Petition for Writ of Certiorari — Hein v. Sullivan

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Supreme Court, !

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f () 10-646 NOV 15 2010

(Vv " OFFICE OF THE CLERK

Hun the

Supreme Court of the GAnited States

BRANDON WADE HEIN, ETAL.,

PETITIONERS,

WILLIAM JOSEPH SULLIVAN, ET AL.,

RESPONDENTS.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE NINTH

CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

WILLIAM. GENEGO J. SCOTT BALLENGER

NASATIR, HIRSCH, Counsel of Record

PODBERESKY & GENEGO AARON G. MURPHY

2115 Main Street DANIEL R. SELTZER

Santa Monica, CA 90405 DEREK D. SMITH

(310) 399-3259 LATHAM & WATKINS LLP

555 11th Street, N.W.

. Suite 1000

STERN FEE Washington, DC 20004

(202) 687-2200

scott.ballenger@Iw.com

Counsel for Petitioner

Micah Holland

Additional Counsel Listed on Inside Cover

ISRWIN CHEMERINSKY

UINIVERSITY OF

CALIFORNIA AT IRVINE

SCHOOL OF LAW

401 Kast Peltason Drive

Irvine, CA 92697

(949) 824-7

Counsel for Petitioner Jas

TRACY J. DRESSNER

3115 FOOTHILL BOULEVARD

#M-172

Ia Crescenta, CA 91214

(818) 248-2961

Counsel for Petitioner Tony

Miliotti

QUESTION PRESENTED

Whether the Ninth Circuit erred by holding, in

conflict with decisions of this Court and other courts of

appeals, that the prosecution’s knowing use of

fundamentally misleading evidence did not violate the

Due Process Clause and require a new trial.

LIST OF PARTIES

Petitioner Brandon Wade Hein was the petitioner

in the district court in case number CV _ 04-3502.

SJOQ(MLG) and petitioner-appellant in the court of

appeals in case number 07-56277. Respondent William

Joseph Sullivan, Warden of the California Correctional

Institution at Tehachapi, California, was the

corresponding respondent-appellee in the appellate

court. Sullivan was substituted for Michael G.

Yarborough, Warden, the respondent in the district

court.

Petitioner Tony Milotti was the petitioner in the

district court in ease number CV 04-3491-SJO(MLG)

and petitioner-appellant in the court of appeals in case

number 07-56288. Respondent Jim Hall, Warden, was

the corresponding respondent in the district court and

respondent-appellee in the court of appeals.

Petitioner Jason Skip Holland was the petitioner in

the district court in case number CV_ 04-3416-

SJO(MLG) and petitioner-appellant in the court of

appeals in case number 07-56865. Respondent Al

Scribner, Warden, was the corresponding respondent-

appellee in the court of appeals. Scribner was

substituted for George Ortiz, Warden, the respondent

in the district court.

Petitioner Micah Holland was the petitioner in the

district court in case number CV 04-3407-SJO(MLG)

and petitioner-appellant in the court of appeals in case

number 07-56367. Respondent Derral G. Adams,

Warden, was the corresponding respondent in the

district court and respondent-appellee in the court of

appeals.

11]

TABLE OF CONTENTS

Page

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CONSTITUTIONAL AND STATUTORY

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STA TEGO e OF THE, CAB Bicicccsecscssscsccccnccesessevsccssssense ]

REASONS FOR GRANTING THE WRIT................. 15

lL THE NINTH CIRCUITS DECISION

CONFLICTS WITH THIS COURT'S

ge Sg pe cae ss 16

A. Testimony Is “False” For Purposes

Of The Napue Rule If It Creates A

Materially Misleading Impression ................. 16

B. The Prosecution Knowingly

Presented Testimony Here That,

Taken As A Whole, At Least Left The

Jury With A False Impression. .................... 20

C. The Prosecution’s Knowing

Presentation Of Misleading

Testimony Was Material And

PROQUTOS TEC V CTIA osiccncccecnvsisssecesecesssaverveseesvecas OD

TABLE OF CONTENTS—Continued

Page

Il. THE NINTH CIRCUITS DECISION

CONFLICTS WITH DECISIONS OF THE

MAJORITY OF COURTS OF APPEALS .......... 28

A. The Ninth’ Cireuit’s Reasoning

Conflicts With The Settled Law Of

Re ee 29

B. The Ninth Circuit’s Reasoning Is

Consistent With Recent Precedents

From The Sixth, Eighth, And

Eleventh Circuits .............. es Mls RR LEN ae OE 34

Il]. THIS CASE PRESENTS ISSUES OF

PEAT IOIRAL, TOP rl ioiasetccsdcaseccitovccc neces 36

II ecccuvsccaencusencunausendedlicsesaeiae ee 37

APPENDIX

Opinion of the United States Court of Appeals

for the Ninth Circuit, Hein v. Sullivan, 601

F ee Se Tee Ca Be ikki eee la

Report and Recommendation of United States

Magistrate Judge of the United States

District Court for the Central District of

California, Holland v. Adams, Nos. 04-3502,

04-3407, 04-3416, 04-3491-SJO (MLG) (C.D.

CE: FS, BO wivceccicetcdsighGnnacmmnnainadaes 42a

APPENDIX TABLE OF CONTENTS—Continued

Page

Order of the United States District Court for

the Central District of California Accepting

and Adopting Findings and

Recommendations of United States

Magistrate Judge, Hein v. Sullivan, No. 04-

3502-SJO (MLG) (C.D. Cal. Aug. 9, 2007)........... 118a

Order of the United States Court of Appeals for

the Ninth Circuit Denying Rehearing, Hein

v. Sullivan, Nos. 07-56277, 07-562788, 07-

56365, 0756367 (9th Cir. July 16, 2010)... 120a

ee os sc duncpbsucceumnuucannenndusacesan 122a

Letter from Jeff Semow to Mr. Sorkin

regarding Michael] McLoren’s immunity

agreement, dated July 10, 1995 [EF R*-200)......... 123a

Declaration of Tracy Dressner dated July 11

2002, attaching transcript of William

Gazecki’s videotaped interview with Jeff

Semow regarding Michael McLoren’s

immunity agreement [EF R-249-51).......00. ee. 124a

Excerpts of Reporter’s Trial Transcript—

Prosecution Initia] Summation [ER-748,

Teneo saisccasnahinaianstents 128a

* “ER” refers to the Excerpts of Record filed in the 9th

Circuit.

APPENDIX TABLE OF CONTENTS—Continued

Page

Excerpts of Reporter’s Trial Transcript

Prosecution Rebuttal Summation [FE R-778-

Pan A We WIT cain sacsaccaasinnci aroma soedadeadeseeateateceasstcomees 150a

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TABLE OF AUTHORITIES

Page(s)

Akraw1 v. Booker,

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Alcorta v. Texas,

BO hee Be Ce eis nissan 2, 10, 11, 20

Armour v. Salisbury,

492 F.2d 1OBZS (6th Cir. 297A) ..ccccccscccacsoonscevoecovevscssscnetel

Blankenship v. Estelle,

545 F.2d 510 (5th Cir. 1977) ....c.cccccsessssses ‘sciceuecueae

Boone v. Paderick,

541 F.2d 447 (4th Cir. 1976) .......ccccccscccscscosessvcvsetd le GE

Byrd v. Collins,

209 F.3d 486 (6th Cir. 2000), cert. denied,

ES TRS. SCRE Ce A) wsiccoccniacsaxesinsueruneaee este

Darden v. Wainwright,

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DeMarco v. United States,

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Drake v. Portuondo,

SHS FO SO (28 Cir, ZOO) ics cccsncecesuatudersesusvecesnaneee

Dupart v. United States,

541 F 2a 31646 (OR Cat. 1976) ccna 30, 36

Vill

TABLE OF AUTHORITIES—Continued

Page(s)

Ciglio v. United States.

RR 0 p> 4 re anaes 2, 18, 19, 23, 26

Hammond v. Hall,

GBS F.8d 1289 (11th Cir, 2009) .....ccscscccorssseseseresoorsesssoG

Hayes v. Brown,

Se Te Ee CCEE GFE, ID) cisissenssosarescsscvssosnssonnvonscns 14

Hein v. California,

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Jenkins v. Artuz,

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Monroe v. Angelone,

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Napue v. Illinois,

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Pederson v. Fabian,

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People v. Hein,

86 Cal. App. 4th 683 (2001) 0... ee

People v. Hein,

No. 8095461, 2001 Cal. LEXIS 2611 (Apr.

a hc cacsnnne ul nseedviessuasavesgeaiinibabinet 12

Smith v. Secretary, Department of Corrections,

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TABLE OF

Continued

Page(s)

Tassin v. Cain,

- F’. Supp. 2d 764 (E. D. La. 2007), affd,

TO ee Fe rk GAN: ED caves td sadccuancedinexoconoctencre 30

Tejada v. Dugger,

941 F.2d 1551 (11th Cir. 1991), cert. denied,

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United States v. Agurs,

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United States v. Bagley,

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United States v. Barham,

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United States v. Bynum,

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wa States v. Casas,

3d 23 (1st Cir. 2005), cert. denied, £

m4 S. 1199 oie GOT UTS. DOG CB) ccnesccccccccecececccces 33

United States v. Harris,

498 F.2d 1164 (3d Cir.), cert. denied, 419

CF ils NE CITE sacccechctaciscoremiantistia aise 33, 34

United States v. Iverson,

637 F.2d 799 CD.C. Cir. 1980).....ccccccsosssocsccsccevcccese4, Ge

United States v. Lochmondy,

890 F’.2d 817 (Gth Cir. 1989) ............cccccccccossssesseosenensO

TABLE OF AUTHORITIES—Continued

Page(s)

United States v. McClintic,

B70 Fed GSS CHER CP. BOTS) vcs ccsescocecsccsiccscencsvscernssans

United States v. Morris,

498 F.3d 634 (7th Cir. 2007), cert. denied,

ee Ce ee a aguaauabeansnbacsiucaneens 34

United States v. Rivera Pedin,

eB 2e 8 ae | | Se 36

United States v. Stadtmauer,

No. 09-1575, 2010 U.S. App. LEXIS 18851

Se MINS Sh SRP INUNE 51525. dactediedgaraasessesenssesssiauneneres 33

United States v. Sutton,

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United States v. Vozzella,

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United States v. Wallach,

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CONSTITUTIONAL PROVISIONS AND

STATUTES

0 a Oe en eiaeecniaaen _

28 U.S.C. § 1254(1)

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TABLE OF AUTHORITIES—Continued

Page(s)

28 U.S.C. § 2254(d)(1). a 16

OTHER AUTHORITY

Mary Jayne McKay, Life in Prison: Felony

Murder, Arrested In Fistfight, Teen In

Prison For Life, 60 Minutes (CBS Jan. 29,

2003), http://www.cbsnews.com/stories/

2003/01/29/601T/maind38407. shtml ..........0..06-

Reckless Indifference (Dale

Rosenbloom/William Gazecki 2000),

http://www.recklessindifference.com (last

visited Nov. &, 2010)...................

tandall Sullivan, Lynching in Malibu: A Tal

of Fear, Retribution and Injustice In The

War Against Youth, Rolling Stone, Sept. 4,

BP 1 BE BG vvccoccnstesccoovesaes Seatansdudaradsuarveieeaisas

OPINIONS BELOW

The Ninth Circuit’s consolidated opinion is reported

as Hein v. Sullivan, 601 F.3d 897 (9th Cir. 2010)

(Pet.App.la-41a). Its order denying the petitions for

rehearing and rehearing en banc is reproduced at

Pet.App.120a-2la. The magistrate’s report and district

court’s opinion are reproduced at Pet.App.42a-119a.

JURISDICTION

The Ninth Circuit’s opinion was issued on April 12,

2010. A petition for rehearing and rehearing en banc

was denied on July 16, 2010. On September 27, 2010,

Justice Kennedy extended the time to file the petition

for certiorari to and including November 15, 2010. This

Court has jurisdiction under 28 U.S.C. § 1254(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The Fourteenth Amendment, in relevant part,

provides: “No State shall ... deprive any person of life,

liberty, or property, without due process of law.” U.S.

Const. amend. XIV, §1. The text of 28 U.S.C.

§ 2254(d), governing habeas corpus petitions for

prisoners in state custody, is reproduced at

Pet.App.122a.

STATEMENT OF THE CASE

In 1995, a backyard fight among six teenage boys

ended in an ill-fated and unintentional death. A year

later, a California jury convicted four of the boys

(petitioners) of first degree felony murder, based

primarily on the testimony of a single witness who

claimed that the fight broke out because petitioners

were trying to steal marijuana that he kept (and sold)

in a shed behind his family’s house. At trial, that

witness made numerous statements suggesting that he

was risking prosecution by testifying about his drug

dealing, when in fact the prosecutor had provided him

with a written immunity agreement. The prosecutor

later told the jury that it should believe the witness

because he exposed himself to “criminal lability” by

testifying.

Under any fair reading of this Court’s precedents,

these statements constituted the knowing presentation

of “false” evidence because, “taken as a whole,” they

gave the jury a “false impression.” Alcorta v. Texas,

355 U.S. 28, 31 (1957). Reversal therefore was required

if there was “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);

see also Giglio v. United States, 405 U.S. 150, 154 (1972)

(citing Napue v. Illinois, 360 U.S. 264, 271 (1959)). This

Court applies such a “strict standard of materiality” in

Napue cases “not just because they involve

prosecutorial misconduct, but more _ importantly

because they involve a corruption of the truth-seeking

function of the trial process.” Agurs, 427 U.S. at 104.

The Ninth Circuit evaded these well-established rules

by holding that testimony is not “false” for purposes of

the Napue / Giglio rule so long as it is susceptible to

any interpretation that would render it literally true—

regardless of how misleading it is, and regardless of its

likely effect on the jury. That holding widens an

existing circuit split and threatens to revive the

prosecutorial deception and gamesmanship that Napue

and Giglio were meant to eliminate.

Review is warranted.

Factual History

i. The facts of this case, which can only be

described as tragic, have been the subject of

considerable commentary and media _ attention,

including a feature article in Rolling Stone magazine,! a

January 29, 2003 episode of 60 Minutes II,? and the

award-winning documentary, Reckless Indifference.®

Petitioners are two brothers (Micah and Jason

Holland) and two of their friends (Brandon Hein and

Tony Miliotti) who were aged 15-i8 at the time of the

crime. On the afternoon of May 22, 1995, petitioners

and a friend (Chris Velardo) were hanging out

together—drinking, driving around, and engaging in

petty crime. Early that evening, the group went to the

home of Michael McLoren, a 16-year old high school

acquaintance who was known to sell marijuana, to—in

the words of the only person to overhear their

intentions—go “buy” or “get” some marijuana.

Pet.App.13a. McLoren kept the marijuana hidden in a

shed in his family’s backyard. Pet.App.4a.

Petitioners arrived to find McLoren in the backyard

with Jimmy Farris, the son of a Los Angeles police

detective. According to McLoren, petitioners

approached the shed without speaking and Micah

walked inside, followed quickly by McLoren, Micah’s

brother Jason, and Hein. Jd. McLoren testified that

Micah tugged on the locked drawer where McLoren

| Randall Sullivan, Lynching in Malibu: A Tale of Fear,

Retribution and Injustice In The War Against Youth, Rolling

Stone, Sept. 4, 1997, at 45.

2 See Mary Jayne McKay, Life in Prison: Felony Murder,

Arrested In Fistfight, Teen In Prison For Life, 60 Minutes (CBS

Jan. 29, 2003), http://www.cbsnews.com/stories/2003/01/29/601 L/

main538407.shtml.

3° Reckless Indifference (Dale Rosenbloom/William Gazecki

2000), http://www.recklessindifference.com/ (last visited Nov. 8,

2010).

kept his supply of marijuana and demanded the keys.

Id. At that time, Micah was 15 years old, 5’ 3” tall and

110 pounds. McLoren was 16, seven inches taller and

35 pounds heavier. ER-349.4 After a brief exchange of

words, a fight erupted. Farris entered the shed to help

McLoren. In the ensuing fracas, McLoren “held

Micah’s face down in a headlock on the bed and

repeatedly elbowed him in the back and _ neck.”

Pet.App.45a. Micah’s older brother Jason (5’ 7” and 130

pounds) “attempted to pull McLoren off his brother

and McLoren kicked Jason in the face.” Jd. Jason then

stabbed at McLoren three times with a small pocket

knife and, after Farris (5’ 11” and 175 pounds) spun

Jason around to confront him, Jason stabbed at Farris

too. /d. One of the small puncture wounds nicked

Farris’s heart, and he died from internal bleeding.

Pet.App.5a. No one has ever suggested that Jason

intended to kill Farris. See ER-756.

2. Rather than charge Jason Holland alone with

some form of manslaughter or homicide, the

prosecution theorized that petitioners all went to

McLoren’s house with the intent to steal marijuana.

Pet.App.46a. Because Jimmy Farris was killed in the

course of this purported “burglary” of a backyard shed,

the prosecution could charge all four boys—including

15-year-old Micah—with first degree felony murder

and seek life sentences.

As the district court recognized, “McLoren’s eye-

witness account of Micah’s demands and threatening

behavior as well as the subsequent fight provided the

4 “ER” refers to the Excerpts of Record filed in this case in the

9th Circuit, Case Nos. 07-56277 et al. “CT” refers to the Clerk’s

Transcript filed in this case in the Court of Appeal for the State of

California, No. SA022108.

only direct evidence of Petitioners’ intent to steal the

marijuana at the [shed].” Pet.App.47a. Yet in the six

weeks after the May 22, 1995 incident, McLoren told

different stories about the cause of the fight to nearly

everyone who asked—and never once suggested that it

was motivated by an attempted theft of marijuana.°®

According to McLoren, he was initially reluctant to

tell the truth because he “was doing illegal things” and

did not feel he “could tell the police everything and talk

to them openly and not suffer the consequences from

it.” Pet.App.57a. Recognizing the need for McLoren’s

testimony, Assistant District Attorney Jeff Semow met

with McLoren and his attorney and promised McLoren

immunity for anything he told the prosecution about

marijuana, memorializing the agreement with an

immunity letter dated July 10, 1995. Pet.App.128a.

