# Petition for Writ of Certiorari — Hein v. Sullivan

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2011
- **Citation:** 563 U.S. 935

## Text

Supreme Court, !
FIle”

f () 10-646 NOV 15 2010
(Vv " OFFICE OF THE CLERK

Hun the
Supreme Court of the GAnited States

BRANDON WADE HEIN, ETAL.,
PETITIONERS,
Vs
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

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.

il
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

iv

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

V

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.

Vi

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

Vil

TABLE OF AUTHORITIES

Page(s)

Akraw1 v. Booker,

Sle Fk Oe (OC CAP, Be ivcsccisicccheasrccsnsee
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,

STT U.S. DGB UI? cisctssssicctstematinenia eee 14
DeMarco v. United States,

928 FZ LOTS CLIC CAP. F981) vcccccevicdcckdssecsscevscscae
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,

EE «san csncpsnsdnsnnasenenssencsbasebiniens 13
Jenkins v. Artuz,

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Monroe v. Angelone,

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Napue v. Illinois,

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Pederson v. Fabian,

Be ee CCI) CAP, BOOT) ocsccccsccnersnssseccssvevenecsvneves 35
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,
Be LAME CL RGAE GoUT, SO) caceccccccccccvcccccccnccccosessss 36

1X

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,

Ue Se ia ee a ED cones wuss ec ecuce cds ccevesaecdeacaviaesas 36
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,

Be Bee RAGE CHOBE CAG. FT) a vsscccasenscenccctccscccaians 33, 34
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

Lr

"

X

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,

NBA FFA BE CAG CAP. BD ivccncccesctsncsssesvenstvscceare cess Ol
United States v. Wallach,

SER rte Re Ce Ge, NI Piva voce ncovecectscctcevscscssccuccecs 14

CONSTITUTIONAL PROVISIONS AND
STATUTES

0 a Oe en eiaeecniaaen _

28 U.S.C. § 1254(1)

Be Rae ET Sicsansneecaixdeossosnastansonssemaas esacainee teed I

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

Zz

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.

5)
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.

6

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.

7

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

8

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.

3

@. 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
I

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.

.

10

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

tk
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.

1]

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

19
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
DO bility of parol
Holland—who wa
us sentenced
has alread. pen
App.49a

State Post-Conviction Proce

Qn January 29, 2001, the C:

affirmed petitioner

published opinior

683 (2001) The

petitioners’ petitions for revi
ordered the appellate Opinior de}
Hern i SO09D461.

O01)

Mihotti, finding the
a major participant in t burglary or attem;
reduced Miliotti’s conviction to second deyree murde!

i Tie’? entence Oo] ] )

certiorari) by Hein on October 1, 200] Hew
California, 534 U.S. 890 (2001) Petitioners filed
separate habeas petitions with the California Suprem«
Court which were summarily lenied = withou
explanation on May 12, 2004. ER-9:
l’ederal Habeas Proceedings
1. Petitioners filed separate pe
corpus in the United State
ntral District of California, whicl
the same magistrate judge and dist
On April 3, 2007, the magistrat
and RKRecommendatior

nmunity§ letter

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(2d Coir 199] To eVacit thut preced
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MelLore itement VOre chu
Pet. App.1l8a-27 [A] f {f McLore
trial were incomplet the court a
rit i} point of Mclvorer Le Imo!
ould still be pro ited for mar
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reasoned { De 1uS¢é Mellor
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VicLoren gave for | ’
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ended lest Vi tin
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Pet. App.27a
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[Lansing]: And have you been prosecuted?

[MeLoren]: No.

As an initial matter, McLoren’s testimony
regarding his understanding that his statements to

22:
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.

23a

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

24a

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

25a
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.

26a

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.

Zila
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.

20a

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

© that if was more favorable to petitioners.

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.

AO
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%

Ma

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.

a
y
J
a
oy
Aa
ee

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
existence of an underground safe in McLoren’s fort,
information about an interview given by Katren
Anderson,!* and McLoren’s marijuana arrest prior to
trial. These claims are governed by the Supreme
‘ourt’s decision in Brady v. Maryland, 373 U.S. &3, 87
(1963).18

The government has a duty to disclose evidence
favorable to the accused when it is material to guilt or
punishment. Brady, 373 U.S. at 87. There are three
components to a Brady violation: The material

11 Petitioner Miliotti does not join in this claim. His habeas
counsel] found the immunity letter in the trial materials given to
him and his trial counsel recalled Semow disclosing McLoren’s
immunity agreement during a juvenile fitness hearing on July 24,
1995. (Miliotti Pet., Ex. 12 at 77-78). Miliotti is raising an
ineffective assistance of counsel claim relating to the immunity
letter. See infra Part VI.A.

