINT,
LOGIC DEMANDS THAT WOULD HAVE MADE IT LABELED AS
“UNUSABLE” AND THERE WOULD HAVE BEEN NO ATTEMPT TO
SEE IF THERE COULD BE A “MAKE” OF THAT PRINT
The declaration of this counsel, making clear the “print” was taken from
the side of the beer bottle taken from the scene of the attack against L.P. was
attached to the petition filed in the District Court. (1-ER-43, 97-ER-95, Dkt 26-1.)
That same declaration was earlier filed in the CCA petition which was denied and
then sent to the Supreme Court of California with the petition for review which
was also denied..
There can be no doubt there was a “print” since that is the wording used to
describe the evidence taken from the beer bottle.
The prosecutor told the jury “there were no prints. The person was wearing
gloves.” (4-ER-595; 3-RT-774.) But L.P. testified the intruder was washing his
hands in the bathroom, certainly he was not washing his “gloves”! At some point
those gloves came off and the print came “on” the beer bottle.
Why would there be a request for print comparison submitted by Deputy
Inskeep to the Sheriff’s Lab if there were no print to compare? (See Exhibit A
attached to both the FAP 1-ER-92-93 and the CCA habeas petition, at lodged Doc
#8) Of course there was a print.
8
Exhibit B of those same two petitions illustrates even more that there was
a fingerprint on the beer bottle because that is how the prosecutor described it in
his September 5, 2001 statement that the comparison was still not available. (1ER-94-96.) That statement of the prosecutor is belied by Exhibit A, written in
August 26, 2001, saying that the result of the comparison was NO MAKE.
All the petitioner had to accomplish in his habeas pleading is set forth in
People v. Duvall, 9 Cal. 4th 464, 474-75 (1995). At page 474 of that case appears
the requirement of the petitioner to plead sufficient grounds for relief, and later to
prove them. The later prove them obviously refers to an evidentiary hearing at an
OSC which is the result of the pleading.
If there was no useable print, the lab would have said NO USEABLE
PRINT. But the lab did not state that, it reported back NO MAKE which meant
the useable print did not match any fingerprint of petitioner Pilola.
The prosecutor and the detective hid that fact from the jury. It is a clear
example of Brady and Napue error.
The unreasonable denial of the OSC by the CCA removes this case from
the AEDPA restriction.
A.
The Conclusion of the District Court That There Was a Merits
Decision of No Prima Facie Case Is Belied By the CSC’s Own
Statement of the Meaning of a Bare Denial of a Petition for Review
The conclusion of the District Court that there was a merits decision by the
California Supreme Court’s bare denial of the petition for review is equally
9
unreasonable since it contradicts the Chief Justice of that Court’s explanation of
such a denial in the Motion for Judicial Notice filed in this case.
Accordingly, the assumptions in the R& R at fn.5, ER-15 are just that,
assumptions. And the statement of the Chief Justice of the CSC in the judicial
notice request, negate even the assumption of the footnote. As stated by the Chief
Justice, nothing can be concluded from that denial of the petition for review.
II
THE BRADY /NAPUE VIOLATION WHICH OCCURRED HERE WAS
PREJUDICIAL REQUIRING THE GRANTING OF THIS WRIT
A.
Preliminary Statement
In an investigation conducted by this counsel, twelve years after petitioner
signed his notice of appeal, counsel discovered that indeed there was a fingerprint
taken off the beer bottle in this case. Proof of that finger print was attached to the
FAP as Exhibit A, 1-ER-90-91.
Counsel’s declaration, Exhibit C, 1-ER-97-99, attached to the FAP shows
that the finger print came from the beer bottle that was used in this case.
That same declaration was attached to the petition for writ of habeas
corpus filed in the CCA from which the petition for review was taken to the
California Supreme Court. (Lodged Doc. 8) and shows that beer bottle was and
still is in the possession of the Los Angeles County Sheriff.
B.
Applicable Law re A Brady/Napue Violation
10
1.
Brady Law
In Brady, supra, 373 U.S. 83, the United States Supreme Court held that
"the suppression by the prosecution of evidence favorable to an accused upon
request violates due process where the evidence is material either to guilt or to
punishment, irrespective of the good faith or bad faith of the prosecution." (Id. at
p. 87.) Under Brady and its progeny, the state is required to disclose to the defense
any material, favorable evidence, even in the absence of a discovery request by the
defense. Ibid.; United States v. Bagley, 473 U.S. 667, 678 (1985); United States v.
