F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

R I C A R D O R E N E S A N D E R S , Petitioner-Appellant

,

v.

V I N C E C U L L E

N , Acting W arden, R espondent-Appellee. No. 10-99009

D.C. No. 2:96-cv-07429-J F W

OPI NI ON

A ppeal from the United States District Court for the Central District of California J ohn F . W a lter, District J udg e, Presiding

Arg ued and Submitted May 11, 2017 Pasadena, California

F iled October 13, 2017

B efore: Morg a

n Christen, J acqueline H. Ng uy en, and Paul J . W atford, Circuit J udg es.

Opinion by J udg e ChristenS A N D E R S V

. C U L L E

N 2

SUMMARY *

Habeas Corpus / Death P enalty

The p anel affirmed the district court’s denial of Ricardo Rene S a n d e r s’s habeas c o rpus petition c halleng ing his conviction and death sentence for four counts of first-deg r ee murder.

The p anel held that be c a

use Sanders failed to prove that
any o f four ey e witnesses provided material, false testimony

or that the prosecution knew they committed perjury

, the state court’s rejectio n o f Sanders’s claims under Mooney v

. Holohan

, 294 U.S. 103 (1935), and N a p u e v

. I llinois

, 360 U

. S

. 264 (1959), relating to those ey e witnesses was neithe r contrary to c learly established f ederal law nor objectively unreasonable. The panel held that the state c ourt reasonably denied Sanders’s Mooney

- Napue claims relating to two noney ewitnesses.

The panel held that the state court reasonably denied Sanders’s c laims that the prosecution violated Brady v

. Maryland

, 373 U.S. 83 ( 1963), by failing to disclose material,

ex c u lpatory impeachment evidence a bout five trial witnesses.

The panel held that the state court reasonably denied Sanders’s claims relating to the ex posure of two ey ewitnesses, wh o p rovided in-court identifications o f S an d e rs, to a g ag photog raph of Sanders and a codefendan t holding fake g uns. The panel wrot e t hat assuming that the

* T h is su m m ary co n stitu

tes n o p art o f th e o pin io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.S A N D E R S V

. C U L L E

N 3

ey ewitnesses’ ex posure to the p hotog raph was ex culpatory evidence that was not disclosed, Sanders did not demonstrate that it was material u n d e r Brady because the ey ewitnesses identified Sanders at a lineup before they saw the photo.

R e g a r d ing Sanders’s claim that he w as entitled to relief under Mesarosh v. United States
, 352 U.S. 1 (1956), which applies in those rare situations where the credibility of a key
g overnment w itness h as been wholly discredited by the witness’s c o m m i s s ion of perjury in other cases involving substantially similar subject matter, the panel h e ld that the
state court could h a v e reasonably disting uished this case from Mesarosh

.

The panel held that the state court reasonably denied Sanders’s claim that the prosecutio n fa i led to preserve a witness’s lineup card in bad faith.

The panel held that the state court reasonably denied Sanders’s claim u nder Massiah v. United States
, 377 U.S. 201 (1964), that the prosecution planted a witness nex t to Sanders in a jailhouse van after Sanders’s preliminary hearing in order
to obtain an incriminating statement in violation of his Six th Amendment rig ht to counsel.

Reg arding Sanders’s claim that counsel was i n effective f o r failing to move to suppress a lineup, the panel held th at the state court could have reasonably determined that defense counsel did not render deficient performance by f ailing to file a motion that was unlikely to succeed.

The p anel co n cl u ded that b ecause Sanders did not show that there were multiple deficiencies in his g uilt-phase trial, cumulative error does n ot require reversal of his convictions.S A N D E R S V

. C U L L E

N 4

COUNSEL

V erna J

. W efald (arg

ued), Pasadena, California; W illiam J

. Geneg o, Santa Monica, California; for Petitioner-Appellant.

Dana Muhammad Ali (arg ued), Michael J

. W ise, and A. Scott Hay ward, Deputy Attorney s General; L ance E. W inters, Senior Assistant Attorney General; Gerald A. Eng le r , Chief Assistant Att o r n e y General; Office of the Attorney General, L os Ang eles, California; for Respondent-Appellee.

OP INION

CHRI STEN, Circuit J udg e:

Ricardo Rene Sanders appeals from the di s t r i c t court’s denial o f his petition for a writ o f habeas corpus under 28 U.S.C. § 2254. Sanders was convicted of fo u r co unts o f first-deg ree murder in 1 982 stemming f rom his involvement in a robbery at a B ob’s B ig B oy restaurant in December 1980. He is currently

on death row in California.

The witnesses ag ainst Sanders at trial included four
ey ewitnesses and two informants. Sanders did not present an alibi; instead, he arg ued th a t the ey e witnesses incorrectly identified him as one of t h e g unmen and the police arrested the wrong p erson. Sanders’s trial coun sel attacked the
accuracy of the ey ewitness identifications and the informants’ credibility throug h vig o r o us cross-ex amination. I n his federal habeas petition, Sanders continues to attack both.

Sanders’s petition a

rg u e s that the prosecution knowing ly used perjured testimony f rom witnesses at his trial inS A N D E R S V

. C U L L E

N 5

violation of Mooney v. Holohan

, 294 U .S. 1 0 3 (1935), a nd N a p u e v. Illinois

, 360 U.S. 264 (1959), and that the Sta t e failed to disclos e material, ex c ulpatory information a s required by B rady v

. Maryland

, 373 U.S. 83 (1963). Sanders als o arg ues that the p rosecution improperly influenced two incourt identifications, failed to p reserve ex culpatory evidence and p lanted a jailhouse informant in a v an with San d e r s to obtain an incriminating statement from him. F inally

, Sanders raises one ineffective assistance of counsel clai m f or the failure to m o v e to suppress ey ewitness identifications made
at a lineup shortly after the c r i m e o ccurred. B e cause we conclude that the California Supreme Court’s r e solution o f Sanders’s claims was n o t contrary to clearly e stablished federal law nor based o n an unrea s o n a b le d etermination o f the facts, w e a f

f i rm the district c ourt’s denial of the petition for a writ of habeas corpus.

BACK G ROUND

I. F acts

At around 2 a

. m. o n December 14, 1980, there was an armed robbery at B ob’s B ig B oy restaurant on L a Cieneg a B oulevard in L os Ang eles, California. 1 Two customers a nd nine employ e es were inside when two men forced their way into the restaurant, j u st as it was closing

. F our of these individ uals died as a result of injuries suffered d u ring the

course of the robbery

. F o ur of the surviving w itnesses identified Sanders at trial: T a mi Rog o w ay , one of the

1 T h e f o llo w in g acco u n t of t h e c r i m e i s d eriv ed f ro m Peo ple v. S a n d ers , 9 0 5 P .2 d 4 2 0, 4 2 8

– 3 1 (Cal. 1 9 9 5 ).S A N D E R S V

. C U L L E

N 6

customers; Michael Ma l l o y , the nig ht manag er; Rhonda Robinson, a waitress; 2 and I smael L una, a busboy

. 3

Nig ht manag er Malloy was in the o f f i ce preparing to count money from the cash reg ister when the cook, Der win L og an, told Malloy that the two remaining customers wanted
to be let out. As the door opened, two robbers s h o v e d their
way in s i d e

. T he r obbers did not wear masks or otherwise

cover the i r f

aces. The taller of the two men (alleg edly Sanders) said, “I t’s a jack. I t’s a stickup.” He g rabbed the key s an d the shorter robber (alleg edly codefendant F ranklin F reeman J r.) hit one of the e mploy ees on the h e ad with the butt of his shotg un.

The taller robber took Mall oy , Rog oway , L o g a n, a nd David B urrell, the other c u s t o m e r , to the back of the
restaurant and ordered them to lie on the floor in a hallway outside of a walk-in freez er and the office. He asked for the
manag er and Malloy stood up. The taller r o bber ordered Malloy to g ive him the money in the safe, which amounted to roug h ly $1,300. Some of the coins were wrapped in B ank o f America coin wrappers.

The taller robber then told Malloy

, Rog oway , L o g a n, a nd B urrell to “g et up off the floor . . . W e are g oing to the back.

2 R h o n d a Ro b in so n w as m arried af ter th e crim e o ccu rred an d ch an g ed h er last n a m e

. T h is o p in io n ref ers t o h er as “ Ro b in so n ” th ro u g h o u t f or

co n sisten cy

.

3 Ism ael L u n a’ s real n am e is Mo ren o L u n a Co rtez. He u sed h is old er b ro th er’ s n am e to o b tain em p lo y m en t at B o b ’ s B ig B o y b ecau se h e w as to o y ou n g to w o rk at t

h e restau ran t. He rev ealed h is real n am e p a rtw ay th ro u g h San d ers’ s g u ilt- p h ase trial. B ecau se th e w itn esses at trial ref erred
to h im as “ Ism ael L u n a,” th is o p in io n d o es as w ell.S A N D E R S V

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N 7

You’re g oing to g et hurt.” He directed them into the freez er, where the employ ee w ho had been hit with the rifle was ly ing

on the floor unconscio u s

. T he rest of the employ ees were waiting there as w ell. The taller robber said: “ I wa nt watches, wallets, and jewelry .” Malloy g athered the items in a bucket, and handed it to the taller robber. N o one resisted, but some people pleaded fo r t h e robbers not to h urt them. The robbers ordered every one to turn a

round to face the w all and k neel. The two men then fired their g uns into the backs of the g roup until they ran o u t of ammunition. Then they closed the freez er door and left.

I nside the freez er pe o p l e l ay piled on top of each other and on the floor. One of the cus t o mers and two employ ees

were dead. I smael’s father, Cesar i o L u na, who was also a restaurant employ ee, died several m o n ths later from

c omplications related to a bullet wound in his brain. Ni gh t manag er Malloy was shot in the rig h t e y e, which he lost. Rog oway , the other customer, suffered shotg un injuries to her back a nd spine, r esulting in numbness o n h e r rig ht side a nd the periodic inability to walk. T w o o t her employ ees sustained serious injuries, including Dionne I rvin, a waitress. The three r emaining v i c t ims—I smael L una, Robinson, a nd L og an—were phy sically

unharmed.

A. The Initial Investigation

L a t e r t h at day

, the police showed many of the
ey ewitnesses photog raphs from the W es t L os Ang eles Division CRASH b ook, 4 which contained photog raphs o f

4 “ CRA SH” stan d s f

o r “C o m m u n ity Reso u rces A g ain st Street Ho o d lu m s,” a g an g rep ressio n u n i t a t t h e L o s A n g eles Po l i ce Dep artm en t’ s W est B u reau

.S A N D E R S V

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N 8

suspected g ang members in the W est L os Ang e les area. The book d i d n o t include photos o f Sanders or codefendant F reeman. Rog oway , R o b i nson, and L og an all selected photog raph No. 1 32 a s the taller r obber. Photog raph No. 132 depicted a ma n n a m ed David Hall, a person who bore a striking r esemblance to Sanders according to the sta t e trial
court.

On the morning after the robbery , the police interviewed several Bo b ’s B ig B oy e mploy ees who were not at the
restaurant during the robbe r y t he nig ht before. The employ ee s sug g ested that a former w aitress, codefendant Carle tha Stewart, may have been involved in the crime. Stewart and Sanders were dating at the time o f t h e robbery and F reeman was Stewart’s c o usin. None of the employ ees mentioned Sanders or F reeman as possible suspects.

B r enda Givens, a waitress at B ob’s B ig B oy , w orked with Stewart at the restaurant f

or several months. Givens provided

a statement to the police a bout an enco u n t e r she had with Stewart in September 1980, when she ran into Stewart while visiting her boy friend at L os Ang eles County J ail. 5

According to Givens, Stewart said that it w a s a “ go od thing ” that the two women ran into each other “because they
g onna rob B o b’s B ig B oy tonig ht.” Stewart told G ivens that she did n o t w ant Givens to g et hurt, but did not say w ho

5 Giv en s to ld a p riv ate in v estig ato r w o rk in g f o r co d ef en d an t Freem an th at th is en co u n t er to o k p l ace in th e f irst t w o w eek s o f Sep tem

b er, bu t sh e testif ied at San ders’ s trial t

h at it h a p p en ed th e sam e d ay th at an o th er

m u rd er to o k p lace n ear th e B o b ’ s Big B o y restau ran t. T h is o t h er m u rd er to o k p lace a f

ew b lo ck s f

ro m Bo b ’ s B ig B o y on S e p tem b er 2 7
, 1 9 8 0
, aro u n d 9 :1 5 p .m

.S A N D E R S V

. C U L L E

N 9

specifically was g oing to rob the res t a u r a n t

. At Sanders’s
t r ial, Givens testified that two men were at the jail wi t h Stewart on the day Stewart warned her about the robbery

, but the men were n ot present for the c onversation. Givens testified that she told the police a bout the two men w hen she

was interviewed on Decem ber 14, but the men were not mentioned in her sig ned statement. 6

O n the same day Givens saw Stewart at the jail

, s h e reported for her evening shift at B o b’s B ig B oy and told four
manag ers about her conversation with Stewart. Store
manag er Kim Clark and nig ht manag er Rodell Mitchell were among the manag ers to whom Givens reported. According to Givens, Stewart came to the r e staurant that nig ht w ith another

man at around 11:30 p .m. G i v ens later learned the man’s name was Andre Gilcrest.