12 Katren Anderson was a friend of the Petitioners. She gave
Jason Holland a ride to Gates park on May 22, 1995, and saw all
four Petitioners and Velardo later at a friend’s house. Anderson
did not testify at trial.

13 Petitioners also allege that the prosecution knowingly
presented false testimony and argument regarding McLoren’s
motivation for testifying against Petitioners and his potential
exposure to criminal prosecution for selling marijuana. The falsity
of the testimony and argument is evidenced by the undisclosed
immunity agreement. This claim will be analyzed in section IV of
this Report under the standards set forth in United States v.
Agurs, 427 U.S. 97 (1976) ana Napue v. Illinois, 360 U.S. 264
(1959), although it is dependent upon and overlaps with the Brady
claim.

ood

evidence “must be favorable to the accused, either
because it is exculpatory, or because it is impeaching;
that evidence must have been suppressed by the State,
either willfully or inadvertently; and prejudice must
have ensued.” Strickler v. Greene, 527 U.S. 263, 281-82
(1999). The duty to disclose is not limited to
“exculpatory” information, but also _ includes
information that could be used to impeach government
witnesses. Giglio v. United States, 405 U.S. 150, 154
(1972). It is irrelevant whether the evidence was
suppressed willfully or inadvertently. United States v
Ciccone, 219 F.3d 1078, 1084 (9th Cir. 2000) (citing
Strickler, 527 U.S. at 280.) For Brady purposes,
evidence is deemed 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.” Kyles v. Whitley, 514 U.S.
419, 433 (1995); Bagley v. United States, 473 U.S. 667,
676 (1985). The most compelling and complicated
Brady claim involves the failure to disclose an
immunity agreement given to McLoren. The facts
concerning the origin and disclosure of that agreement
must be recited in order to place this issue in
perspective.
A. McLoren’s Immunity Agreement

The immunity letter was written by D.D.A. Jeff
Semow to Michael McLoren’s attorney, Ellery Sorkin.
It granted McLoren immunity for any testimony
regarding McLoren’s use, possession, or sale of
marijuana.!4 (Hein Pet. at 33-45; Micah Pet., Att. 3 at

14 Hein also alleges that prosecutors violated Brady by failing
to disclose McLoren’s request for transactional immunity and that
McLoren was granted de facto transactional immunity. (Hein Pet.
at 35-36). These claims are factually similar to the immunity letter

3; Jason Pet. at 5). The letter is dated July 10, 199%
and states in its entirety:

Dear Mr. Sorkin:

This is to assure you and your client, Michael
McLoren, that nothing he tells me or the
investigating officers about marijuana will be used
In any way against him.

Gil Garcetti, District Attorney

By Jeff Semow, Deputy District Attorney
(Miliotti Pet., Ex. 10.)!°

This letter apparently was written in order to
induce McLoren to admit that he was selling marijuana
from the fort, and that Petitioners had come to steal it
freeing him from the fear of criminal prosecution for his
marijuana activities. It is the failure to disclose this
letter to trial counsel which forms the factual predicate
for Petitioners’ Brady claim.

Shortly after the incident, McLoren hired attorney
Ellery Sorkin to represent him during’ the
investigation. (83 RT at 3860). McLoren later testified
at trial that, at the time of his initial interviews with

claim, and the materiality arguments are identical. Therefore, the
Court will deem this claim to be subsumed by the immunity letter
claim.

1S Petitioners allege that McLoren’s grant of immunity wa:
effectively transactional immunity, instead of use immunity,
hecause in 1995, the California Penal Code recognized yon
transactional immunity. (Miliotti Pet. at 32-40; Hein Pet. at 36-37.
Use immunity protects a witness from having his statements need
against him, as well as any evidence derived from his statements,
while transactional inmunity protects a witness from prosecution

for crimes described in 7 statements. See Kastigar v. United
States, 406 U.S. 441, 443 (1972). The resolution of the Brady claim
is not dependent on res fe ing this distinction.

Ola

Detective Tauson, the lead investigator, he did not
“trust the police” 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.” (88 RT at 8921-22). It wasn not until
McLoren spoke with Sorkin, after his initial interviews
with Detective Tauson, that McLoren “felt ready to tell

the truth about [his] involvement with marijuana, the
extent of [his] dealing in marijuana, the extent of [his]
use of marijuana to the authorities.” (88 RT at 8922
23). McLoren further testified that it wasn not until his
lawyer told him that he would not “be able to get these
guys” unless he told the whole truth that he was, “for
the first time,” ready to be honest with law
enforcement officials. (83 RT at 3923). The first person
McLoren talked to from law enforcement after that
conversation with Sorkin was D.D.A. Jeff Semow, on
July 10, 1995. (83 RT at 3923).
1. Production and Discovery of ‘The
Immunity Letter
[t appears that counsel for Micah, Jason and Hein
never received the immunity letter from the
prosecution, although it was mentioned by D.D.A.
Semow at a juvenile fitness hearing for Micah, Miliotti,
and Velardo, on July 24, 1995. At that hearing, the
following exchange took place between Bruce Jones,
ounsel for Velardo, and D.D.A. Semow:

Jones: I would ask, if there any [sic] more
discovery, since our last appearance, we
had a promise of discovery; I know that at
the time that - of our last appearance, we
parted with the discussion in the district
attorneys’ office in the presence of all

counsel, about an immunity agreement

for Mr, MclLoren, and I think | heard
ome Information about further
Investigation.
| have received no further discovery
but then again
emow: ‘There is no immunity agreement for Mr
McLoren, other than I promised him tn
writing that. nothing that he said in thi
case about Marijuana, would be used a
evidence against him
That 1s it,
(Miliotti Pet., kx. 9 at 63-64). There was no other
discussion about the immunity letter, including
whether it would be turned over to defense counsel

Based on the signed declaration of Curt Leftwich,
who was Miliotti’s attorney at both the juvenile
hearing and the criminal trial, it appears that the
prosecution turned over the letter to Leftwich during
Miliotti’s juvenile fitness hearing. (Miliotti Pet., Fx. 12
at 77-78). In that declaration, Leftwich acknowledged
that because the letter was found in his trial materials
he must have received it during his representation of
Miliotti. (Id. at 77). After reviewing the juvenile
hearing transcript Leftwich recalled that he learned of
the immunity agreement during Miliotti’s juvenile
court proceedings. (Jd. at 77-78).

Micah Holland, the only petitioner raising’ a brady
claim who participated in the juvenile court hearing,
was represented by John Franklin in juvenile court and
by James Sussman during the criminal trial. In a
declaration signed on July 21, 2002, Sussman stated

that he was unaware of the immunity letter or any

Immunity agreement until Micah’s habeas corpu

attorney showed him the letter in July 2002. (Micah,

5Ga

State Pet., Ex. 12 at 77-78.) Sussman stated that after
Micah was transferred to the adult court, he prepared a
writ challenging the findings of the juvenile court.
However, at the time he drafted the writ, the
transcript from the juvenile proceeding had not yet
been prepared. By the time the transcript became
available to Sussman, the writ had been denied.
Sussman stated that he then reviewed the transcript
for testimonial grounds to impeach witnesses at trial,
but did not “[pay] attention to the discussions or
arguments of counsel.” (id.).

The letter was also mentioned, although the content
was not described, in passing during a _ pretnal
discovery hearing on September 15, 1995, immediately
following 22 camera proceedings between the trial
judge and D.D.A. Semow. Each Petitioner was present
and represented by trial counsel.!© The purpose of the
in camera proceeding was to give the court another
opportunity to review documents in the possession of
the prosecution and to decide whether the prosecution
was obligated to disclose those documents to defense
counsel. (1 RT at 99A-100A). The court issued its
decision at that hearing where the following exchange
occurred:

Court: I’m going to authorize and release it t

them, these three documents.

Semow: Those will be available at 1:30: A July 10
letter from the district attorney; an
August 11 letter consisting of two pages;
what appears to be a _ misdemeanor

‘9 Jason Holland was represented that day by James Sussman,
attorney for Micah Holland, because Jason’s attorney, Ira
Salzman, could not be present. (1 RT at 86A)

60a

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.

(1 RT at 100A) (emphasis added). The only “July 10”

letter of which this Court is aware is the immunity

letter written by Semow.

As noted, sometime in early 2002, a copy of the
immunity letter was found by Miliotti’s habeas corpus
counsel in the file which attorney Curt Leftwich gave
to the Miliotti family after the trial ended. (Miliotti
Pet. at 33; Mil. Ex. 11 at 74). It was shared with the
rest of Petitioners and forms the basis of this claim.

Habeas counsel] then gained access to transcripts of
a separate pretrial in camera proceeding held January
10, 1996, between the prosecutors and the trial judge
that previously had been sealed. The purpose of that
in camera proceeding was to determine whether two
sets of prosecution notes taken during interviews with
McLoren had to be disclosed to the defense. (RT 284A,
288A, 585A-86A). Semow explained to the court that,
before his July 10, 1995 interview with McLoren,
Sorkin had expressed a concern that the district
attorney was “building a marijuana _ prosecution”
against his client. (Hein Pet., Ex. K at 104). Semow
later explained that, “So prior to th{e] [July 10]
interview, a concern regarding the possible need to
give him immunity had arisen” and as a consequence,
“one of the reasons for thle] [July 10] interview was to
see if Mr. McLoren would testify without transactional

6la

immunity.”!” (Id. at 105). McLoren did not speak with
Semow until after he had received the July 10, 1995
letter.