Agurs, 427 U.S. 97, 107 (1976); In re Sassounian, 9 Cal.4th 535, 543 (1995).
"The scope of this disclosure obligation extends beyond the contents of the
prosecutor's case file and encompasses the duty to ascertain as well as divulge 'any
favorable evidence known to the others acting on the government's behalf . . . .'
[Citation.] Courts have thus consistently 'decline[d] "to draw a distinction
between different agencies under the same government, focusing instead upon the
'prosecution team' which includes both investigative and prosecutorial personnel."'
[Citation.]" In re Brown 17 Cal.4th 873, 879, fn. omitted (1998). Thus, the
prosecution must disclose evidence that is actually or constructively in its
possession or accessible to it from other agencies, including the police
department. People v. Kasim, 56 Cal.App.4th 1360, 1380 (1997). “[A]ny
favorable evidence known to the others acting on the government's behalf is
imputed to the prosecution. ‘The individual prosecutor is presumed to have
knowledge of all information gathered in connection with the government's
11
investigation.’ [Citations.]” Brown, supra, 17 Cal.4th at p. 879; see also
Youngblood v. West Virginia, 547 U.S. 867 (2006) [nondisclosure of note from
prosecution witnesses read by state trooper but not shared with prosecutor
constituted suppression for purposes of asserted Brady error].
"Evidence is 'favorable' if it hurts the prosecution or helps the defense."
People v. Earp, 20 Cal.4th 826, 866 (1999); In re Sassounian, supra, 9 Cal.4th at
p. 544, that is, if it is exculpatory or has impeachment value. Strickler v. Greene,
527 U.S. 263, 282 (1999). Moreover, "the prosecution's duty of disclosure extends
to all evidence that reasonably appears favorable to the accused . . . ." People v.
Morris, 46 Cal.3d 1, 30 (1988) fn. 14, italics omitted, disapproved on other
grounds in In re Sassounian, supra, 9 Cal.4th at pp. 543-545, fns. 5 & 6.
Evidence is material, where there is "a reasonable probability that, had the
evidence been disclosed to the defense, the result of the proceeding would have
been different. A 'reasonable probability' is a probability sufficient to undermine
confidence in the outcome." (Bagley, supra, 473 U.S. at p. 682.) The defendant
need not show that disclosure of the evidence would have resulted in acquittal;
rather, "[t]he question is . . . whether in its absence he received a fair trial,
understood as a trial resulting in a verdict worthy of confidence." Kyles v. Whitley,
514 U.S. 419, 434 (1995). A Brady violation thus occurs where the nondisclosed
favorable evidence "could reasonably be taken to put the whole case in such a
different light as to undermine confidence in the verdict." Id. at p. 435, fn.
omitted.
12
In the more recent case of Browning v. Baker, 875 F.3d 444 (9th Cir.
2017) is on point about “prints”, except this was an officer’s shoeprint
observation at the scene of a robbery and murder. The observation, not disclosed
to the petitioner established the print was of a shoe bigger than the defendant’s
feet. The fact the shoe print did not match Browning’s shoes (p. 461) was material
because if fit with the defense that another person was the killer. (p 463.)
This is exactly what petitioner Pilola’s jury or at least one juror could have
concluded from the fingerprint on the beer bottle evidence as that was petitioner’s
defense.
2.
Napue Law
The clearly established Supreme Court precedent, at the time of
petitioner's state court decision, was that a Napue violation—a presentation to a
fact-finder of false testimony knowing it to be false—results in the reversal of a
conviction if "the false testimony could . . . in any reasonable likelihood have
affected the judgment of the jury . . . ." Giglio v. United States, 405 U.S. 150, 153,
154 (1972) (quoting Napue v. Illinois, supra, at p. 271 (1959).
In Napue, the prosecutor elicited and did not correct what he knew to be
false testimony—that the state's principal witness had not been promised any
consideration by the State in exchange for his testimony. Supra, 360 U.S. at 265,
267. The Court explained that the principle that a prosecutor, working on behalf
of the state, may not knowingly use false testimony to obtain a conviction is
"implicit in any concept of ordered liberty." Id. at 269. The Court held that "a
13
conviction obtained through use of false evidence, known to be such by
representatives of the State" violates the Fourteenth Amendment. Id. at 269.