Givens testified that Stewart called her a f ter leaving the
restaurant with Gilcrest that evening

. Sh e a sked what time Givens would b e leaving and how many employ ees remained in the restaurant, and Givens answered that she did not k now. Givens recalled stay ing until af t e r the restaurant closed at 2 a.m. a n d remembered that Stewart knocked on the front door and window shortly after closing while employ ees were cleaning their assig ned stations. T h e door was locked a nd

6 Bef o re San d ers’ s trial, Giv en s to ld a p riv ate in v estig ato r w o rk in g f or Freem an th at Stew art w as alo n e o n th e d ay th at s h e w arn ed Giv en s ab o u t th e ro b b ery , an d th at s h e saw Stew art at th e j ail w ith o n e m an o n a d if f eren t d ay

. Sh e a t t e n d e d a lin eu p w ith San d ers an d Freem an on Decem b er 23
, 1 9 8 0
, an d selected b o t h

. O n th e lin eu p card id en tif

y in g Freem an , sh e w

ro te “ I h av e seen h i m an d Carleth a b o th at th e Co u n ty J ail

w h ile I w as v isitin g .” Sh e d id n ot w rite an y s i m i lar co m

m en ts on San d ers’ s lin eu

p card

.S A N D E R S V

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Mitchell did not open the door. Stew a r t l eft before Givens went home. 7

B. Andre Gilcrest Implicated Sanders Shortly After the Crime

W ithin day s after the December 1 4 robbery

, several other individuals came forward w ith information implicating Sanders. On D ecember 20, 1 980, Andre Gilcrest went to the L os Ang eles Police Department ( L APD) and g a ve a statement implicating San d e r s , Stewart, a nd F reeman. Gilcrest was Stewart’s ex

- boy friend and he had been romantically involved with h er on and off for a b out five y ears. A ccording
to G ilcrest, he went with Stewart to B ob’s B ig B oy sometime before the robbery

. Gilcrest could not r ecall the precise date of this nig httime visit, but, like Givens, he recalled that there had been another murder a few blocks away that nig ht.

Gilcrest was g iven immunity and testified at Sanders’s trial. H e testified that b efore he and S t e w art went to the
restaurant on September 27, Stewart told him that Sanders

an d Freeman were g oing to rob B o b’s B ig B oy that nig ht. Gilcres t described g oing with Stewart to the restaurant between 11:30 p.m. and 12:30 a.m. to drink c o f f ee because S t ewart wanted to see how many people were working. Gilcrest testified that while they w ere there Stewart asked the waitresses which manag ers w e re working and h ow many people were still there. They left about fifteen minutes before

7 Mitch ell also testif

ied at San d ers’ s trial ab o u t Stew art’ s v isit t o th e restau ran t w ith G ilcrest o n Sep tem b er 2 7
, 1 9 8 0

. T h e p arties stip u l ated th at if called t o testif

y , sto re m an ag er K im C lark w o u ld h av e co n fi r m ed th at h e w as p resen t w ith Mitch ell w h en Giv en s t o ld th em ab o u t h er

co n v ersatio n

w ith Stew art at th e L o s A n g eles Co u n ty J ail.S A N D E R S V

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N 11

closing and w ent t o S tewart’s house. G ilcrest believed that the robbery would take place a f t e r they left, and he testified that he saw Sanders and F reeman at Stewart’s house later that nig ht. Gilcrest saw Stewart talking to Sanders and F reeman in a blue Cadillac, and als o saw Sanders show Stewart a

s awed-off, short-barrel shotg u n. According to Gilcrest, F reeman also had a short-barrel shotg un braced ag ai n st his leg

. G il cr est testified that after Sanders and F reeman left, Stewart said that they had g one to rob B ob’s B ig B oy

. W h en they did not return within an hour, Stewart told Gilcrest that she was g oing to B ob’s B ig B oy to find them. According to Gilcrest, Stewart d id not find them at the res taurant, but Sanders called Stewart later that nig ht to report that they did
not g o throug h with the robbery because the manag er did not

come o ut. Gilcrest and Stewart did n o t discuss the ro b bery
ag ain.

Gilcrest heard about the December 1 4 robbery a t B o b’s B ig B o y the day after the crime and he tol d h is y oung er brother a bout what had happened when h e w e nt to the
restaurant with Stewart on September 2 7

. The brother told their mother, and she confronted Gilcrest with the ultimatum that sh e w o u l d call the police if Gilcrest did not come forward. Gilcrest contacted the police roug hly two day s later.

C. Sanders’s Arrest

On December 22, 1980, roug hly one w eek after the crime, the police a r r e s t e d Sanders, Stewart, a nd F reeman. Sanders testified at a p r e t r i al motions hearing that he did not resist, but police officers k icked and b eat him with a shotg un during the course of the arrest. At trial the p arties stipulated that Xray s of Sanders’s chest taken on December 24, 1980, showedS A N D E R S V

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three fractured ribs a n d subcutaneous emphy sema, which is a ty pe of swelling b elow the skin.

The police also ex ecuted search warrants at Sander s’s, Stewart’s, and F r eeman’s residences. T hey found a sawedoff shotg un, a full-leng t h shotg un, a n d shotg un shells in Sanders’s bedroom, and additional sho t gun rounds and an empty holster in h is father’s bedroom. The police f ound another shotg un at F reeman’s father’s house, but the State’s ballistics ex pert acknowledg ed that he could not connect any of the g u ns or a mmunition to the B ob’s B ig B o y robbery

. At Stewart’s residence, the police found $ 90 in $1 bills and rolls of coins in B a

nk of A m e r i c a w rappers. The money was not conclusively linked to the crime, a n d n o jewelry or other personal property

belong ing to the victims was found.

D. The December 23, 1980 Lineup

The L APD held a lineup that included Sanders a nd F reeman on December 23, 1980, the day a f t e r their arrest. The lineup consisted of two lines: L ines 3 a n d 4. 8 Sanders

was Number 4 in L ine 3 and F r eeman was Number 3 in L ine 4. The other men in Sanders’s l i n e w ere of similar heig ht, weig ht, build, a

nd complex ion to Sanders. They all h ad some facial hair. Sanders was the only one in his line with a J heri curl hairsty le, but the suspects had similar l e n gth hair. Sanders was also the only person not w earing shoes. H is feet

were not visible in the videotape of the lineup. All of the men in the lineup were wearing long -sleeve shirts un d er t h eir prison uniforms and Sanders’s injuries f ro m t he alleg ed

8 T h e p o l ice h eld a liv e l in eu p o n Decem

b er 1 9
, 1 9 8 0, b ef

o re San d ers

an d Freem an w ere arrest e d

, co n sistin g o f L in es 1 an d 2

. San d ers an d Freem an w ere n o t in clu d ed in eith er lin e.S A N D E R S V

. C U L L E

N 13

police beating were not visible. Sanders was not represented b y counsel at the lineup because c ounsel was not appoint e d until his arraig nment, which took place the following day

.

Three ey ewitness employ ees attended the live lineup h eld December 23: L og an, Robinson, and I smael L u na. L og an made a n identification from e ach line, but selected neither Sanders n or F reeman. Robinson selected Sanders from L ine 3, a nd wrote “positive” nex t to her identification on the lineup card, but she also noted that “ No. 6 sounds like the robbers.” L una tentatively

selected Sanders from L ine 3.

N i ght manag er Malloy viewed a videotape of the lineup

on December 23 because he arrived late. He selected Sanders from L ine 3, and wrote t h a t he was “positive” about his ch o i ce in the remarks section of the lineup card. A t trial, Malloy remembered writing “ positi v e” on the card, b ut he also testified that the handwriting o n the card did n o t l ook like his.

Rog oway and I rvin were both injured in the robbery a nd unable to attend the December 2 3 lineup, b u t t h ey w atched the videotape of it o n J a nuary 2, 1981 after they were discharg ed. Rog oway ’s and I rvin’s lineup c a r d s w ere lost sometime a fter F ebruary 1981 a nd Rog oway g ave conflicting testimony at Sanders’s preliminary hearing an d trial with respect to whether s h e s e l e c ted any one from the lineup. At the preliminary h e aring

, Rog oway testified that she did not choose any o n e, b ut at trial she watched the v ideotape ag ain and stated that she selected Sanders on J anuary 2. After watching the videotape at trial, she said she was “ p r e t ty certain” about the identification when she selected Sanders on J anuary 2. I rvin also selected Sanders after viewin g t h eS A N D E R S V

. C U L L E

N 14

v i d e o tape, but she did not testify at trial because the co u r t declared her incompetent to do so.

E. Bruce W

oods Implicated Stewart After the Arrest

I n lat e D ecember, B r

uce Woods came forward with information after seeing a newspaper article about the robbery

. Woods was in county jail o n a pending burg lary charg e. According to W oods, h e was riding in a car with Stewart and a mutual friend in Aug ust 1980, when Stewart

as k ed the friend if h e would like to make some money b y robbing B o b’s B ig B oy

. The friend replied, “Are y ou craz y ? ” and the conversation e n d e d

. W oods ex plained that he met Stewart throug h the mutual friend a nd had seen her five o r six times before this conversation took place.

F. Information and Preliminary Hearing

Sanders, St e w ar t, and F reeman were charg ed with four
counts of first-deg r ee murder, six coun t s o f robbery

, two counts of attempted robbery

, seven c o u n ts of assault with a deadly weapon, and o ne count o f conspiracy t o c ommit robbery

. 9 The State alleg ed that the defendants committed the murders under the special circumstances of multiple murder and felony

- murder robbery

.

All seven surviving e y ewitn e sses testified a t Sanders’s and Stewart’s joint preliminary h earing held over the course

9 T h e in f

orm atio n o rig in ally ch arg ed t h e d ef en d an ts w ith t h r e e

m u rd ers b u t it w as a m e n d e d t o ad d a f o u rth m u rd er co u n t af

ter Cesario L u n a’ s d eath

.S A N D E R S V

. C U L L E

N 15

of five day s on March 20 and March 23–26, 1 9 8 1

. 1 0 The prosecution asked five of the ey e w itnesses—Malloy

, Rog oway , Robinson, L

una, a nd L og an—to ident i f

y Sanders in court. Sanders w as seate d b e h i n d a blackboard w h ile the witnesses testified. The blackboard was removed at the end of each witness’s testimo n y , and the witnesses were asked whether they recog niz ed Sanders. Malloy unequivocally said that he recog niz e d Sanders a s t he taller robber. Rog oway also testified that she could positively identify Sanders as the taller robber.

Robinson, L una, and L og an were far l e s s certain. Robinson c ould no t identify Sanders. She testified that she did not know whet h er S a n d ers was one of the robbers nor whether he even looked like the person she s e l e c t e d at the December 23 lineup. L una similarly testified that Sanders did
not “seem to b e” one of the robbers, an d t h a t he was “ not really sure” whether Sanders was the man he selected. L og an testified that Sanders was “a very g oo d l i keness,” but he “couldn’t identify

him positively .” 1 1

Givens, Mitchell, Gilcrest, and Woods all testified about their interactions with Stewart lea d i n g u p to the r obbery

. Gilcrest positively identified Sanders, b ut the others were not asked to do so. W oods testified over the course of two day s while still in custod y fo r the pending burg lary charg e

. On March 20, W oods and Sanders w ere transported b ack to jail in the same van even thoug h W o ods was i n protective

10 Freem an ’ s p relim i n ary h earin g o ccu rred ro u g h ly o n e m o n th earlier, in late Feb ru ary

1 9 8 1

.

11 J ack so n an d Irv in t estif ied ab o u t th eir ex p e rien ces d u rin g th e

ro b b ery , b u t w ere n o t ask ed to id en tif y San ders.S A N D E R S V

. C U L L E

N 16

custody a nd was supposed to b e kept away from Sanders. W o ods had not met Sanders before the van ride.

Roug h ly o ne week after the preliminary h earing , W oods informed two officers that Sanders had threatened him in the

van. W oods recounted th e t h reat in his testimony at Sanders’s trial, describing that Sanders told him not to testify
ag ainst t h e defendants because Stewart was y o ung , a nd because, if convicted, Sanders would g e t “the g as

. ” Woods

a l so testified that Sanders indicated “they ” knew wh e r e W o ods lived, and that W oods’s f amily would “g et involved” if W oods talked.

G. Sanders’s Trial

The three codefendants w ere tried separately

. Sanders’s trial w as held first, beg inning in May 1982 and l a s ting for
roug h ly three months. The case w as p rosecuted by Deputy District Attorney Harvey Giss. Sanders w a s represented b y L eslie Abramson.

The State’s case consisted prima r i ly o f ey ewitness
account s ; t estimony from Givens, Mitchell, and Gilcrest about the events o f September 27, 1980; B r uce W o ods’s testimony about his Aug ust 1980 encounter with Stewart a nd their mutual friend; a n d the phy sical evidence found at Sanders’s and Stewart’s homes. F our ey ewitnesses identified Sanders at tria l w i th vary ing deg rees o f certainty

. Malloy

was the State’s first witness, and he identified Sanders as the taller robber without h esita t i o n

. Rog oway also identified Sanders as the taller robber. Robinson identified Sanders as

o n e of the robbers, but admitted that she was unable t o id e n t i f y him at the preliminary hearing

. W hen L una was asked if there was any one in the courtroom who was presentS A N D E R S V

. C U L L E

N 17

on the nig ht o f the r obbery

, he answered “I think he’s there in front of that lady ,” and pointed to Sanders.

The d efense attacked G ilcrest’s and W oods’s credibility

a nd the accuracy of the ey ewitness identifications, p oint i n g out inconsistencies in their testimony and emphasiz i n g t he lac k of phy sical evidence f rom the c rime scene. Defense counsel also questioned the evidence f ound at Sanders’s a

nd Stewart’s h omes because it was n ot conclusively linked to the crime.

After deliberating f

or f our day s, the j u ry convicted Sanders of all charg es. The penalty phase started on Aug ust 25, 1982 and lasted for four d ay s. After two-and-a-half day s of deliberations, the jury recommended a death sentence. The court imposed a death sentence on December 3, 1982. 1 2

II. P ost-Trial Jailhouse-Inf orm a nt Scandal

A. The Scandal

Six y ears after Sanders’s trial, a scanda l e r upted in L os Ang eles surrounding t h e use o f jailhouse informants in criminal prosecutions. I n O ctober 1988, L esli e W hite demonstrated to the L os Ang eles Sheriff’s Department h ow he and other informant s h ad obtained information “about defendants they h ad never met” to fabricate c laims that they

12 Stew art plead ed g u ilty to f o u r co u n ts o f f

irst- d e g r ee m

u rd er in Feb ru ary 1 9 8 3. S h e w as sen t en ced t o f o u r co n cu rren t term s o f lif e w i th th e p o ssib ility o f p aro le. A j u ry f o u n d Freem an g u i l t y o f fo u r co u n ts of f irst- d eg ree m

u rd er w ith sp e c i a l circu m stan ces in Decem b er 1 9 8 3

. Freem an ’ s f

irst p en alty

- p h ase trial en d ed in a h u n g j u ry ; in March 1 9 8 5
, th e seco n d j u ry retu rn ed a v erd ict o f lif e w i th ou t th e p o ssib ility o f p aro le.S A N D E R S V

. C U L L E

N 18

heard confessions while in jail. Gonzalez v. W ong , 667 F .3d 965, 1 004 (9th Cir. 2 0 1 1 ) ( W

. F letcher, J
., concurring in part). W h i t e e x plained that he was one of several prisoners who g ave bog us testimony about such confessions in order to g et b e t t er deals in their own cases, and for other privileg es. Id

. at 1005 (9th Cir. 2 0 11). A g rand jury was empaneled to look into the improper use of informant testimony by the L os Ang eles County District Attorney ’s Office. Id. T h e g rand jury issued a 1 5 0

- p ag e report painting “a harrowing picture of the role of jailhouse informants in the L os Ang eles County criminal justice sy stem during t his period” and noted the “appalling number o f instances o f perjury o r other falsifications to law e nforcemen t” by informants. Id

. at 1005–06. The report found that informants were g iven

numerous benefits for their fabricated confessions, su c h a s being transferred to jails perceived to be more desirable. Id. at 1007.