MecLoren’s immunity agreement was

unquestionably valuable impeachment evidence.

Semow later recalled being very concerned that the

immunity deal would undermine McLoren’s credibility

because, in Semow’s words, “the defense would be able

to spin that and say that I bought his testimony” and

“bought lies from him instead.” Pet.App.126a-27a.

On July 24, 1995, there was a juvenile fitness

hearing for Micah, Milotti, and Velardo. The hearing

was entirely separate from the criminal proceedings—

presided over by a different judge in a different court.

Jason Holland and Hein were not present or

represented. ER-243. Micah Holland’s criminal trial

counsel James Sussman was not present, although

> See Pet.App.63a-66a. Although the State has argued that

McLoren was consistent in his claim that petitioners came to rob

him, on more than one occasion he described the incident as simply

a “fight” without mentioning a theft of any sort. See Pet.App.65a.

another attorney made an appearance. Pet.App.58a.

At the hearing, Velardo’s counsel Bruce Jones asked

Semow if there was “any more _ discovery.”

Pet.App.57a. Specifically, Jones referenced a meeting

in the D.A.’s office where “an immunity agreement for

Mr. McLoren” was _ discussed. Pet.App.57a-58a.

Semow replied: “There is no immunity agreement for

Mr. McLoren, other than I promised him in writing

that nothing that he said in this case about Marijuana,

would be used as evidence against him. That is it.”

Pet.App.58a. As the district court noted, “[t]here was

no other discussion about the immunity letter,

including whether it would be turned over to defense

counsel.” Id.

In the criminal proceedings, petitioners’ counsel

made repeated demands for any exculpatory evidence

in the prosecution’s possession (ER-223-27; CT-294-

301, 327-33), including requesting “all deals, favors,

promises or agreements made or entered into between

law enforcement, and/or the _ prosecution and

finformant] witnesses.” ER-226. Despite those

demands, and the trial court directing the release of,

inter alia, “a July 10 letter from the district attorney,”

the immunity letter was never produced to counsel for

petitioners Micah Holland, Jason Holland, or Brandon

Hein. Pet.App.59a, 60a-61a.®

6 In early 2002, Miliotti’s habeas counsel found a copy of the

July 10 letter in Miliotti’s file. Mailiotti’s trial counsel could not

recall ever having seen the letter, but upon review of the juvenile

fitness hearing transcript remembered learning of the letter’s

existence in juvenile court. Pet.App.15a. His failure to recall the

letter’s existence at trial was the subject of an ineffective

assistance claim below.

3. In the absence of proper disclosure of this

impeachment evidence, McLoren and the prosecution

were free to bolster McLoren’s credibility by implying

that he was willing to testify about his marijuana

dealings at great risk to himself. After reviewing the

state trial transcript, the district court found that

“McLoren’s statements suggesting that he had not

received immunity [were] clearly false.” Pet.App.&0a.

The court further found that “the prosecution condoned

and then made use of [the] false/misleading testimony”

in its closing argument. Pet.App.80a.

* Direct Examination of McLoren

On direct examination, McLoren indicated that he

still faced the possibility of being prosecuted for

marijuana dealing, but was willing to “take the drug

charge” in order to testify truthfully and see that

justice was done:

Q@. By [Deputy District Attorney] Mr. Latin:

Do you remember ... essentially what [the police

officers] told you [at the hospital]?

A. They don’t want to prosecute me for it

[marijuana]. They just want to get these guys.

KK KX *

Q. By Mr. Latin: Since that initial interview

with [djetectives ... when questioned by either law

enforcement officers or district attorneys, have you

ever made any effort to hide the fact that you

possessed or sold marijuana?

A. No.

* * * *

Q. Are there any other reasons other than what

Detective Tauson told you at the hospital that

caused you to no longer want to hide the fact that

you had marijuana?

* kK OK

A. Yes. My grandma told me just to take the

drug charge and just bust them.

E.R-455-55a (emphasis added).

The prosecution further elicited that McLoren did

not feel inhibited admitting to drug dealing during trial!

solely because he was brave and wanted to see the

defendants convicted:

Q. By Mr. Latin: As you sit here and testify in

this court do you feel inhibited or deterred in any

way from talking about your prior dealings with

marijuana?

ce ks

THE WITNESS: No. I feel fine talking :

Q. By Mr. Latin: Why? Can you explain why?

A. Because it’s something I have to do

Q. Why?

A. Because I want to get these guys

stabbed me and killed my friend.

EK R-456-57.

Unaware of the immunity agreement, defense

counsel for Jason, Micah, and Hein were unable to

undermine the impression that McLoren’s testimony

could be used against him and that he was still facing

prosecution:

Q@. You hired a lawyer; is that correct?

A. Yes.

@. Is that one of the things that the lawyer

dealt with, was whether you were going to be

prosecuted for any of those things?

A. Yes.

Q. And did that lawyer give you any

assurances in terms of whether you would be

prosecuted or not?

A. No, not really.

KX R-709-10 (emphasis added). McLoren further

testified that he understood the police had “reserved

the option” to prosecute him. ER-514.

* Re-Direct Examination of McLoren

On re-direct examination, the prosecution again

elicited the false testimony that McLoren was willing

to incriminate himself by testifying in order to seek

justice for his fallen friend:

@. When you learned that Jimmy had died

did you think about what you were going to say

about the marijuana inside?

A. Possibly, but I can’t remember.

Q. Were you starting to think about the

‘>

that you should tell the truth about it

¥ + x

The Witness: Yes

Q. By Mr. Lat

with somebody about t!

A. Yes.

©. Who did you talk t

A. My grandma.

Q. By Mr. Latin: What did you[r] grandma tell

you?

A. She told me just to—that they found the

dope and just to take the drug charge and get these

guys.

E R-679-80 (emphasis added).

The prosecutor then asked McLoren about the

meeting with his attorney and D.A. Semow, and again

the immunity agreement went unacknowledged:

@. Did there come a time when you felt ready to

tell the truth about your involvement with

marijuana, the extent of your dealing in marijuana,

the extent of your use of marijuana to the

authorities?

A. Yes.

@. What brought that about?

A. My lawyer told me that I wasn’t going to be

able to get these guys until | tell the whole truth.

Q@. Who did you talk to first from law

enforcement ... where you ... for the first time felt

1at you could be open about yourself and the

things that you had done in your life?

A. Jeff Semow.

@. Was that after your conversation with your

lawyer?

A. Yes.

(. Did you tell Mr. Semow about your dealings

in marijuana?

A. Yes.

@. Did you hide anything during that interview

about your involvement with marijuana?

A. No.

Q. How did it feel to talk openly about it?

A. I think it made me real uncomfortable.

@. You didn’t know for sure whether you could

trust Mr. Semow?

A. Yes.

Did you continue to talk about it?

Yes.

Did your feelings change over time?

D0-SO.

Do you still feel uncomfortable talking about

A. Somewhat.

Q. Why are you talking about it anyhow?

A. Because it’s more important to get the

guys than drugs.

K} R-681-83.

* Closing Argument

The prosecution spent a significant pa

closing and rebuttal on McLoren’s credibility. D.D.A

Michael Latin argued that McLoren was a credible

witness who “tlold] the jury the truth about

everything” and was motivated only by a desire “to see

justice done.” Pet.App.129a, 128a. Latin claimed that

he never tried to hide any evidence concerning

McLoren. Pet.App.130a.

Latin also argued that McLoren’s willingness to

testify openly about his own mistakes was a sign of his

credibility. See, e.g., Pet.App.132a (“Think about how

honest he was about some very, very painful things in

his life, some things that were embarrassing, some

things that hold himself vut to the public as not a very

good person. He was so honest about it. That’s the

kind of integrity that our system would like to see. It

really is.”). And, ultimately, Latin told the jury that it

should believe McLoren because he “opened himself up

to embarrassment, scorn, ridicule, contempt and

criminal lability, but he did it because he understood

that that is what it takes to tell the truth 1 |

believed.” Pet.App.13la (emphasis added)

1 On May 28. 1996. following a two-m

trial, petitioners were convicted of fir

burglary, first degree attempted robbery, al

degree felony murder with the special circumstance

murder during a burglary and a robbery. Petitioner

Jason Holland was sentenced without the

possibility of parole

and Muiliotti were

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has alread. pen

App.49a

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certiorari) by Hein on October 1, 200] Hew

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168, 181 (1986)). The court of appeals reasoned that the

trial court had mitigated much of the _ potential

prejudice from these misstatements by sustaining

objections and giving’ cautionary instructions.

Pet.App.35a. The Ninth Circuit also found that Latin’s

“problematic” statement that McLoren had “opened

himself up to ... criminal liability” was “ambiguous”

because Latin could have meant “that McLoren’s

testimony exposed him to charges of perjury if he lied

on the stand.” Pet.App.30a-3la (emphasis added). The

Ninth Circuit reasoned that in any event the statement

“would not have helped the prosecution’s case much

anyway since McLoren had little incentive to lie.”

Pet.App.35a-36a. Finally, it concluded that “the

prosecution offered the only believable theory for why

the fight began in the first place, i.e., that it had been

instigated by Micah’s attempted robbery of McLoren’s

drugs.” Pet.App.36a.

The Ninth Circuit thus affirmed the district court’s

denial of habeas relief. Pet.App.41la.

REASONS FOR GRANTING THE WRIT

As this Court has repeatedly held, “a conviction

obtained through use of false evidence, known to be

such by representatives of the State, must fall under

the Fourteenth Amendment,” Napue, 360 U.S. at 269,

so long as there was “any reasonable likelihood that the

false testimony could have affected the judgment of the

jury,” Agurs, 427 U.S. at 103.

The Ninth Circuit held that the Napue rule is

implicated only when testimony cannot be understood

in any way that would be literally truthful—no matter

how misleading it might be in context. That holding is

inconsistent with this Court’s precedents, which have

always applied Napue when testimony is likely to leave

the jury with a materially misleading impression even

if it is not literally false. It also deepens a robust

existing circuit split.

Federal courts may grant relief on habeas petitions

where the State court’s determination “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.” 28 U.S.C. § 2254(d)(1). As set forth

below, the denial of relief in this matter is in direct

conflict with the well-settled decisions of this Court.

This issue is of great importance to _ the

administration of justice, and the Ninth Circuit’s rule

encourages prosecutors to engage in egregious

gamesmanship. Review is warranted.

I. THE NINTH CIRCUIT'S DECISION

CONFLICTS WITH THIS COURT’S

PRECEDENTS

A. Testimony Is “False” For Purposes Of The

Napue Rule If It Creates A Materially

Misleading Impression

Testimony is “false” for Napue purposes if, taken as

a whole, it creates a materially misleading impression

of the facts. This rule dates to at least Alcorta v.

Texas, 355 U.S. 28 (1957)—a decision upon which

Napue expressly relied.

In Alcorta, a defendant charged with murdering his

wife claimed he had acted in a fit of passion when he

observed her kissing another man in his car. The other

man, Castilleja, was also the prosecution’s key witness.

When asked what had happened in the ar,

Castilleja mentioned only a brief discussion about going

to church and did not volunteer that he had kissed the

defendant’s wife. The prosecution then engaged in the

following colloquy with Castilleja:

Q. ... [WJere you in love with [the defendant’s

wife]?

A. No.

Q. Was she in love with you?

A. No.

Q. Had you ever talked about love?

A. No.

Q. Had you ever had any dates with her other

than to take her home?

A. No. Well, just when I brought her from

there.

Q. Just when you brought her from work?

A. Yes.

355 U.S. at 30.

After trial, it was discovered that Castilleja had

engaged in a brief sexual relationship with the

defendant’s wife and had informed the prosecution of it

before trial. /d. at 30-31. The prosecutor instructed

Castilleja not to volunteer information about the fling

but to answer any specific questions about it truthfully.

Id. at 31.

None of Castilleja’s answers were perjurious. This

Court cited no evidence that Castilleja and the

defendant’s wife were “in love” or that they had been

on “dates” other than the occasions he had driven her

home. The problem, this Court explained, was that

“Castilleja’s testimony, taken as a whole, gave the jury

the false impression that his relationship with

petitioner’s wife was nothing more than that of casual

friendship.” Jd. (emphasis added). On this basis, this

Court found a due process violation and reversed the

defendant’s conviction.

Later decisions affirm Alcorta’s holding. In Giglio

v. United States, 405 U.S. 150 (1972), one prosecutor

involved only at the grand jury stage told an unindicted

co-conspirator—Taliento—that he would not be

charged if he offered testimony against the defendant.

The trial prosecutors were never informed of this

promise and, before trial, the United States Attorney

clarified to Taliento that he “would definitely be

prosecuted if he did not testify and that if he did testify

he would be obliged to rely on the ‘good judgment and

conscience of the Government’ as to whether he would

be prosecuted.” 405 U.S. at 153. At trial, Taliento was

asked a series of questions about any inducements he

received to testify:

[Counsel.] Did anybody tell you at any time that

if you implicated somebody else in this case that you

yourself would not be prosecuted?

[Taliento.] Nobody told me I wouldn't be

prosecuted.

Q. They told you you might not be prosecuted?

A. I believe I still could be prosecuted.

* KK *

Q. Were you ever arrested in this case or

charged with anything in connection with these

money orders that you testified to?

A. Not at that particular time.

Q. To this date, have you been charged with any

crime?

A. Not that I know of, unless they are still going

to prosecute.

Id. at 151-52 (alterations in original). In summation,

the prosecution stated that Taliento “received no

promises that he would not be indicted.” Jd. at 152.

None of this testimony is literally false (indeed, it

mirrors almost identically the testimony given by

McLoren). The closest Taliento came to outright

perjury was his response to the first question, but even

that answer was arguably literally correct since it does

not appear that his immunity deal required him to

“implicate” somebody else and because the record is

somewhat murky as to exactly what Taliento was

promised. After that, each of Taliento’s answers were

literally true. Once again, however, this Court found

that the jury was misled and reversed the conviction.

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

is instructive. Though itself a Brady non-disclosure

case, Bagley discussed the history of the Brady and

Napue lines of cases and described them as different

points along a common spectrum of prosecutorial

misconduct. 473 U.S. at 678-79 & n.8 (“[TJhe Brady

rule has its roots in a series of cases dealing with

convictions based on the prosecution’s knowing use of

perjured testimony.”). Bagley recognized that Napue

violations represent a more serious form of misconduct

and greater “corruption of the truth-seeking function

of the trial process,” and thus are subject to a more

stringent standard of review. /d. (citation omitted).

In Bagley, the defendant was found guilty of

narcotics charges based primarily on the testimony of

two undercover officers. Jd. at 670-71. Prior to trial,

Bagley requested “‘any deals, promises or inducements

made to witnesses in exchange for their testimony.”

Id. at 669 (citation omitted). The Government did not

produce anything in response to this request, but

separately provided affidavits signed by the officers

during the course of the undercover operation. Jd. at

670. Each affidavit concluded: “‘I made this statement

freely and voluntarily without any threats or rewards,

or promises of reward having been made to me in

return for it.’”” Jd. (citation omitted). In fact, however,

both agents had entered into written agreements to

receive cash compensation if their assistance—though

not their testimony, per se—led_ to _ the

“accomplishment of the objective sought to be

obtained by the use of such information to the

satisfaction of [the ATF] Regional Director.” /d. at

671 (citation omitted). This Court held that while the

Government was “technically correct” that the

agreements were not a promise of compensation in

exchange for testimony, “the natural effect of these

affidavits would be misleadingly to induce defense

counsel to believe that [the witnesses] provided the

information in the affidavits, and ultimately their

testimony at trial recounting the same information,

without any ‘inducements.’ Jd. at 684 (emphasis

added). Thus, as in Alcorta and Giglio, the Court in

Bagley held that the issue is whether withholding the

true state of facts produced a misleading effect.

B. The Prosecution Knowingly Presented

Testimony Here That, Taken As A Whole,

At Least Left The Jury With A False

Impression

McLoren’s testimony was “false” within the

meaning of clearly established federal law, because

taken as a whole it conveyed a materially misleading

impression to the jury.

1. First, McLoren claimed that his lawyer had not

provided him with “any assurances” regarding whether

he would be prosecuted for his marijuana dealing.

Pet.App.19a-2la; supra at 8-9. Because McLoren’s

attorney had, in fact, secured him an immunity deal,

the district court found this statement false. On appeal,

the State itself conceded that McLoren’s statement

was “arguably false or misleading.” State’s Opening

Brief on Appeal at 69 (9th Cir. Aug. 18, 2008). The

Ninth Circuit, however, concluded it was not literally

false because MecLoren had received only use

immunity, and thus theoretically could have been

prosecuted using evidence other than his testimony.

Pet. App.22a-23a.

This conclusion is not sustainable under Alcorta.

