SUSAN ILLSTON, District Judge.
Petitioner Marcos Reis-Campos, filed this petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. The Court ordered respondent to show cause. Dkt. No. 13. Respondent filed an answer denying the petition. Dkt. No. 16. For the reasons set forth below, the petition is DENIED.
In July 2007, petitioner, an inmate at Kern Valley State Prison, was convicted by a San Francisco Superior Court jury of second degree murder for the killing of a rival gang member, Luis Guillermo "Memo" Fuentes. His conviction included gang enhancements under California Penal Code sections 186.22(b)(1) and 186.22(d), and firearm enhancements under Penal Code sections 12022.5(a)(1) and 12022.53(d). Petitioner was also convicted of active participation in a criminal street gang in violation of Penal Code section 186.22(a). Petitioner was sentenced to fifty years to life in prison.
On November 9, 2007, petitioner filed a motion for a new trial. On December 14, 2007, the trial prosecutor informed petitioner's defense counsel that there "may be a federal informant who provided information to the Daly City Police Department about a shooting and that . . . [Fuentes] was the purported driver of the vehicle." Dkt. No. 7, First Am. Pet. ("Pet.") at 8. However, the prosecutor stated that the Daly City Police declined to provide further information about the ongoing investigation. Id. Petitioner's counsel, concerned that Fuentes's involvement in a retaliatory gang shooting might constitute exculpatory evidence, filed a motion seeking an evidentiary hearing regarding information the prosecution provided to defense counsel. Pet. at 20. The court denied the motion for an evidentiary hearing and the motion for a new trial. Pet. at 21.
On March 12, 2008, petitioner filed a timely direct appeal, in which the California Court of Appeal affirmed his conviction. Pet. at 21; Ex. A. The court affirmed the denial of an evidentiary hearing because the evidence, even if proven, was not material to establish petitioner's assertions that Fuentes's violent nature constituted evidence that petitioner acted in self-defense. People v. Reis-Campos, 2010 WL 5115183, at **9-11 (Cal. Ct. App. Dec. 15, 2010). Furthermore, the evidentiary hearing would not be necessary because there was "no indication the person with knowledge of the details of the undisclosed shooting" was one to whom a Brady obligation applied. Id. at *10. In March, 2011, the state supreme court denied review. Pet. at 21; Ex. B.
Following his appeal, petitioner secured additional information regarding the federal and state investigations and prosecution of the MS-13 gang. Pet. at 21-25. Petitioner then filed writs of habeas corpus in the court of appeal and this Court. See Dkt. No. 1. This Court stayed this case pending exhaustion of petitioner's state claims. Dkt. No. 2. On November 29, 2012, the court of appeal summarily denied petitioner's habeas petition. Pet. Ex. C. On February 13, 2013, the state supreme court summarily denied the petition. Pet. Ex. D. Now before the Court is the reopened petition.
In his petition, petitioner alleges that Fuentes's involvement in the unrelated shooting was known by Officer Mario Molina, who testified that he had no knowledge of a retaliatory shooting by Fuentes's gang against petitioner's gang at the criminal trial. Petitioner seeks a writ of habeas corpus on the grounds that the supreme court could not reasonably find that: (1) there was no Brady v. Maryland, 373 U.S. 83 (1963), violation for denying an evidentiary hearing; (2) the trial court, by preventing petitioner an opportunity to cross-examine Officer Molina about Fuentes's propensity for violence with an excluded FBI document, did not violate petitioner's right to confront witnesses against him; (3) Officer Molina's actual knowledge of Fuentes's involvement in the retaliatory shooting did not constitute a Brady violation; and (4) the prosecution did not fail to correct the false testimony of Officer Molina.
The following factual background is taken from the direct appeal order of the California Court of Appeal:
Reis-Campos, 2010 WL 5115183, at **2-7.