The District Attorney ’s Office reviewed all cases from the
p r e v i ous ten y ears in which: (1) a jailhouse informant testified as a witness for the State “at a preliminary hearing o r trial to admissions or confessions made b y a defendant to the informa n t while the informant and the defendant were in custody tog ether;” o r (2 ) L eslie W hite testified as a witness for the State on any subject matt e r

. L e slie W hite did not testi f y at Sanders’s trial, but h e was romantically linked to one of the ey ewitnesses who did, Tami Rog oway

.

B. Leslie W

hite’s Connection to Eyewitne s s Tami Rogoway

Roug h ly one month b efore jury selection s tarted for Sanders’s trial, D e puty District Attorney Giss testified at a discovery hear i ng about a connection between TamiS A N D E R S V

. C U L L E

N 19

Rog oway and L eslie W h i t e

. Giss testified that W hite forwarded a letter th a t h ad been written by a prospective defense witness a

nd p rison inmate, Richard Quine. The letter

wa s a d dressed to Quine’s g irlfriend, Gina Gutierrez

. Gutierrez was Rog oway ’s fri e n d and it was throug h these mutual a cquaintances that Rog oway met W hite. I n his letter, Quine offered himself as a fake informant ag ainst codefendant F reeman. I

n relevant part, the letter stated:

I need y ou [ Gina] to tell Tami that I can he l p her out on putting F reeman a w a y

. . . . Ask her if she is g o ing to court o n him still, and if
so, all she has t o d o is tell me about his c ase, then call the D.A. a nd tell him she knows

someone that F reeman told he di d w h a t he is in jail for . . . .

Giss testified that W h ite told him a bout Quine’s offer to g ive false testimony about five months before the d i s covery hearing

, and that the prosecution planned to produce a tape recording of its f

ollow up interview with W hite because the interview mig ht be r elevant to defense ef f o r t s to impeach Tami Rog oway

. Defense c o unsel Abramson ex pressed

concern that W hite mig ht h av e t ampered with witnesses. Giss responded, under o ath, “ L eslie White was never used a s

an ag ent of the police,” and the p r o s ecution “never made a deal with him, never offered any thing

, never a sked for
any thing .”

The state trial court ruled that d efense counsel could only question Tami Rog oway about Richard Q uine, L eslie White, and the letter offering f

a l se testimony ag a inst F reeman if Quine was first c alled to testify

. Neither Quine nor W hite

were called. On May 15, 1982, roug hly two w e e k s a fterS A N D E R S V

. C U L L E

N 20

Sanders’s trial started, W hite sig ned an affidavit stating that: (1) h e h ad no knowledg e adverse to the defense in the B o b’s B ig B oy case; (2) he received no statements about the case from Sanders or F reeman ; ( 3) every thing he knew a

bout the

case he learned from his ex -g irlfriend Tami Rog oway ; (4) he had n ot been asked by the prosecution to solicit information from Sanders or F reeman; a n d (5) he was not “an informant in any capacity .” Polic e n otes from a contemporaneous interview w ith W hite indicate h e told the police t h a t b oth Sanders and F reeman approached him in p r i s o n and asked him to testify that Rog oway said she did not know who shot h er on the n ig ht of the robbery

. W hite’s May 15, 19 8 2 affid avit made no mention of Sanders and F reeman approaching

W hite in prison.

On March 13, 1989, W hite testified as a defense ex pert on the use of jailhouse informants in an unrelated s t ate court
case, People v

. Marshall

. 1 3 I n that testimony

, White claimed that in 1 981 a Deputy District Attorney who was n ot involved with the B ob’s B ig B oy c a s e arrang ed for W hite to be transferred f

rom Chino State Prison to L ong B each City J ail, where W h ite w a s released on r eg u lar weekend f urloug hs. F urloug h orders—sig ned by a judg e not involved in the B o b’s B ig B oy case—corroborate that W h ite was released from jail repeatedly for long w eekends between Octo ber a nd December 1981.

I n the Marshall case, W h i t e testified that he g ave information t o t h e prosecution in the B ob’s B ig B oy case during the period he w as r eceiving f urloug hs

. H e characteriz ed his involvement as “basically behind the scenes

13 T h e case’ s d o ck et n

u m ber in th e Su

p erio r Co u rt o f th e State of Calif o rn ia f o r th e Co u n ty

o f L o s A n g eles is A 9 5 4 9 2 2

.S A N D E R S V

. C U L L E

N 21

in the sense [that Giss] was asking me to do certain thing s on t h e street and in jail I was doing - - I would collect t h e results.” W hite also testified in the Marshall case that he was romantically involved w i t h o n e of the ey ewitnesses in the Bo b ’s B ig B oy prosecution, that Deputy District Attor n e y Giss k new that W hite was “having s e x u a l relations” with Rog oway , and that over the course o f his three month relati onship w ith Rog oway , he told her false information from other jailhouse informants that was detrim e n t a l to Sanders and F reeman, b ut he did not k now what Rog oway did with the information.

On Aug u st 8, 1989, W hite a g ain testified about h i s relationship with Rog oway , this time before t h e gr and jury investig ating the jailhouse-informant scandal. He stated that his relationship with Rog o way started befo r e h is furloug hs from the L ong B e ach City J ail, that he met Rog oway throug h Gutierrez and Quine, and that he corresponded with Rog oway while he was at Chino State Prison. W hite claimed that a fter he was transferred to L ong B each City J a i l

, he was allowed
to have c ontact visits with Rog oway

. H e also testified that Giss was a

ware of the situation, an d t h a t Giss told him “to keep [ his] mouth shut a

bout the relationship.” According to W h ite, Giss asked h im to f i n d o u t a n y

thing he could r elated
to Q u ine or other defense witnesses, and asked W hite for any letters Quine sent to Gutierrez

.

III. P rocedural History

I n September 1995, while Sanders’s case was pending on automatic a

ppeal, Sanders filed a state habeas corpus petition in the California Supreme Court. The California Supreme Court affirmed Sanders’s conviction and death sentence in November 1995. People v. Sand e r s , 905 P.2d 420 (Cal.S A N D E R S V

. C U L L E

N 22

1995). I n F ebruary 1996, the California Supreme Court summarily de n i ed Sanders’s state habeas petition o n the merits, a nd Sanders’s c onviction became final on October 7, 1996, w hen the United States Supreme Court denied his petition for writ of certiorari. See Sanders v. Californ i a , 519 U.S. 838 (1996).

Sanders timely filed a federal habeas petition in the Ce n t r a l District of California raising forty -five claims. I n 1998 and 1999, the district c ourt dismissed roug hly half his claims in response to dispositive motions filed b y t h e State. None of the claims dis m i s s ed in those orders are before this court on appeal.

I n Dece m ber 1999, Sanders filed a motion for an

ev i dentiary hearing on seventeen of the eig hteen claims that

are at issue in this appeal. 1 4 T he d istrict c o u r t denied Sanders’s motion for an evidentiary hearing and ruled that the
seventeen claims before this court did not have a “ colorable basis.” I n J anuary 2002, Sanders f iled a motion to vacate the order deny ing his request f or an evidentiary h e a r ing or, alternatively

, to r econsider. The parties h ad fully briefed this motion b y May 23, 2002, but the case was transferred several times and the district court did not rule on it until October 20, 2009. The motion was denied. O n May 6, 2010, the district
court d enied Sanders’s federal habeas petition in its entirety

, issued a final judg ment, and denied a certifica t e o f appealability

as to all claims.

1 4 H e d id n o t req u est an ev id en tiary h earin g o n t h e clai m t h a t

cu m u l ativ e erro r d u rin g th e g u ilt- p h ase trial req u ires th e co u rt to rev erse h is co n v ictio n

.S A N D E R S V

. C U L L E

N 23

Sanders timely ap pealed and this court g ranted a certificate of a

ppealability o n eig hteen claims per t a ining to Sanders’s g uilt-phase trial. W e h ave jurisdict i on under 28 U.S.C. § 1291.

STANDARDS OF REVIEW

W e review de novo the district court’s denial of Sanders’s habeas corpus petition. Hurles v

. Ryan
, 752 F .3d 7 6 8
, 777 ( 9 t h Cir. 2014). The Antiterrorism and Effective De a t h Penalty A ct of 1 9 9 6 (AEDPA) g overns his petition. Under AEDPA, a federal c o u r t m a y g rant a writ o f habeas corpus only if the state court’s decision on the merits:

(1) resulted in a decision that was contrary to,

or involved an unreasonable application of, clearly established F e deral law, as determined by the Supreme Court of the United States; o r

(2) resulted in a decision that was based on an unreasonable determination of the fac t s in lig ht o f the evi d e nce p resented in the State court proceeding

.

28 U.S.C. § 2 254(d); see also Glebe v. Frost
, 135 S. Ct. 429, 430 (2 014). As contemplated by AEDPA, “ clearly established F ederal law

. . . is the g overning leg al principle o r principles set f

orth by the Supreme Court at the time the state court renders its decision.” Lockyer v

. Andrade

, 538 U .S. 63, 71–72 (2003) (internal quotation marks omitted).

A summary denial from the California Supreme Court is

an adjudication on the merits for AED P A purposes. See Harrington v. Richter

, 562 U

. S

. 86, 98 (2011); Cullen v

.S A N D E R S V

. C U L L E

N 24

Pinholster

, 563 U.S. 170, 187 ( 2011) (“Section 2254(d) applies even where there has been a s u m m a ry denial.”). “Under Californi a law, the California Supreme Court’s
summary denial of a habeas petition on the merits refl e c ts that court’s determination that ‘the claims made in th[ e] petition do n ot state a prima facie case entitling the p etitioner
to relief.’” Pinholster

, 563 U.S. a t 188 n.12 ( a l t e rations in orig inal) (quoting In re Clark

, 855 P.2d 729, 741–42 (Cal. 1993)). I n evaluating a stat e h a beas petition, the California S u preme Court “g enerally assumes the alleg a tions in t h e petition to be true, but d oes not accept wholly c o n c lusory alleg ations, Peopl e v. Duvall

, 886 P.2d 1252, 1258 (Cal. 1995), and w ill also ‘review the re cord of the trial

. . . to

assess the merits o f the petitioner’s claims.’” Id. (quoting Clark , 855 P.2d at 742).

B e cause the Californi a S upreme Court summarily dismissed Sanders’s petition, he can sat i s f y “§ 2254(d)(1) only by showing that ‘there was no reasonable basis’ for the California Supreme Court’s decision.” Pinholster

, 563 U.S.
at 187–88 (quoting Richter

, 562 U.S. at 9 8). This court “must determine what arg uments or t h e ories

. . . could have supporte[ d] the state court ’ s d e c ision; and then it must ask whether it is possi b le f

airminded jurists could disag ree that those arg uments or theories a re inconsistent with the holding in a prior decision of [ the Supreme] Court.” Id. at 188 (first alteration in orig inal) (quoting Richter , 562 U.S. at 102).

Section 2254(d)(2) provides state prisoners an avenue for relief only when the state c ourt’s det e r m i n at ion of the facts

was “ not merely wrong ,” b ut o bjectively unreasonable. See Taylor v. Maddox

, 366 F .3d 9 92, 999 (9th Cir. 2004). Relief under § 2254(d)(2) is proper only if t h e p a n el is “convinced that an appellate panel, apply ing the n ormal standards o fS A N D E R S V

. C U L L E

N 25

appellate r eview, could not r easonably co n c l ude that the finding is supported by

the record.” Id. at 1000.

D ISCUSSION

I. Mooney-Napue Claim s Relating to t he F our Eyew itnesses

Sanders first arg ues that the f our ey ewitnesse s w ho identified him at trial—Malloy

, Rog owa y , Robinson, a nd L una—each provided material, false testimony in violation o f his constitutional rig h ts t o a fair trial and due process under the Six th and F ourteenth Amendments. 1 5 The clearly established Supreme Court precedent g overning these c laims is Mooney v. Holohan

, 2 9 4 U.S. 103 (1935), and Napue v

. Illinois , 360 U.S. 264 (1959).

Under Mooney
, “a conviction o btained throug h the use o f false e vidence, known to b e such by representatives of the State, must fall u nder the F ourteenth Amendment.” Napue
, 360 U.S. at 269 (describing Mooney
, 294 U.S. at 112–13). Napue held that the “same result obtains when th e State, although not soliciting f alse e v idence, allows it to g o uncorrected w h en it appears.” Id. To demonstrate a constitutional violation under M ooney

- Napue
, Sanders must show: “(1) the testimony (or evi d e n ce ) was actually false, (2) the p rosecution knew or should have known tha t the testimony was actually false, and (3) the false testimony was material.” Reis-Campos v. Biter
, 832 F .3d 968, 976 (9th Cir.