The Court reversed Napue's conviction on the ground that the false
testimony "may have had an effect on the outcome of the trial." Id. at 272.
C.
Petitioner Established the Elements of Both a Brady and Napue
Violation and Those Violations Were Material Ones
1.
The Brady Violation Was Material
On appeal, the defendant has the burden to establish the elements of a
Brady violation. Strickler v. Greene, supra, 527 U.S. at pp. 289, 291.
Concerning whether the print on the beer bottle tape was favorable to the
defense, petitioner notes that the false statement by the detective that no such print
existed was utilized to great success by the prosecutor in summation and rebuttal
as pointed out above. The prosecutor in essence “called out” defense counsel by
name in eviscerating the defense of third party culpability due to the lack of any
proof that the intruder was not the petitioner. One can picture the prosecutor
turning to defense counsel and saying directly to him: “Mr. Silvas, [defense
counsel] the defense theory is, it wasn’t the defendant. Okay. If it wasn’t the
defendant, then show us something. Give us something concrete to prove it
wasn’t.” (4-ER-589; 3-RT-768.) All the time the prosecutor had to know, because
his case detective knew, there was a print on the bottle which was not petitioner’s
print. The case detective knew because Exhibit A has the case detective
requesting the print analysis which came back as a “No Make” when compared
14
with the prints of petitioner in late August 2001, four months before the trial.
In rebuttal, the prosecutor went further: “You haven’t heard one shred of
evidence that indicates that somebody did this crime other than the defendant.
And if she’s lying, why is that? There were no prints. The person was wearing
gloves. She just keeps lucking out. Sometimes the truth just stares us in the face,
in spite of someone wanting us not to believe it.” (4-ER-595; 3-RT-775 emphasis
added.)
The prosecution's duty to disclose favorable evidence is not dependent
upon a request from the accused, and even an inadvertent failure to disclose may
constitute a violation. See United States v. Agurs, supra 427 U.S. at 107, 110.
Accordingly, the evidence that the detective and prosecutor actively suppressed
the truth in this case illustrates that the “no make” print was favorable to the
defense. There can be no doubt that the print on the beer bottle was favorable
evidence that the prosecution had a duty to disclose. And this was no inadvertent
failure to disclose, its failed disclosure was exploited to the maximum by the
prosecution.
The print would have totally prevented the powerful prosecution argument
that there was no evidence of a third party invader of the home other than
petitioner.
Last, when viewed in light of all the evidence, the evidence that petitioner
was the perpetrator came from only one source, L.P., who recanted her testimony
at the motion for new trial. That recantation was filed in the trial court and also
15
was attached to the habeas filed in the CCA and appears again as Exhibit A to the
Traverse, Dkt 58-1.
This no-match fingerprint was scientific evidence that cast doubt on the
prosecution theory that petitioner was the perpetrator.
Not only its exclusion but the manner in which it was excluded, by
outright falsehood to the jury by the primary detective in the case, with the
prosecutor both eliciting and then emphasizing it in summation to the jury, that its
exclusion has to undermine a court’s confidence in the jury's verdicts. See Kyles v.
Whitley, supra, 514 U.S. at p. 435; Strickler v. Greene, supra, 527 U.S. at p. 290.
Accordingly it was reasonably probable the result would have been
different had the jury heard about the no-match fingerprint on the beer bottle. The
term "reasonable probability" means "'merely a reasonable chance, more than an
abstract possibility.' [Citation.]" People v. Racy, 148 Cal.App.4th 1327, 1335
(2007) emphasis added.
As stated in People v. Soojian, 190 Cal.App. 4th 491, 520 (2010) a hung
jury with simply one holdout juror is considered a more favorable verdict than a
guilty verdict. It is this reasonable chance of a hung jury if not an outright
acquittal which allows this petitioner to show that there is a reasonable probability
that, but for the Brady violation, the result of the proceeding would have been
different. A reasonable probability is “a probability sufficient to undermine
confidence in the outcome." Strickland v. Washington, 466 U.S. 668, 694 (1984).
The suppressed evidence was material.
16
Petitioner has satisfied his burden to show a Brady violation: the
prosecution withheld favorable and material evidence.