McLoren’s lawyer clearly gave him some assurances

about his exposure to prosecution, even if they were

limited to use immunity. And the immunity issue was

relevant at trial only to the extent that it bore on the

credibility of McLoren’s statements to prosecutors and

in court—statements that, it turns out, could not have

been used against him. The fact that MeLoren might

have been prosecuted on the basis of other evidence

would have been irrelevant. The testimony clearly

gave the jury a materially misleading impression on

the issue that was actually pertinent to its

deliberations.®

2. Second, McLoren answered a series of questions

about his motivation for testifying and repeatedly

8 The Ninth Circuit's suggestion that McLoren might not have

been aware of the immunity agreement, Pet.App.25a, is factually

false (because McLoren was present at the meeting where the

agreement was discussed, Pet.App.126a-27a) and legally

irrelevant, see Napue, 360 U.S. at 269 (requiring reversal “when

the State, although not soliciting false evidence, allows it to go

uncorrected when it appears”).

offered altruistic explanations (e.g., to honor his dead

friend or because his “grandma” told him to do it),

never acknowledged receiving immunity, and asserted

that it was “more important to get these guys than

drugs.” Pet.App.20a-27a. Those statements were all

outright lies or highly misleading. By the prosecution’s

own admission, McLoren was unwilling to testify until

he was granted immunity. Pet.App.126a-27a. The

district court found McLoren’s testimony false. Again,

however, the Ninth Circuit held that “none of these

statements are false—and certainly not perjurious.”

Pet.App.25a.

As even the Ninth Circuit recognized, McLoren’s

testimony plainly was misleading in its failure to

acknowledge the immunity deal. Taken as a whole,

McLoren’s testimony left the jury with the false

impression that McLoren was testifying for the

altruistic reasons he mentioned, when in fact his

testimony was a proximate result of the immunity

agreement.

3. Third, MecLoren twice claimed that his

grandmother told him to testify even though it meant

he was exposing himself to a “drug charge.”

Pet.App.26a. By any reasonable measure this claim

was false and misleading. McLoren had use immunity

at a minimum, and thus testifying or cooperating with

the authorities in this case could not have led to a drug

charge. The district court found this claim to be false.

The Ninth Circuit acknowledged that this was “the

most colorable claim of falsity” given that it “would not

have been true” for McLoren to suggest that he “could

have exposed himself to liability by speaking to

Semow.” Jd. Nevertheless, it reasoned, the statement

theoretically could have been true at the time his

grandmother gave him the advice (which, the Ninth

Circuit asserted, was not clear from the record). /d. It

also concluded that because “McLoren’s statement did

not foreclose or diminish the possibility that he was

granted use immunity .... [his] testimony was not

false.” Pet.App.27a.

This reasoning also is inconsistent with Alcorta. In

Alcorta, a literal interpretation of the witness’s false

testimony would not have “foreclose[d] or diminish[ed]

the possibility” that he was engaging in a loveless

extramarital affair with the defendant’s wife. See 355

U.S. at 80. The Ninth Circuit erred by hypothesizing

scenarios in which the testimony could be literally true,

rather than by focusing on the misleading impression it

obviously created for the jury.

4. Finally, the Ninth Circuit declined to include

D.D.A. Latin’s assertion that McLoren exposed himself

to “criminal liability” as part of its false evidence

analysis because “[s]lummation consists of opinion,

advocacy and appeals to justice” rather than the

submission of evidence. Pet.App.33a n.12. That is

inconsistent with Giglio, which treated a misleading

representation by the prosecutor as a key aspect of its

analysis. See Giglio, 405 U.S. at 152 (“In summation,

the Government attorney stated, ‘[Taliento] received

no promises that he would not be indicted.’”) (alteration

in original). Other courts of appeals have recognized

that improper prosecutorial argument capitalizing on

false testimony is relevant both to assessing whether

the jury was misled and to materiality. See, e.g.,

DeMarco v. United States, 928 F.2d 1074, 1077 (11th

Cir. 1991) (coneluding “that the prosecutor’s argument

to the jury capitalizing on the perjured testimony

reinforced the deception of the use of false testimony

and thereby contributed to the deprivation of due

process”); United States v. Iverson, 6387 F.2d 799, 804

n.15 (D.C. Cir. 1980) (“The prosecutor not only did not

at any time correct [the witness’s] false testimony; he

actually reiterated it in his closing argument, thereby

compounding the prejudicial impact ....”).

The Ninth Circuit also held that Latin’s statement

was not false—disregarding the district court’s

contrary conclusion and even the State’s concession

that the statement was “certainly incorrect.” State’s

Opening Brief on Appeal at 69 n.35. The court

acknowledged that Latin’s statement “could have been

taken to mean that McLoren exposed himself to

prosecution for marijuana dealing by testifying, which,

due to use immunity, would not have been true.”

Pet.App.30a. It even agreed that, if Latin was

referring to a potential marijuana prosecution, his

statement was an effort to “deceive[] the jury.” Jd.

But the Ninth Circuit reasoned that Latin’s “comment

could also have been taken to mean that McLoren’s

testimony exposed him to charges of perjury if he lied

on the stand,” and therefore was ambiguous rather

than false. Pet.App.30a-31a.

That line of reasoning is preposterous and flatly

inconsistent with Alcorta. Immunity agreements never

prohibit subsequent prosecution for perjury, so under

the Ninth Circuit’s reasoning prosecutors may claim

that every immunized witness opens themselves up to

“criminal liability” by testifying—no matter how

misleading that declaration is in context. Here, Latin’s

statement came in the context of a discussion of the

defense’s use of McLoren’s marijuana dealing as

impeachment evidence. Latin was specifically

responding to that attack and made multiple references

to McLoren’s marijuana dealing in the moments before

his “criminal liability” statement. That statement

clearly left the jury with a seriously misleading

impression, at a minimum.

5. Taking these statements as a whole, as this

Court’s precedents require, there can be no doubt that

McLoren and the prosecution left the jury with the

false impression that McLoren was risking prosecution

for his marijuana dealing by testifying.

C. The Prosecution’s Knowing Presentation

Of Misleading Testimony Was Material

And Requires Reversal

Because the Ninth Circuit held that McLoren’s

testimony was not “false,” it did not assess the impact

of that testimony under the Napue materiality

standard. Instead, the court invented and applied a

complex review framework that ignored McLoren’s

testimony altogether. The Ninth Circuit first assessed

whether the instances of prosecutorial misconduct

standing alone rendered the trial “fundamentally

unfair” under Darden. It then analyzed the

prosecutor’s comments in combination with the non-

disclosure of the immunity letter under the Brady

materiality standard. Pet.App.3la-38a.

The Ninth Circuit’s materiality analysis was

fundamentally flawed. It should have asked whether

McLoren’s misleading statements, as reinforced by

improper prosecutorial argument, “could have affected

the jury’s verdict”—or, in other words, whether those

statements and argument were “harmless beyond a

reasonable doubt,” Bagley, 473 U.S. at 679-80 & n.9.

The prosecution’s knowing presentation of false

testimony and argument in this case plainly satisfies

that standard, and requires a new trial.

This Court has held consistently that false

testimony by an essential prosecution witness is

material, particularly when the testimony involves

inducements to testify that are concealed from the

defense and jury. In Giglio, for instance, this Court

emphasized that the Government’s case “depended

almost entirely on [the witness’s] testimony; without it

there could have been no indictment and no evidence to

carry the case to the jury.” 405 U.S. at 154. The

witness’s credibility “was therefore an important issue

in the case, and evidence of any understanding or

agreement as to a future prosecution would be relevant

to his credibility and the jury was entitled to know of

it.” Jd. at 154-565.

So too here, the State’s felony murder case

depended almost entirely on McLoren’s testimony. See

Pet.App.36a (“the prosecution’s case relied on

McLoren’s testimony”); Pet.App.47a (finding that

McLoren’s testimony was the only direct evidence of

petitioners’ intent to steal). The prosecution described

the case as a credibility contest between McLoren and

the conflicting evidence of intent provided by Jason

Holland. See Pet.App.128a. To bolster its side in that

credibility contest, the prosecution devoted much of its

closing argument to vouching for McLoren’s credibility,

repeatedly praising him as “honest,” asserting that

“(thle answered every question truthfully,” all while

hailing his altruistic motivations for testifying. See,

e.g., Pet. App.128a-132a.

The prosecutors were keenly aware that it would

damage McLoren’s credibility if the jury learned of his

immunity agreement. Supra at 5. The defense

understood that too, and repeatedly questioned

MecLoren about his potential exposure for dealing

marijuana. Yet the prosecution never corrected any of

McLoren’s statements implying he had not received

immunity. To the contrary, in closing argument, the

prosecution affirmatively stated that McLoren had

“opened himself up to ... criminal liability,” a statement

which even the State now concedes was “certainly

incorrect.” Pet.App.18la; State’s Opening Brief on

Appeal at 69 n.35.

The State and the Ninth Circuit suggested that

false testimony and argument about a “use immunity”

agreement is of little significance because = such

agreements give the witness no incentive to lie. But

McLoren’s false statements are material because they

wrongly led the jury to believe that his testimony was

particularly credible because he exposed himself to

potential prosecution by testifying as he did. Even if

the immunity agreement itself did not give Mcl.oren a

reason to lie, that does not mean that false testimony

about the agreement and the witness’s motivations for

testifying cannot be material. And in Alcorta, the

witness clearly did not receive any benefit for his false

testimony.

It also simply is not the case that an agreement for

use immunity provides no incentive to testify falsely.

As Prosecutor Semow himself explained, if Mcloren

provided testimony that helped convict a murderer,

only a “dishonorable” “idiot” would then seek to

prosecute him for marijuana dealing—even using

evidence that came independently of McLoren’s

testimony. Pet.App.127a. MclLoren thus understood

that his freedom could be contingent on helping the

prosecution secure a conviction in this case.

The Ninth Circuit also asserted that McLoren’s

(and the prosecution’s) misrepresentations were not

material because “the prosecution offered the only

believable theory for why the fight began in the first

place, Le., that it had been instigated by Maicah’s

attempted robbery of McLoren’s drugs.” Pet.App.36a.

The Ninth Circuit’s reasoning ignores Jason Holland’s

testimony about what happened, and rests on the

unsupported and absurd judicial speculation that it is

simply impossible for a fight to “spontaneously erupt] |”

between two groups of intoxicated teenage boys,

unless one of the groups had the premeditated intent to

rob the other. /d. MecLoren, who testified that he was

“kind of angry” just before Petitioners arnved, ER

396, might have overreacted to Micah Holland’s

request for marijuana. McLoren had begun working

out more—lifting, training with a punching bay, and

practicing a “karate kick” (HE. R-503-11)-—and may have

decided to try out his moves on the smaller Micah,

given their contentious history. Seo e¢.g., Pet. App.44a.

The prosecution certainly did 1 believe that its

premeditated robbery theory was the only plausible

explanation of the events. It recognized that

MclLoren’s credibility was crucial.

The Ninth Circuit’s materiality analysis is

unpersuasive even on itS own terms. More

importantly, it applied the wrong standard = and

wrongly ignored much of the prejudicial testimony.

Under the correct standard, these errors plainly could

have influenced the jury’s deliberations.

Il. THE NINTH CIRCUIT’S DECISION

CONFLICTS WITH DECISIONS OF THE

MAJORITY OF COURTS OF APPEALS

The Ninth Circuit’s decision chooses sides with the

minority position in an entrenched 7-8 circuit split that

merits review. Petitioners would have been granted

relief in seven circuits.

A. The Ninth Circuit’s Reasoning Conflicts

With The Settled Law Of Seven Circuits

Fifth Circuit

In United States v. Barham, 595 F.2d 231, 239 (5th

Cir. 1979), the Government put forward three

witnesses who had each received promises of leniency.

The first responded to the defense counsel’s inquiries

on cross examination in “evasive fashion,” giving

answers that the court found were, “to put it

charitably[,| less than honest.” 595 F.2d at 239-40. The

second gave answers that “were not completely

eandid,” but which “could not yet be characterized as

false or deceitful.” Jd. at 240. On redirect examination,

the prosecutor brought the second witness’s “latent

deception ... to fruition through several questions

which, although perhaps asked innocently, were

unfortunately quite misleading in the circumstances.”

Id. The third witness gave an answer that, while

“truthful in a narrow, literal sense,” had the effect of

denying “much more than the truth warranted.” J/d. at

241.

Under the Ninth Circuit’s erroneous “actual falsity”

standard, none of these misleading statements would

have implicated Alcorta and Napue. Yet the Fifth

Circuit properly reversed the conviction, holding that

the testimony heard bv the jury, “if not outright lies,

certainly conveyed the false impression that none of

the three witnesses had received any promises of

leniency or other considerations.” Jd. Moreover, the

court faulted the prosecution for making “no attempt to

correct the false evidence,” and even reinforcing the

deception, despite knowing that its witnesses “had

conveyed to the jury something other than the truth.”

Id. This directly contradicts the Ninth Circuit’s

decision, which found that the prosecutor “had no duty

to clarify McLoren’s answers” so long as none of them

were literally false. Pet.App.27a.

Other Fifth Circuit cases confirm Barham’s

holding. In Blankenship v. Estelle, 545 F.2d 510, 513

(5th Cir. 1977), the prosecution’s two key witnesses

testified that they were under indictment but failed to

mention an alleged pretrial bargain to drop those

charges in exchange for their testimony. The court

reversed for an evidentiary hearing, noting that such a

deal “would place this case squarely within the Giglio

rule and entitle [petitioner] to a new trial.” 545 F.2d at

513. Critically, the court found that it made no

difference if the witnesses’ testimony was “technically

true,” as “it left the erroneous impression of an

impending trial and the absence of leniency as an

inducement to testify.” Jd.; see also Dupart v. United

States, 541 F.2d 1148, 1150 (5th Cir. 1976) (“[A]ssuming

the allegations to be true, such a formalistic exchange

of testimony[,] even though technically not perjurious,

would surely be highly misleading to the jury ....”).

More recently, in Tassin v. Cain, 482 F. Supp. 2d

764, 773 (E.D. La. 2007), affd, 517 F.3d 770 (5th Cir.

2008), the court relied on Barham to vacate a murder

conviction when the State’s lead witness testified that

she faced a 99-year sentence, even though she privately

expected that her testimony would result in a 10-year

sentence. “Despite the technical accuracy of these

statements,” the court concluded, “a false impression

was created in the jury” and “Giglio and Napue

prohibit the State from obtaining convictions based on

such false impressions.” 482 F. Supp.2d at 773.

Second Circuit

The Second Circuit holds that misleading testimony

can violate Napue even if it is “probably true.”

Jenkins v. Artuz, 294 F.3d 284, 294 (2d Cir. 2002). In

Jenkins, the prosecutor “did not seek to correct her

witness’s at-best-ambiguous testimony about the

existence of a plea agreement.” Jd. at 289. Instead, on

redirect examination, the prosecutor asked questions

that, “while eliciting technically accurate testimony,

were phrased so as to re[iJnforce the false impression

that no deal had been made.” Jd. at 294. In summation,

the prosecutor then bolstered her witness’s credibility

“by falsely suggesting the absence of a deal between

[the witness] and the prosecution.” /d. The court

affirmed the grant of habeas relief, remarking: “That a

statement standing alone is factually correct obviously

does not mean that it cannot mislead based on the

natural and reasonable inferences it invites.” Jd.

Other decisions in the Second Circuit have reached

a similar conclusion. See Drake v. Portuondo, 553 F.3d

230, 243-45 (2d Cir. 2009) (finding Napwe violation

because prosecutor “plainly crafted the question to

achieve literal accuracy while conveying the false

impression that [the witness’s] work had _ been

validated through publication”); United States v.

Vozzella, 124 F.3d 389, 392-93 (2d Cir. 1997) (testimony

was “so misleading as to amount to falsity”).

Fourth Circuit

The Fourth Circuit likewise agrees that

prosecutors cannot escape Napue and Giglio scrutiny

by having their witnesses “skirt[] the edge of perjury.”

Boone v. Paderick, 541 F.2d 447, 450 (4th Cir. 1976). In

Boone, notably similar to this case, “the prosecutor

concealed an offer of favorable treatment to [the

“ye

defendant’s] principal accuser.” Jd. at 448. The

prosecutor then made statements “which were clearly

intended to give the impression that [the witness]

knew nothing about possible lenient treatment, that he

testified against, rather than in aid of, his penal

interest, and that his testimony in general was the

product of an active conscience.” Jd. at 450. The court

reversed the conviction, holding that the witness’s

“general denial of any promise of leniency, when

coupled with the prosecutor’s emphasis upon altruistic

motivation, constitutes false evidence of which the

prosecutor knew or should have known.” /d.; see also

United States v. Sutton, 542 F.2d 1239, 12438 (4th Cir.

1976) (“In short, as in [Napue], here the prosecution

allowed a false impression to be created at trial when

the truth would have directly impugned the veracity of

its key witness.”); Monroe v. Angelone, 323 F.3d 286,

314-15 (4th Cir. 2003) (citing Sutton and Boone).

D.C. Circuit

In Iverson, 637 F.2d at 802, the D.C. Circuit

determined that a key witness testified untruthfully

regarding her sentencing status. “Yet the prosecutor,

who knew or should have known the actual facts,

remained silent, and he did nothing to alert the Court

and jury to the truth.” 637 F.2d at 802-08. “[T]Jhat

failure to correct the witness’[s] misrepresentations,”

the court held, “was improper and warrants a new

trial.” Jd. at 808. Significantly, the court rejected the

dissent’s suggestion “that absent perjury there is no

affirmative duty on the prosecutor to correct false

testimony.” /d. at 805 n.19. Citing the Fifth Circuit’s

Barham decision among others, the court held that “it

makes no difference whether the testimony is

technically perjurious or merely misleading.” Jd.

Third Circuit

In United States v. Harris, 498 F.2d 1164, 1168 (8

Cir.), cert. denied, 419 U.S. 1069 (1974), the Third

Circuit found that the prosecutor “sat silently while [its

witness] gave testimony on cross-examination which at

least gave the court and jury an impression directly

contrary to what he ultimately stated was the truth

eoncerning his agreement with [the witness].” The

court concluded that “Giglio and Napue require that

the prosecutor apprise the court when he knows that

his witness is giving testimony that is substantially

misleading.” 498 F.2d at 1169; see also United States v.

Stadtmauer, No. 09-1575, 2010 U.S. App. LEXIS

18851, at *82-83 (3d Cir. Sept. 9, 2010) (citing Harris)).