15 T h is arg u m en t en co m

p asses f iv e claim s f

ro m h i s f ed eral h ab eas p etitio n : claim s 1 , 2 , 6 , 8 , an d 1 1.S A N D E R S V

. C U L L E

N 26

2016), cert. denied

, 137 S. Ct. 1447 (2017) (quoting Jackson v. Brown , 513 F .3d 1057, 1071–72 (9th Cir. 2008)). 1 6

A. Tami Rogoway’s Allegedly False Testimony

I n claims 1 and 2 of his federal h abeas petition, Sanders alleg es that the prosecution suborned perjury and knowing ly presented f

alse identification in Tami Rog oway ’s trial testimony

. On appeal, Sanders n o long er uses the word “suborn,” but continues to maintain that the prosecution knew

or s h ould have known Rog oway ’s identification testimony

was fal s e

. Rog o way was one of the two customers at the
restaurant on t h e n i g h t of the robbery

. She testified at trial that she observed the taller r obber f or roug hly e leven seconds

over the course o f the robbery : three seconds when he f i r s t entered throug h the front door a n d another e ig ht seconds while she was in the freez er. Sanders arg ues that Rog oway ’s testimony w as false because: (1) her identification testimony chang ed o ver time; and (2) she was alleg edly unable to identify Sanders until after the prosec u tion arrang e d for jailhouse informant L eslie W hite to b e r eleased from jail on illeg al furloug hs and W hite persuaded Rog oway to lie about her ability

to identify

Sanders.

16 San ders arg u es th at h e d o es n ot h av e to sh o w th at th e p ro secu tio n k n ew o r sh ou ld h av e k

n o w n th e testim o n y w as fa l se to p ro v e a

co n stitu tio n a l vi o latio n , b u

t h e do es n o t cite an y clearly estab lish ed Su p rem e Co u

rt p reced en t f

o r th is po in t. Ev en if San ders is n o t req u ired
to p ro v e p ro secu to rial k

n o w led g e, h is Mo o ney-Na p u e claim s f

ail b ecau s e h e h as n o t sh o w

n th at an y o f t h e ey ew itn ess testim o n y w as f alse, as

ex p lain ed in d etail b elo w

.S A N D E R S V

. C U L L E

N 27

1. Changes in Rogoway’s Identification Testimony Over Time

I n the immediate aftermath of the c rime, while Rog oway

was still in the hospital, she selected photog raph No

. 1 3 2 from the CRASH b ook (the photo of the man named David Hall) as the taller robber. She initially stat e d t h a t No. 132

“ looked like the tall suspect,” but, u p o n further questioning

, she stated that No. 132 “ was the tall suspect.” ( Emphasis added). B y the time of Sanders’s trial, Rog oway co u ld not remember whether she s e l e c ted any one from the CRASH book. Rog oway was g iven morphine for pain d u r i n g the initial stag e o f her treatment, and likely was taking morphine when she viewed the CRASH book.

Rog oway did not attend the live lineup on December 23, 1980 because she was still hospitali z ed, b ut she v iewed a videotape of the lineup on J anuary 2, 1981. The lineup card she used to record her impressions w as l o s t sometime a fter F ebruary 1981 and she g ave c o nflicti ng testimony at Sanders’s preliminary hearing and trial a b o ut whether she

se l e c t ed any one when she watched the videotape. A t the preliminary hearing

, Deputy Distric t A t torney Giss asked a series of questions about Freeman ’ s preliminary hearing a nd lineup, and then asked “ Now, y ou never picked any one out o f
any video tape line-ups; is that correct? ” Rog oway answered: “I don’t believe s o

. ” Her response was consistent with the uncontested fact that she did not select F reema n from the lineup. At the end of Rog oway ’s testimony

, the blackboard

was moved so tha t i t no long e r blocked Sanders, and Giss asked whether Rog oway could positively identify him as “one of the two individuals involve d w i t h the incident that evening .” She answered, “Yes . . . . He was there.”S A N D E R S V

. C U L L E

N 28

Outside the prese n c e o f the jury

, the court held a California Evidence Code section 402 hearing reg arding the loss of Rog oway ’s lineup card. 1 7 Officer W esselink testified that he was present on J a

nuary 2 when Rog oway

viewed the

v i d e o tape, that he w as responsible f or collecting her lin e u p card an d that he recalled Rog oway selected Sanders. Detective J a cques also testified that he recorded Rog oway ’s selection i n t he police log after seeing the lineup card, a nd similarly recalled that Rog oway picked Sanders. The police log states “videotape of lineups shown to Rog oway and I rvin
at [ Police Administrative B u ilding ]

. B oth p ick e d Sanders. N e i ther picked F r eeman.” Rog oway testified at the 4 0 2 h earing that she selected someone from one of the two lines as the taller robber.

During trial, Rog o way watched the videotap e o f the lineup ag ain and testified that she selected San d e rs as the taller robber when she orig inally saw the tape on J a n u a r y 2, 1981. She further stated that she w as “pretty certain ” about the identification on J anuary 2. I n the courtroom, before the jury , she identified Sanders as the taller robber.

The record shows that Rog oway ’s in-court identifications of Sanders, at his pre l i m i n ar y h earing and at trial, did not chang e. She test ified inconsistently about whether she sele c t e d any one at the video lineup, but W esselink’s a nd J acques’s testimony at the 4 02 h e aring sug g ests that it is

more likely that she misunderstood Giss’s quest i o n a t the preliminary hearing than that she g ave false, or even inconsistent, te s t i mony

. Giss asked Rog oway whether she

17 Calif o rn ia Ev id en ce C o d e sectio n 4 0 2(b ) p erm its a Calif o rn ia t rial

co u rt t o “ h ear an d d eterm in e th e q u estio n o f th e ad m issib i lity o f ev id en ce

o u t o f th e p resen ce o r h earin g o f th e j u ry . . . .”S A N D E R S V

. C U L L E

N 29

ever selected any one at the lineups after asking her a series o f questions a

b out F reeman’s preliminary hearing and video lineup. According to the police log

, she did n o t m a k e a selection. The state court could have reasonably determined that Rog oway ’s identification testimony did not change and
t h a t Rog oway thoug h t Giss w as only inquiring whether she selected F r eeman from a lineup. More to the p oint, in order
to prevail on these Six th and F o urteenth Amendment claims, Sanders w ould have to show that Rog ow a y g a ve false testimony

, not just that she testified inconsistently over time. This he did not do.

2. L e s l i e W

h i t e ’ s I m p a c t o n R o g o w a

y ’ s Identification Testimony

Sanders arg

ues that Rog oway chang ed her identification testimony d

ue to L eslie W hite’s i n f l uence during illeg al furloug hs. This arg ument fails b ecause it do e s n ot account for Rog oway ’s identification of Sanders a t his preliminary hearing

, before she beg an her relations h i p w i th W hite. The furloug hs took place between October and December 19 8 1

. W h ite testified that his relationship with Rog oway lasted for three months coinciding with the pe riod when he was at the L ong B each City J ail in the f a l l of 1981. There is no evidence in the record that Rog oway h ad a ny interactions with W h ite prior to the time she v iewed the lineup on J anuary 2, 1981, or before h er identification of him at the preliminary he ar ing in March 1981. At a sidebar during Sanders’s trial, Deputy District Attorney

Giss told the court that Rog oway ’s visit to Chino State Prison with Gina Gutierrez —which led to her introduction to L eslie W hite—took p lace some time a fter Sanders’s preliminary

hearing

.S A N D E R S V

. C U L L E

N 30

W h ite t e s t i f

ied before the g rand jury investig ating the jailhouse-in f

o rmant scandal that he told Rog oway false, detrimental information about Sanders during his furloug hs, b ut this could not have influenced the preliminary hea r i n g testimony she had already g iven, and her identificati o n o f Sanders at the preliminary hearing was consistent wi t h h er identification of h i m at trial. Sanders has not shown that Rog oway changed her identification of Sanders, o r that W hite could have influenced h er p re-trial identification o f Sanders.

The state court a l s o could have reasonably rejected this Mooney-Napue claim because Sanders did not show the prosecution k nowing ly offered false testimony

. Sanders points to a note obtained from the District Attorney post-trial pursuant to the Public Records Act and arg ues that Giss knowing ly allowed Rog oway to g ive false testimony

. The handwritten note, alleg edly authored by Giss, st a t es : “ L e s h a d a conjug al visit with Tami. One r eg ular visit ( n o fo r m s

– police escort).” At best, the note shows that the prosecution

was aware of the relationship between W hite and Rog oway , but that much is clear; G iss testified about the relationship at the pretrial discovery hearing o n F ebruary 24, 1982. I t does
not indicate that the prosecution knew, or even suspected, that Rog oway ’ s identification testimony was false.

I t is also possible the state court reasonabl y d e t e rmined that Rog oway ’s identification t e s t imony was not pivotal in the contex t of the State’s overall case because Michael Malloy ’s ey e witness testimony was muc h strong e r. Malloy

was the nig ht manag er o n duty at the time of the robbery a nd he had a much long er opportunity to observe the taller robber while removing money from the safe and collecting the victims’ wallets, watches, and jewelr y

. Malloy testified at trial that he “g ot a g ood three minute look” at the taller robberS A N D E R S V

. C U L L E

N 31

w h i l e t hey were in the office g etting money from the safe

, and that he s t ared at the r obber for roug hly half that time. Malloy never wavered in his identification of Sanders and he

was a more prominent part of the state’s case, testify ing over the course of eig ht day s. The p r o s ecutor also relied heavily

on Malloy ’s testimony during c losing arg ument. I t w ould not have been unreas o nable for the state court to decide that the jury w ould have c onvicted Sanders, e ven without Rog oway ’s testimony

, based solely on the streng th of Mal l o y ’s identification.

B. Michael Malloy’s Allegedly False Testimony

I n claim 8 of h is federal habeas petition, Sanders contends that Michael Malloy ’s trial testimony about how he knew to
g o to the December 23, 198 0 lineup was false. Sanders points to an alleg ed inconsistency b e t ween Malloy ’s trial testimony and a d eposition he g ave after Sanders’s trial, in a civil lawsuit Tami Rog oway filed ag ainst B ob’s Bi g Boy
restaurant. The district court ruled t h at the deposition testimony did not contradict Malloy ’ s trial testimony a nd that Sanders failed to prove Malloy ’s trial testimony was false. W e ag r ee with both ruling s.

I n Sanders’s trial, Malloy was asked a series o f questions about w hat he knew b efore he went to t he December 23 lineup:

A b ramson: H ad y ou heard before y ou we r e told that y o u were g o i n g to g o d owntown to identify a n y b o dy

, had y ou heard that there

were suspects arrested and in custody for t he incident?S A N D E R S V

. C U L L E

N 32

Malloy : No, I didn’t.

Abramson: Did a policeman ca ll y ou and tell
y ou y ou had to g o downtown to try to identify somebody ?

Malloy : I don’t recall.

Abramson: W ell, how did y o u know y ou h ad to g o down?

Malloy : I believe someone call e d me, but I don’t know when.

Abramson: Okay

. Apart f rom w hen, do y ou know who?

Malloy : No, I can’t — no, I don’t.

Three y ears after Sanders’s trial, Mal l o y w as asked at his deposition when he first talked to a ny one fro m Bo b ’s B ig B oy after the crime:

Attorney : W hen d id any

b ody from B ob’s talk to y ou after this incident?

Malloy : I b elieve after I go t o ut of the hospital.

Attorney : W ho did y ou talk to?

Malloy : David L ind.

Attorney : W here?S A N D E R S V

. C U L L E

N 33

Malloy : I went in a lineup. I went downtown to a lineup. . . .

Attorney : I s that the first time y ou saw Dave L ind after this incident was at the lineup?

Malloy : At the lineup.

Attorney : Did he talk to y ou a bout the incident?

Mall o y : No. He just told me I was coming downtown for a lineup, identify the g uy s.

Attorney : He called y o u and asked y ou if y ou would come down to the lineup?

Malloy : L APD called me.

Attorney : W hat did Dave L ind —

Malloy : Escorted me down.

I n short, Malloy te stified at Sanders’s trial that he could not remember who called to tell h im to come to the December 23 lineup, and at his deposition he testified that the L A PD called him a nd David L ind

, t h e Director of Safety and Security for B ob’s B ig B oy , escorted him to the lineup.

W h ether Malloy ’s recollection was accurate or n ot, the fact that h e later recalled being contacted by L AP D about attending the lineup does not come close to demonst r a t ing that his trial testimony was false or that the prosecution knew, or should have known, that it was wrong

. Nor does SandersS A N D E R S V

. C U L L E

N 34

ex p lain how this deta i l c alls into question Malloy ’s identification o f Sanders at the video lineup, much less his incourt i d e n t i fication. The state court could have reasonably decided that Sanders failed to p rove any o f the three Mooney

Napue elements with respect to Malloy ’s testimony

.

C. Rhonda Robinson’s Allegedly False Testimony

I n claim 6 of his federal h abeas peti t i o n , Sanders maintains that Rhonda Robinson’s trial testimony was false because it was i n consistent with testimony she g ave at a h e a ring in F reeman’s case about w hether she had seen a p hotog raph of Sanders and Stewart before F reema n ’s preliminary hearing

. Rhonda Robinson w as a B ob’s B ig B o y waitress. The shorte r r obber ordered her to lay on the floor in the kitchen b ef

o r e s he was told to enter the freez er. She testified at trial that she observed the taller robber for three to four seconds in the freez er. The district court correctly ruled that there was “no conflict between Robinson’s testimony at Petitioner’s trial and her testimony at F reeman’s trial.”

During the December 1981 search of Sanders’s apartment, the police seiz ed a carnival photog raph of Sanders and Stewart holding f

ake g uns. The trial court initially ruled that the photog raph w as i nadmissible, but after a detective who participated in the search mentioned it during his testimo ny , the defense introduced the photog raph and the court admitted it into evidence. Defense counsel also called Richard Price, who took the p h o t o gr a ph, to testify that in December 1 980 he manag ed a photog raphic studio near an

amu s e m e n t park where people could p ose with props a nd
costumes. Price testified that Sanders and Stewart p osed for such a photog raph with a replica g un and a toy g un as a g ag

.S A N D E R S V

. C U L L E

N 35

I n an e f f o rt to undermine the reliability of Robinson’s identification testimony

, defense counsel questioned whether Robinson and other w it n e sses saw the g ag photo while they

were waiting t o testify at F r eeman’s F ebruary 1981
p r e liminary hearing

. T h e photog raph was apparently i n a blue notebook inside a c a rdboard e v i d e nce box

. Defense counsel Abramson asked Robinson whether she remembered seeing a blue notebook while she w as waiting to te s tify at F reeman’s p r eliminary hearing

, and Robinson answered, “I d o n ’ t remember.” A bramson then asked whether s h e remembered “any o f t h e witnesses g oing throug h any noteboo k s o r making comments about any photog raphs,” to which Robins o n a nswered “ Yes.” After a sidebar about a hearsay o b

j ection, Abramson inquired whether Robinson remembered the o ther witnesses “mentioning R icky Sanders’[ s] name” or “sug g esting that Ricky Sanders was o ne of the g uy s who did this thing .” Ro b i n s o n ag ain answered “Yes.” The transcript of the sidebar discussion sug g ests that Abramson asked these questions to ex plo r e w h e t h e r R o b i nson identified Sanders a t trial because she heard o t h er w itnesses
say that he w as one of the robbers, but Robin s o n w a s not asked whether she saw the photog raph itself.