2.
The Napue Violation Was Material
The Supreme Court reversed Napue's conviction on the ground that the
false testimony "may have had an effect on the outcome of the trial." Id. at 272.
As stated above, and explained in subsequent opinions applying the Napue
standard, "a new trial is required if 'the false testimony could . . . in any reasonable
likelihood have affected the judgment of the jury . . . ." Giglio v. United States,
405 U.S. 150, 153, 154 (1972) (quoting Napue, 360 U.S. at 271); see also Sivak v.
Hardison, 658 F.3d 898, 912 (9th Cir. 2011); Libberton v. Ryan, 583 F.3d 1147,
1164 (9th Cir. 2009); Jackson v. Brown, 513 F.3d 1057, 1076 (9th Cir. 2008).
Although the government's knowing use of false testimony does not
automatically require reversal, courts apply a less demanding materiality standard
to Napue errors: whether "there is any reasonable likelihood that the false
testimony could have affected the judgment of the jury." United States v. Agurs,
427 U.S. 97, 103 (1976) (emphasis added). This materiality standard is, in effect,
a form of harmless error review, but a far lesser showing of harm is required
under Napue's materiality standard than under ordinary harmless error review. See
Smith v. Phillips, 455 U.S. 209, 220 n.10, 102 S. Ct. 940 (1982) (describing the
"materiality requirement" that applies to Napue and Giglio claims); see also Hayes
v. Brown, 399 F.3d 972, 984 (9th Cir. 2005) (en banc).)
17
Napue requires a reviewing court to determine only whether the error
could have affected the judgment of the jury, whereas ordinary harmless error
review requires us to determine whether the error would have done so.
In short, prosecutorial misconduct of the kind that occurred here violates
the constitutional rights of the defendant and requires a reversal of the conviction
if (1) the testimony was actually false, (2) the prosecutor knew it was false, and
(3) the false testimony was material (i.e., there is a reasonable likelihood that the
false testimony could have affected the judgment). See Napue, 360 U.S. at 271-72.
Therefore the writ must issue, the jury's verdicts cannot stand and the
judgment must be reversed. See Kyles v. Whitley, supra, 514 U.S. at pp. 435-436
[Brady violation encompasses determination that nondisclosure was prejudicial];
In re Brown, supra, 17 Cal.4th 873, 887.
3.
Fair Minded Judges Could Not Disagree that An Order to
Show Cause Had to be Issued by the State Courts
Both the CCA habeas corpus petition and then the petition for review to
the Supreme Court of California were summarily denied. But that summary denial
by the Supreme Court of the petition for review from the denial of the petition for
writ of habeas corpus does not mean that AEDPA sections 2254(d)(1) and (d)(2)
cannot apply. As stated above, the Supreme Court requires federal habeas courts
to "focus[] on what a state court knew and did." Cullen v. Pinholster, 563 U.S.
170, 182 (2011).
In the face of a state court summary denial, the Ninth Circuit Court of
18
Appeals has long taken the same approach, looking to see what evidence was
before the state court and "what the state court did." Nunes v. Mueller, 350 F.3d
1045, 1053 (9th Cir. 2003).
In understanding”what the state court did,” it is important to understand
that under long-established California law, a court presented with a state habeas
petition must perform an initial screening function by taking two steps: (1) assume
the truth of the factual allegations contained in the petition and (2) based on those
facts, determine whether the habeas petitioner has pled a prima facie case for
relief. See, e.g., People v. Duvall, 9 Cal. 4th 464, 474-75 (1995).
If a prima facie case for relief has been pled, the state court must issue an
Order to Show Cause, requiring full briefing from both sides and–if there are
factual disputes-an evidentiary hearing. Duvall, 9 Cal.4th at 475. If a prima facie
case has not been pled, the court may summarily deny the petition. Duvall, 9
Cal.4th at 475.
Here, the California Supreme Court did not issue an Order to Show Cause
or return the case to the court of appeal for that purpose. Instead, they summarily
denied the petition for review. Under state law, this meant they found that
petitioner had not pled a prima facie case. Thus, in applying section 2254(d) here
— and in following Pinholster’s admonition to “focus on what the state court
knew and did” — it is important to note that this federal Court is not reviewing a
state-court decision that petitioner failed to prove his Brady/Napue claim.