Hein’s trial counsel, Jill Lansing, states in a signed
declaration that she had no recollection of receiving the
immunity letter or of being informed that McLoren had
received immunity. (Hein Pet., Ex. Q at 151). Lansing
submitted signed discovery receipts from before and
after September 15, 1995, none of which include the
immunity letter. (Id. at 171). Lansing also submitted
written discovery requests to the prosecution for any
promises or agreements requested by witnesses and
any reports regarding police contact with McLoren.
(Id. at 152, 165). The immunity letter was not turned
over to her in response to those requests. (Id. at 152).
Lansing declared that had she had known of the
immunity agreement she would have cross-examined
McLoren about it. (Id. at 158).

Ira Salzman, trial counsel for Jason Holland,
submitted a similar declaration on July 2, 2002. (Jason,
State Pet., Ex.29). He stated that he had no
recollection of seeing the immunity letter before July
2002 and that if he had been in possession of the letter,
he would have used it during trial to impeach
McLoren’s credibility. (1d.) Thus, with the exception
of Miliotti’s attorney, Petitioners’ trial counsel did not
receive the immunity letter, nor were they directly
informed of the grant of immunity given to McLoren.

‘Semow was interviewed for a documentary film about the
case. He stated his belief that only after McLoren received use
immunity did he give a statement that Semow believed was “100
percent truthful.” (Mihotti Pet., Ex. 11 at 76).

62a

2. Analysis

Petitioners meet the first Brady element requiring
that the withheld or nondisclosed evidence’ be
exculpatory or impeaching. The immunity letter could
obviously have been used to impeach McLoren’s
credibility by showing that he made _ inconsistent
statements about the objective of the alleged robbery.
Bagley, 473 U.S. at 676 (“Impeachment evidence,
however, as well as exculpatory evidence, falls within
the Brady rule.”).

The second Brady element is met because
Petitioners’ trial counsel did not receive the immunity
letter as part of discovery, nor were they directly
informed of the specific grant of immunity relating to
the sale of marijuana. The prosecution’s failure to
disclose the letter seems to have been inadvertent,
since Semow disclosed its existence at the juvenile
fitness hearing and presented it to the trial court to
determine whether’ disclosure was necessary.
However, as. noted _ earlier, even _ inadvertent
suppression can constitute a Brady violation. Agurs,
427 U.S. at 110 (“If the suppression of evidence results
in constitutional error, it is because of the character of
the evidence, not the character of the prosecutor.”).
While Semow apparently gave the letter to Leftwich at
the juvenile fitness hearing, the uncontested evidence
shows that it was not given to trial counsel for the
remaining Petitioners, even though it was mentioned
during the pre-trial hearing.!*

IS Semow’s description of the immunity letter as “a July 10
letter from the district attorney” gave no indication to defense
counsel of the subject matter or import of the letter’s contents.
The Court also rejects any claim that the existence of the letter

should have been apparent from the transcript of the juvenile

63a

The Supreme Court has held that evidence has been
suppressed when “defendants must scavenge for hints
of undisclosed Brady material when the prosecution
represents that all such material has been disclosed.”
Banks v. Dretke, 540 U.S. 668, 695 (2004). “A rule thus
declaring ‘prosecutor may hide, defendant must seek’ is
not tenable in a system constitutionally bound to
accord defendants due process.” Jd. The existence of
the letter was not made clear to trial counsel, even
though the trial judge apparently ordered that it be
disclosed following the in camera hearing on
September 15, 2005. Therefore, Petitioners have met
the second Brady requirement by showing that the
immunity agreement was not disclosed.

The Court concludes, however, that Petitioners
have not satisfied the materiality element of a Brady
violation. They have failed to establish that disclosure
of the agreement alone would have “put the case in
such a different light as to undermine confidence in the
verdict.” Ayles, 514 U.S. at 433-35. In other words, it
cannot be said that the result of the proceeding would
have been different had defense counsel been able to
impeach McLoren with the immunity agreement.
Accordingly, habeas corpus relief is not warranted on
this claim.

McLoren was thoroughly impeached with the
inconsistent statements he made after the incident; his
use and sale of marijuana; and the absence of any
criminal prosecution arising from his involvement with

fitness hearing. See Banks, 540 U.S. at 695; see also Strickler v
Greene, 527 U.S. 263, 284 (1999) (rejecting contention that
examination of trial testimony and a letter published in a local
newspaper should have alerted the defendant to the existence of
additional undisclosed interviews with the police).