Petitioner argues that the trial court denied him the opportunity to cross-examine Officer Molina regarding his testimony about Fuentes's involvement in a retribution shooting in response to a Norteño gang killing of an MS-13 member with the moniker "Trucho." Pet. at 8.; Rep.'s Tr. ("RT") at 1095-96. Officer Molina testified that he was unaware of any retaliation against Norteños in response to Trucho's death. Pet. at 18.; RT at 1032. Petitioner claims that the federal informant referenced in the prosecutor's post-trial letter to defense counsel was a high ranking MS-13 member, Jaime Martinez, recruited by Officer Molina. Pet. at 9-10. In an October, 2005 interview with Officer Molina and a Daly City Police officer, Martinez claimed that shortly before Fuentes's death, Fuentes was a passenger in a car involved in a murder of a Norteño in Daly City in retaliation for Trucho's death. Pet. at 10. Furthermore, petitioner claims that Officer Molina had more information about Fuentes's violent nature than he disclosed at petitioner's trial. Pet. at 9. Molina testified at a 2011 RICO trial against seven MS-13 members, detailing MS-13's violent history. Id. The basis of his testimony was an investigation spanning from 2004-2008 known as "Operation Devil Horns." Id.
Petitioner also claims that before trial, his counsel obtained a heavily redacted FBI report describing how Fuentes had once posed undercover as a homeless person to participate in a gang shooting. Pet. at 41; Pet. Ex. H. The document also stated that Fuentes taught other Sureños the technique. Id. With this information, petitioner filed a motion in limine to cross-examine Officer Molina regarding his knowledge of Fuentes's reputation for violence in the community. Pet. at 41. The trial court denied the motion. Id. Petitioner avers that the prosecution argued that Fuentes was not known for being violent at trial. Pet. at 42.
A district court may entertain a petition for writ of habeas corpus "in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") amended § 2254 to impose new restrictions on federal habeas review. A petition may not be granted with respect to any claim that was adjudicated on the merits in state court unless the state court's adjudication of the claim: "(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d).
"Under the `contrary to' clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the] Court has on a set of materially indistinguishable facts." Williams (Terry) v. Taylor, 529 U.S. 362, 412-13 (2000).
"Under the `unreasonable application' clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. at 413. "[A] federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Id. at 411. A federal habeas court making the "unreasonable application" inquiry should ask whether the state court's application of clearly established federal law was "objectively unreasonable." Id. at 409. "A state court's determination that a claim lacks merit precludes federal habeas relief so long as `fairminded jurists could disagree' on the correctness of that decision." Harrington v. Richter, 131 S.Ct. 770, 786 (2011) (citation omitted).
"When a federal claim has been presented to a state court and the state court has denied relief, it may be presumed that the state court adjudicated the claim on the merits." Richter, 131 S. Ct. at 784-85. Generally, the court will look through summary denials of habeas corpus and review the last reasoned decision on the federal claim. Ylst v. Nunnemaker, 501 U.S. 797, 802 (1991) ("Where there has been one reasoned state judgment rejecting a federal claim, later unexplained orders upholding that judgment or rejecting the same claim rest upon the same ground."). But for state court decisions without any written decisions on the merits to reference, "a habeas court must determine what arguments or theories . . . could have supported, the state court's decision." Richter, 131 S. Ct. at 786. In cases in which the evidence before the reviewing court differs from the evidence before the court that made the last reasoned decision, the court "review[s] the reasonableness of the [court of summary denial] by the evidence that was before it, and [uses] the [last reasoned decision court's] reasoning in accordance with our usual practice of `looking through' summary denials to the last reasoned decision." Cannedy v. Adams, 706 F.3d 1148, 1159 n.5 (9th Cir. 2013) amended on denial of reh'g, 733 F.3d 794 (9th Cir. 2013) and cert. denied, 134 S.Ct. 1001 (2014).
Since the state court habeas petitions were summarily denied, the only "reasoned decision" the Court has to review in accordance with Ylst v. Nunnemaker is the direct appeal order.