First Circuit

In United States v. Casas, 425 F.3d 23, 44 (1st Cir.

2005), cert. denied, 546 U.S. 1199, and 547 U.S. 1061

(2006), the court found that “the representation during

direct examination that no cooperation agreement

existed was, at best, misleading.” The court went on to

“strongly condemn the prosecution’s failure to correct

the statement or to disclose the existence of a

cooperation agreement as required by Giglio.” 425

F.3d at 44.

Similarly, in United States v. Bynum, 567 F.2d

1167, 1169-70 (1st Cir. 1978), the First Circuit

considered a co-conspirator’s claim that he had not

received any “promise of leniency” in return for

testifying. The court allowed that the witness may

have thought that a promise of leniency “was

technically different” from the type of promise he

actually received, but determined that “such a

distinction would probably be lost on a jury.” 567 F.2d

at 1169. “In such circumstances,” the court concluded,

the witness’s answers “would have the effect of

misleading [the jury] into believing that the

government had provided no promise to induce [the

witness] to testify.” Jd. (citing Harris, 498 F.2d at

1169).

Seventh Circuit

In United States v. Morris, 498 F.3d 634 (7th Cir.

2007), cert. denied, 553 U.S. 1065 (2008), the prosecutor

“affirmatively represented to the jury several times

that [the witness] would be subject to a mandatory

minimum sentence of 10 years,” when in fact “there

was nothing immutable about the 10-year term

reflected in [the witness’s] plea agreement.” 498 F.3d

at 638-39. According to the court, the prosecutor

“plainly knew it was within the government’s

discretion to ask the judge to impose a sentence below

the normal statutory minimum,” and so it was

‘therefore improper both to give the jury the

impression that [the witness’s] sentence could not go

below 10 years during his examination of [the witness],

and then later to argue the same thing to the jury.” Jd.

at 639.

B. The Ninth Circuit’s Reasoning Is

Consistent With Recent Precedents From

The Sixth, Eighth, And Eleventh Circuits

The Sixth, Eighth, and Eleventh Circuits initially

held the majority view discussed above, but have

recently shifted to a requirement of actual falsity akin

to the Ninth Circuit’s decision below.

Sixth Circurt

In 1974, the Sixth Circuit affirmed a grant of habeas

relief under Giglio on the grounds “that the prosecutor

deliberately misled the jury by assuring it that [the

witness] had nothing to gain by giving his testimony.”

Armour v. Salisbury, 492 F.2d 1032, 1037 (6th Cir.

1974). Later, the Sixth Circuit changed its standard,

holding that “the defendant must show that the

statement in question was ‘indisputably false,’ rather

than merely misleading.” Byrd v. Collins, 209 F.3d

486, 517 (6th Cir. 2000) (quoting United States v.

Lochmondy, 890 F.2d 817, 828 (6th Cir. 1989)), cert.

denied, 531 U.S. 1082 (2001); accord Akrawi v. Booker,

572 F.3d 252, 265 (6th Cir. 2009) (declining Giglio relief

because the testimony had not been shown to be

“undisputably false,” even though it was misleading).

Eighth Circuit

The Eighth Circuit also started with a _ broad

conception of what constitutes false testimony, citing

Harris, Sutton, and Boone for the position that the

Giglio doctrine goes beyond perjured testimony and

“also encompasses situations in which the government

allows materially misleading statements to go

uncorrected.” United States v. McClintic, 570 F.2d

685, 692 (8th Cir. 1978). In McClintic, the court

ultimately affirmed the defendant’s conviction, but only

after finding that “the government inexcusably

neglected to correct the misleading impression made

by the memoranda of negotiated pleas and to fully and

accurately disclose the true nature of the plea bargain.”

Id. More recently, however, the Eighth Circuit

appears to agree with the Ninth Circuit that the Napue

/ Giglio line of cases does not encompass the creation of

a false impression. See Pederson v. Fabian, 491 F.3d

816, 827-28 (8th Cir. 2007) (affirming that a statement

is not false so long as it is “ambiguous and subject to

multiple reasonable interpretations”).

Eleventh Circuit

Finally, the Eleventh Circuit historically held that

introduction of misleading evidence triggers review

under Napue. See United States v. Rivera Pedin, 861

F.2d 1522, 1530 n.14 (11th Cir. 1988) (“{T]he Napue rule

applies where testimony, ‘even though technically not

perjurious, would surely be highly misleading to the

jury ....’”) (quoting Dupart, 541 F.2d at 1150); Tejada v.

Dugger, 941 F.2d 1551, 1556 (11th Cir. 1991), cert.

denied, 502 U.S. 1105 (1992). In recent cases, however,

the court appears to have adopted a requirement of

absolute falsity. See Hammond v. Hall, 586 F.3d 1289,

1307 (11th Cir. 2009) (“Because there was no lie, there

was no Giglio violation.”); Smith v. Sec’y, Dep't of

Corr., 572 F.3d 1327, 1335 (11th Cir. 2009) (“Accurate

statements do not violate the Giglio rule.”).

Ill. THIS CASE PRESENTS ISSUES OF

NATIONAL IMPORTANCE _

The entrenched circuit split discussed above

illustrates that cases in which prosecutors knowingly

present misleading testimony—and, in particular,

misleading testimony concerning whether a key

cooperating witness has been given immunity—remain

sadly common. This Court has staked out, and

repeatedly defended, a strong rule that knowing

presentation of false evidence is intolerable and almost

always requires. reversal. The Ninth Circuit’s

reasoning here—and the similar recent holdings of the

Sixth, Eighth, and Eleventh Circuits—is an open

invitation for prosecutors to skirt the truth in a manner

that clearly misleads the jury but just barely avoids

actual perjury. That rule has nothing at all to

recommend it, and merits this Court’s review.

CONCLUSION

The petition for “ertiorari should be granted.

Respectfully submitted,

WILLIAM J. GENEGO J. SCOTT BALLENGER

NASATIR, HIRSCH, Counsel of Record

PODBERESKY & GENEGO AARON G. MURPHY

2115 Main Street DANIEL R. SELTZER

Santa Monica, CA 90405 DEREK D. SMITH

(310) 399-3259 LATHAM & WATKINS LLP

555 11th Street, N.W.

Suite 1000

Washington, DC 20004

(202) 637-2200

scott.ballenger@lw.com

Counsel for Petitioner

Brandon Hein

Counsel for Petitioner Micah

Holland

ERWIN CHEMERINSKY TRACY J. DRESSNER

UNIVERSITY OF 3115 FOOTHILL BOULEVARD

CALIFORNIA AT IRVINE #M-172

SCHOOL OF LAW La Crescenta, CA 91214

401 East Peltason Drive (818) 248-2961

Irvine, CA 92697

g yeol fr 5 ae OP ne

(949) 824-7722 Counsel for Petitioner Tony

Milrotti

Counsel for Petitioner Jason

Holland

APPENDIX

APPENDIX TABLE OF CONTENTS

Opinion of the United States Court of Appeals

for the Ninth Circuit, Hein v. Sullivan, 601

F Oe BOE (SEN Cir. ZOD) neccsscccvccscsorsscscoesvessoscvesees

Report and Recommendation of United States

Magistrate Judge of the United States

District Court for the Central District of

California, Holland v. Adams, Nos. 04-3502,

04-3407, 04-3416, 04-3491-SJO (MLG) (C.D.

NE: Sie MIPS V acesssncénsétvssnstuivncvssesosstoctzeonewséseson:

Order of the United States District Court for

the Central District of California Accepting

and Adopting Findings and

Recommendations of United States

Magistrate Judge, Hein v. Sullivan, No. 04

3002-SJO (MLG) (C.D. Cal. Aug. 9, 2007).........

Order of the United States Court of Appeals for

the Ninth Circuit Denying Rehearing, Hein

v. Sullivan, Nos. 07-56277, 07-562788, 07-

56365, 0756367 (9th Cir. July 16, 2010)............-.

Be G4, @ OGG) cccccccoseoosenséscsessvesesssecvevcovonsosnsososesoes

Letter from Jeff Semow to Mr. Sorkin

regarding Michael McLoren’s immunity

agreement, dated July 10, 1995 [ER1!-200).......

Page

ear: la

1208

1 “BR” refers to the Excerpts of Record filed in the 9th

Circuit.

APPENDIX TABLE OF CONTENTS—Continued

Declaration of Tracy Dressner dated July 11,

2002, attaching transcript of William

Gazecki’s videotaped interview with Jeff

Semow regarding Michael McLoren’s

immunity agreement [F.R-249-51 J...

Excerpts of Reporter’s Trial Transcript

Prosecution Initial Summation [ER-743,

FIDIET s scidiednsnde suibtcccondcneessdsnuians taaadendaaa eeneRaa aaa

Excerpts of Reporter's Trial Transcript

Prosecution Rebuttal Summation [ER-778-

Fe Ry SE esieatesninticrvssiessutieniniiete

Page

...124a

100 ALOR

...130a

UNITEDSTATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Brandon Wade HEIN, Petitioner-Appellant,

William Joseph SULLIVAN, Warden of California

Correctional Institution, at Tehachapi, California,

Substituted for Michael G. Yarborough, Respondent

Appellee.

Tony Miliotti, Petitioner-Appellant,

Jim Hall, Respondent-Appellee.

Jason Skip Holland, Petitioner-Appellant,

Al Scribner, Substituted for George A. Ortiz,

Respondent-Appellee.

Micah Holland, Petitioner-Appellant,

Derral G. Adams, Respondent-Appellee.

Nos. 07-56277, 07-56288, 07-56365, 07-56367.

April 12, 2010

601 F.8d 897

Before ANDREW _ J. KLEINFELD — and

RICHARD C. TALLMAN, Circuit Judges, and

DAVID G. TRAGER,’ District Judge

TRAGER, District Judge:

In 1996, Brandon Hein, Micah Holland, Jason

Holland! and Tony Miliotti, were convicted, after being

tried together in California state court, of crime:

relating to the 1995 attempted robbery of Michael!

McLoren, a small-time marijuana dealer, and the

stabbing death of McLoren’s friend, James Farris. All

the participants were teenagers at the time of the

stabbing, and Miliotti and Micah, who were Juveniles at

the time of trial, were tried as adults. The jury had

been instructed on felony murder and found all four

petitioners guilty of that crime. Jason, who admitted at

trial that he stabbed Farris, was also convicted of

assault with a deadly weapon. After bringing

unsuccessful appeals and habeas corpus petitions in

state court, petitioners filed habeas petitions in federal

court, which were denied.

sefore tmal, the prosecution had given the lawyer

for McLoren, its only eyewitness to the stabbing and a

surviving victim, a letter in which it promised not to

use against him anything he told the State about his

marijuana dealing. Petitioners’ principal challenges

suppression in violation of Brady v. Maryland, 373

U.S. 8&3, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1968),

presentation of false testimony and_ prosecutorial

misconduct-stem from the prosecution’s alleged non

disclosure of that letter to certain defense counsel.

The Honorable David G. Trager, United States District

Judge for the Eastern District of New York ittingy by

designation.

| To avoid confusion, we generally refer to brothers Micah and

Jason Holland by their first names only

Because, in light of the record from the two-month-long

jury trial, the letter was not the decisively impeaching

evidence petitioners make it out to be and attempted

robbery was the only plausible theory for the

instigation of the fight that culminated in Farris’s

death as well as McLoren’s stabbing, petitioners fail to

establish the prejudice required to overturn their

convictions. Accordingly, to the extent the letter was

not disclosed, we are satisfied its disclosure would have

had little impact on the outcome of the trial. Likewise,

any improper argument made by the prosecution in

summation did not prejudice petitioners. Finally,

petitioners’ claim that McLoren testified falsely finds

no basis in the record. Therefore, we affirm the district

court’s judgment denying habeas relief.

BACKGROUND

After a joint trial, a jury found petitioners guilty of

attempted robbery, burglary and felony-murder. The

prosecution’s theory was that a fight between

petitioners on one side and McLoren and Farris on the

other had ensued after petitioners entered McLoren’s

grandparents’ property and attempted to rob him of

marijuana he kept for sale. Petitioners contended that

they were on the property to buy marijuana from

McLoren and that a fight had spontaneously erupted.

Thus, petitioners’ felony-murder convictions hinged on

whether the jury believed the prosecution’s theory that

petitioners entered the property in order to rob

McLoren of his marijuana stash rather’ than

petitioners’ theory that the encounter was an

attempted drug buy that went sour.

The Attempted Robbery

(1)

Petitioners’ convictions were attributable, in large

part, to the trial testimony of McLoren. McLoren, who

was sixteen at the time of the stabbing, testified that

he maintained a make-shift shed, which he referred to

as “the fort,” in the backyard of his grandparents’

house in Los Angeles County. The fort was furnished

with a couch, a bed and a desk. McLoren kept

marijuana for sale in a drawer of his desk, which he

kept locked. He also kept a television, VCR and two

video game consoles in the fort, all powered by an

extension cord that ran to the house. The fort was

used as a place to smoke marijuaria and watch movies.

McLoren also sold marijuana from the fort.

McLoren testified that he spent much of the

afternoon of May 22, 1995, at the fort watching movies

and smoking marijuana with his girlfriend and Farris,

who was fifteen at the time. McLoren’s girlfriend left

sometime between five and seven o’clock.

At around 7:15 p.m., McLoren and Farris were

hitting a punching bag outside the fort when McLoren

saw petitioners, Hein, seventeen years-old, Micah,

fifteen, Jason, eighteen, and Miliotti, seventeen, jump

over his grandparents’ fence and into the backyard.

McLoren knew petitioners from prior encounters and

said to Farris: “Looks like trouble.” He then called out

to Micah: “What’s up, Micah?”

According to McLoren, petitioners, with Micah in

the lead, approached the fort without saying a word.

Micah walked past McLoren, entered the fort, started

pulling on the locked desk drawer and demanded the

key. He was quickly followed into the fort by

McLoren, who, in turn, was followed by Jason and

Hein. (The time between McLoren’s entrance and

Jason and Hein’s entrance was estimated variously on

direct to be three, five and ten seconds.) Micah then

shouted at McLoren: “Give me the keys, ese. You want

shit with the Gumbys, ese?” McLoren understood

“Gumbys” to be the name of a gang and “ese” to be a

Mexican slang term “used before a fight ensues.”

Micah, Jason and Hein then began punching

MeLoren. McLoren put his head down, and Micah,

Jason and Hein punched him about ten times. Farris

then entered. McLoren managed to place Micah into a

headlock. McLoren proceeded to elbow Micah in the

neck and back of the head. Seeing his brother being

elbowed, Jason ran at McLoren, who kicked Jason in

the nose. Someone then placed McLoren into a

headlock and he felt himself being stabbed. He was

stabbed three more times and thrown against the wall

of the fort. MeLoren, lying prone on the ground, looked

up and saw Hein punching Farris, who was sitting 01

the couch.

McLoren then got up and ran to his grandparents’

house. He was followed by Farris who reached the

house immediately after. McLoren’s mother was inside

and asked what happened. McLoren told her: “They

were trying to steal my stuff, and they stabbed us.”

Farris collapsed on a table. He was still breathing

when the paramedics arrived. After the paramedics

attempted to revive Farris, McLoren heard one of

them say: “He stopped breathing.” Farris was

pronounced dead at McLoren’s house. He died of a

stab wound to the main chamber of the heart. Los

Angeles County Sheriffs deputies also responded and

commenced the homicide investigation. All four

members of the Holland group were ultimately

charged.

(2)

Jason Holland testified in the defense’s case-in-chief

and admitted stabbing both Farris and McLoren. On

May 22, Jason, after drinking alcohol and smoking

marijuana for several hours, drove with petitioners and

his friend Chris Velardo in Velardo’s truck to

McLoren’s house. When they arrived, petitioners

exited the truck while Velardo remained in the driver’s

seat. Jason asked Velardo why they were there, to

which Velardo replied: “We’re going to get some

weed.” Jason took that to mean that they were going

to buy some marijuana. Resolution of the true purpose

of seeing McLoren was the key tssue the jury had to

resolve.

When Jason jumped the fence, Micah was already in

the yard about twenty feet ahead of him. As Micah

approached the fort, Jason heard McLoren say:

“What’s up Micah?” Micah said nothing and waved.

Micah and McLoren then entered the fort and Farris

stood in the doorway facing out.

Jason could see inside the fort and observed Micah

and McLoren facing each other about a foot apart.

Micah and McLoren then dropped their heads and

started fighting. Jason and Hein entered the fort and

joined the fight.

Jason testified that he stabbed Farris twice after

Farris spun him around. He also testified that the

other petitioners did not believe that he had stabbed

McLoren and Farris until he showed them the bloody

knife as they fled the crime scene.

(3)

Petitioners point to a number of occasions where

McLoren provided inconsistent information to the

police about the object of the alleged attempted

robbery. For instance, before McLoren was taken to

the hospital on the night of the stabbing, he was

questioned briefly by the police and told them that

petitioners had come for his electronic equipment.

Then, four days after the stabbing, in a recorded

interview, McLoren was questioned at the hospital by

Sheriffs Homicide Detectives Robert Tauson and

William Neumann. McLoren denied ever having sold

marijuana even though he received assurances from

Detective Tauson that the authorities had no interest

in prosecuting him. However, McLoren did admit

keeping some marijuana for personal use. Consistent

with this version of events, he initially told the

detectives on May 26, 1995, that he thought petitioners

had come for his video games, adding that it was his

opinion that petitioners were “just bored” and were

“going to come up on a bunch of stuff,” such as “a free

T.V., VCR ... and maybe even like a little bit of

marijuana to go with.”