64a

controlled substances. It was made abundantly clear
on cross-examination that immediately following the
incident, Mcloren lied about what Petitioner’s were
attempting to steal and his use and sale of marijuana.
McLoren admitted that he used marijuana on a daily
basis and had sold marijuana on school grounds. (83
RT 3777-82). McLoren admitted that he had previously
hed to police about his involvement with marijuana.
(82 RT 3707-08, 3745-50, 33 RT 3818, 3852). McLoren’s
credibility was further impeached by prior crime
evidence. McLoren acknowledged on_ cross-
examination that he had previously stolen a
policeman’s gun and lied to _ police about his
involvement in that theft. (83 RT 3851, 3904-05, 3908,
34 RT 4068). And, it was brought out that McLoren did
not tell Deputy Christopher Knox, the second officer to
arrive on the scene, that Micah Holland tugged on his
desk drawer nor did he mention anything about
marijuana. (37 RT at 4657).

However, he was consistent in his claim that the
Petitioners came to rob him. When he ran into the
house after the robbery, McLoren told his mother that
“they came to get our stuff.” (34 RT at 4127).
McLoren told Deputy Knox that Jason Holland, Micah
Holland, Brandon Hein, and Chris Velardo told him
that if they did not get the VCR and TV equipment
inside the fort there was going to be a fight. (87 RT at
4650, 4656, 4657).

On May 26, 1995, McLoren was interviewed by
Detectives Tauson and Neumann. McLoren said he
believed that the Holland brothers, Hein, and Velardo
had come to take his video games. (33 RT at 3758,
3762). He also told the detectives that he thought
“they were seriously just bored” and figured that they

65a

could get “a free TV, VCR... and maybe even a like a
little bit of marijuana to go with.” Later in the same
interview, McLoren explained that, “I think that’s part
of the reason they came for. I have a pretty nice
collection of video games. Maybe they wanted my
boxing stuff, I don’t know. I have a lot of nice stuff in
my fort.” When asked about the marijuana found by
the police in the desk drawer in the fort immediately
after the incident, McLoren said that it was just for
“parties and stuff’ and denied ever having sold
marijuana. On June 5, 1995, Tauson interviewed
McLoren for a second time at McLoren’s home.
Tauson’s notes do not reveal any discussions about
marijuana. (Miliotti Pet., Ex. 8, at 60-61).

There were additional statements made by
McLoren which could be deemed inconsistent with
McLoren’s trial testimony that Petitioners were
attempting to rob him of marijuana. While being
treated for his wounds at UCLA hospital the day after
the stabbing, McLoren told a clinical social worker and
a registered nurse that he had been injured in a “fight.”
(37 RT at 4707, 4717). He did not mention an
attempted robbery of any kind. (Id.). That same day
McLoren told Officer John Adams only that a fight
broke out, and that he and Farris were winning the
fight until Hein, Micah, and Jason pulled out knives.
(38 RT at 4799-4800). However, these inconsistencies
were also brought out on cross-examination.

In light of the consistency of McLoren’s statements
concerning Petitioner’s motives as well as_ his
admission of significant inconsistent statements and
illegal conduct, including the sale of marijuana, the
failure to disclose the immunity agreement cannot be
deemed material. Had it been disclosed, the immunity

66a

agreement would have added little to the cross-
examination and would not have “put the case in such a
different light so as to undermine the verdict.” Kyles
at 433-35.

The Court has considered Petitioners’ claim in light
of the Ninth Circuit’s decisions in Horton v. Mayle, 408
F.3d 570 (9th Cir. 2005) and Silva v. Brown, 416 F.3d
980 (9th Cir. 2005). Those cases, like that presented
here, involved immunity agreements for. key
government witnesses that were not disclosed to the
defense.

In Horton, the petitioner was convicted of the first
degree murder and robbery of his cocaine dealer. The
prosecution’s principal witness, Donald McLaurin, did
not participate in the murder, but was present when
the petitioner planned and later confessed to the
robbery and the murder. Horton, 408 F.3d at 574.
After the murder, McLaurin smoked some of the stolen
cocaine with the petitioner and then drove the
petitioner to the Greyhound bus station. /d. at 575. At
trial, McLaurin testified about the petitioner’s plot and
motive for killing the victim and subsequent admission
of the robbery and murder. McLaurin also provided
evidence linking the petitioner to stolen cocaine and
money shortly after the murder. The prosecutor
highlighted the importance of McLaurin’s testimony in
his closing argument and urged the jury to request a
read back of McLaurin’s testimony. /d. at 579.

The petitioner claimed that the prosecution failed to
disclose a leniency deal extended to McLaurin under
which McLaurin received immunity for any crime he
committed on the weekend of the murder in exchange
for his testimony against the petitioner. The Ninth
Circuit found that failure to disclose the deal, if it

67a

existed, satisfied the Brady materiality standard
because the deal would have provided “powerful and
unique impeachment evidence” demonstrating that
McLaurin had an interest in fabricating his testimony.
Id. at 579. It explained that McLaurin’s testimony that
the petitioner confessed to the murder and robbery
was “probably the most probative and damaging
evidence” that was admitted against the petitioner. Jd.