Petitioner argues that the California state court could not reasonably find that Brady did not require an evidentiary hearing due to the prosecution's post-trial receipt of potential evidence regarding Fuentes's participation in an unrelated shooting. Pet. at 34. Respondent counters that the evidence, even if impermissibly suppressed, is not material. Dkt. No. 16-1, Mem. P. & A. in Supp. of Ans. ("Ans.") 15. Petitioner argues that the evidence is material because it helps corroborate petitioner's testimony that he feared Fuentes because of Fuentes's violent nature. Pet. at 38-39. Petitioner also contends that, after petitioner provided the court further information about the federal gang investigation, the state courts could not reasonably have found that there was no Brady violation. Pet. 45-46.
The California Court of Appeal held:
Reis-Campos, 2010 WL 5115183, at **9-11.
The appellate court's order provides ample reasoning in support of its determination that the denial of an evidentiary hearing was not a Brady violation in this case. To the extent that petitioner challenges the supreme court's habeas denial on grounds that there should have been an evidentiary hearing, Cannedy directs the Court to review the supreme court's denial in light of the new evidence but to look to the direct appeal order for the reasoning. See 706 F.3d at 1159.
Because the state courts summarily denied the habeas petition, the Court must now consider if there are any arguments or theories based upon which the state court could have reasonably denied petitioner's Brady claim. Richter, 131 S. Ct. at 786 (stating that, for state court decisions without any written decisions on the merits to reference, "a habeas court must determine what arguments or theories. . . could have supported, the state court's decision").
The government has an obligation to surrender favorable evidence that is "material either to guilt or to punishment," even if the defendant does not request disclosure of such evidence. Brady, 373 U.S. at 87; United States v. Agurs, 427 U.S. 97, 107 (1976). To establish a Brady violation, the defendant must show that (1) evidence favorable to the defense; (2) was suppressed by the state, either willfully or inadvertently; and (3) the suppression resulted in prejudice. Morris v. Ylst, 447 F.3d 735, 741 (9th Cir. 2006). The police have a Brady obligation to turn over evidence not known to the prosecution when acting on the government's behalf. Kyles v. Whitley, 514 U.S. 419, 437 (1995); Phillips v. Ornoski, 673 F.3d 1168, 1186-87 (9th Cir. 2012) (citing Jackson v. Brown, 513 F.3d 1057, 1072 (9th Cir. 2008)). Evidence is material "if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." United States v. Bagley, 473 U.S. 667, 682 (1985) (citation omitted). A "reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. (internal quotation marks and citation omitted).
The California Supreme Court could have reasonably found that denial of an evidentiary hearing was proper under Brady because the claimed evidence would not be material. Even with the newly revealed contents of the suppressed evidence, the supreme court could still reasonably conclude that there was not "a reasonable probability that the suppressed evidence would have produced a different verdict." See Strickler v. Greene, 527 U.S. 263, 281 (1999). While the new evidence provided with the habeas petition adds inferences that the person with knowledge of potentially exculpatory evidence was Officer Molina,
Petitioner's main contention is that he testified about how his prior interactions with Fuentes caused his fear of Fuentes, but that, without further evidence of Fuentes's violent behavior, the jury may have disregarded his testimony. Pet. at 38-39. However, the direct appeal order notes that "there was considerable evidence at trial showing Fuentes's violent nature." See Reis-Campos, 2010 WL 5115183, at *9. On review of the record, the jury knew about Fuentes's involvement with MS-13 and that the gang was violent, in particular with regard to its feud with the Norteños. See, e.g., TR at 1022 (Fuentes was a "shot caller"); 1075-76 (MS-13 is responsible for homicides and is retaliation oriented). Thus the supreme court could reasonably have found that additional evidence was unnecessary to convince the jury that Fuentes was violent in general.