MeLoren did not admit selling marijuana until he

met with Deputy District Attorney Jeffrey Semow

(““DDA Semow” or “Semow’”’) on July 10, 1995. In an in

camera, ex parte pretrial hearing, Semow recalled

meeting with McLoren’s lawyer, Ellery Sorkin, on that

day. Semow wanted to “see if Mr. McLoren would

testify without transactional immunity.” Sorkin

believed that Semow was building a marijuana

prosecution against McLoren. To allay Sorkin’s fears,

Semow drafted a letter (“July 10 letter” or “immunity

letter”) to Sorkin promising that “nothing [McLoren]

tells me or the investigating officers about marijuana

will be used in any way against him.”

The Wallet Theft

About an hour before the stabbing, Velardo drove

petitioners to Gates Park in nearby Calabasas where

they intended to get drunk. As they were pulling into

the parking lot, a wallet sitting in a van caught Jason’s

eye. The van belonged to Alyce Moulder, who was

playing with her children in the park. Jason opened the

door of the unlocked van, took the wallet and closed the

door, which Moulder witnessed. Jason jumped into the

bed of the truck and told Velardo to drive.

Velardo then sped out of the parking lot as Moulder

yelled: “Hey don’t take my wallet. I don’t have any

money in it. I need my driver’s license.” Jason rifled

through the wallet, which indeed held no money, and

threw it onto the road.

After about five minutes, Moulder collected her

children, got into her van and followed Velardo’s truck.

She found the truck parked at a shopping mall soon

after. She pulled up behind the truck, parked and

walked over to it. Only Velardo was in the truck at

that time. Moulder confronted him, grabbing his collar

and demanding her wallet. He said he did not have her

wallet.

While Moulder was still arguing with Velardo,

petitioners approached them from across the parking

lot. Moulder saw that Hein was holding something in

his hand that she recognized as a wheel locking device

known as “The Club.” Petitioners threatened Moulder,

screaming at her to leave. She slowly backed up

toward the driver’s side door of her van and entered it.

As she did so, Hein spat on her windshield. Moulder

then pulled away, and Micah threw something which

hit her van.

Procedural History

Petitioners were convicted of burglary, attempted

robbery and felony murder with a= special

circumstance? and appealed. The California Court of

Appeals denied all of petitioners’ claims except

Miliotti’s claim that insufficient evidence supported the

special circumstance finding against him. Hein, 104

Cal.Rptr.2d at 92. The court accordingly reduced his

murder conviction to second degree. /d. at 95. He was

resentenced to fifteen years to life plus four years.

2 Section 190.2(a) of the California Penal Code provides a

penalty of death or life imprisonment for defendants who are

found guilty of first-degree murder if certain’ special

circumstances are found to be true beyond a reasonable doubt by

she finder of fact. One of the special circumstances is that the

murder was committed during the commission of one of the

felonies enumerated in section 190.2(a){17), which include robbery

and burglary. Section 190.2(d) authorizes the death penalty or life

imprisonment for any defendant other than the actual killer who

“with reckless indifference to human life and as a major

participant, aids, abets, counsels, commands, induces, solicits,

requests, or assists in the commission of” one of those felonies. In

petitioners’ trial, the jury was instructed that:

{I]t could only find the special circumstance to be true if

they found beyond a reasonable doubt (1) that the

defendant with the intent to kill aided and abetted any

actor in the commission of the first degree murder; or, (2)

that the defendant with reckless indifference to human

life and as a major participant aided “or” abetted in the

commission of the attempted robbery and burglary which

resulted in the death of Farris.

People v. Hein, 104 Cal.Rptr.2d 85, 91-92 (Cal.Ct.App.2001). The

jury found the special! circumstance to be true beyond a reasonable

doubt. /d. at 87. The record is silent as to which condition of the

special circumstance the jury found to be true. However, it

appears that the jury found true—and the California Court of

Appeals dwelled on—the second condition ({i.e., that petitioners

“with reckless indifference to human life” and as “major

participant{s]” aided or abetted in the commission of the

attempted robbery and burglary) at least as to Micah, Hein and

Miliotti.

10a

Regarding petitioners’ claims of prosecutorial

misconduct, the court found that the prosecution

“contravened the trial court order excluding gang

evidence” and made statements which were

“unnecessary, professionally questionable and highly

risky.” But the court held that reversal was not

necessary because a better result would not have been

reasonably probable had the comments not been made.

Since petitioners claim that they did not find the

July 10 letter until after their direct appeal had

concluded, their habeas petitions to the California

Supreme Court raised the issues relating to the letter

for the first time. The court summarily denied the

petitions. Petitioners filed timely petitions for habeas

corpus in federal court pursuant to 28 U.S.C. § 2254.

The magistrate judge’s 78-page report and

recommendation, which the district court adopted,

found that none of the claims raised warranted habeas

relief. Micah and Hein are currently serving prison

sentences of twenty-nine years to life,? Miliotti is

serving a sentence of nineteen years to life and Jason is

serving a sentence of life without parole.

DISCUSSION

Petitioners raise five claims on appeal: (1)

suppression of evidence in violation of Brady, (2)

presentation of false testimony, (8) prosecutorial

misconduct, (4) cumulative error and (5) ineffective

assistance of counsel. Their federal due process claims

arising out of their California state prosecution are

subject to the stringent standard of review provided by

3 After briefing was completed, Hein’s murder sentence was

commuted from life without parole to a term of twenty-five years

to life. His total custodial sentence is now twenty-nine years to

life.

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the Antiterrorism and Effective Death Penalty Act

(“AE DPA”), 28 U.S.C. § 2254.

We review a district court’s decision to deny habeas

corpus de novo and its findings of fact for clear error.

Richter v. Hickman, 578 F.3d 944, 951 (9th Cir.2009)

(en banc ), cert. granted sub nom. Harrington v.

Richter, 559 U.S. ----, 180 S.Ct. 1506, 176 L.Ed.2d 108

(2010). Where, as here, “no state court has explained

its reasoning on a particular claim, we conduct an

independent review of the record to determine

whether the state court’s decision was objectively

unreasonable.” Richter, 578 F.3d at 951 (nternal

citation and quotation marks omitted).

(1)

Due Process Violations: Brady, False Evidence and

Prosecutorial Misconduct

Three of petitioners’ claims—Brady, false evidence

and prosecutorial misconduct—are closely related in

that they all stem principally from the July 10 letter.

To wit, petitioners contend that if the prosecution had

not committed a Brady violation as to the July 10

letter, it would not have been able to present false

evidence concerning McLoren’s immunity, or, in the

alternative, petitioners would have been able to

impeach McLoren with the letter once he gave false

testimony. Similarly, if petitioners possessed the

letter, they claim, the prosecution would not have been

able to make certain improper arguments in summation

regarding McLoren’s criminal liability without defense

counsel pointing out their impropriety. In sum,

petitioners argue that, when viewed together with

McLoren’s challenged testimony and the prosecution’s

improper summation, the suppression of the letter

affected their convictions by rendering the trial unfair.

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We discuss Brady, false evidence and prosecutorial

misconduct challenges individually to determine,

respectively, whether the prosecution failed to disclose

the July 10 letter, presented false evidence or made

improper argument in summation. Although we find

that the prosecutic*: did not present false evidence, we

agree with petitioners that the prosecution failed to

disclose the letter to Jason and Hein and made

improper comments’ in summation. Because

petitioners’ Brady and prosecutorial misconduct claims

require similar analyses for evaluating prejudice? and

encompass overlapping considerations, we analyze

their effect on petitioners’ convictions collectively and

conclude that, to the extent the prosecution committed

error, it did not prejudice petitioners. |

a. Brady Violation

i. Applicable Law

Hein, Jason and Micah argue that the prosecution’s

failure to disclose favorable evidence, including

McLoren’s immunity letter, constituted a Brady

4 Although the tests for evaluating the prejudicial impact of

these violations each use a distinct formulation, they both examine

the fundamental fairness of the proceeding. A finding of

prejudice, thus, requires that the conduct have some impact on the

outcome of the proceeding—i.e., a reasonable probability that the

result of the proceeding would have been different or that it so

infected the trial with unfairness as to make the resulting

conviction a denial of due process. See Kyles v. Whitley, 514 U.S.

419, 436, 115 S.Ct. 1555, 1381 L.Ed.2d 490 (1995); Donnelly v.

DeChristoforo, 416 U.S. 637, 648, 94 S.Ct. 1868, 40 L.Ed.2d 431

(1974). This means that we cannot review each instance of non-

disclosure or prosecutorial misconduct in isolation, but rather

must view them collectively in light of the entire record. Kyles,

514 U.S. at 436, 115 S.Ct. 1555; Darden v. Wainwright, 477 U.S.

168, 182, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986).

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violation.© “The government violates its constitutional

duty to disclose material exculpatory evidence where

(1) the evidence in question is favorable to the accused

in that it is exculpatory or impeachment evidence, (2)

the government willfully or inadvertently suppresses

this evidence, and (8) prejudice ensues from the

suppression (i.e., the evidence is ‘material’).” Srlva v.

Brown, 416 F.3d 980, 985 (9th Cir.2005). Suppressed

evidence must be considered “collectively, not item by

item,” Kyles, 514 U.S. at 436, 115 8.Ct. 1555, and is

material “only if there is a reasonable probability that,

had the evidence been disclosed to the defense, the

result of the proceeding would have been different,”

® Petitioners also allege that the prosecution failed to turn over

another piece of favorable evidence. Detective Tauson took a

statement from a friend of Velardo’s, Katren Anderson, who

signed the statement. A copy of the statement was turned over to

petitioners in which Anderson said that Velardo had told her that,

on the day of the stabbing, he and petitioners were going to “get

some bud.” However, petitioners speculate that another version

of the statement existed which indicated that Velardo had said

they intended to “buy some bud”; this alleged, other statement

was never found. Petitioners’ argument appears to be based on a

misunderstanding, for it is probable that no separate version of

the statement existed. Petitioners rely on the transcript of an in

camera, ex parte hearing at which Detective Tauson discussed the

statement he took from Anderson. At the hearing, Tauson told

the court that Anderson said: “(T]Jhey were going to buy some

bud.” However, it is apparent that Tauson was paraphrasing the

very statement the prosecution disclosed to petitioners but said

“buy” instead of “get.” The fact that the statement disclosed to

petitioners and the one described by Detective Tauson in the in

camera hearing both bore Anderson’s signature leads us to

believe that the statements were one and the same. In any event,

although the defense had Anderson’s statement through

discovery, they neither called her as a witness nor cross-examined

Tauson regarding her statement.

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United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct.

3375, 87 L.Ed.2d 481 (1985). “A ‘reasonable

probability’ of a different result is accordingly shown

when the government’s evidentiary suppression

‘undermines confidence in the outcome of the trial.’ ”

Kyles, 514 U.S. at 484, 115 S.Ct. 1555 (quoting Bagley,

473 U.S. at 678, 105 S.Ct. 3375).

The district court found that petitioners had

satisfied the first two Brady factors (i.e., that the

evidence was favorable to petitioners and that the

State had suppressed it). However, it found that

petitioners had not satisfied the third (i.e., that the

suppressed evidence was material).

ii. Whether the Prosecution Suppressed the

Letter

At a juvenile fitness hearing held on July 24, 1995,

and attended by Micah, Miliotti and Velardo, DDA

Semow, responding to a request for discovery, orally

disclosed the substance of the July 10 letter:

There is no immunity agreement for Mr.

McLoren, other than I promised him in writing

that nothing he said in this case about

Marijuana, [sic] would be used as evidence

against him. That is it.

Counsel for Miliotti and Micah, as well as Velardo,

were present. (Velardo pled guilty before trial.) Curt

Leftwich, Miliotti’s counsel, was the only attorney

present at this hearing to also represent his client at

trial. Leftwich did not cross-examine McLoren

regarding his use immunity in the subsequent superior

court jury trial.

Semow also apparently mentioned the letter later

at a pre-trial discovery hearing held on September 15,

1995, at which all trial counsel were present:

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Those will be available at 1:30: A July 10 letter

from the district attorney [to McLoren’s

counsel]; an August 11 letter consisting of two

pages; what appears to be a misdemeanor

complaint, 95M00754, attached documents, a

police report. A supplementary report bearing

the number 495-00136-2222-072; and another

complaint report bearing a D.R. number of 195-

06108-2223-189. So that can be disclosed to

counsel.

Although all counsel attended this hearing,

petitioners, with the exception of Miliotti, claim their

counsel did not receive the July 10 letter.

In early 2002, Miliotti’s habeas counsel found a copy

of the July 10 letter and the transcript of the juvenile

fitness hearing in the file Leftwich gave to Miliotti’s

family after the trial and sent the transcript and a copy

of the letter to Leftwich. In a declaration dated July

10, 2002, Leftwich stated that he did not recall ever

having seen the letter. But he stated that the

transcript of the juvenile fitness hearing refreshed his

recollection that he had learned of the letter’s existence

when Miliotti’s case was in juvenile court.

Trial counsel for Hein and Micah also submitted

declarations, in which they claimed not to recall

receiving the letter. Jill Lansing, Hein’s trial counsel,

submitted a declaration in which she stated that she

had no recollection of receiving the letter or having

been told of any immunity agreement. She attached

three discovery receipts from 1995, two of which

predate the September 15, 1995, pretrial discovery

hearing. None of the three referenced the July 10

letter. The receipts also do not reflect that counsel

received any of the other material mentioned by

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Semow at that hearing.® Notably, petitioners do not

claim that the prosecut ion failed to disclose those other

documents.

James Sussman represented Micah at trial but not

at the juvenile fitness hearing. Ina signed declaration,

Sussman stated that he was unaware of the July 10

letter. Sussman prepared a writ challenging’ the

findings of the juvenile court, but this was before the

transcript of the July 24 juvenile fitness hearing had

been made available. Although Semow had disclosed

the entire contents of the letter on the record at that

hearing, and Sussman admitted that he later reviewed

the transcript for impeachment purposes after the writ

was denied, he “did not ‘pay attention to the

discussions or arguments of counsel.”

In the court below, the State did not object to the

magistrate judge’s factual finding that none of the

petitioners, with the exception of Miliotti, received the

July 10 letter or were apprised of its existence.

However, the State now correctly argues that the

prosecution fulfilled its brady obligation to Micah by

disclosing the existence of the July 10 letter to Micah’s

counsel at the juvenile fitness hearing.

The State concedes that Hein and Jason meet the

second Brady element. The magistrate judge did not

dwell on this element of the Brady test, finding that

the agreement was suppressed as to Micah as well as to

® Because the record reflects only oral disclosure of the letter

at the juvenile fitness hearing, Miliotti’s counsel, Leftwich,

probably did not receive a copy of the letter then but rather after

the September 15, 1995, discovery hearing. I[t, thus, seems odd

that, despite Semow’s explicit statement that counsel should pick

the letter up at 1:40 the day after the discovery hearing, only

Leftwich appears to have actually received it

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Jason and Hein. After citing Banks v. Dretke, 540 U.S.

668, 695-96, 124 S.Ct. 1256, 157 L.Ed.2d 1166 (2004), for

the proposition that the Supreme Court’s “decisions

lend no support to the notion that defendants must

scavenge for hints of undisclosed Brady material when

the prosecution represents that all such material has

been disclosed,” the magistrate judge determined that

the immunity deal was not disclosed because “{t]he

existence of the letter was not made clear to trial

counsel.” Holland v. Adams, No. CV-04-3407-

SJO(MLG), slip op. at 20 (C.D. Cal. filed Apr. 3, 2007).

Banks does not support the magistrate judge’s

finding as to Micah. Semow disclosed the July 10 letter

on the record at the juvenile fitness hearing attended

by Micah, Miliotti and Velardo. Even though Sussman,

Micah’s trial counsel, was not present at that hearing,

he read the transcript, explaining that he did not “pay

attention to the discussions or arguments of counsel.”

Thus, the record supports a finding that Micah’s failure

to discover the July 10 letter was the result of his

defense counsel's carelessness, rather than _ the

prosecution’s alleged misconduct. In reality, Micah is

seeking to advance an ineffective assistance of counsel

claim masquerading as a Brady claim. Micah is no

doubt trying to cast a patina of prosecutorial

misconduct on his counsel’s failure to follow up on

Semow’s disclosure at the juvenile fitness hearing.’

As to Jason and Hein, the record, as it stands,

supports the conclusion that disclosure was not made

to them although that non-disclosure, if it occurred,

was likely inadvertent. At a pretrial discovery

‘ We also note that it is unusual that Micah’s counsel at the

juvenile fitness hearing did not notify Sussman of the immunity

letter.

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hearing, attended by al! trial counsel, Semow

mentioned that “[{a] July 10 letter from the district

attorney [to McLoren’s counsel]’—presumably, the

immunity letter—would be available “at 1:30” the next

day. However, it was apparently not included in the

materials disclosed by the prosecution. In addition,

Jason and Hein did not participate in the juvenile

fitness hearing, and the record is silent as to whether

transcripts of that hearing were made available to

them. Jason and Hein, therefore, satisfy the second

Brady element. Before turning to the materiality of

the non-disclosure, we consider whether’ the

prosecution presented false evidence or made improper

arguments in summation.

b. False Evidence

Petitioners contend that the prosecution presented

false evidence and failed to correct false testimony in

violation of the Supreme Court’s decision in Napue v.

Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217

(1959). To prevail on a Napue claim, “the petitioner

must show that (1) the testimony \or evidence) was

actually false, (2) the prosecution knew or should have

known that the testimony [or evidence] was actually

false, and (3) that the false testimony [or evidence] was

material.” United States v. Zuno-Arce, 339 F.3d 886,

889 (9th Cir.2003). False evidence is material “if there

is any reasonable likelihood that the false [evidence]

could have affected the judgment of the jury.” Bagley,

473 U.S. at 678, 105 S.Ct. 3375 (internal citation and

quotation marks omitted). We find that McLoren did

not testify falsely, and, as such, his statements do not

factor into the materiality analysis which follows our

discussion of prosecutorial misconduct.