In Silva, the petitioner was convicted of a double
homicide, kidnaping, robbery, and related gun offenses.
The petitioner, and two accomplices, Joe Shelton and
Norman Thomas, kidnaped a young college couple.
Silva, 416 F.8d at 982-83. Both victims were
eventually killed. Jd. at 983. According to Thomas,
Shelton had, on two occasions, described how the
petitioner shot and killed the victims. /d. at 983.
Thomas reported that the petitioner simply looked on
and smiled as Shelton described the murders. /d.
Thomas became the prosecution’s central witness. The
prosecutor agreed to drop murder charges against
Thomas, provided that he testify against the petitioner
and agree to forego a psychiatric examination. /d. at
984. Apparently, Thomas had been involved in a
motorcycle accident several years earlier and had
suffered severe brain damage. /d. The prosecutor
explained to Thomas’s counsel that a _ psychiatric
evaluation would “supply ammunition to the defense.”
Id. Although Thomas testified about the dismissal of
the murder charge, the defense was not informed that
Thomas had agreed to prosecutor’s request that he
undergo a psychiatric examination. /d. The Ninth
Circuit found that the prosecution’s failure to disclose
this information violated Brady. The Court of Appeals
reasoned that the violation was material because

68a

Thomas’ testimony was the most specific and powerful
evidence identifying the petitioner as the killer and
describing how the murders took place. Jd. at 987.
Most importantly, the court found that the petitioner’s
adoptive admission of Shelton’s account of the murder
was “tantamount to a confession.” Jd.

The facts of this case are distinguishable from those
which resulted in the granting of habeas relief in
Horton and Silva. _ First, unlike those two cases,
McLoren did not testify that the Petitioners had
confessed to the underlying offense. As the Ninth
Circuit noted in reaching its conclusion in both Horton
and Silva, “‘“A confession is like no other evidence.
Indeed, the defendant’s own confession is probably the
most probative and damaging evidence that can be
admitted against him.” Horton, 408 F.3d at 580
(quoting Anzona v. Fulminante, 499 U.S. 279, 290
(1991)); Silva, 416 F.3d at 987 (quoting F'ulminante).

Moreover, unlike the witnesses in Horton and Silva,
McLoren was not involved in the underlying crime or
its aftermath. McLoren was the victim, and his
testimony was simply descriptive of the conduct of the
Petitioners which resulted in the fight that led to
Farris’ death. In addition, McLoren did not have the
same incentive to fabricate his testimony as did the
witnesses in Horton and Silva. McLoren was not a co-
conspirator, confidante, or friend of Petitioners. The
immunity agreement was not conditioned upon him
testifying at trial, let alone giving favorable testimony
to the prosecution. As a victim, he was not facing the
Same criminal charges as Petitioners (attempted
robbery, burglary, assault or murder) and he did not
have any other pending felony charges. Key parts of
McLoren’s testimony were corroborated by other

69a

independent evidence and McLoren was significantly
impeached at trial. It is not reasonably probable that
the jury would have been greatly influenced by the
immunity letter in light of McLoren’s admitted lies to
police and his history of drug use and criminal activity.
Finally, unlike the circumstances in Horton and Silva,
there was no question about who stabbed the victims
or whether all four Petitioners were at the fort at the
time of the stabbings occurred.

Although the prosecutors’ failure to disclose the
immunity agreement was error, Petitioners have not
demonstrated, and the Court cannot find, that the non
disclosure of the immunity agreement was material
within the meaning of Brady in that it does not
undermine confidence in the verdict. It must be
remembered that the contested issue in the case wa:
whether Petitioners went to McLoren’s with the intent
to rob him. It simply cannot be said that there is a
reasonable probability that the impeachment of
McLoren with the immunity agreement, in light of all
the other evidence, would have led to a different result
on the issue of Petitioners’ purpose, motive, and intent
on the night of the incident. Indeed, the impact of the
immunity agreement on McLoren simply resulted in
his changing his statement concerning what Petitioners
had attempted to steal, not the fact that theft was the
motive. Because the content of the undisclosed
immunity agreement cannot be said to put the “whole
case in such a different light as to undermine
confidence in the verdict,” Silva, 416 F.3d at 96,
Petitioners are not entitled to relief on this claim.