Petitioner's evidence is repetitive and does not enhance or add credibility to what the jury already knew about Fuentes's propensity for violence against Norteños in general. Nor does it corroborate petitioner's testimony about Fuentes's personal threats and attacks on petitioner. Indeed, the court of appeal noted that evidence corroborating petitioner's testimony about Fuentes's personal threats was admitted at trial. See Reis-Campos, 2010 WL 5115183, at *10 ("A police officer testified that on the same day as the May 22, 2004 shooting [at petitioner], he stopped a car matching the description of the vehicle involved in that incident and encountered Fuentes and another Sureno inside."). Because Fuentes's actions in an unrelated incident were not inconsistent with what would have to be attributed to him as a gang member by the jury, the supreme court could reasonably have found, under Brady, that the evidence would not have a material effect on the jury's perception of Fuentes's treatment of petitioner.
Petitioner also claims that he could have impeached Officer Molina's testimony and discredited the prosecution's argument that Fuentes was nonviolent. Pet. at 39. The Court disagrees. First, the court of appeal reasonably concluded that Officer Molina did not testify that Fuentes was nonviolent; instead, Molina was brought in to testify as to his opinion regarding whether the killing was gang-related. See Clerk's Tr. at 097, People's Mot. In Limine (prosecution desired to call Officer Molina, as a gang expert, to testify about gang affiliation, membership, and existence of gang). Furthermore, the reviewing court could reasonably conclude that Officer Molina's testimony, as argued by the prosecution in attempting to establish that Fuentes was not a violent gang member, could have been interpreted by the jury as only applying to Fuentes at the specific moment he was walking down the street with his child on the day of his death. See TR at 1476 (prosecutor rhetorically asking the jury "What's a 30-year old guy with a kid gonna do to a rival gang member who's armed with a gun? Not much, because his hands are tied because of that child's presence.").
Petitioner's reliance on Cone v. Bell, 556 U.S. 449, 471 (2009), in support of his argument is misplaced. In Cone, the petitioner argued that suppressed evidence of his drug use directly contradicted the prosecution's assertion that he was not a drug addict. Id. Here, however, the supreme court could have reasonably found that the prosecutor's argument that Fuentes was not engaging in typical gang behavior at the time he was shot, did not contradict the fact that Fuentes was a violent gang member at other relevant times. Petitioner's evidence would only rebut an argument that Fuentes always acted as a regular family man, but there was already evidence in the record suggesting that Fuentes was a gang member with violent tendencies. Officer Molina's testimony that the gang code of conduct forbids violence around families and that violence is typically administered in groups could not be rejected by the jury due to any knowledge that the jury had about Fuentes' otherwise violent propensities.
Accordingly, the Court finds that the other courts reasonably denied petitioner's claims.
When a California court summarily denies a habeas petition on the merits without establishing the truth of the claims, it holds that "`the claims made in th[e] petition do not state a prima facie case entitling the petitioner to relief.'" Cullen v. Pinholster, 131 S.Ct. 1388, 1402 n.12 (2011) (citing In re Clark, 5 Cal.4th 750, 770 (1993)). Thus "the [state] court generally assumes the allegations in the petition to be true, but does not accept wholly conclusory allegations, and will also `review the record of the trial . . . to assess the merits of the petitioner's claims.'" Id. (citing People v. Duvall, 9 Cal.4th 464, 474 (1995); Clark, 5 Cal. 4th at 770).
For the reasons mentioned above, the Court has found that the appellate court's reasoning is sufficient to find that the new evidence, even assuming its truth, was not material. Therefore, the supreme court had reasonable grounds to deny the petitioner's claims under the Richter standard. As stated above, although the new evidence helps establish the veracity of petitioner's claims, and identifies Officer Molina as having knowledge of the evidence, the new information was not material.
The Court must presume that the supreme court's denial amounted to a holding that petitioner failed to establish a prima facie claim to relief. Pinholster, 131 S. Ct. at 1402. Thus, petitioner is not entitled to an evidentiary hearing on this matter.