At a h earing in F r eeman’s trial held pursuant to California Evidence Code section 402, Robinson was ag ain asked about what h appened while she was w aiting to testify at F reeman’s preliminary h earing

. Robinson said she rememb e r ed seeing

a c a r d b o ard box and that she remembered people looking inside the box

. She could not recall w h o , “but someone opened the noteb o o k

, a

nd [ the w itnesses] saw a photo.” Robins o n f

u r t her testified that it was a blue notebook, a nd that it contained a photog raph of Sanders and a g irl “standing tog ether holding a g un.”S A N D E R S V

. C U L L E

N 36

The o nly inconsistency between Robinson’s testimony at Sanders’s trial and Robinson’s testimony at the h e aring h eld during F reeman’s case concerns whether she recalled seeing the blue notebook; Robinson did n o t deny seeing the pho t og raph a t either proceeding

, and the fact that she remembered seeing the notebook a t F reeman’s evidentiary hearing does not show that she lied at Sanders’s trial.

Sande rs maintains that the prosecution knew Robinson lied about h e r m e m ory of the notebook because the police showed the photog raph to her. B ut the only evidence he cites
to support this arg ument is Robins o n ’ s testimony at F reeman’s evidentiary hearing

, and it only establishes that the police h ad Robinson wait in the same room with the evidence box and n otebook. There is n o evidence the p rosecution h ad

reason to doubt the testimony Robinson act u a l l y g a ve, that she did not recall the b lue note b o o k

. Nor does Sanders

ex p lain h ow Robinson’s memory about the blue notebook mig ht have made a material difference to t h e j u r y

. She
t e s t i fied at Sanders’s trial that other witnesses made
comment s a bout a photog raph while they w ere waiting to testify at F reeman’s preliminary hearing

, b ut she was not ask e d whether she saw the photog r aph nor w hether the photog raph had any

impact on her identification of Sanders. As discussed in m o r e detail b elow, Robinson had already identified Sanders in person, at the Decemb e r 23, 1980 lineup. The state court could have reasonably determined that Sanders failed to support any o f t h e t hree Mooney

- Napue elements with respect to Robinson’s testimony

.

D. Ismael Luna’s Allegedly False Testimony

I n claim 11, Sanders asserts that I smael L una a dmitted at F reeman’s trial that he testified falsely about his ab i l ity toS A N D E R S V

. C U L L E

N 37

d i s ting uish black people and h is ability to identify Sande r s

. I smael L una w as a bus b o y a t B o b’s B ig B oy , and his father died several months a f

t e r t h e crime as a result of injuries he

su s t a i n ed d

uring the r obbery

. The district court ruled that L una’s testimony was neither perjurious nor material. W e ag ree with the district court. L una’s identification of Sanders

was alway s qualif

ied and the jury heard him testify at Sanders’s trial that he had d ifficulty identify ing black people.

L una tentatively s e lected Sanders from L ine 3 at the December 23, 1980 lineup. He wrote on his lineup card, “I t seems to be N o. 4.” At Sanders’s preliminary hearing

, L u na testified that Sanders did not “seem to be” one o f the robbers, and that he was “not really sure” w h e t h er Sanders was the

man he selected at the lineup. He acknowledg ed that Sanders looked like the man he selected, but with “a little more hair.” At Sanders’s trial, L

una was asked “to look in this courtroom and see if y ou see one of the two men in this r o o m that was there that nig ht.” L u n a responded, “W ell, I think he’ s there in front of that lady ,” and pointed to Sanders. B ut on crossex a mination L una admitted, “in g eneral, y oung black m en tend to look a lot a like” to him. H e s a i d that the man he selected at the lineup looked like the taller robber, while Sanders now l o oked more like the shorter robber, and he could n ot say for sure w hether Sanders was the same man he selected a t the lineup. I n her closing arg um e n t , defense counsel emphasiz ed that L una admitted “all blac k men basically look alike to him.”

During F reeman’s t r i a l

, L una was ag ain asked about his selection of Sanders at the lineup. He testified, “it was kind of difficult to identify the black person,” and admitted: “I t is

v e r y d i fficult f

or me to identify black people due to the fac t that I don’t live with black people.” Althoug h his testimonyS A N D E R S V

. C U L L E

N 38

at F reeman’s trial more ex plicitly stated that L una h ad trouble i dentify ing black p eople, it does not demonstrate that t h e uncertain testimony he g a ve a t Sanders’s trial was false. The
state court could have reasonably determined that L u n a ’s testimony was neither perjurious nor material because he was consistent l y u ncertain. Sanders d oes not point to any evidence that the prosecution knew or suspected that L una’s identification testimony

was false.

Be c ause Sanders failed to prove that any of t h e ey ewitn e sses provided material, false testimony or that the prosecution knew they committed p e r jury

, we hold that the
state c ourt’s rejecti o n of Sanders’s M ooney

- Napue c laims relating to Rog oway , Malloy

, Robinson, and L una was neither contrary to cl e a r ly established federal law nor objectively unreasonable. W e a ffirm the district court’s denial of Sanders’s habeas petition w i t h respect to these claims.

II. M o o ney-Napue Claim s R elating to Rode l l M i t c h e l l a n d Bruce Woods

Sanders also arg u es that the prosecution knowing ly used material, f

alse testimony from two n o n

- e y e w i t n e s s e s

— R odell Mitchell and B ruce W o ods—in violation of Mooney-Napue

. This arg ument encompasses claims 20 and 22.

A. Rodell Mitchell’s Allegedly False Testimony

Rodell Mitchell was o ne of the B ob’s B ig B oy manag ers whom B renda Givens told about her encounter with Stewart
at the L os A ng eles County J ail. I n claim 2 0
, Sanders maintains t h a t Mitchell lied when he claimed that he responded by c alling the police and filing an internal incidentS A N D E R S V

. C U L L E

N 39

report. Sanders poin t s t o d eposition testimony from Detective Stallcup, who p articipated in the initial i n vestig ation of the r obbery

, and a declaration David L i n d
g ave in T ami Rog oway ’s civil suit, to demonstrate that Mitchell’s trial testimo n y w a s false. The district court correctly ruled that Sand e r s ’ s arg ument was “conclusory

, ” and that it did n o t establish that Mitchell g ave false testimony

.

At Sanders’s trial, Mitchell t e s t i f ied that he called the police after Gi v e n s told h im about h er conversation with Stewart. According to Mitchell, he called the police about fifteen to twenty minutes before the p o lice a r r ived to ask about a different murder that took place near the restaurant that nig ht. He told the police about his conversation w i t h Givens in his phone call, and pointed out Stewart and Gilcrest
to them wh e n t hey visited the restaurant. Mitchell testified that he called the police more than once and they came to the
restaurant multiple times that nig ht. He also said he mailed

an incident r eport to D avid L ind, head of s e c urity for B o b’s B ig B oy , sometime after September 2 7, 1980. David L i nd denied receiving

such a report.

During Rog ow a y ’ s civil lawsuit, a police detective testified that he checked log s maintained by the serg eant w ho served as L APD W atch Commander on September 27, 1980, and found no record of any repo rt of an impending r obbery

. He ex plained that a “ robbery c all” would have been a “hig h priority ” and “procedure w ould have been to have something done” such as se t t i n g u p immediate surveillance o f the location and eventually confronting any individuals believed to be involved.S A N D E R S V

. C U L L E

N 40

The declaration David L ind su b m i t t e d in the civil suit stated that he had not received an incident report reg arding the Stewart robbery threat, and that store m an a ger Kim Clark—as o p posed to ni g h t m a n a g er Rodell Mitchell—would have been the correct employ e e to file such a report. B ut according to L ind, this was also not the ty pe of incident that would have trig g ered a reporting requirement because B o b’s B ig B oy only required manag ers to report incidents occurring

on restaurant premises. Stewart alleg edly told Givens about her plans to rob the restaurant at the county jail.

Neither the detective’s testimon y nor David L ind’s declaration show that Mitchell test i fied falsely at Sanders’s trial. At most, this record demonstrates that the prosecution

was aware of Mitchell’ s and L ind’s conflicting accounts about the incident report. Nor has Sanders shown h ow Mitchell’s testimony was material. Givens’s report about her conversation w ith Stewart at the county jail was corroborated by Givens’s trial testimony and the sti p u l a tion concerning what Kim Clark would say if called to testify

. Stewart’s visit
to the restaurant o n the nig ht of September 27 was corroborated b y Givens’s and Gilcrest’s trial te s t i m o ny

. W h ether Mitchell c alled the police or filed an incident report

were not imp o r t a n t facts, a nd the jury was a

ware of the inconsistency between Mitchell’s and L ind’s version o f
events. The state court reasonably denied the Mooney

- Napue claim related to Mitchell’s testimony

.

B. Bruce W

oods’s Allegedly False Testimony

B r uce W oods was the jailhouse informant who testified
at Sanders’s and Stewart’s joint preliminary hearing about Stewart’s Aug ust 1980 attempt to soli c i t their mutual friend
t o r ob B ob’s B ig B oy

. I n claim 2 2, Sanders contends t h atS A N D E R S V

. C U L L E

N 41

W o ods provided material, false testim o n y at Sanders’s trial about statements Sanders alleg edly made to W oods in a v an after t he preliminary hearing

, including Sanders threatening W o ods’s family

.

I n support of the claim that W oods’s testimony was false, Sanders points to “ the g rand jury f i n d ing s a

bout the widespread practice o f using jailhouse informants, the sheer improbabi l ity that Sanders w ould have made incriminating admissions to W oods, a

nd the evidence of other misconduct.” The state court reasonably denied this claim because Sanders did not support the claim that W oods lied or that the prosecution knew his t e s t i m ony was false. W e a ffirm the district court’s denial of Sander s ’ s habeas petition with respect to the Mitchell and W oods Mooney-Napue claims.

III. Brady Claim s

Sanders nex t arg u es that the prosecution v i olated Brady

v. Maryland

, 373 U.S. 83 (1963), by failing to d i s close material, ex culpatory

impeachment evidence about five trial witnesses: Tami Rog oway , Michael Malloy

, Andre Gilcrest, Gilcrest’s mother, and B renda Givens. 1 8

U n d er B rady

, “the suppression by the prosecution o f evidence favorable to an accused upon request violates d ue process w h e r e t he evidence is material either to g uilt or to punishment.” 373 U.S. at 87. “Evidence favora b l e t o the accused” incl udes evidence that would help the defendant impeach a witness. Giglio v

. U n i t ed States
, 405 U.S. 150, 154–55 (1972). I n United States v. Bagley

, the Supreme Court “held that reg ardl e ss of request, favorable evidence is

18 T h is arg u m en t en co m

p asses claim s 3 , 7 , 1 8 , an d 1 9

.S A N D E R S V

. C U L L E

N 42

material, a

nd constitutional error results from its suppression by the g o vernment, ‘if there i s a reasonable probability that, had the evidence been disclosed to the defen s e , the result o f the proceeding would have been different.’” Kyles v. W h itley

, 514 U.S. 419, 433–34 (1995) (quoti n g U nited S tates v

. Bagley

, 473 U.S. 667, 682 (1985) ( B lackmun, J .)). T o est a b l i sh a Brady violation, Sanders must show: “(1) the evidence a t i s sue is f

a v orable to the accused, e ither because it is ex culpatory o r because it is impeaching ; ( 2) the evidence

was suppressed by the g o v ernment, reg ardless of whether the suppression was willful or i nadvertent; and ( 3) the evidence is material to the g u ilt or innocence of the defendant.” United States v. Sedaghaty , 728 F .3d 885, 899 (9th Cir. 2013).

W ith respect to materiality

, “[ t] he question is not whether the defendant would more likel y than not have received a different verdict with the evidence, but whether in its absence he receive d a fair trial, understood as a trial resulting in a verdict worthy o f confidence.” Kyles

, 514 U.S. a t 434. Suppressed evidence must b e considered “collectively

, not item by item.” Id. at 436.

A. Failure to disclose that the prosecution obtained illegal furloughs and conjugal visits for Leslie W hite

so that W

h ite c ould persuade Tami Rogoway to falsely identify Sanders at trial

I n claim 3, Sanders arg ues that the p rosecution failed to disclose evidence that L eslie W hite was released from the L ong B each City J ail o n ille ga l furloug hs to have sex with Tami Rog oway a

nd persuade h e r to testify falsely

. Sanders contends that this evidence could have been used to impeach Rog oway ’ s identification testimony because Rog oway was unable to identify Sanders until after h er “secret liaisons”S A N D E R S V

. C U L L E

N 43

with White. To supp o rt t h i s c laim, Sanders points to the

same evidence cited in support o f h i s c laim that the prosecution knowing ly u sed Rog o way ’s false identification testimony at trial.

1. The prosecution disclosed the Rogoway-W hite relationship

As a p reliminary matter, d efense counsel was aware of the relationship between Rog o way and W hite because Deputy District Attorney Giss testified to its ex istence at the pretrial discovery h earing held on F ebruary 24, 1 9 82. At the evidentiary hearing about the loss of Rog oway ’s lineup c ard, Abramson informed t h e court that she intended to crossex a mine Rog o way about w hether she knew Quine and White, and whether she had discussed h e r identification of F reeman with them. The court ex pressed concern about sug g esting to the jury that Rog oway had attempted t o procure p erjured testimony ag a inst F reeman without any concrete proof, but

ex p ressed its willing ness to convene a h e a ring outside the
presenc e o f t h e jury in which Quine and W hite could be questioned. Abramson indicated that she i n t e n d ed to c all Quine as a witness during the d e f e n s e part of the case, but ultimately

chose not to call Quine or W hite.