There are two parts to petitioners’ claim. First,

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that the testimony of the State’s principal witness,

MecLoren, was false. Second, the manner in which

Deputy District Attorney Michael Latin (“Latin” or

“DDA Latin”), who shared trial duties with Semow,

questioned McLoren was misleading and could be

characterized as presenting false evidence. Regarding

Latin’s line of questioning, petitioners especially take

issue with his failure to specifically ask McLoren about

the July 10 letter.

As to MecLoren’s testimony, although a few of

McLoren’s statements at trial were incomplete, the

critical point of McLoren’s testimony, to wit, that he

could still be prosecuted for marijuana possession or

sale, was true. To the extent that McLoren failed to

mention the July 10 letter, his testimony, viewed in its

entirety, conveyed to the jury an accurate picture of

his legal situation (i.e., that, although he would

probably not be prosecuted, he was not given

transactional immunity). Similarly, Napue imposed no

duty on Latin to clarify McLoren’s answers to open-

ended questions about his willingness to be a witness

or to specifically question him about the July 10 letter.

On appeal, as they did below, petitioners highlight

seven statements of McLoren that they claim were

false.2 Because McLoren was given only use immunity

magistrate judge’s report and recommendation, held that certain

statements made by McLoren were false (but immaterial), but it is

unclear what, exactly, the magistrate judge found false. First, the

magistrate judge set forth the seven statements that petitioners

challenged, then found that McLoren’s intimations that he did not

receive immunity were “clearly false.” This suggests that the

magistrate judge found false a number of instances where

McLoren cited motivations to testify other than use immunity.

Holland, No. CV-04-3407-SJO(MLG), slip op. at 36. ‘Yet, to

20a

and was never specifically asked whether his trial

testimony or the statements he gave to the authorities

after July 10, 1995, could have been used against him,

none of these statements were false.

Aecording to petitioners, McLoren testified falsely

by asserting that: (1) he still faced potential

prosecution and (2) he was willing to testify even

though some of his testimony would incriminate him.

First, on cross by Lansing, Hein’s trial counsel,

McLoren testified about what Detectives Tauson and

Neumann told him about their intentions to prosecute

him:

[Lansing]: And at that time they basically told you

that they weren't going to prosecute

you if you admitted selling, if you

support his falsity determination, the magistrate judge cited only

two pages of the transcript which contained two statements

petitioners argued were false: that McLoren believed that what he

told Detectives Tauson and Neumann could be used against him

and that he received no assurances about prosecution from his

attorney. For many of the reasons discussed infra, the magistrate

judge’s finding of falsity on these two statements is unsustainable;

McLoren’s interview with Detectives Tauson and Neumann in

which the detectives assured him that he was not the priority for

prosecution in a robbery-murder case predated the July 10 letter

which granted McLoren immunity, and, since McLoren was given

only use immunity, he was sill subject to prosecution.

The magistrate judge then concluded that McLoren’s “general

denial of any immunity agreement, when coupled with the

prosecutor’s emphasis upon his altruistic motivation for testifying,

ean be characterized for purposes of this analysis as false

evidence.” Jd. at 37. Assuming the magistrate judge found falsity

throughout the other five statements petitioners challenged, his

finding is incorrect. McLoren was asked why he decided to be

candid with Semow, not whether his post-immunity statements

could have been used against him. His answers thus do not

amount to “general denial (s]” of immunity.

2la

admitted-

[McLoren]: They said they didn’t have an interest

in prosecuting me.

{|Lansing]: And what did you take that to mean?

[McLoren}: That I wasn’t the priority.

[Lansing]: That you wouldn’t be prosecuted; is that

right?

[McLoren]: Not that I wouldn’t be, that I probably

wouldn't be. They reserved the option.

[Lansing]: But they suggested to you that that

probably wasn't going to happen; is

that correct?

[McLoren]: Yes.

Lansing revisited the issue on re-cross:

[Lansing]: Was it your state of mind that the

things you told Detective Neumann

and Detective Tauson would not be

used against you?

[McLoren]: No.

[Lansing;: You hired a lawyer; is that correc

[McLoren]: Yes.

[Lansing]: And did that lawyer give you any

assurances in terms of whether you

wouid be prosecuted or not?

[MeLoren]: No, not really.

‘>

[Lansing]: And have you been prosecuted?

[MeLoren]: No.

As an initial matter, McLoren’s testimony

regarding his understanding that his statements to

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Detectives Tauson and Neumann could have been used

against him was clearly not false. Because McLoren

had iiot been given any immunity at the time of the

interview with the detectives on May 26, 1995, this

question is irrelevant to the issue of whether he gave

false testimony about the July 10 letter.

Next, McLoren’s testimony about whether he faced

potential prosecution was not false because he was

given only use immunity. The plain language of the

July 10 letter supports this conclusion. The agreement

explicitly promised McLoren that “nething he tells

[Semow] or the investigating officers about marijuana

will be used in any way against him.”9 Although

MeLoren understood and admitted at trial that charges

for marijuana dealing were unlikely, the prosecution

did not promise that it would never prosecute McLoren

9 Despite the plain language of the July 10 letter, petitioners

argue that MecLoren actually received transactional immunity

because the California statute regarding immunity did not

recognize use immunity until it was amended in 1996. The

magistrate judge dec.ined to address this argument.

Petitioners appear to be mistaken that use immunity was not

recognized before 1996 in California. See People v. Badgett, 10

Cal.4th 330, 363, 41 Cal. Rptr.2d 635, 895 P.2d 877 (1995) (finding

that trial testimony given pursuant to an agreement granting use

immunity was not coerced). Furthermore, the statute they rely

on, section 1324 of the California Penal Code, addresses only

immunity for judicially compelled testimony. See Griego v.

Supertor Court, 80 Cal.App.4th 568, 95 Cal. Rptr.2d 351, 354 (2000)

(finding that section 1324 applies orly when a witness is judicially

compelled to testify in “felony proceedings or investigations

before the court or the grand jury”). We do not read People v.

Brunner, 32 Cal.App.3d 908, 108 Cal.Rptr. 501 (1973), as broadly

as petitioners do for the contrary position. Therefore, it appears

that McLoren was, in fact, granted use immunity and still could

have been prosecuted. In any event, we are discussing McLoren’s

understanding and not the state of the law.

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for it. Therefore, McLoren accurately testified that the

State “reserved the option” to prosecute him and there

is no basis for saying that he was lying when he

testified that his lawyer never assured that he would

not be prosecuted.

Petitioners next allege that McLoren’s testimony

citing altruistic reasons for being candid with DDA

Semow was false. Several times, on direct and

redirect, McLoren was asked, with varying specificity,

what had spurred him to be more forthcoming with

DDA Semow than when initially questioned by

Detectives Tauson and Neumann.

On direct examination, McLoren testified that he

understood, from representations made by Detective

Tauson at the hospital, that the State did not want to

prosecute him for marijuana. McLoren was then

asked:

[Latin]: Since that initial interview with

Detectives Neumann and_ “Tauson,

when questioned by either law

enforcement officers or district

attorneys, have you ever made any

effort to hide the fact that you

possessed or sold marijuana?

(McLoren]: N

{ Latin]: Are there any other reasons cther than

what Detective Tauson told you at the

hospital that caused you to no longer

want to hide the fact that you had

marijuana?

[McLoren]: Yes. My grandma told me just to take

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the drug charge and just bust them.

Later, while McLoren was still on direct, the

following exchange occurred:

[Latin]: As you sit here and testify in this court,

do you feel inhibited or deterred in any

way from talking about your prior

dealings with marijuana?

[McLoren]: No. ! feel fine talking about it.

[Latin]: Why? Can you explain why?

[McLoren]: Because it is something that I have to

do.

[Latin]: Why?

[McLoren]: Because I want to get these guys that

stabbed me and killed my best friend.

Then, on redirect, after he was asked why he felt

ready to talk to the authorities about marijuana, the

following exchange occurred:

[Latin]: What brought that about?

[McLoren]: My lawyer told me I wasn’t going to be

able to get these guys until I tell the

whole truth.

[Latin]: Who did you talk to first ... ?

[McLoren]: Jeff Semow

[ Latin]: You didn’t know for sure whether you

could trust Semow?

{[McLoren]: Yes.

Finally, while still on redirect, McLoren testified:

[ t.atin]: Do you still feel uncomfortable talking

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about [your involvement — with

marijuana]?

[McLoren]: Somewhat.

[Latin]: Why are you talking about it anyhow?

{McLoren]: Because it’s more important to get

these guys than drugs.

Contrary to petitioners’ contentions, none of these

statements are false—and certainly not perjurious.

McLoren was asked a series of open-ended questions

about why he decided to be sorthcoming on and after

July 10, 1995 (e.g., “[What reasons] other than what

Detective Tauson told you at the hospital [caused you

to come forward]?”; “Can you explain why [you decided

to come forward]?”; “What brought that about?”; “Why

are you talking about it anyhow?”). None of these

questions’ specifically addressed immunity, and

McLoren’s failure to mention use immunity cannot be

described as false. Assuming that the grant of use

immunity was one reason McLoren decided to speak to

Semow, he never denied receiving it. Instead, he listed

alternative reasons for his willingness to be a witness,

none of which are facially false. Therefore, even if

McLoren’s failure to mention that use immunity played

a role in his decision is viewed with some skepticism,

petitioners fail to demonstrate its falsity.

Moreover, because the July 10 letter was addressed

to Sorkin, McLoren’s lawyer, and not to McLoren, and

McLoren’s awareness of it was not established by the

state or district courts, we do not assume McLoren

knew of the letter’s existence.!9 Although it is possible

10 Although immunity agreements are often signed by the

wnerson being granted immunity, McLoren did not sign the July 10

letter.

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that Sorkin informed McLoren about the gist of the

letter, the record is silent on exactly what, if anything,

was communicated to McLoren.!!

Arguably, the most colorable claim of falsity

concerns McLoren’s statement that his grandmother

told him “just to take the drug charge and just bust”

petitioners, but this claim fails as well. Petitioners do

not contend that McLoren’s grandmother never offered

this advice. Rather, they appear to take issue with

McLoren’s testimony because, according to petitioners,

it suggested that McLoren could have exposed himself

to liability by speaking to Semow, which would not

have been true. A broader look at the exchange in

which the statement appeared is instructive. McLoren

was asked what, other than Detective Tauson’s

assurance, “caused [him] to no longer want to hide the

fact that [he] had marijuana.” The question is vague as

to time. Thus, if McLoren’s grandmother offered the

advice before July 10, 1995, McLoren could still have

been risking criminal liability. But even assuming the

statement was made after July 10, McLoren’s answer

was still not false because, as noted earlier, his

11 Although Napue prohibits the presentation of false evidence

regardless of whether the witness is aware of its falsity, the

testimony must still be actually false. See Hayes v. Brown, 399

F.3d 972, 980-82 (9th Cir.2005) (en banc ). In Hayes, the witness

testified that he was still subject to criminal charges even though

the prosecutor had made a secret deal with the witness’s attorney

to dismiss the charges and had instructed the attorney not to

notify the witness. Jd. at 980. Sitting en banc, we held that, under

those circumstances, the prosecution had presented false

evidence. /d. at 981. Here, by contrast, McLoren was asked why

he was willing to testify—a matter that depended exclusively on

his personal knowledge—not whether he had received use

immunity.

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understanding as to the existence of the July 10 letter

has not been established. Moreover, McLoren’s

statement did not foreclose or diminish the possibility

that he was granted use immunity. Thus, McLoren’s

testimony was not false.

Finally, petitioners interpret McLoren’s statement

that it was “more important to get these guys than

drugs” to mean that he was willing to risk prosecution

for marijuana crimes if it meant bringing petitioners to

justice. However, in the context of McLoren’s

testimony about Detective Tauson’s representation, a

more plausible interpretation of McLoren’s answer is

that McLoren was stating that he was testifying at

trial because the prosecution was concerned only about

the murder-and did not care about his relatively minor

drug crimes. This interpretation comports with

McLoren’s testimony that he was told that he was not a

priority.

Turning to Latin’s examination, neither his

questions nor his failure to expand upon McLoren’s

answers were improper and may not have even been

deliberate (at least in the case of his direct

examination). As none of McLoren’s answers to Latin’s

open-ended questions were false, Latin had no duty to

clarify McLoren’s answers or to question McLoren

specifically about the use immunity he received.

Moreover, since Latin had reason to believe that the

letter was in the hands of the defense (and clearly was

in the case of Miliotti), he might well have expected

defense counsel] to raise use immunity on cross if they

thought it appropriate. Accordingly, we reject

petitioners’ claim that the prosecution knowingly

presented false evidence.

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c. Prosecutorial Misconduct

Pi titioners’ final related claim is that the

prosecution made statements in summation that

violated due process. In evaluating allegations of

prosecutorial misconduct, we consider whether the

prosecution’s actions “so infected the trial with

unfairness as to make the resulting conviction a denial

of due process.” Darden, 477 U.S. at 181, 106 S.Ct.

2464 (internal quotation marks omitted) (quoting

Donnelly, 416 U.S. at 6438, 94 S.Ct. 1868). In

determining whether a comment rendered a trial

constitutionally unfair, factors we may consider are

whether the comment misstated the evidence, whether

the judge admonished the jury to disregard the

comment, whether the comment was invited by

defense counsel in its summation, whether defense

counsel had an adequate opportunity to rebut the

comment, the prominence of the comment. in the

context of the entire trial and the weight of the

evidence. See Darden, 477 U.S. at 182, 106 S.Ct. 2464.

There were a number of instances of improper

argument during the prosecution’s summation, some of

which were addressed by the trial court and by the

California Court of Appeals.

First, the prosecution vouched for McLoren’

credibility. After describing McLoren as a “very

powerful and credible witness,” DDA Semow told the

jury on opening summation:

|H]e was painfully honest. He answered every

question truthfully, no matter how much it cost

him in terms of pain, discomfort, embarrassment

and humiliation. He is not a model teenager but

the model of a perfect witness.

DDA Latin continued on surrebuttal

AQa

Think about the way you felt while you [sic] he

testified. Didn’t you know in your heart he wa:

telling the truth? Didn’t you? .... Think about

how honest he was about some very, very

painful things in his life, some things that were

embarrassing, some things that hold himself out

to the public as not a very good person. He was

so honest about it. That’s the kind of integrity

that our system would like to see.

Next, Latin impugned the character of petitione

defense counsel. After claiming that he did not

“appreciate cheap lawyer tricks,” Latin argued:

[O]ne side presented a very clear and pure

picture of what happened, and the other side did

some very dirty things, dishonest The defen e

in this case was dishonest.

[.atin also argued that defense counsel pressured a

defense witness, Jason Stout, to change his testimony

Finally, the prosecution made Improper comment

about petitioners themselves Kor instance, thi

prosecution compared them to “a pack of wolves” when

they stole Moulder’s wallet, called Micah “a little punk”

and addressed Hein directly, saying: “What a tough

guy|| you are,”

The trial judye sustained objections to, among othe)

things, the prosecution’s accusations of dishonesty and

allegations of pressuring Stout lhe judge als

characterized Latin’s accusation of dishonesty as “very

close to misconduct” and instructed the jury tha

there was no evidence that any of the lawyers in

case committed any W rongdoing (Defense counse! did

not object to a few of the statement petitioners nov

’

challenge. including emows vouchinge for Mellor

4Cde)

and Latin’s calling Micah “a little punk.”) Several

times during summation the judge made peneralized

Instructions that argument was not evidence

The statement we find most problematic was not

addressed by the = state courts. On surrebuttal

summation, Latin told the jury:

|\McLoren| wasn’t like Jason Holland that told

the truth that he wanted to tell, that he chose to

tell. He understood that if you are going to be

believed you better be prepared to come in here

and open up your life no matter whether the

questions seem relevant to what happened or

not. And many of these questions probably

didn’t seem relevant. They looked hke they had

nothing to do with anything, but he answered

them. And he opened himself up to

emburrassment, scorn, ridicule, contempt and

criminal liability, but he did it because he

understood that that is what it takes to tell the

truth and be believed.

This comment could have been taken to mean that

McLoren exposed himself to prosecution for marijuana

dealing by testifying, which, due to use immunity,

would not have been true lLlowever, the comment

could also have been taken to mean that MeLoren’s

testimony exposed him to charge of perjyury if he lied

on the stand. On appeal, the State concedes that the

statement was incorrect. But it is hard to accept that

the trial judge, who had made a_ number of

conscientious evidentiary ruling and Lime)

admonitions throughout summation, remained idle

while the prosecution presumably deceived the jury,

even though the other rulings had been prompted by

defense counsel. Iti: probable that the yudve found the

sla

statement ambiguous as well.

d. Prejudice Resulting from the Brady Violation

and Prosecutorial Misconduct

Accepting that the prosecutors’ comments in

summation were improper and that they failed to

disclose the July 10 letter to Jason and Hein, we next

consider whether the prosecution’s conduct prejudiced

petitioners. Because we are satisfied that the trial was

fundamentally fair and there was no reasonab’e

probability that the letter would have affected the

verdict, we reject both petitioners’ Brady ard

prosecutorial misconduct claims.

It is unclear whether we should employ Brady’s

prejudice standard to evaluate the cumulative effect of

the prosecutorial misconduct and the non-disclosure.

Although this circuit has never explicitly used the

“reasonable probability” formulation found in the

Brady line of cases to analyze alleged prosecutorial

misconduct, a number of circuits have concluded that

prosecutorial misconduct lends itself to that standard.