C. Additional Brady Claims

Petitioners also allege that the _ prosecution

improperly suppressed evidence of an underground

70a

safe, Katren Anderson’s interview, and McLoren’s
August 2005 marijuana arrest. These claims will be
discussed in order.
1. Floor Safe

Petitioners claim that the prosecution suppressed
evidence of the existence of a floor safe in McLoren’s
fort and whether that safe had been removed.!” Micah
told police investigators in an interview that McLoren
had “an underground safe somewhere” inside the fort
where he kept marijuana (Hein Pet., Ex. G at 37).
Williams, McLoren’s girlfriend, stated that
there was a safe in the fort where McLoren would hide

Stacey
marijuana from his mother, but she did not know if it
was there on May 22, 1995, since McLoren had
rearranged the fort’s interior a few days earlier. (Hein
Pet., Ex. W at 233). Petitioners also point to
handwritten notes by Semow that show a chart with
names down the side and “drawer” and “safe” a
column headings. (Hein Pet., Ex. BB)

During McLoren’s interview at the hospital on May
26, 1995, the detectives referred to a floor safe that
they had discussed earlier (presumably in an
unrecorded conversation). Detective Tauson asked if
anyone mentioned the safe during the incident on May
22, 1995 and McLoren replied that no one had. (Miliotti
Pet., Ex. 6 at 37). In a qvil case brought by Farris’
parents against McLoren after the cnminal tmal,
McLoren testified that he had a floor safe in the fort
where he kept marijuana. (Hein Pet., Ex. Y at 242)
Detective Tauson testified at the civil trial that he did
not find a safe during his walk-through of the fort
(Miliotti Pet., Ex. 20 at 112).

’ Micah Holland does not assert this claim

Petitioners argue that both the existence of the safe
and whether it was removed from the fort was not
disclosed to the defense. (See Hein Traverse at 23).
The record shows, however, that the existence of the
safe was disclosed. Al! police interviews in which the
safe was mentioned were turned over to the defense
Furthermore, Curt Leftwich, Miliotti’s defense
counsel, questioned McLoren about the safe during
cross-examination:

() One of the other places that you kept mone

was in a Safe inside the fort?

A sometimes.
() On May 22nd of last vear did you have mone
in the safe?
\ No
(33 RT 3771). Therefore, Petitioners have not show!

that the existence of the safe wa not disclosed
defendants.

Petitioners “al oO Cannol now Loeb Line ute Wi
removed from the fort hhe only upport for thi
contention 1s Detective lauson testimony at

McLoren’s civil trial that he did not see the safe dunng
a walk through of the fort. Contradicting this evidence
is McLoren’s testimony that he showed police the safe
during the walk through and Tauson’s questioning «

witnesses about the Safe since Petitioner have
offered no evidence that the safe wa actually removed
they have not shown that any evidence wa Ippre ed
under Brady

2. Katren Anderson [Interview

Petitioners next contend that the _ prosecut

ippre ed a police nterview with.Katren Ande

conducted on October LO, 1995.9 (Hein Pet. at 3&8:
Miliotti Pet. at 75). Anderson did not testify at trial
\nderson gave Jason Holland a ride to the park on
May 22, 1995, and saw all four Petitioners and Velardo
later at a friend’s house. On April 2, 1996, after the
tral had started, the prosecutors disclosed Anderson’:
written statement from the interview. (Hein Pet., Ex
T). The statement contained the foliowing: “Chris said
we are going to get some bud.”*! (Id.). Defense
counsels’ request for Tauson’s notes from the interview
was denied. However, during an im camera hearing on
April 10, 1996, Tauson summarized the intervie,

[ asked, “Do you know anything about that
particular day?” She says, “Yeah. I picked up
Jason around 2:00 o'clock [sic], dropped him off
at a park. We went to another girl’s hous
Then the other four come over, and they say
the \ Wore vomny to {r() buy SOMC hud ‘Then
never saw or heard about them ayain until |
heard about the murder the next day.” Nice

know but not a lot of he }) LO me

Hein Pet., lex, U at 212-18)

Petitioners contend that Anderson Lalement that
Petitioners were planning to “buy” manjuana wa
exculpatory and that failure to disclose it was a Brady
Violation Petitioners’ claim ha no merit The
prosecution turned over Anderson’ yrned Statement

during trial Brady doe net POCqulre disclosure before
trial, only that disclosure “must be made at a time
when disclosure would be of value to the accused.’

nited States v. Davenport, 753 F.2d 1460, 1462 (oth

‘ Q)nrniiy Hein and Milott | ert th

Bud’ is aslanyg term for martjuana

oo,
fod

Cir. 1985): see also Gantt v. Roe, 389 F.3d 908, 912 (9th
Cir. 2004).