Petitioner next asserts that his Sixth Amendment right to confrontation was violated when he was prevented from cross-examining the prosecution's gang expert about Fuentes's violent past using an FBI document. Pet. at 44-45. The document contains information that Fuentes taught other Sureños how to commit undercover shootings. Pet. Ex H. Petitioner notes that Officer Molina testified that he was unaware of Fuentes's reputation for violence. Pet. at 41. Petitioner argues that this testimony, without an opportunity for cross-examination, was prejudicial because the prosecution used that testimony in arguing that Fuentes was not a violent gang member, but instead was a "family man" and a painter. Pet. at 42. Respondent first notes that although petitioner's initial motion dealing with this issue was denied, petitioner had an opportunity to revisit the issue once there was proper foundation for its introduction. Ans. at 27. Additionally, respondent asserts the evidence could only have been received for a limited purpose, and not for its truth, and therefore would not have had a substantial impact on the jury's verdict. Ans. at 29-30.
The Court of Appeal also addressed this issue on direct appeal:
Reis-Campos, 2010 WL 5115183, at **11-12.
The "Confrontation Clause guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish." Delaware v. Fensterer, 474 U.S. 15, 20 (1985) (per curiam). Accordingly, "trial judges retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on such cross-examinations based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness' safety, or interrogation that is repetitive or only marginally relevant." Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986).
A court violates the "Confrontation Clause only when it prevents a defendant from examining a particular and relevant topic." Fenenbock v. Dir. of Corr., 692 F.3d 910, 919 (9th Cir. 2012). Indeed, a limitation on cross-examination that excludes testimony on a particular topic might violate the rule that "[r]estrictions on a criminal defendant's rights to confront adverse witnesses and to present evidence `may not be arbitrary or disproportionate to the purposes they are designed to serve.'" Michigan v. Lucas, 500 U.S. 145, 151 (1991) (quoting Rock v. Arkansas, 483 U.S. 44, 56 (1987)). A defendant meets his burden of showing a Confrontation Clause violation by showing that "[a] reasonable jury might have received a significantly different impression of [a witness's] credibility . . . had respondent's counsel been permitted to pursue his proposed line of cross-examination." Van Arsdall, 475 U.S. at 680; Slovik v. Yates, 556 F.3d 747, 753 (9th Cir. 2009). The focus of this inquiry "must be on the particular witness, not on the outcome of the entire trial," Van Arsdall, 475 U.S. at 680, such that defense counsel's ability to impeach other witnesses "is irrelevant" to whether the trial court violated the Confrontation Clause, Slovik, 556 F.3d at 754. A limitation on cross-examination does not violate the Confrontation Clause unless it limits relevant testimony and prejudices the defendant, and denies the jury sufficient information to appraise the biases and motivations of the witness. United States v. Urena, 659 F.3d 903, 907-08 (9th Cir. 2011).
"State and federal rulemakers have broad latitude under the Constitution to establish rules excluding evidence from criminal trials." Holmes v. South Carolina, 547 U.S. 319, 324 (2006) (quotations and citations omitted). Accordingly, the Supreme Court "has never held that the Confrontation Clause entitles a criminal defendant to introduce extrinsic evidence for impeachment purposes." Nevada v. Jackson, 133 S.Ct. 1990, 1994 (2013). Instead, a defendant need only be provided "a meaningful opportunity to present a complete defense." Crane v. Kentucky, 476 U.S. 683, 690 (1986). Under the AEDPA, a state court's ruling should be disturbed due to "new evidence presented for the first time in federal court[,] only if such new evidence amounts to clear and convincing proof that the state-court finding is in error." Taylor v. Maddox, 366 F.3d 992, 1000 (9th Cir. 2004).