E’.g., Styron v. Johnson, 262 F.3d 438, 454 (dth

Cir.2001); Jones v. Gibson, 206 F.3d 946, 959 (10th

Cir.2000); Kennedy v. Dugger, 933 F.2d 905, 914 (11th

Cir.1991); cf. United States ex rel. Shaw v. De Robertis,

755 F.2d 1279, 1281 n. 1 (7th Cir.1985) (“To carry this

burden, [a petitioner] must show that it is at least

likely that the misconduct complained of affected the

outcome of his trial—i.e., caused the jury to reach a

verdict of guilty when otherwise it might have reached

a verdict of not guilty.”); see generally Strickler v.

Greene, 527 U.S. 263, 298-301 & n. 3,119 S.Ct. 1936, 144

L.Ed.2d 286 (1999) (Souter, J., concurring in part and

dissenting in part) (tracing the evolution of the

“reasonable probability” formulation and noting the

oZa

applicability of that and synonymous phrases in a

number of contexts).

The standard announced in Darden and Donnelly

appears to be similar to the Brady standard. Like the

Brady standard, the touchstone for the Darden/

Donnelly standard is the fairness cf the trial. See

Kyles, 514 USS. at 434, 115 S.Ct. 1555 (“The question is

not whether the defendant would more likely than not

have received a different verdict with the [undisclosed]

evidence, but whether in its absence he received a fair

trial, understood as a trial resulting in a verdict worthy

of eonfidence.”); Darden, 477 U.S. at 181-82 & n. 13, 106

S.Ct. 2464 (moting that prosecutorial comments,

although deserving of condenination, did not violate

due process because they did not affect the fairness of

the trial). The Darden factors—i.e., the weight of the

evidence, the prominence of the comment in the

context of the entire trial, whether the prosecution

misstated the evidence, whether the judge instructed

the jury to disregard the comment, whether the

comment was invited by defense counsel in its

summation and whether defense counsel had an

adequate opportunity to rebut the comment—require

courts to place improper argument in the context or the

entire trial to evaluate whether its damaging effect

was mitigated or aggravated. In essence, what Darden

requires reviewing courts to consider appears to be

equivalent to evaluating whether there was a

“reasonable probability” of a different result. Cf.

Brooks v. Kemp, 762 F.2d 1383, 1401 (11th Cir.1985) (e7

bane ), vacated on other grounds, 478 U.S. 1016, 106

S.Ct. 3325, 92 L.Ed.2d 732 (1986), reinstated, 809 F.2d

700 (llth Cir.1987) (per curiam) (noting that

“fundamental fairness, the same standard adopted in

33a

Donnelly, is the governing principle in reviewing

errors of counsel [under the reasonable probability

standard employed by Strickland v. Washington, 466

U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ]”’).

Although it seems doubtful that Darden would

impose a lower burden on petitioners than Brady does,

we do not need to resolve the question here.!" Instead

12 The magistrate judge below and the State on appeal

addressed the possibilit, of Latin’s “criminal liability” statement

forming the basis of a talse evidence claim. The materiality

standard for false evidence is less burden-some on petitioners than

that for Brady. See United States v. Agurs, 427 U.S. 97, 103-04, 96

S.Ct. 2392, 49 L.Ed.2d 342 (1976): Benn v. Lambert, 283 F.3d 1040,

1058 n. 12 (9th Cir.2002) (recognizing that the Supreme Court

employs a stricter standard of materiality for Brady claims than

for false testimony claims). According to the Supreme Court, this

is because false evidence claims “involve prosecutorial misconduct,

but more importantly because they involve a corruption of the

truth-seeking function of the trial process.” Agurs, 427 U.S. at

103-04, 96 S.Ct. 2392. Since part of the reason false evidence

claims are less burdensome is the involvement of prosecutorial

misconduct, one could argue that Darden misconduct claims

should themselves also be subject to that standard. Cf Brooks,

762 F.2d at 1402 n. 26 (‘[T]Jhere may be cases where the

prosecutor's intentional conduct rises to a level equivalent to a

knowing use of false evidence.”). But that is unlikely in this case

for a number of reasons. Argument in summation is hardly

equivalent to evidence in its impact on a jury. See Donnelly, 416

U.S. at 646-47, 94 S.Ct. 1868 (‘The consistent and repeated

misrepresentation of a dramatic exhibit in evidence may

profoundly impress a jury and may have a significant impact on

the jury's deliberations. Isolated passages of a prosecutor's

argument, billed in advance to the jury as a matter of opinion not

of evidence, do not reach the same proportions.” (internal

quotation marks omitted)). Summation consists of opinion,

advocacy and appeals to justice. Juries are routinely instructed to

view summation in that light, and we have no reason to presume

that the jury in this case, having been so instructed, viewed it

S4a

we use the framework announced in Jackson v. Brown,

513 F.3d 1057 (9th Cir.2008), which was created for

analyzing combined Brady and Napue challenges. In

Jackson, we reasoned that, although instances of non-

disclosure and false evidence must be evaluated

collectively, the difference between the materiality

standards used for weighing their potential prejudice

compelled us to consider the materiality of the false

evidence alone before combining it with non-disclosure.

Jackson, 513 F.8d at 1076. Thus, under Jackson's

framework, instances of false evidence are analyzed

first under Napue’s materiality standard, and, if those

errors are not material standing alone, false evidence is

then considered together with non-disclosure, and both

are analyzed under Brady's more demanding standard.

Id. Assuming, arguendo, that Darden ’s standard is less

demanding than Srady’s, we first analyze the

prosecutorial misconduct challenges to assess whether

they alone so infected the trial with unfairness as to

make the resulting conviction a denial of due process.

f the prosecution’s comments alone do not meet this

standard, we analyze them together with the non-

disclosure of the July 10 letter to determine whether

there is a reasonable probability that without those

violations the result of the proceeding would have been

different. In doing so, we concentrate on the

touchstone of Brady's materiality standard: that, even

with the trial errors, petitioners received “a trial

resulting in a verdict worthy of confidence.” Ayles, 514

US. at 434, 115 S.Ct. 1555.

otherwise. In sum, the improper argument in this case did not

present the same threat to the truth-seeking function of the trial

process as false evidence would have. It is, thus, inappropriate to

treat it as submission of false evidence.

ova

Here, two key factors illustrate that the

prosecution’s summation, when viewed in the context

of the entire record, did not render the trial

fundamentally unfair. See Darden, 477 U.S. at 182-83,

106 S.Ct. 2464. First, in context, much of the potential

prejudice of the prosecution's comments was mitigated.

The trial court sustained a number of objections and

gave timely cautionary instructions to the jury,

including general instructions about the hortative

nature of summation. Moreover, the comments were

made in the course of several days of summation after a

two-month trial. Regarding Latin’s statement about

McLoren’s “criminal hability,” which appeared in one

paragraph of a summation that took up eighty-four

pages of the transcript, the comment was ambiguous

and, to the extent it was given its more damaging

interpretation, it is likely that the comment did not

have much impact. McLoren had told the jury that he

was not the State’s priority, from which it could

conclude that he faced little risk of criminal charges.

Moreover, Latin’s statement was ambiguous, and we

do not presume that the jury ascribed to it its most

damaging meaning. See Donnelly, 416 U.S. at 647, 94

S.Ct. 1868 (“[A] court should not lightly infer that a

prosecutor intends an ambiguous remark to have its

most damaging meaning or that a jury, sitting through

lengthy exhortation, will draw that meaning from the

plethora of less damaging interpretations.”) Even if

the jury gave the statement its more damaging

interpretation, the statement would have bolstered

McLoren’s testimony only a negligible amount, which

would not have helped the prosecution’s case much

36a

anyway since McLoren had little incentive to lie.}8

Finally, the comment did not pervade the proceedings

and was not emphasized.

Second, in light of the other evidence received over

the course of two months of trial, the prosecution

offered the only believable theory for why the fight

began in the first place, 1.e., that it had been instigated

by Micah’s attempted robbery of McLoren’s drugs.

Petitioners never offered a plausible alternative to this

theory. Additionally, the prosecution’s version of

events was corroborated by petitioners’ theft of

Moulder’s wallet to show why the group also intended

to rob MeLoren. In contrast, petitioners’ argument

here is what defense counsel argued in summation at

trial, to wit, that petitioners had entered McLoren’s

grandparents’ property to buy marijuana and that a

fight had spontaneously erupted with no words

exchanged between petitioners and McLoren.

Although the prosecution’s case relied on McLoren’s

testimony, petitioners’ inability to advance any

plausible theory for why the fight began cannot be

disregarded. Accordingly, petitioners do _ net

demonstrate that the prosecutors’ improper comments

affected the fairness of petitioners’ trial. See Darder,

477 U.S. at 181 n. 18, 106 S.Ct. 2464.

We next consider whether the combined instances

of non-disclosure and improper argument deprived

petitioners of a fair trial, meaning “a trial resulting in a

13 Bven if one could somehow argue that the statement was an

instance of false evidence—and, thus, that the less-demanding

Napue standard applied—the statement would still not be

prejudicial. For the same reasons cited above, there is no

reasonable likelihood that the statement could have affected the

judgment of the jury.

37a

verdict worthy of confidence.” Kyles, 514 U.S. at 434,

115 S.Ct. 1555. As explained above, the fact that the

prosecution advanced the only plausible theory for the

instigation of the fight undercuts any claim of

prejudice.

The non-disclosure of the July 10 letter does not

affect this conclusion. The use immunity letter was not

the potent impeachment evidence petitioners make it

out to be. McLoren received no benefit—such as

dropped charges or transactional immunity—from the

prosecution for testifying. The grant of use immunity

left McLoren in the same position he was in before

speaking with Semow. Petitioners attempt to assign

more importance to the letter by suggesting that there

was an unspoken (or unwritten) understanding that

McLoren would not be prosecuted, but there is no

support in the record for this assertion.!4

Another reason use immunity had only very limited

impeachment value relates specifically to the substance

of McLoren’s testimony. As we stressed in our

14 Petitioners, pointing to the in camera, ex parte hearing at

which Semow recollected his July 10, 1995, meeting with Sorkin,

claim that Sorkin was seeking transactional immunity for

McLoren. At the hearing, Semow said that “one of the reasons for

this interview was to see if Mr. McLoren would testify without

transactional immunity.” The July 10 letter indicates that Semow

achieved this goal. Thus, this statement provides no support for

petitioners’ contention that McLoren received transactional

immunity. Even if there were such an understanding, McLoren

admitted at trial that Detectives Tauson and Neumann jad

already told him that he was not the priority and was not likely to

be charged. These representations reflected an undramatic

revelation: that the State was much more interested in building a

murder prosecution against petitioners than against McLoren for

marijuana dealing. McLoren testified to that understanding to the

jury.

oOo a

discussion of petitioners’ false evidence claim, McLoren

never denied receiving use immunity. Importantly, he

was never asked whether his statements to the

prosecution and at trial could have been used against

him. Moreover, because McLoren was given only use

immunity, his statements that he could still have been

prosecuted were also not false. E:ven if defense counsel

had confronted McLoren with the prosecution’s grant

of use immunity, none of McLoren’s testimony would

k-ve been exposed as untruthful. Accordingly, the

combined effect of the prosecution’s arguments and the

non-disclosure of the July 10 letter did not deprive

petitioners of a fair trial.

(2)

Cumulative Error

Petitioners’ next claim is that “the cumulative effect

of multiple errors” prejudiced them. Jackson, 513 F.3d

at 1085 (internal quotation marks omitted) (quoting

Whelchel v. Washington, 232 F.3d 1197, 1212 (9th

Cir.2000)). As with petitioners’ prosecutorial

misconduct claims, we consider whether the cumulative

error “so infected the trial with unfairness as to make

the resulting conviction a denial of due process.”

Donnelly, 416 U.S. at 643, 94 S.Ct. 1868.

For many of the reasons set. forth in our preceding

discussion of prejudice, the alleged errors, when

considered together, do not render the trial

constitutionally flawed. The trial was long and hard-

fought. The closing arguments were contentious, but

the trial eourt sustained reasonable objections and

admonished the prosecution on more than one occasion.

The court advised the jury that the prosecution’s

questions regarding Jason’s alleged gang membership

and its statements impugning petitioners and their

counsel were not evidence. The court also gave general

instructions that arguments made in summation were

not evidence, thereby reducing the potential harm done

by the prosecution’s vouching for McLoren.

Additionally, the prosecution’s “criminal hability”

statement was ambiguous and, in any event, occupied

only a brief moment in summation at the end of a iong

trial and had little risk of rendering the entire trial

unfair.

Similarly, the undisclosed evidence was _ not

material. McLoren testified both that he understood

that he was not the priority and that he was told by the

police that the State had no interest in prosecuting

him. Moreover, if one were to accept petitioners’

argument that they were on the property merely to

buy drugs, then, as noted, the reason for the fight

makes little sense. Therefore, any trial errors, to the

extent they existed, did not prejudice petitioners.

(3)

Ineffective Assistance of Counsel

Finally, Miliotti contends that he received

ineffective assistance of counsel when his trial counsel,

Leftwich, who had a copy of the use immunity letter at

the time of trial, failed to cross-examine McLoren with

it.!6 We reject Miliotti’s claim.

Claims of ineffective assistance of counsel are

governed by Strickland, which requires a petitioner to

demonstrate: (1) “that counsel’s performance was

15 Miliotti also faults Leftwich for failing to impeach McLoren

on his statement to the police that petitioners had tried to steal his

electronics, failing to impeach him on his arrest for marijuana use

in August 1995, failing to introduce evidence of previous

burglaries of the fort and failing to introduce a lack of any

fingerprint evidence.

40a

deficient” and (2) “that the deficient performance

prejudiced the defense.” 466 U.S. at 687, 104 S.Ct.

2052. As Miliotti must satisfy both prongs in order to

prevail under Strickland, we may dispose of his claim if

he fails to satisfy either prong of the two-part test. Jd.

at 697, 104 S.Ct. 2052.

Turning first to the “performance prong,” Miliotti

“must show that counsel’s representation fell below an

objective standard of reasonableness.” Jd. at 688, 104

S.Ct. 2052. Courts must be “highly deferential” to

counsel’s performance such that “the defendant must

overcome the presumption that, under the

circumstances, the challenged action might be

considered sound trial strategy.” Jd. at 689, 104 S.Ct.

2052 (internal quotation marks omitted).

Miliotti cannot rebut the presumption that

Leftwich’s failure to confront McLoren with the July 10

letter was sound trial strategy. As explained earlier,

there was little, if anything, to be gained by

questioning McLoren about having been granted use

testimony. Rather than pursuing a fruitless attempt to

impeach McLoren with the use immunity letter,

Leftwich instead focused on the inconsistencies in

McLoren’s description of Millioti’s actions. McLoren

admitted that he did not recall whether Miliotti was

involved in the fight and testified inconsistently about

whether Miliotti had even entered the fort, where the

entirety of the fight took place. It also emerged during

trial that MeLoren had initially named Velardo—who

never entered the property—as the fourth attacker

when he was questioned by the police, a fact that

Leftwich focused on in summation. Leftwich’s strategy

bore fruit when the California Court of Appeals

concluded that Miliotti was not a major participant in

Ala

the attempted robbery and reduced his conviction to

second degree murder, finding that “the evidence is

persuasive that Miliotti did not enter the fort, but

merely stood in the doorway during the activities

inside the fort.” Hein, 104 Cal.Rptr.2d at 92, 95.

Leftwich’s performance was, thus, not deficient for

failing to raise the use immunity letter.

Even if Miliotti satisfied the first prong, he must

still establish prejudice by “showling] that there is a

reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding

would have been different.” Strickland, 466 U.S. at

694, 104 S.Ct. 2052. This is the same standard used to

determine the materiality of suppressed evidence

under Brady. See Bagley, 473 U.S. at 682, 105 S.Ct.

3375; Benn, 283 F.3d at 10583 (“[Wle analyze all of the

suppressed evidence together, using the same type of

analysis that we employ to determine prejudice in

ineffective assistance of counsel cases.”). Because

petitioners’ case was weak and McLoren admitted that

he was probably not going to be prosecuted and never

denied having received immunity, Miliotti was not

prejudiced by counsel’s failure to impeach McLoren

with the use immunity letter. Mhiulhotti’s other

allegations of ineffective assistance of counsel are

without merit.

CONCLUSION

Under our independent review of the record, we

determine that petitioners’ state convictions did not

violate the Constitution or laws of the United States.

It was therefore not objectively unreasonable for the

California Supreme Court to deny petitioners’ state

habeas petitions. We affirm the district court’s denial

of habeas relief.

AFFIRMED.

12a

UNTPPED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

WESTERN DIVISION

KILED-SOUTHERN

DIVISION CLERK, U.S

DISTRICT COURT

APR-3 2007

CENTRAL DISTRICT OF

CALIFORNIA

BY [ILLEGIBLE] DEPUTY

MICAH HOLLAND, ) Case Nos.

JASON SKIPHOLLAND, )CV 04-3407-SJO (MLG)

TONY MILIOTTI, ) CV 04-3416-SJO (MLG)

BRANDON WADE ) CV 04-3491-SJO (MLG)

HEIN, )}CV 04 3502-SJO (MLG)

Petitione ) REPORT AND

)RECOMMENDATION

YOF UNITED STATES

) MAGISTRATE

DERRAL ADAMS, ) JUDGE

Warden, GEORGE A

ORTIZ, Warden, JIM

HALL, Warden,

MICHAEL G.

YARBOROUGH, Warde)

Respondent

[. Background and Procedural History

On May 22, 1995, Michael McLoren and his he

friend Jimmy Farris were socializing together ir

45a

McLoren’s backyard after school and into the evening. !

Both McLaren and Farris were high schoo] students,

Farris being 17 years old and the elder of the two.