Instead, this Court is reviewing the state court finding that assuming the
19
truth of all allegations in the state habeas petition, petitioner did not plead a prima
facie case and that summary denial was therefore proper.
The Ninth Circuit Court of Appeals has repeatedly taken this precise
approach.
Thus, where a state habeas petitioner pleads facts which state law requires
be accepted as true, and those facts establish a prima facie case which is denied
unreasonably, sections 2254(d)(1) and (d)(2) will not bar relief where the state
court issues a summary denial of a habeas corpus petition or petition for review
from that CCA summary denial.
To the contrary, where a California state court summarily denies relief in
the face of a prima facie case, its decision constitutes both an unreasonable
application of federal law within section 2254(d)(1), and an unreasonable
determination of the facts within section 2254(d)(2). (See, e.g. Nunes v. Mueller,
350 F.3d 1045 at 1053-54; see also Earp v. Ornoski, 431 F.3d 1158, 1169-70 (9th
Cir. 2005); Burt v. Yarborough, 313 Fed.Appx. 23, 24 (9th Cir. 2008); Taylor v.
Maddox, 366 F.3d 992, 1000 (9th Cir. 2004).
Nunes controls this case. There, defendant was convicted in state court of
second degree murder. In a petition for writ of habeas corpus filed in state court,
defendant argued that he had received ineffective assistance of counsel during the
plea bargaining process. Defendant alleged in his state petition that his trial lawyer
gave him incorrect information about a plea offer which had been made by the
prosecution. Specifically, defendant alleged that his lawyer told him the offer was
20
for 22 years when, in fact, it was really for only 11 years. The defendant also
specifically alleged that had he been given the correct advice, he would have
accepted the plea. After the state courts denied the petition without an evidentiary
hearing, defendant sought habeas relief in federal court. The state contended that
section 2254(d) barred relief.
The Ninth Circuit Court of Appeals rejected the argument. The Court first
noted that under state law, the state court was required to accept the truth of
petitioner's factual allegations. Nunes v. Mueller, 350 F.3d at 1054.
Had the state court accepted the truth of these allegations, it would have
had to assume that (1) trial counsel gave petitioner incorrect advice and (2)
petitioner would have accepted the plea offer if he had received correct advice.
Nunes, 350 F.3d at 1054.
In holding that AEDPA did not bar relief under these circumstances, the
Court noted that "[t]hose assertions certainly suffice to support an ineffective
assistance of counsel claim and there was ample evidence in the record before the
state court to support those assertions." Nunes, 350 F.3d at 1054.
Given that the state court's role under long-standing state law
was to accept the truth of the factual allegations and "to evaluate Nunes' claim for
sufficiency alone," the state court acted unreasonably in denying the claim
"without affording him an evidentiary hearing . . ." Nunes, 350 F.3d at 1054-55;
see also Earp, 431 F.3d at 1159-116 (state habeas petitioner alleges that the
prosecutor committed misconduct in intimidating a jail inmate with favorable
21
defense testimony into refusing to testify; held, where state petitioner properly
alleged prima facie case in state court, and supported it with signed declarations,
"the state court decision summarily denying him habeas relief was based on an
unreasonable determination of the facts" within section 2254(d)(2).)
Nunes and Earp control here. This case, like both Nunes and Earp,
involves a California state habeas petition supported by declarations and exhibits
clearly setting forth Brady/Napue violations in this case and the state courts never
made any ruling other than to deny the habeas petitions without granting an Order
to Show Cause.
As noted above, and just as in Nunes and Earp, the factual allegations in
the state habeas petition and petition for review to the California Supreme Court
certainly established a prima facie case for relief.
Just as in Nunes and Earp, “there was ample evidence in the record before
the state court to support [petitioner’s factual] assertions.” Nunes, 350 F.3d at
1054; accord Earp, 431 F.3d at 1169 (“through these [six declarations] to the state
court, Earp proffered the factual foundation for his alleged prosecutorial
misconduct claim.”
Here too, in his state court habeas petition, petitioner presented
declarations, sworn under penalty of perjury, and exhibits which were never
controverted by any court.
In sum, just as in Nunes and Earp, petitioner did indeed plead a prima
facie case in state court.