The Court must review the state supreme court's habeas denial on the Confrontation Clause issue looking at the reasoning of the direct appellate order, but in light of the evidence before the supreme court on habeas. Because there is no clearly established United States Supreme Court precedent on the right to introduce extrinsic evidence to confront witnesses, the Court reviews the denial of the extrinsic evidence based on the broader right to present a meaningful defense.
Here, the state supreme court could have reasonably concluded that denying petitioner the ability to introduce evidence of Fuentes's violent past did not violate petitioner's confrontation right. A state trial court has substantial discretion in making evidentiary findings. See Ortiz-Sandoval v. Gomez, 81 F.3d 891, 897 (9th Cir. 1996) ("[A] petitioner for federal habeas relief may not challenge the application of state evidentiary rules . . . ."). As explained by the Court of Appeal, the trial court's decision did not prevent petitioner from admitting the evidence when its relevance was clearer.
The Court finds that the supreme court could have reasonably determined that the trial court did not err in preventing petitioner from introducing extrinsic evidence about Fuentes's violent past. At the pretrial hearing, it was unclear what relevance the FBI report would have to petitioner's self-defense claim. Nonetheless, the issue was left open by the trial court. See TR 272-73 (trial judge explaining exclusion: "If there is evidence of [imperfect self-defense,] I'm sure it will come out, and I suspect that my ruling in this regard is merely postponing what might well be inevitable, and these in limine motions are really preliminary."). Once the introduction of a self-defense argument at trial undermined the justification of the trial court's pretrial holding, the defense was permitted to renew its motion, but apparently chose not to do so. The supreme court could have reasonably concluded that the defense strategy was to argue for self-defense on separate evidence and that it was therefore not the trial court's preliminary ruling that precluded the introduction of the FBI report. Even if the exclusion of the report during the initial motion in limine was final, the state supreme court could have found that the petitioner nevertheless had sufficient evidence to mount a meaningful critique of Officer Molina's testimony because of the ample evidence of Fuentes's gang affiliations that was introduced at trial.
Additionally, even if the FBI report had been admitted, its use would have been limited to challenging the credibility of Officer Molina's opinion. See Korsak v. Atlas Hotels, Inc., 2 Cal.App.4th 1516, 1524-25 (1992) ("Although experts may properly rely on hearsay in forming their opinions, they may not relate the out-of-court statements of another as independent proof of the fact."). The assertions in the FBI report do not indicate that Officer Molina would know of Fuentes's violent tendencies, thus limiting the impact that any cross-examination could have had on the jury's credibility determination. Nor does the report significantly undermine Officer Molina's competence as an expert. The report could not have been introduced for its truth, and as the court of appeal found, the jury already had ample evidence indicating that Fuentes was more violent than Officer Molina's knowledge indicated. Although the Court believes the better practice would have been to permit the defense to confront Officer Molina with this evidence, the supreme court could have reasonably concluded that introduction of this evidence would not have changed the jury's opinion as to Molina's credibility.
Petitioner disagrees with this assessment and contends that California evidence law would have required admitting this report as evidence of the victim's prior behavior as it related to petitioner's self-defense claim. Pet. at 42-43. However, even assuming the evidence would have been admissible on the issue of self-defense, the Court's review of a state court's evidentiary decision on new evidence is limited to the extent the excluded evidence would have been "highly probative and central to petitioner's claim" of self-defense. See Taylor, 366 F.3d at 1001. Here, the court of appeal found that the record contained ample evidence of Fuentes's propensity for violence toward others, thus the new evidence was duplicative and not highly probative.
Petitioner further argues that the FBI report also imposed an obligation on the prosecution not to argue that Fuentes was non-violent. In Miller v. Pate, 386 U.S. 1, 6 (1967), the Court found a violation of Fourteenth Amendment Due Process when the prosecution knew that clothing in evidence was stained with paint, not the victim's blood, but argued it was blood anyway. By contrast, here the supreme court could have found that the prosecution did not make unwarranted arguments because the prosecution's arguments about Fuentes were not aimed at establishing that he had a non-violent nature generally, but rather that Fuentes would not have acted violently when accompanied by his young child, as he was during the incident in question.