McLoren had a_ freestanding 10-foot by 12-foot

structure in his backyard called “the fort.” The fort

had a bed, sofa, and desk and had electricity running

from McLoren’s house to power a television, video

game player, and light McLaren often socialized at

the fort and it served as a gathering place for his

friends. McLoren also sold marijuana from the fort

During the afternoon of May 22, 1995, McLoren’

girlfriend, Stacey Williams, arrived at the fort with

three friends. Soon after, Williams and her friends left

to buy some higher quality marijuana than McLoren

had availabie. When they returned, the group smoked

the marijuana and watched the film Pulp Fiction

Williams and her friends left the fort sometime

between five and seven o'clock that evening soon

after they left, McLoren went into his house to ea

dinner with his family while Farris waited in the fort

After dinner, McLoren hit a heavy punching bag

outside of the fort while Farris sat nearby At

approximately 7:00 p.m., Christopher Velardo drove

Petitioners Brandon Hein, Jason Holland, Micah

Holland,“ and Tony Miliotti to McLoren’s house in a

pickup truck. Velardo stayed in the truck and he wa

not a party to the criminal tnal which gives rise to thi

| The facts are taken from the trial tran enipt and the opinion

of the California Court of Appeal. People v. Hein, 104 Cal. Rpti

2d & (Cal. Ct. App. 2001) (opinion ordered not published

[hereinafter Cal. Ct. App.]; see also Miliotti Answer, Ex. A

Micah Holland is Jason Holland’s younger brothe) At the

time of these events, Micah was 15 vears old, Jason and Hein wv

IS and Miliotti was 1%

habeas corpus auction. MeLoren and Farris watched a:

Petitioners entered McLoren’s backyard by hopping

over a fence. Micah Holland was in the lead, followed

by the other three. Jason had a folding pocketknife in

his possession. There is no evidence that Micah, Hein,

or Mihotti carried weapons or that any of them knew

that Jason had a pocketknift

McLoren was not expecting Petitioners, and while

he and Farris knew Petitioners, they were not friend]

with them MelLoren was least famiutur with Hein,

whose last name he did not know. MecLoren was wary

of Micah and Jason Holland because of what wa

haracterized as the “Wiley incident.”) When Mcloren

Was In eighth prade, approximately LWo year: before

the incident at issue here, McLoren and David Wiley

tole a gun from the house of a police officer whose

daughter was their friend. Meloren was apprehended

by the police and provided them with information

about Wiley’s involvement Wiley was significantly

older than McLoren, approximately 20 years old at. the

time, and a member of a local vang \ccordinyg® to

ViclLoren, once he informed on Wiley, MclLoren became

target of violence and had to change high school!

Lhree times to avoid being beaten up on a regular basi

\ccording to MeLoren, Micah Holland was. friendly

vith Wile \ and had threatened Mcloren with violence

MeLoren testified that us Petitione approached

he fort he asked Micah “What’s up?". Micah did not

respond, was “sort of angry-looking,” and entered the

fort uninvited. (Cal. Ct. App. at 3; 82 RT at 3570; 857%

(‘)) ViclLoren Immediately followed Mieah inside

According LO VMelLoren, Micah Luwered On tne mocked

drawet of ni de k where Vicloret kept I} Upp)

ra?*cifti ls ‘ rie ryce be

45a

fool,” and “You want to start shit with Gumbys?”.’ (31

RT at 3588). Initially, only McLoren and Micah were in

the fort. Shortly thereafter, according to McLoren,

Hein and Jason entered the fort and Hein screamed

“Give him the keys.” (82 RT at 3589).

It is undisputed that a fight quickly erupted

involving McLoren, and Micah, into which Jason soon

intervened. McLoren testified that Hein also attacked

him, but Jason did not remember seeing Hein in the

fort. Farris entered the fort soon after the fighting had

started. Miliotti remained in the doorway. McLoren,

who was larger than Micah, held Micah’s face down in a

headlock on the bed and repeatedly elbowed him in the

back and neck. Jason attempted to pull McLoren off

his brother and McLoren kicked Jason in the face.

McLoren then heard a voice, who he believed to be

Jason, say “Let’s get this fucker.” (32 RT at 3596).

While being held in a headlock, McLoren was stabbed

three times by Jason. Jason was then spun around and

was confronted by Farris. Jason stabbed Farris twice.

McLoren and Farris broke away from the fight and ran

into McLoren’s house. Petitioners hopped back over

the fence and left in Velardo’s truck.

After running inside the house, McLoren told his

mother that he and Farris had been stabbed and that

“they came to get our stuff’ and “we tried to fight them

off.” (34 RT at 4126-27). Police and paramedics

arrived. Before being taken to the hospital, McLoren

identified Jason, Micah, Hein, and Chris Velardo as

those responsible for the stabbing. Several days later,

3 Gumbys is apparently the name of a local gang. After a four-

day pre-trial hearing, the trial court ruled that there was

insufficient evidence to show that Petitioners were gang

members. (2] RT 2025.)

46a

McLoren identified Miliotti as a participant and

excluded Velardo. Farris died at the hospital from his

wounds.

Petitioners were charged with burglary (Cal. Penal

Code § 459), attempted robbery (§ 664/221), felony

murder of Farris (§ 187(A)), and attempted murder of

McLoren (§ 664/187(A)) with allegations of personal use

of a knife (§ 12022(B)) and infliction of great bodily

injury (§ 12022.7(A)). (Lodgment No. 3, 1317-19). They

were tried jointly before a jury in Malibu, California, in

a trial that lasted from March to May 1996.4

The prosecution’s theory of the case was that

Petitioners went to the fort with the intent to steal

marijuana from McLoren. The burglary and attempted

robbery charges provided the basis for Petitioners’

liability for felony murder.® In order to show intent

and identity, the prosecution offered evidence that

Petitioners had stolen a_ wallet from a_= car

approximately one hour before they arrived at

McLoren’s fort. Petitioners were in a pickup truck

being driven by Chris Velardo. They pulled up next to

a van at Gates Park in Thousand Oaks. There were no

other cars at the park at that time. Jason opened the

unlocked van door and stole a wallet which was in plain

view. The car’s owner, Alyce Moulder, was at the park

with her children and saw Jason take her wallet. After

4 Trial counsel included Assistant District Attorneys Jeff

Semow and Michael Latin for the prosecution, James Sussman for

Micah Holland, Ira Salzman for Jason Holland, Jill Lansing for

Brandon Hein, and Curt Leftwich for Tony Miliotti.

° Murder which is “committed in the perpetration of, or

attempt to perpetrate, arson, rape, carjacking, robbery, burglary,

mayhem, kidnapping, [or] train wrecking . . . is murder of the first

degree.” Cal. Penal Code § 189.

17a

Petitioners left, Moulder went to look for them in her

van and encountered them in a nearby shopping mall.

Moulder testified that Hein threatened her with a

steering wheel locking device known as “the club.” (27

RT 2941). She testified that Petitioners threatened her

and pounded on her van as she drove away. (27 RT

2947). The prosecution portrayed the incident as

evidence of Petitioners’ thrill- seeking behavior.

In addition to the testimony of Alyce Moulder, the

prosecution also presented the testimony of some of

McLoren’s neighbors who observed Velardo’s truck

parked on the wrong side of the street immediately

before the stabbing, and who also confirmed that

Petitioners hopped the fence into McLoren’s yard.

David Barber, who was jogging in the area at the time,

testified that he observed Petitioners leaving the

MecLoren driveway, talking and smiling amongst

themselves. (384 RT at 4092-93; 4096-98). Also, a gang

expert testified that “Gumbys” was the name of an

organized local street gang, and defined a gang as “a

group of individuals who have banded together under

one common name for criminal activity purposes.” (36

RT at 4461-62). However, McLoren’s eye-witness

account of Micah’s demands and threatening behavior

as well as the subsequent fight provided the only direct

evidence of Petitioners’ intent to steal the marijuana at

the fort.

Petitioners’ theory of the case was that there had

been no robbery or burglary. Petitioners argued that

they went to McLoren’s fort to buy marijuana, not to

steal it. Alternatively, Jason, Hein, and Miliotti argued

that if Micah intended to steal the marijuana, he did not

tell the others and was acting alone.

tsa

Jason Holland was the only one of the Petitioners to

testify. Jason testified that, sometime between 2:00

and 3:00 p.m. that day, he traveled to Gates park to

smoke marijuana with a group of friends, a group that

did not include Hein, Micah, or Miliotti. (88 RT at 4850-

53). Soon after, Jason went to his friend Jason Stout’s

house, where he and several friends drank alcohol

played ping pong, watched movies, and talked. (88 RT

at 4856). Sometime between 5:00 and 5:30 p.m., Hein,

Micah, and Miliotti arrived in Velardo’s truck, and all

four Petitioners “hung out and drank and played ping-

pong.” (38 RT at 4859). Eventually Petitioners and

Velardo left Stout’s residence and drove to Gates Park

here, according to Jason, Petitioners were just

anning to “hang out” and “finish drinking.” (88 RT at

Jason admitted to stealing Moulder’s wallet at

Jason testified that he did not tell any of the

her Petitioners that he was planning to steal the

wallet, t he had, in fact, stolen the wallet. (88 RT

t 4868).

Jason further testified that he did not know why

they went to McLoren’s houses

@ Did you ask why you were thers

A I asked Chris, “What are we doing here

And he said, “We’re going to get some weed.”

@ What did you interpret that to mean?

(38 RT at 4886). Jason testified that he too heard

MecLoren ask Micah “What’s up?” as they approached

the fort. According to Jason, however, Micah waved to

A We were going to buy some marijuana.

MecLoren and Farris as he approached them. (38 RT at

4888). Jason did not hear Micah or Hein say anything

after they entered the fort. (88 RT at 4890; 4891-92).

Jason stated that he did not hear Micah demand keys

49a

from MecLoren and did not know why the fight started.

(88 RT at 4890-93). Jason admitted to stabbing both

Farris and MecLoren. He also testified that the other

three Petitioners were unaware that he had stabbed

Farris or McLoren until after they had all left

McLoren’s property.®

On May 28, 1996, all Petitioners were convicted of

burglary, attempted robbery, and felony murder. In

addition, Jason was convicted of assault with a deadly

weapon. On August 26, 1996, Jason was sentenced to

life in prison without possibility of parole plus eight

years, both Hein and Milotti were sentenced to life

without the possibility of parole plus four years, and

Micah was sentenced to twenty-nine years to life. (See

Cal. Ct. App. at 2).

Petitioners jointly appealed their convictions to the

California Court of Appeal, alleging inconsistent

verdicts, improper admission of evidence of the

Moulder wallet theft, prosecutorial misconduct based

on questions about gang membership and improper

statements in closing argument, improper jury

instructions, improper denial of Wheeler-Batson‘

motions, judicial bias, juror misconduct, improper

exclusion of evidence about McLoren’s civil liability,

6 Jason testified that after Petitioners had left McLoren’s

property and were traveling in Velardo’s truck, he said to Hein, “I

think I stabbed them.” (88 RT at 4913). Hein did not respond. (388

RT at 4914). A short time later, once all the Petitioners and

Velardo had gotten out of the truck, Jason told everyone that he

thought he had stabbed Farris and McLoren. (88 RT at 4915-17).

Jason stated that no one believed him until he showed them his

pocketknife. (88 RT at 4916-17).

’ Batson v. Kentucky, 476 U.S. 79 (1986); People v. Wheeler, 22

Cal. 3d 258 (1978). These cases prohibit challenges to a juror

based on racial motivation.

50a

denial of right to a speedy tral as to Hein, improper

admission of expert testimony about gangs, improper

use of courtroom security measures,

unconstitutionality of Penal Code § 190.2(d), improper

application of Penal Code § 654, insufficient evidence to

sustain felony murder convictions, insufficient evidence

to sustain special circumstance findings, and cruel and

unusual punishment. On January 29, 2001, the court of

appeal, in an unpublished decision, denied all of

Petitioners’ claims except Mihotti’s challenge to the

special circumstance findings and his cruel and unusual

punishment claim. People v. Hein, 104 Cal. Rptr. 2d 85

(2001) (Opinion ordered not published). The court

found that the evidence was insufficient to show that

Miliotti was a major participant in the burglary or

attempted robbery and struck the special circumstance

finding. (Cal. Ct. App. at 28). In addition, based on the

holding in People v. Dillon, 668 P.2d 697 (Cal. 1983), the

court found that Mitiotti’s conviction violated

California’s constitutional proscription against cruel

and unusual punishment and must be reduced from

first degree to second degree murder. (Cal. Ct. App. at

32-33).

The California Supreme Court denied Petitioners’

petition for review on April 25, 2001. Hein filed a

petition for a writ of certiorari with the United States

Supreme Court which was denied on October 1, 2001.

Hein v. California, 534 U.S. 890 (2001). Petitioners

filed a petition for writ of habeas corpus with the

California Supreme Court on September 23, 2002,

which was summarily denied on May 12, 2004. (Hein

Pet., Ex. B). Petitioners filed individual petitions for

bla

writs of habeas corpus with this Court in May and July

of 2004.5

Petitioners raise identical, overlapping, and

separate claims. Because the majority of Petitioners’

claims are the same, this Court will consider the

petitions together and issue a joint Report and

Recommendation in this case. Petitioners challenge

their convictions based on the following claims: (1)

Brady? violations, (2) prosecutorial misconduct, (3)

ineffective assistance of counsel, (4) improper exclusion

or admission of evidence, (5) juror misconduct, (6)

judicial misconduct, (7) cruel and unusual punishment,

and (8) arbitrary and capricious sentence reduction. !°

Il. Standard of Review

Under the Antiterrorism and Effective Death

Penalty Act of 1996 (““AEDPA”), 28 U.S.C. § 2254(d), a

federal court may grant a writ of habeas corpus to a

state prisoner with respect to a claim that was

adjudicated on the merits in state court only if the

State courts’ decisions were “contrary to, or involved

an unreasonable application of, clearly established

Federal law, as determined by the Supreme Court of

the United States” or if the ruling was “based on an

unreasonable determination of the facts in light of the

evidence presented” in the state courts. See Anderson

v. Terhune, 467 F.3d 1208, 1212-13 (9th Cir. 2006).

Jason and Micah filed their petitions on May 138, 2004, Miliotti

filed his on May 18, 2004, and Hein filed his on July 2, 2004.

9 Brady v. Maryland, 373 US. 83, 87 (1963).

10 Although Hein and Micah Holland originally asserted an

ineffective assistance of appellate counsel claim, they no longer

adva'.ce that claim. (See Hein Traverse at 35; Micah Traverse at

24.)

52a

Federal habeas corpus relief is granted “only on the

ground that [the state prisoner] is in custody in

violation of the Constitution or laws or treaties of the

United States.” 28 U.S.C. § 2254(a). Mere errors of

state law are not cognizable in federal habeas corpus

proceedings. Estelle v. McGuire, 502 U.S. 62, 67-68

(1991); Pulley v. Harris, 465 U.S. 37, 41 (1984).

The Supreme Court explains that a state court

decision is “contrary to” clearly established federal law

if the state court “applies a rule that contradicts the

governing law set forth in our cases” or if it “confronts

a set of facts that are materially indistinguishable from

a decision of this Court and nevertheless arrives at a

result different from our precedent.” Early v. Packer,

537 U.S. 3, 8 (2002) (per curiam) (quoting Williams v.

Taylor, 529 U.S. 362, 405-06 (2000)). A state court need

not cite or even be aware of Supreme Court

precedents, “so long as neither the reasoning nor the

result of the state-court decision contradicts them.”

Mitchell v. Esparza, 540 U.S. 12, 16 (2003) (per curiam)

(citing Karly, 5387 U.S. at 7).

A state court decision involves an “unreasonable

application of” clearly established federal law if the

state court identifies the correct governing legal

principle from the decisions of the Supreme Court, but

unreasonably applies that principle to the facts of the

case. Williams, 529 U.S. at 407-08, 413. Under this

standard, a habeas court may not issue the writ simply

because that court concludes “in its independent

judgment” that the state court decision is incorrect or

erroneous. Woodford v. Visciotti, 587 U.S. 19, 24-25

(2002); Williams, 529 U.S. at 410, 412. The reviewing

court must find that the state court’s application of

clearly established law was objectively unreasonable.

Williams, 529 U.S. at 409: Anderson, 467 F.3d at 1212-

13.

Petitioners’ claims asserting ineffective assistance

of counsel, Brady violations, and arbitrary and

capricious sentence reduction were presented for the

first time in habeas corpus petitions filed in the

California Supreme Court. (Lodgments 10, 11, 12, 18).

These petitions were denied without a decision

addressing the merits of Petitioners’ claims.

Therefore, this Court must cond:ct “an independent

review of the record” to determine whether the state’s

decision was an objectively unreasonable application of

Supreme Court precedent. Himes v. Thompson, 336

F.3d 848, 853 (9th Cir. 2008).

The remaining claims raised in the petitions were

presented to the California Supreme Court on a

petition for review, but that court did not address

those issues in its written decision. Nevertheless,

“[wJhere there has been one reasoned state judgment

rejecting a federal. claim, [federal courts are to

presume] later unexplained orders upholding that

judgment or rejecting the same claim rest upon the

same ground.” Yilst v. Nunnemaker, 501 U.S. 797, 803

(1991); Shackleford v. Hubbard, 234 F.3d 1072, 1079 n.2

(9th Cir. 2000). The California Court of Appeal

rejected Petitioners’ claims on direct review in a

written decision. Therefore, this Court will examine

the reasoning of the California Court of Appeal to

determine whether the California Supreme Court’s

decision is contrary to, or an unreasonable application

of, federal law.

III. Brady Violations

Jason, Micah and Hein claim that the prosecution

failed to disclose a letter from Deputy District

5Aa

Attorney (“D.D.A.”) Jeff Semow to Michael McLoren’s

attorney, Ellery Sorkin, granting McLoren immunity

from prosecution for any testimony about his

involvement with marijuana.!! It is also alleged that

the prosecution suppressed material evidence of the

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