2. San der

s failed to prove that W

hite was an agent of the prosecution

Sanders a cknowledg es that the prosecution disclosed the Rog oway

- W hite relationship at the pret r i a l d i s c overy hearing

, but a rg ues that the p r o secution did not disclose that it obtained illeg al furloug hs and conjug al v isits for L eslie W hite

so that the prosecution c ould use Whi t e as an ag ent to influence Rog oway ’ s identificati o n t e s t i m o ny

. T h i s arg umentS A N D E R S V

. C U L L E

N 44

assumes: (1) that W h i t e h a d a c onjug al visit with Rog oway before Sanders’s trial; ( 2) that W hite was working as an ag ent of the prosecution in the months leading up to Sanders’s trial;

a nd (3) that Rog oway chang ed her identification of San d e rs after she became involved with W hite.

At the pretrial discovery hearing

, G i s s d i d not testify about the conjug al visit mentioned in the handwrit t e n n ote obtained f rom the District Attorney because the note h ad not
y et been p r oduced. The handwritten note states, “L es had a conjug al visit w ith Tami. One reg ular visit (no forms

– police escort).” The note is dated “2-17-82” at the top of the pag e , but then refers to something that happened on “12-12-82” in the first parag raph of tex t. T hus, it is not clear whether the
note was written before the p retri a l d i s covery hearing on F ebruary 24, 1982 or after Sanders’s g uilt- and penalty -phase trials had concluded. The court sen t e n ced Sanders on December 3, 1982.

Giss did not mention furloug hs at the pret r i a l d iscovery hearing

, but he did testify that “L eslie W hite w as never used

as an ag ent of the police,” and t h e p r o secution “ never made

a deal with h im, never offered any thing

, never a ske d for
any thing .” To support h is t h e o ry that the prosecution obtained the furloug hs f

or White and used W hite a s an ag ent, Sanders points to W hite’s testimony before th e g rand jury investig ating the jailhouse-informant scandal in 1989, seven
y ears after San ders’s trial, and the testimony he g ave as a defense ex pe r t in People v. Marshall

, which also took place in 1989.

B e fore the g rand jury and in M a rshall

, W hite ex p lained that Deputy District A ttorney Andrew Diamond, who was not involved w ith the B ob’s B ig B o y c ase, arrang ed for White toS A N D E R S V

. C U L L E

N 45

be transferred to the L ong B each City J ail so that W hite could have reg ular weekend furloug hs b e tween October a nd December 1981. According to W hite, a state court judg e not involved in Sanders’s case sig ned the furloug h o rders. W hite testified that he g ave information to the prosecution in t h e Bo b ’ s B ig B oy case during this period. He described his involvement as “basically b ehind the scenes in the sense [ that Giss] was asking me to do certain thing s on the street and in jail I was doing

- - I would c o l l e c t the results.” W hite testified t h a t G i ss asked him to find out any thing he could related to Quine or other defense witnesses.

W h ite a lso testified about his relationship with Rog oway

. He recalled that the relationship started before he was transferred to the L ong B each City J ail, c ontinued during the furloug hs, and l a sted for three months. W hite testified that Giss k new W hite w as “having sex u al relations” with Rog oway , and told W hite “to k e e p [ his] mouth shut about the relationship.” W hite also testified that he told Rog o w a y false information that was detrimental to the de f e n s e during their relationship, but that he did not know what Rog oway did with the information.

W h ite did not mention any conjug a l visits with Rog oway

or that he ever attempted to persuade Rog oway to chang e her iden tification testimony for Sanders’s trial, but h e did contradict Giss’s pretrial testimony about whethe r t he prosecution used W hite as an ag ent.

The state court could h ave reasonably d e ci d e d to credit Deputy District Attorney Giss’s sworn testimony that he did
not u s e W hite as a

n ag ent over the testimony of a jailhouse informant w ho admitte d t o providing false evidence on

numerous o c c a s i o n s

. F u

r t hermore, as discussed, Sanders f ailsS A N D E R S V

. C U L L E

N 46

to account for the evidence that Rog o way identified Sanders
at the lineup and in court at the March 1981 preliminary hearing

, before W hite claims their relationship started a nd before there is any record of h im o btaining his furloug hs from the L ong B each City J ail. Sanders’s assertion that Rog oway chang ed her identification of Sanders as a result o f her relationship with W hite is speculative and it ig nores her earlier identifications. T h e state court could also have reasonably determined that the evidence was not material d ue to the relat i v e weakness of Rog oway ’s testimony compared
to Malloy ’ s i d entification. D efense counsel thoroug hly crossex a mined Rog oway , ex posing incon sistencies in her testimony ab o u t Sanders, and Abramson chose not to c all Quine o r White to try

to f urther impeach Rog o way

. On this record, we cannot say the state court unreasonably denied Sanders’s B rady claim pertaining to Rog oway

.

B. Fail u r e to disclose that David Lind told Michael Malloy to “ i d

entify the g uys” before the December 23, 1980 lineup

I n claim 7 of his federal habeas petition, Sanders contends that the p rosecution failed to disclose that David L ind told M a l loy “ that the r ig ht suspects had been arrested and h e should g o down an d i d e ntify them.” Sanders arg ues that David L ind w as a de facto prosecution ag ent, and that Malloy testified at a dep o s i t i o n in T a mi Rog oway ’s civil suit that L ind told him to identify the suspects before the December 23 lineup. 1 9 The district court concluded that Sanders: (1) failed

19 San d ers also relies o n a s tatem en t b y Derw in L o g an , an o th er restau ran t em

p lo y ee, m ad e o u tsid e th e co u rtro o m d u rin g Freem an ’ s trial. A lleg ed ly

, p rio r t o th e l in eu p , L in d to ld L o g an th e po lice h ad arrested

so m eo n e th ey b eliev ed co m m itted th e crim e. Ev en assu m in g t h a t t h isS A N D E R S V

. C U L L E

N 47

to p rove that L ind w as an a g ent o f the prosecution or that the prosecution otherwise had knowledg e of L ind’ s pre-lineup statement; (2) f

ail e d to show how his statement was unnecessarily sug g e stive; a n d (3) failed to establish materiality

under Brady . W e affirm.

Sanders maintains that L ind was a de facto prosecution
ag ent because he sat at the p rosecution’s counsel table during the preliminary hearing

, coope r a t e d with the L APD investig at i o n , and assisted with transporting B ob’s B ig B o y employ e es to and from the courthouse. Sanders also emphasiz es that D eputy District Attorney Giss wrote a letter
t o B ob’s B ig B oy after the trial praising L ind and thanking B ob’s B ig B oy for L ind’s assistance “ with the details a nd l o gistics” of the trial. Althoug h Sanders cites to Su p r e m e Court cases h olding that the F ourth Amendment applies when the g o v ernment u ses private citiz ens to conduct searches, he does not cite to any

established Supreme Court authority for the proposition that a citiz en qualifies a s a m e m ber of the prosecution team for B rady purposes based on the ty pe of role David L ind play e d in the B o b ’s B ig B o y case. Sanders also mischaracteriz es the deposition testimony Malloy g ave in Rog oway ’ s civil suit. Roug hly thre e y ears after Sanders’s
g uilt-phase trial, Malloy g ave deposition testimony in which he said that L ind “escorted” h im to the lineup and told Malloy
to g o “ downtown for a lineup, identify the g uy s.” W hen read in contex t, Malloy ’s testimony sug g ests that L ind simply

ex p lained that a police lineup was g o ing to occur, not that he instructed Malloy to make a selection. The state court could have reasonably determined that Sanders did not s h o w that

statem en t w as tru e, i t can n o t b e assu m ed th at L in d said th e sam e th in g to Mallo y

.S A N D E R S V

. C U L L E

N 48

L ind made any improperly sug g estive state m e n t s to Malloy that could have been used to impeach Malloy ’s identification.

Even a ssuming L ind’s statement amounted to a “mandate
to identify the suspects,” a s Sanders arg ues, Sanders does not

ex p lain h o w t h is statement sug g ested to Malloy that he should select Sanders. I n United States v

. Bowman
, this court rejected the defendant’s arg ument t h a t a lineup was unnecessarily sug g estive because the witnesses “ knew that suspects were in custody and they shou l d make a pick.” 215 F .3d 951, 965–66 (9th Cir. 2000). The cour t e x p lained that the defendant’s “fear that the lineups were impermissibly
sug g estive because witnesses knew that the suspects w e re in custody [ was] misplaced” because “it stands t o reason that there is a suspect at the lineup stag e .” Id. at 966. The court noted that the police told the witnesses “they need not make

an identification if they were not confident” before the lineup. Id.

W h en Mallo y ar rived a t the police station on December 23, 1980, he was shown a videotape of the lineup because he

was too late to attend the live lineup. I n the video, officers provided p reliminary instructions to the witnesses, including : “I f y ou cannot identify any one, please so indicate.” Althoug h their instru c t i o n did not ex plicitly state that the w itnesses need not identify any one if they w ere n ot confident, the state court could have reasonably determined that th e o fficers’ instruction communicated as much, and cured any sug g estion
convey ed by L i nd’s comment. The state court’s denial o f Sanders’s B rady claim was not unreasonable.S A N D E R S V

. C U L L E

N 49

C. Failure to disclose that Andre Gilcrest and his mother

were promised reward money in exchange for their testimony

I n claim 18, Sanders contends that the prosecution failed
to disclose that Andre Gilcrest and his mother were tacitly o r

ex p licitly p romised a $10,000 reward in ex chang e f o r t h e ir testimony

. As Stewart’s ex -boy f r iend a n d an early informant in the case, Gilcrest told th e p olice that Stewart confided in him on September 27, 1980, about Sanders’s and F reeman’s plan to rob the restaurant. Bo t h G ilcrest and his mother testified at Sanders’s trial.

B o b’s B i g B oy r estaurant and its parent company , the Marriot t Corporation, offered a $10,000 r eward, “in ex chang e for informatio n l e a ding to the apprehension, arrest and final conviction of the person, or persons, res p o n sible for” the B ob’s B ig B oy robbery

. I n a December 16, 1980 letter noti f y ing the L APD about the reward, the Marriott Corporation stated: “The final determinat i o n as to whom shall be elig ible to receive all, or part, o f the aforesaid reward shall be made by the Police Department of t he City of L os A ng eles.” Neither the Marriott Corporation nor the L A P D have any r ecord of who received the reward, but an A pril 25, 1995 letter from the L os Ang eles City Attorney to Sanders’s
current counsel states that Deputy District Attorney G iss said “that he thoug ht reward mon ey w a s paid to Andre a nd his mother and to one of the victims

. . . we l l after the trial was over.” The district court correctly ruled that Sanders failed to show the prosecution promised G ilcrest money or suppressed
any information about the reward.

F irst, Sanders points to Giss’s notes, handwritten on a discovery motion in F reeman’s trial, as evidence that theS A N D E R S V

. C U L L E

N 50

prosecution promised Gilcrest the rew a r d

. The notes state: “Reward of $10,000 no [sic] a re promised any

t h ing e x cept Gilcrest talks of $.” I f any thing

, the notes sug g est that the prosecution did not promise a n y witness the reward, but that Gilcrest ex pressed an interest in it.

Second, the defense was well aware of t h e reward a t the time of the trial. Gilcrest was cross-ex amined ex tensively about his m o t i v a tions for coming forward and althoug h he denied mak i n g a written request for the reward, he admitted that he may have verbally a sked for it. He also conceded that he orig inally told t h e p olice he came forward “ [ f] or the
money a nd being a g ood citiz en.” B ased on th i s testimony

, the state court could h ave reason a bly determined that the prosecution did not s u p p ress any information a bout the reward or Gilcrest’s motives.

Sanders also cites to Giss’s later t estimony at a suppression hearing in People v. Garmanian
, and a L os Ang eles County District Attorney manual on how to manag e informants, as evidence of an implicit or ex press promise for the reward. I n the Garmanian case, Giss acknowledg ed that informants are likely to ask for “some qui d p r o quo,” a nd testified that “y ou couldn’t find an informant in this state that would [ ] say I ’ve let him d own.” The District Attorney manual warns: “ I f y ou alienate t h e informant, y o u run the risk of his recanting the t e s t i m o ny y ou ag reed to use.” Ne i ther G ilcrest’s statements nor the manual establish
any thing a bout th i s case and the state c ourt did not unreasonably deny the Brady claim pertaining to Gilcrest, his mother, and the reward money

.S A N D E R S V

. C U L L E

N 51

D. Failure to disclose that Givens received mental health treatment after the robbery

I n claim 19 o f his federal h abea s p e tition, Sanders contends that he was denied due process and a fair trial based

on the f a ilure to disclose that B renda Givens received mental health treatment af

t e r the robbery and before testify ing at trial. Givens was the B ob’s B ig B oy waitress whom Stewart warned about the robbery when the two ran into each o ther at the L os Ang eles County J ail. Givens was not at the restaurant

on the nig ht of the murders, but she testified at Sanders’s trial about the conversation she had with Stewart at the county jail, and Stewart’s visit to the restaurant that nig ht.

Sanders maintains that n either Givens nor the prosecution disclosed that Givens received psy chiatric t reatment, took medication, a

nd w as hospitaliz ed b efore trial. He arg ues that he was deprived of the opportunity to question her about this
treatment. He cites to both Brady and Mo o n e y

- Napue case law to support this arg ument. Reg ardless of how the issue is framed, the state court reasonably denied this claim.

Sanders concedes that n either the p ro s e c u tion nor the defense questioned Givens about her mental state or any treatment fo r i t at his trial. He relies o n testimony Givens
g ave at a hearing during F r eeman’s trial. There, she testified that she saw a psy chiatrist after the r obbery but denied taking
any medication o r ever being hospitaliz ed. She stated that she went to see Dr. Robert Kovan starting in March or April 1981, and met with him twice a month for about two months after suffering a miscarriag e. Dr. Kovan g ave a c o n flicting description of Givens’s treatment at F reeman’s tria l

. He stated that he first beg an treating her in November 1 981, that she was hospitaliz ed for a few day s in F ebruary 1982 due toS A N D E R S V

. C U L L E

N 52

ex treme anx iety and depression, and that she was treated with antidepressants and sleeping medication while she was in the hospital. Dr. Kovan also testified that the cause of Givens’s

anx iety and depression was a combination of difficulties she

was having at h ome with the man with whom she was living

a nd the B ob’s B ig B oy robbery

. H e did not recall he r e v e r telling him about a miscarriag e.