Accordingly, the Court finds that the exclusion of the FBI report did not deny petitioner his right to cross-examine Officer Molina.
Petitioner argues that Officer Molina's testimony was false and that the prosecution failed to correct the false testimony. Pet. at 53. Respondent disagrees that the testimony was in fact false. Ans. at 33.
"A judgment of conviction based on testimony known by representatives of the state to be perjured deprives the defendant of due process of law." Mooney v. Holohan, 294 U.S. 103, 112-13 (1935). When a conviction is obtained by the use of testimony that the prosecutor knew or should have known was perjured, the conviction is set aside if there is a reasonable likelihood that the judgment of the jury was affected by the testimony. See United States v. Agurs, 427 U.S. 97, 103 (1976). This is the result even if the prosecutor, though not soliciting false evidence, does not correct such evidence when it is presented. Napue v. Illinois, 360 U.S. 264, 269 (1959). A prosecutor has a duty under the Constitution to correct false evidence if the prosecution knows its witness has lied. United States v. LaPage, 231 F.3d 488, 492 (9th Cir. 2000).
"To prevail on a claim based on Napue, the petitioner must show that (1) the testimony (or evidence) was actually false, (2) the prosecution knew or should have known that the testimony was actually false, and (3) that the false testimony was material." United States v. Zuno-Arce, 339 F.3d 886, 889 (9th Cir. 2003) (citing Napue, 360 U.S. at 269-71). "Material" means that there is a reasonable likelihood that the false evidence or testimony could have affected the judgment of the jury. Morris, 447 F.3d at 743. Knowledge of the falsity is imputed to all the attorneys on the prosecuting team. Giglio v. United States, 405 U.S. 150, 154 (1972).
The Court reviews this claim using the Richter standard because there is no reasoned decision on the merits of the Napue claim. See 131 S. Ct. at 786 (stating that, for state court decisions without any written decisions on the merits, the reviewing court "must determine what arguments or theories. . . could have supported, the state court's decision"). If there was any reasonable basis for the supreme court to deny the claim, the Court may not disturb that decision.
The supreme court could have reasonably concluded that Officer Molina's testimony was not false. At trial, the prosecution asked Office Molina, "[D]o you have an opinion whether M.S. extracted any retaliation for Trucho's [a Sureño] murder from the time Trucho was murdered until the point in time that Memo [Fuentes] was murdered?" TR 1032. Molina responded, "I cannot think of any incident right now, but that doesn't mean it didn't happen. I just cannot think of any." Id. Petitioner's claims, taken as true, establish that, prior to his testimony in this case, Officer Molina was present when a confidential informant stated that a drive-by shooting death of a Norteño was retaliation for Trucho's death. See Pet. Ex. J. However, Officer Molina's recall of this meeting could have failed for a variety of reasons, and his inability to recall this statement on the stand does not necessarily mean that he presented the jury with perjured testimony. Thus, the supreme court could have found his testimony not to be false — even if at other times he remembered it — and held that there was no false testimony to correct. If the supreme court so found, then petitioner's further argument that Officer Molina's knowing introduction of false testimony should be attributed to the prosecution also fails. Accordingly, the Court finds that the supreme court had a reasonable basis for denying petitioner's Napue claim.
A certificate of appealability will not issue. See 28 U.S.C. § 2253(c). This is not a case in which "jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural [rulings]" in the order of dismissal or in this order. Slack v. McDaniel, 529 U.S. 473, 484 (2000). The denial of the certificate of appealability is without prejudice to petitioner seeking a certificate from the Ninth Circuit.
For the foregoing reasons and for good cause shown, and on the basis of the record before it, the Court hereby DENIES the petition for a writ of habeas corpus.