22
As Nunes correctly noted, the state court’s role was to accept the truth of
petitioner’s factual allegations and “to evaluate [petitioner’s] claim for sufficiency
alone.” As Pinholster shows, this federal court’s role in applying section 2254(d)
is to “focus on what [the] state court knew and did.” Here the state court knew
facts which plainly constituted a prima facie case but it denied the state petition
without issuing an Order to Show Cause or holding a hearing. As in both Nunes
and Earp, the state court acted unreasonably in denying petitioner’s claim.
III
CERTIORARI SHOULD BE GRANTED BECAUSE ONCE THE
FEDERAL DISTRICT COURT CONCLUDED THAT “NO MAKE” WAS
TOO AMBIGUOUS TO GIVE RELIEF, THEN THIS COUNSEL WAS
OBLIGATED TO RETURN TO STATE COURT WITH EXPERT
OPINION AS TO THE MEANING OF NO MAKE. THE NINTH CIRCUIT
FRUSTRATED THAT PATH BY REFUSING SIGN THE ORDER
ALLOWING THE EXPERT ACCESS TO THE FINGERPRINT AND
REFUSING TO STAY THE APPEAL IN THE NINTH CIRCUIT
Respondent’s Brief in the Ninth Circuit states at p. 24 that the “District
Court’s decision should be affirmed because the fingerprint testimony was not
false given the ambiguity in the meaning of the term “NO MAKE.”
Ambiguity is the key word and petitioner has been attempting to get the
bottle examined by an expert since 03-22-2021, see Dkt 19.
Dkt 19 was filed on March 22, 2021 and it was titled APPLICATION
FOR AUTHORIZATION AND PAYMENT FOR
INVESTIGATIVE SERVICES. The purpose of the motion was stated on page 2,
“counsel respectfully requests authorization to hire an experienced fingerprint
23
examiner to examine the print which was called a NO MAKE in the exhibits
attached to this motion” The amount in question $750.00 was set forth in the
motion and then the reasons for the examination, to see if in fact there was a
useable print on the bottle which could not have been made by petitioner.
I was advised by Ninth Circuit staff that the amount requested by my
expert was already covered in my appointment and I need not ask for $750 so I
withdrew the motion asking for money in Dkt 24 on 5-3-2021 and on the same
date filed another motion simply asking for an Order to the Sheriff to allow the
expert to examine the bottle. Dkt 25.
On 06-07-2021, the appellate commissioner responded in Dkt 27 that
“Appellant’s motion (Dkt. 25) for an order requiring the Los Angeles County
Sheriff’s Department to produce evidence [allow the expert to examine the bottle]
is referred to the panel deems appropriate.”
Hearing nothing more from the panel and in view of the importance of the
expert’s examination of the bottle, appellant/petitioner, in Dkt 33 on 07-31-2021
asked again for an order “allowing expert to examine evidence [the bottle on
which the NO MAKE print appears] in the LA County Sheriff’s custody.”
On 08-10-2021 appellant filed a motion to stay appellate proceedings. Dkt
36.
The heading and text of that motion is as follows:
A proposed Order to the Sheriff of Los Angeles County
allowing appellant’s expert to examine the beer bottle in issue in this
case has been submitted to the panel on June 7, 2021.
24
(See Dkt 33).
Without the Order, the expert will not be able to perform
his examination. Authorities and argument supporting this request have
been previously submitted to this Court in Dkt 25.
Mr. Kuhn, appellant’s expert, has told me that he knows
where the bottle is maintained and that he estimates it will take
approximately 6 hours, for a total of $760.00, once he receives a court
order allowing examination of the bottle and its print to
determine the status of that print and the meaning of “NO
MAKE” which was the result of the state’s fingerprint
examination.
Appellant hereby respectfully moves, pursuant to Rule
27 of the Federal Rules of Appellate Procedure and Ninth
Circuit Rule 312.2(b), to stay this appeal for a period of 90
DAYS because, without that stay, petitioner’s expert will not
be able to examine the BEER BOTTLE as described in DKT 33 .
Appellant seeks this stay under the authorities set forth in the
points and authorities submitted in Dkt nr. 25,
.
Respectfully submitted,
/s/Charles R. Khoury Jr.
Attorney for appellant
At Dkt 38, it was acknowledged that appellant’s motion had been received
and the stay was denied as “Principal Briefing is Complete” and the motion was
referred to the panel”for whatever consideration the panel deems appropriate”.