The state c ourt co u ld have reasonably determined that Sanders failed to assert a Mo o n ey

- Napue violation because Givens d i d not testify about mental health treatment a t his trial. The state c ourt also could h a v e reasonably concluded that Sanders failed to prove a Brady violation because he did
not show that the prosec u tion knew about Givens’s mental health treatment before F reeman’s trial.

Even assuming the prosecution was aware that Giv e n s received this treatment and withheld the information from defense, the state court could have reasonably determined that
t h e s uppression o f this evidence did not undermine its confidence in the outcome of the trial. The issue at trial was the identity o f the robbers, and Givens d id not identify either of them. The testimony she did provide at Sanders’s trial was corroborated by Rodell Mitchell, who stated that she r eported the conversation she had w i t h S t ewart at the county jail to several manag ers at B o b’s B ig B o y

. T h e parties stipulated that K im Clark would testify to the same effect. Mitchell a nd Gilcrest also corroborated G ivens’s testimony concerning Stewart’s visit to the r e staurant t h a t nig ht. The state court had ample reason to deny this claim.S A N D E R S V

. C U L L E

N 53

IV. Im proper Inf

luence o n Robinson’s and Malloy’s In-Court Identif

ications

Sanders nex t maintains that the prosecution improp erly i n f l u e n c e d R h o n d a R o binson’s a

n d Michael Malloy ’s in- c o u r t identifications by ex posi n g them to the g ag photog raph o f Sanders and Stewa r t h olding fake g u ns before F reeman’s prelimina r y hearing in F ebruary 1981. 2 0 The district court concluded “Ma l l o y ’ s a

n d R o binson’s identification testimony
was not p rejudiced by

ex posure to the photo because by that time they had already identified Petitioner from t h e lineup.” This claim was properly

denied.

Sanders’ s leg al characteriz ation of these claims has shifted o v er t i m e f

r o m a n i m p roperly influenced identification claim to a Brady claim. I n his state and federal habeas petitions, Sanders arg ued that the i m properly influenced identifications violated his constitutional rig hts to

a fair trial and due process. He cited United States v

. W ade

, 388 U.S. 218 (1967) and Simmons v. United States
, 390 U.S. 377 (1968) as the clearly established Supreme Cou rt precedent g overning these claims.

I n W a de

, the Supreme Court h e l d that a post-indictment lineup is a “crit ical stag e of the p rosecution” at which the

accu s ed i s e ntitled to counsel. 388 U .S. at 2 36–37. I n discussing the importance of pretrial lineups, the Court noted that a “major factor contribut i n g t o the hig h incidence o f miscarriag e of justice from mistaken identification has b een the deg ree of sug g estion inherent in the manner in which the prosecution presents the su s p e ct to witnesses for pretrial identification.” Id. at 2 28. S immons held that “convictions

20 T h is arg u m en t en co m

p asses claim s 5 an d 9

.S A N D E R S V

. C U L L E

N 54

based on ey ewitness identification at trial following a pretrial identification b y photog raph will be set aside on that g r ound only if the photog raphic identification procedu re w a s so impermissibly sug g estive as to g ive r ise to a very substantial likelihood of irreparable misidentification.” 390 U.S. at 384.

I n Neil v. Biggers
, the Supreme Court distilled “ g eneral
g uidelines” f

rom the c as es g overning “the relationship between s u gge stiveness and misidentification.” 4 09 U.S. 188, 198 (1972). Biggers e m p h asiz e d that courts must determine, u nder the totality of the circumstances, whether an in-c o u r t identification was reliable e ven thoug h a pretrial identification procedure was sug g e stive. Id. a t 1 9 9

. The Court outlined five factors “to be considered in evaluating the likelih o od of misidentification,” including “the opportunity of the witness t o view the criminal at the time of the crime, the w itness’[ s] deg ree of attenti o n , t h e accuracy of the witness’[ s] prior description of the c r iminal, the level o f certainty demonstrated b y the witness at t h e confrontation, and the leng th of time between the crime a n d the confrontation.” Id. a t 199–200.

On a ppeal, Sanders frames these cl aims as Brady violations for the f

irst time a

nd asserts that the prosecution failed to disclos e that Robinson and Malloy saw the g ag photog raph. He still cites to W ade a nd Simmons and arg ues that the fact that Robinson and Malloy saw the p h o tog raph constitute s e x culpatory impeachment evidence because the photo was unnecessarily

sug g estive.

As ex plained in the discussion of the Robinson Mooney

Napue claim, Robinson was not asked at Sanders’s trial whether she saw the p h o t o gr aph of Sanders a nd Stewart holding fake g

uns. At a hearing held in F reeman’s case, sheS A N D E R S V

. C U L L E

N 55

stated that she saw the photog r aph w hile waiting to testify at F reeman’s preliminary hearing in F ebruary 1981. L ikewise, Malloy was not asked about the photog raph during Sanders’s trial, b ut he testified at F reeman’s trial that he s a w i t while waiting to testify at the p reliminary hearing

. Neither Robinson nor Malloy saw who put the photog r a p h i n the

room where the witnesses w ere waiting

, nor who opened the blue notebook that contained the photog raph, but t h ey both testified that police officers escorted them to the room.

Assuming that the prosecution intentionally placed the
g ag pho t o in the room where the w itnesses for F reeman’s preli m inary hearing were waiting

, it remains that both Robinson and Malloy identified Sanders at the December 23, 1980 lineup, roug h l y o n e week after the crime and two

mo n t h s b efore they saw the fake g un p hotog raph at F reeman’s preliminary hearing

.

F urthermore, the state court could have reasonably d e t e rm i n e d t h at R o b i n son’s and Malloy ’ s in

- co u r t identifications at trial, a fter they saw the f ake g un photo, were reliable under the B iggers fa c t ors. Malloy h ad three opportunities to view the taller robber: ( 1 ) when the two robbers forced their way into the restaurant; (2) when Malloy removed the money from th e s a f e ; and (3) when Malloy handed the v i c t i m s’ personal belong ing s to the taller robber in the freez er. I n a ll, Malloy e stimated that he had “a g o od three minute[ s] ” t o v iew the taller r obber. W hile Robinson had less of a

n opportunity to see the robbers, she w a s able to observe the taller robber fo r t h r e e to four seconds. B oth Robinson and Malloy demonstrated a hig h level of certainty when they selected Sanders a t the lineup shortly after the crime, and they were confident in their identifications at trial.S A N D E R S V

. C U L L E

N 56

Assuming that Robinson’s and Malloy ’s ex posure to the
g ag photog raph was ex culpatory e v idence that was not disclosed, Sanders has not demonstrated that it was material under Brady because Robinson and Malloy identified San d e r s at the lineup before the y s a w t h e p hoto. The state court reasonably denied Sanders ’ s claims relating to Robinson’s and M a l l o y ’s e x posure to the fake g un photog raph, and we affirm the district court’s denial of Sanders’s habeas petition with respect to these claims.

V. Mesarosh Claim Relating to G ilcrest

I n c laim 17, Sanders m a i n tains that Gilcrest’s testimony
at F reeman’s trial revealed that “Gilcrest was a complete a nd total liar.” Stewart ’ s e x -boy friend, Gilcrest was o ne of the fi r st informants to implicate Sanders in the robbery and his trial testimony about his visit to B ob’s B ig B oy with Stewart

on September 27 was critical to establishing the ex istence o f

a conspiracy

. The district court a n a ly zed t his claim under Mooney

- Napue
, but Sanders has consistently cited Mesarosh

v. U nited States
, 352 U.S. 1 (1956) a s the clearly e stablished Supreme Court precedent for this claim.

I n Mesarosh , the defendants were convicted of violating the Smith Act for advocating the violent ove r throw of the Unit e d S t a tes g overnment. 352 U .S. at 3. W hen the case reached the Supreme Court on direct review, the Solicitor Genera l informed the Court that one of the principal
g overnment witnesses had g iven false t e s t imony in other similar proceeding s, which raised serious doubt a s to his

v eracity in the Mesarosh case. Id. at 4–7. I n fa ct , t h e Solicitor G eneral conceded that without the witness’s testimony

, the conviction of two of the five defendants could
not stand. Id. at 10. The g overnment sug g ested that the caseS A N D E R S V

. C U L L E

N 57

be “remanded to the D istrict Court for a full consideration o f the credibil i t y of the testimony ” of the witness. Id. at 8. I nstead, the Supreme Court reversed the judg ments below a nd directed the lower court to g rant the d efendants a new trial. Id. at 14. The Court ex plained: “The dig nity of the Uni t e d States Government will not p ermi t t h e conviction of any person o n tainte d testimony

. This conviction is tainted, a nd there can be no other just result than t o a c c ord p e titioners a new trial.” Id. at 9.

The Court deemed the situat i o n i n Mesarosh “ entirely different” from “a motion for a new trial init i a ted by the defense,

. . . presenting untruthful statements b y a Governmen t witness subsequent to the trial as newly discovered evidence a f

f e c t ing his c redibility .” Id. at 9–10. One of the reasons cited b y the Court was t hat the
g overnment questioned the credibi l i ty of its own witness based on testimony “in other proceeding s in the same field o f activity

, ” some of which was “positively established a s untrue.” Id. a t 10. The Supreme Court concluded it would be unreasonable to find the witness “testified t r uthfully in this

case

. . . , y et concurrently appear e d i n t h e same role in another tribunal and testified falsely .” Id. at 13.

Mesarosh applies in “those ‘rare’ situations ‘where the cred i b i lity of a k ey g overnment w itness has been “wholly discredited” by the witness’[ s] c ommission of perjury in other

cases involving substantially similar subject matter.’” United States v. Berry
, 624 F .3d 1 031, 1043 (9th Cir. 2010) (quoting United States v. Krasny
, 607 F .2d 840, 845 (9th Cir. 1979)). W e have g ranted habeas r elief twice in factual circumstances that closely paralleled those found in Mesarosh

. S ee W illiams

v. U nited States
, 500 F .2d 105 (9th Cir. 1974); United States

v. Chisum

, 4 36 F .2d 645 ( 9th Cir

. 1 9 7 1 ). I n both cases, theS A N D E R S V

. C U L L E

N 58

g overnment’s case rel i e d heavily on the testimony o f narcotics ag ents who were subsequently charg ed with perjury and conspiracy to deprive a defendant of his c i v i l rig hts “in

an investig a tion similar in n ature and contemporaneous in time” to the investig ation o f the h abeas petitioners. S e e W illiams , 500 F

. 2 d

at 106–08; Chisum

, 436 F .2d at 646–48.

This case is not one of the rare situation s g overned b y Mesarosh. Sanders identifie s a series of inconsistencies between Gilcrest’s testimony at Sanders’s trial and Gilcrest’s testimony at F r e e m an’s trial but they are a f ar cry from testimony “in the same field of activity ” that was “positively established as untrue

. ” T he first a lleg ed inconsistency pertains to Gilcrest’s testimony at Sanders’s trial that he went to the restaurant “just to drink coffee with [ Stewart] ,” and that Stewart “wanted to g o to see how ma n y people [were] working that n ig ht.” At F reeman’s trial, Gilcrest testified that Stewart “wanted to see who all was g o ing to work that nig ht

or h ow many people [ were] g oing to be there during closing

, ” and was then asked: “You have never told us this before, have
y ou? ” Gilcrest answered, “ No,” apparently forg etting that he
g ave very similar testimony

during Sanders’s trial.

Second, Gilcrest was a sked e x plicitly at F reeman’s tri al whether he was part o f a p lan or conspiracy with the people who told him they were g oing to r ob B ob’s Bi g Bo y , a nd whether he willing ly joined such a plan. Gilcrest answered “y es.” W hen asked w hat h e meant by that, Gilcrest stated: “I went to the restaurant with h er to do the planning

. I knew what was g oing down.” B ut Gilcrest also d e n ied that he intended to take pa r t i n t h e robbery on September 27 a nd testified that h e was not involved in the events of December 14.S A N D E R S V

. C U L L E

N 59

Third, at Sanders’s t r i a l, Gilcrest testified that h e may have asked for the $10,000 reward, but at F r eeman’s trial he unequivocally stated that he asked for the money

.

F ourth, at F reeman’s trial, G ilcrest admitted that he often lied about his name to a v o i d g e tting in trouble and that he used a fake name for traffic tickets and to forg e stolen money orders. Asked about his use of false n ames, Gilcrest testified that h e did not have a “moral objection to ly ing to the police”

or to Deputy District A ttorney Giss, a nd admitted that he lied
at Sanders’s and Stewart’s joint preliminary hearing about whether he wore g lasses for farsig htedness.

Gilcrest also admitted that h e lied to the police in his initial s t a tement about a conversation he alleg edly had with Sanders, Stewart, and F reeman. He t estified at F reeman’s trial that he had never spoken to Sanders, and that he made up the conversation because he “was nervous at the time.”

F inally

, Sanders a

rg u e s that Gilcrest may have lied about his income and employ

ment when he testified a t F reeman’s trial that he could make $10,000 in six months and that he made “p r e tty g o od money .” After testify ing that he did electrical w ork, painting

, and plumbing “under somebody else’s license,” the court appoin t e d an attorney to advise Gilcrest, and he thereafter refused to answer questions about his income and employ ment on the g rounds o f selfincrimination.

Gilcrest’s testimony at F r eeman’s trial demonstrates that he lied on a number of occa s i o n s a nd had little hesitation about doing so. He was c ertainly much more f orthcom i n g about his role in plannin g the f ailed robbery attempt atS A N D E R S V

. C U L L E

N 60

F reeman’s trial, 2 1 b u t Gilcrest was also ex posed as a liar a t Sanders’s trial.

F or ex ample, Sanders’s defense counsel cross-ex a mined Gilcrest abou t t w o letters that he sent to Stewart in jail a fter she was arrested. Def

ense counsel w ent throug h the letters line-by -line with Gilcrest, eliciting multiple admissions that the letters were replete with lies that Gilcrest told Stewart to make himself “look g ood.” I n h er closing arg ument at Sanders’s trial, defense counsel e m p hasiz ed that the letters contained thirty

- seven lies. Also d u ring Sande rs’s trial, defense c ounsel cross-ex amined Gi lcrest ex tensively about h is motivations f

or coming forward shortly after the crime, and arg ued in closing th at Gilcrest was motivated b y the reward money , by jealousy o f Sanders’s relationship with Stewart, and by a desire to protect himself from being implicated in the crime.