Here, Petitioners received the evidence only a few
days into tral and before Tauson had testified.
Petitioners could have used this information to call
Anderson as a witness or in their cross-examination of
Tauson. See United States v. Gordon, 844 F.2d 1397,
1403 (9th Cir. 1988) (holding no Brady violation since
defendants could have recalled witnesses after
disclosure). Furthermore, Petitioners cannot allege a
Brady violation based on Detective Tauson’s interview
notes because the trial judge determined that they
were privileged and not subject to disclosure. (Hein
Pet., Ex. U at 218). Therefore, there was no Brady
violation based on the failure to disclose the Anderson
interview.

3. McLoren’s Marijuana Arrest During
Trial

Petitioner Hein contends that the prosecution
suppressed evidence that McLoren was arrested for
possessing and being under the influence of marijuana
on August 8, 1995. (Hein Pet. at 37-38; see also Hein
Pet., Ex. 5). Hein’s trial attorney, Jill Lansing, stated
in a declaration on September 17, 2002, that she did not
recall receiving McLoren’s arrest report, and that if
she had, she would have used it in her examination of
McLoren. (Hein Pet., Ex. Q). It appears that the
arrest report was among the discovery items listed by
D.D.A. Semow on September 15, 1995, a list which
included the immunity letter. (1 RT 100A).

However, even if Petitioner can show that the
arrest report was not disclosed by the prosecution,
Petitioner cannot show that it was material under
srady. The arrest showed that McLoren continued to

T4a

use marijuana after Farris’ death. However, McLoren
testified at trial about his regular use of marijuana. In
addition, MclLoren admitted that he had _ used
marijuana before an unexpected court appearance on
January 4, 1996, several months after his arrest. Given
that McLoren’s use of marijuana was brought out
during the direct and cross-examination of McLoren,
evidence of the August 1995 arrest would not have
significantly added to the impeachment such that non-
disclosure would create a reasonable probability that
the result of the proceeding would have been different.

Hein contends that the arrest was material because
it shows that McLoren was arrested but not
prosecuted for his marijuana possession. However,
Petitioner has not shown that McLoren was not
prosecuted or that the failure to prosecute was related
to this case rather than part of an ordinary diversion
program. Therefore even in combination with the
immunity agreement, there was not a reasonable
probability of a different result had evidence of the
arrest been disclosed. Because Petitioner cannot show
that the arrest report meets the materiality standard
under Brady, no relief is warranted on this claim.

IV. Knowing Use of False Testimony and

Argument

It is well established that “the state may not use
false evidence to obtain a criminal conviction.” Napue
v. Illinois, 360 U.S. at 269; see also Miller v. Pate, 386
U.S. 1, 7 (1967); Brown v. Borg, 951 F.2d 1011, 1015 (9th
Cir. 1991). Deliberate deception of a judge and jury is
“inconsistent with the rudimentary demands of
justice.” Mooney v. Holohan, 294 U.S. 103, 112 (1935).
In addition, the state violates a criminal defendant’s
right to due process of law when, although not

75a
soliciting false evidence, it allows false evidence to go
uncorrected when it appears. Hayes, 399 F.3d at 978
(citing Alcorta v. Texas, 355 U.S. 28, 78 (1957)).

Likewise, a prosecutor has a constitutional duty to
correct the false impression of facts. United States v.
LaPage, 231 F.3d 488, 492 (9th Cir. 2000). “It is of no
consequence that the falsehood bears upon the witness’
credibility rather than directly upon the defendant’s
guilt” because “[t]e jury’s estimate of truthfulness and
reliability of a given witness may well be determinative
of guilt or innocence, and it is upon such subtle factors
as the possible interest of the witness that a
defendant’s life or liberty may depend.” Hayes, 399
F.3d at 986 (citing Napue, 360 U.S. at 269).

Thus, a species of Brady error occurs when “the
undisclosed evidence demonstrates that the
prosecution’s case included perjured testimony and
that the prosecution knew, or should have known, of
the perjury.” Agurs, 427 U.S. at 103. To prevail on
such a claim, a petitioner must establish that the
prosecutor knowingly used perjured testimony, or
failed to correct what he subsequently learned was
false testimony, and that the falsehood was material.
Id., see also Mooney, 294 U.S. at 110.

A different and less strict standard of materiality
than that used in Brady is applied when the prosecutor
has knowingly used perjured testimony or has
knowingly failed to disclose that testimony used to
convict a defendant was false. Agus, 427 U.S. at 103-
04; Giglio, 405 U.S. at 154. When a prosecutor fails to
eorrect or uses false testimony, a conviction is
fundamentally unfair, and must be set aside, if there is
any reasonable likelihood that the false testimony could
have affected the judgment of the jury. Agurs, 427

16a

U.S. at 108-04; Kyles v. Whitley, 514 U.S. at 483 n.7.
Under this materiality standard, “the question is not
whether the defendant would more likely than not have
receiv

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_2746%3A1. Public record. Not legal advice.