And just that same week, the panel was considering this case for oral
argument. Dkt. 41, 44 and 45.
25
IV
THE NINTH CIRCUIT COULD NOT PROPERLY DECIDE THIS CASE
WITHOUT CLEARING UP WHAT RESPONDENT HAS CONCEDED IS
AN AMBIGUITY WHICH GOES TO THE MAJOR ISSUE IN THE
APPEAL, NAMELY WHAT IS THE MEANING OF “NO MAKE”
DESCRIBING THE FINGERPRINT ON THE BOTTLE. THAT
AMBIGUITY CAN BE SETTLED BY APPELLANT’S EXPERT
EXAMINING THE BOTTLE IF THE COURT HAD GRANTED THE
REQUESTED ORDER TO THE LA SHERIFF TO ALLOW THE
EXAMINATION TO OCCUR BUT THEY DID NOT
If NO MAKE in reference to the print on that bottle means it was a print
which was NOT appellant’s print then the issue of a violation of Brady v.
Maryland 373 U.S. 83 (1963) and Napue v. Illinois, 360 U.S. 264 (1959) has
more than just “legs” it means the writ must be granted. This writer got this appeal
when no appeal at all had been filed in the state court, ineffective assistance of
appellate counsel resulted in erroneous advice to Mr. Piola to dismiss his appeal
before it even began.
This attorney began poring over the pages of the trial and clerk transcripts
and tried to contact defense counsel (passed away) and prosecutor (passed away)
and found that the complaining witness had totally recanted her testimony after
the trial and it was then that this issue was discovered by this counsel.
This counsel had made an assumption that NO MAKE meant there was a
fingerprint which could not be attributed to Mr. Pilola and that had never been
divulged to the defense and in fact the jury was told there were no prints at all on
the bottle and the prosecution and his investigator were in possession of the NO
MAKE report.
26
If that assumption was ineffective assistance of this attorney, then Mr.
Pilola should not be imprisoned because of it. But no one can say that this
attorney did not try hard over the last months to get that bottle examined.
The Memorandum Opinion of the Ninth Circuit stated at p. 4 there could
not have been any fingerprints because the assailant wore gloves but it was very
clear in the trial testimony that gloves were removed by the assailant to wash
perspiration off his face in a sink and that was set forth in the briefing and at oral
argument.
CONCLUSION
The problem with the testimony by the case detective to the jury that there
were no finger prints was that it was not true and he knew it was not true as shown
by Exhibit A, ER-90-91. That falsehood by the case agent has to be imputed to the
prosecutor who argued to the jury there were no fingerprints. There was a
fingerprint on the beer bottle which had been used by the intruder to penetrate
Mrs. P. That fingerprint was examined and did not match petitioner’s prints. NO
MAKE meant there was no match.
In view of the prosecution argument to the jury that there were no
fingerprints whatsoever consequently the defense theory of third party culpability
was bogus, it is harder to imagine a clearer case of a Brady/Napue violation.
Certiorari should be granted and the writ should issue. Alternatively the appeal
should be stayed as requested and then remanded to the District Court to have the
27
bottle examined by petitioner’s expert.
Respectfully submitted,
/s/Charles R. Khoury Jr.
Attorney for George Pilola
28
CERTIFICATE OF COMPLIANCE PURSUANT TO SUPREME COURT
RULE 33
This brief complies with the length limits permitted by Rule 33-1. The
brief is under 40 pages excluding exempted portions. The brief’s type size and
type face comply with Rule 33.2(a)(b).
/s/ Charles R. Khoury Jr.
June 24. 2022
29
IN THE
SUPREME COURT OF THE UNITED STATES
_____________________________________
PILOLA v. KOENIG
PROOF OF SERVICE
I hereby certify that I am a member of the Bar of the Supreme Court of the United
States and not a party to this action and that on this 24h Day of June, 2022 a
petition for In Forma Pauperis Status and petition for Certiorari with volume of
exhibits, were e- mailed to the email of counsel for the Respondent
justain.riley@doj.ca.gov
I declare under penalty of perjury that the foregoing is true and correct.
Executed on June 24th 2024
Respectfully submitted,
/s/CHARLES R. KHOURY JR.
30
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.