The state court could have disting uished the p resent case from Mesarosh on at least three g rounds

. F irst, unlike the witnesses in Mesarosh

, W illiams

, and Chi s u m , Gilcrest was not a g overnment ag ent. Second, Gilcrest ’ s testimony was only critical to the conspiracy convi c t i o n and it was corroborated, at least in p art, by Givens’s and Mitchell’s testimony at Sanders’s trial.

F inally

, the state co u r t could have reasonably disting uished Mesarosh because Sanders’s jury had multiple

reasons to d oubt G ilcrest’s c r edibility

, a n d their finding s with

21 G iss d escrib ed Gilcrest as “ ev ery th i n g w e all d esp i se an d d etest,”

“ s lip p ery ,” “ ev as i v e , ” “ s e l f i s h

, ” “ p o ssib ly im

m o ral,” “ an op p o rtu n ist,” an d

a “ ty p e of sleaze,” am o n g oth e r d i s p arag in g rem ark s, in h i s clo sin g arg u m en t at Freem an ’ s trial.S A N D E R S V

. C U L L E

N 61

respect to the ov e rt a c ts of the c o n spiracy demonstrate that they did n o t believe a ll of w hat Gilcrest had to say

. T he jury found that Stewart went to the restaurant on September 2 7
, 1980 “for the purpose o f planning and facilitating a robbery

, ” and that she went to the restaurant “a second time to t ake B renda Givens home.” Contrary to G ilcrest’s testimony

, the j u r y f ound that Stewart did not meet with Sanders a n d F reeman that nigh t f

or the purpose of planning the r obbery

. This sug g ests that the jury may have o n l y b el ieved the parts of Gilcrest’s testimony that were corroborated by Givens a nd Mitchel l. F or all of these reasons, we affirm the district court’s denial of Sanders’s habeas p etition with r espect to the Gilcrest Mesarosh claim.

VI. F ailure to P reserve Rogow ay’s Lineup Card

I n claim 13 of his federal habeas petition, Sand e rs contends that the p rosecution failed to prese rv e T ami Rog oway ’ s lineup card in bad faith. Sande r s b as es this
arg ument on Rog oway ’s testimony at Sanders ’ s preliminary hearing that she did not pick any one a t t h e lineup, and the loss o f her lineup card sometime after F reeman’s preliminary hearing

. The clearly e stablished Supreme C ourt p recedent
g overning this claim is California v. Trombetta

, 467 U .S. 479 (1984), and Arizona v. Y

o ungblood , 488 U.S. 51 (1988).

Under Trombetta

, the go vernment’s failure to preserve evidence violates a defendant’s d ue process righ t s if the unavailable evidence “possess[ ed] an ex culpatory value that

was a ppar e nt before the evidence w as destroy ed, and [ is] o f such a n ature that the d efe ndant w ould be u nable to obtain comparable evidence by other reasonably available m e a n s.” 467 U.S. at 489. I n Y

oungblood

, the Supreme Court held that “unless a criminal defendant can show bad faith on the p ar tS A N D E R S V

. C U L L E

N 62

of the police, failure to p reserve pote n t i ally useful evidence does not constitute a denial of due process of law.” 488 U.S.

a t 58. “ Y oungblood ’s bad faith requirement dovetails w i t h the first p art of the Trombetta test: that the e x culpatory value of the evidence be apparent before its destruction.” United States v

. Cooper
, 983 F .2d 928, 931 (9th Cir. 1993). “The
presence or absence of bad faith turns on the g over n m ent’s knowledg e of the apparent ex culpatory value of the evidence

a t t h e time it w as lost or destroy ed.” Id. The district co u r t ruled that this claim was not u n r e asonably denied because Sanders failed to show Rog oway ’s lineup card was lost in b ad faith.

As discussed, the state c o u r t held a California Evidence Code section 402 hearing re garding the loss of Rog oway ’s lineup card. Officer Wesselink and Detective J a cques testified that they s a w t h e card after the lineup, and that it reflected that Rog oway selected Sand er s

. F rom the c ard, Detective J acques recorded Rog oway ’s selection in the police log

.
Rog oway similarly testified a t the 402 hearing and at trial that she attended the lineup and selected Sanders. B ased on this testimony

, the state court could have rea s o n a b ly

c oncluded: (1) that Sanders did not show the lineup card possessed an e x culpatory value before it w as lost; and ( 2) that Sanders was able to obtain comparable evidence of what the card indicated from witness testimony and the p o l ice log

. The state court reasonably denied Sanders’s claim that the prosecution failed to preserve Rog oway ’s lineup card in b ad faith, and we affirm the district court’s ruling on this claim.S A N D E R S V

. C U L L E

N 63

VII. Massiah Claim Relating to Bruce Woods

I n claim 21, Sander s maintains that the prosecution planted B ruce W oods n ex t to Sanders in a jailhouse van a fter Sanders’s preliminary hearing in order to obt ain an incriminating statement from Sanders in violation o f h is Six th Amendment rig ht to counsel. T his claim is based on the same evidence cited i n support of the claim that W oods testified falsely

. I n b r i ef r eview, W oods testified at Sanders’s a nd Stewart’s jo i nt preliminary hearing about a conversation between Stewart and a mutual friend in Aug ust 1 980, in which Stewart asked if the f riend wanted to m ak e some money by robbing B o b’s B ig B oy

. At Sanders’s trial, Woods testified about threatening remarks Sanders alleg edly made

on the w ay back to c ounty jail after Sander s ’ s preliminary hearing

. The clearly e stablished S u preme Court p recedent
g overning this claim is Massiah v. United S tates , 377 U.S. 201 (1964).

Massiah prohibits the g overnment fro m “deliberately elicit[ ing ] ” incriminating statements f rom a defendant a fter the Six th Amendment rig ht to counsel attaches. 377 U.S. at 206. United States v

. Henry
, 447 U

. S

. 2 64 (1980) ex tended this prohibition to “the use of jailhouse informants who r elay incriminating statements from a p risoner to the g o vernment.” Randolph v. California

, 380 F

. 3d 1133, 1143 (9th Cir. 2 004) (describing Henry
, 447 U.S. at 270–71). B ut “the Six th Am e n d ment is not violated whenever—by luck o r happenstance—the State obtains incriminating statements from the accused a fter the rig ht to counsel has attached.” Maine v. Moulton

, 474 U.S. 159, 176 (1985). “[ A] defendant does not make out a violation of that rig h t simply by showing that an informant, either throug h pri o r a r rang e ment o r voluntarily

, r eported h is incriminating statements to theS A N D E R S V

. C U L L E

N 64

police. Rather, the defendant must demon s trate that the
p o lice and their informant took some action, bey ond mere l y listening

, that was d es i gn e d d e l i b e r a t e l y t o elicit incriminating remarks.” Kuhlmann v. W ilson

, 477 U.S. 436, 459 (1986).

To show that the Sta t e v i olated his Six th A mendment rig hts b y obtaining and u sing W oods’s testimony

, Sanders
must esta b lish that W oods “ w as acting as an a g ent of the State when he obtained the information ” and that Woods “m ade some effort to ‘stimulate conversations about the crime charg ed.’” Randolph

, 380 F

. 3d at 1144 (quoting Henry
, 447 U.S. at 271 n.9). The district court ruled that this claim

was reasonably denied because Sanders failed to show either element. W e affirm.

Sanders relies on the g rand jury ’s f inding s about the widespread practice of using jailhous e i n f ormants and the “sheer improbability that W oods would h a v e found himself seated nex t to Sanders b y happenstance when the r e was a keep away order.” B ut unlike M assiah a nd Henry
, there is no evidence th a t W o ods’s conversation with Sanders was recorde d or that W oods had ag r eed to report back to the
g overnment. S

e e Massiah

, 3 77 U.S. at 203 (informant allowed g overnment ag ent to install a r adio transmitter in his

car to transmit a c onversation w i t h the defendant); Henry
, 447 U .S. at 270 (informant acted under g ov er n m e nt instructions and was paid for his services).

W o ods testified a t trial that he pleaded no contest to a burg lary charg e on F ebruary 23, 1981, roug hly o ne month before Sanders’s and Stewart’s joint preliminary hearing

, a nd he said that he entered his plea before he “ever had any kind of understanding with any law e n forcement authoritiesS A N D E R S V

. C U L L E

N 65

worked o ut” related to the B ob’s B ig B o y case. T h e parties stipulated a t trial that W oods’s sentencing was held off until after he testified at the preliminary heari n g

. H e was

s e ntenced immediately after the hearing

, and Giss info r m e d the sentencing judg e that W oods was a witness in the B o b’s B ig B oy case.

B y the time o f Sanders’s t ri al

, Woods was no long er in jail and had moved to Alabama. The p rosecution p aid for W o ods to fly back to L os Ang eles to testify

, but Sanders did
not show that W oods stood to g ain further ben e fi t from testify ing ag ainst Sanders; W oods had already f inished serving his sente n c e f

o r the burg lary charg e. B ased on this record, the s t ate court could have reasonably concluded that Sanders did not sho w t h at W oods ag reed to serve a s the prosecution’s ag ent.

There is also no evide n c e that W oods initiated the conversation with Sanders in the van or m ade any effort to elicit incriminating statements. W oods did not testify that he asked Sanders any q u e stions or o therwise attempted to

en g a g e him in conversation. The state court reasonably denied Sanders’s Massiah claim.

VIII. Inef

f ective Assistance of

Counsel

I n claim 1 4, Sanders alleg e s ineffective assistance o f counsel for the failure to move to suppress the December 23, 1980 line u p

. “The clearly established federal law for ineffective assistance of c ounsel claims, as determined b y the Supreme Court, is S t rickland v. W ashington

, 466 U.S. 668 (1984).” Andrews v. D a vi s , No. 09-99012, 2017 U.S. App. L EXI S 13960, at *43 (9th Cir. Aug

. 1, 2017). To prevail on this c laim, Sanders must estab l i s h that his counsel’sS A N D E R S V

. C U L L E

N 66

performance w as constitutionally deficient and “the deficient performance prejudiced the defense.” Strickland

, 466 U.S. at 687.

The “ d eficient performance” prong requires a defendant
to show “that counsel’s representation fell below an objective standard of reaso nableness” such that “counsel w as not functioning as the ‘counsel’ g u aranteed the defendant by the Six th Amendment.” Id. at 687–88. I n e valuating c o unsel’s performance, “a c ourt must indulg e a strong presumption that counsel ’ s conduct f

alls within the w ide rang e of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challeng ed action mig ht be considered s o u n d trial strateg y .” Id. at 689 (internal quotation marks omitted). T he “p r e j u d ice” prong requires a defendant to show “ there i s a reasonable probability that, b u t f

or counsel’s unprofessional e rrors, the result of the proceeding would have been d i f f erent. A reasonable p robability is a probability sufficient to undermine confidence in the outcome.” Id. at 694.

“Under [ ] A EDPA, the primary issue is whether the state court adjudication of the S tri c k l and claims was objectively reasonable.” W

oods v. Sinclair

, 7 64 F .3d 1 1 09, 1131 (9th Cir. 2014); see also Richter

, 562 U.S. at 101. “The standards created by Strickland and § 2254(d) are both hig hly deferen t i al, and when the two apply in tandem, review is doubly so.” Richter

, 562 U.S. at 105 (internal cita t i o n s a nd quotation marks omitted). T h us, even if a federal court would find—on de novo review—that the petitioner p r o v ed constitutionally de ficient p erformance under Strickland

, “AE D P A r equires that a federal court f ind the state court’s contrary conclusions [ ] objectively unreasonable before
g ranting habeas relief.” W oods , 764 F .3d at 1132.S A N D E R S V

. C U L L E

N 67

Sanders a r gu e s that his trial c o unsel should have moved
to suppress the lineup on two g rounds: (1) Sanders was n o t represented by counsel at the lineup; a nd (2) the lineup was impermissibly sug g estive. T h e district court rejected both
arg uments, concluding that Sanders’s r ig ht to counsel had not attached a t the time of t h e lineup and the lineup was not impermissibly sug g estive. W e affirm.

A. Right to Counsel at the Lineup

I n Kirby v. Illinois

, a plurality of the Supreme Court h eld that the “Six th and F o urteenth A m e n d ment rig ht to counsel attaches only at or after the time that adver sary judicial proceeding s have been initiated a g a i n st [ the d efendant]

. ” 406 U.S. 682, 6 88 (1972)

. The Supreme Court c onfirmed this holding in a long line of subsequent cases. See U nited States

v. G ouveia
, 467 U.S. 180, 1 87–88 (1984) (collecting cases). The g overnment may initiate judicial c r i minal proceeding s “by way o f formal charg e, preliminary h e aring

, indictment, information, or arraig nment.” Kirby

, 406 U.S. at 6 89. Thus, while a defendant has a rig ht to c ounsel at a post-indictment lineup, see W

ade

, 388 U.S. at 236–37, the r e i s n o clearly established rig ht to counsel at a pre-charg e lineup.

Sanders was arrested on December 22, 1980, but was not arraig ned until December 24, the day after the lineup. Charg es w e r e not filed a g ainst him until March 1 8, 1981. Since Sanders’s rig ht to c ounsel did not attach until after the lineup, it is unlikely that the court w ould have g ranted a motion to suppress on this basis. The state court c ould have reasonably determined that trial counsel was n o t ineffective for failing to file a motion to suppress on this g round because

an attorney is not in e f f e ctive f or failing to file anS A N D E R S V

. C U L L E

N 68

unmerit o r i o u s motion. Sexton v. Cozner
, 679 F .3d 1150, 1157 (9th Cir. 2012).

B. Impermissibly Suggestive

I t is alway s necessary to sc ru tiniz e any pretrial identification b eca u s e the “Due Process Clause of the F ifth and F o u rteenth Amendments forbids a lineup that is unnecessarily suggestive and conducive to irreparable mistaken i d e n t i fication.” Kirby

, 4 06 U.S. a t 691; see also Simmons
, 390 U.S. at 384. Sanders arg ues that the December 23 lineup was impermissibly sugge stive because he was the only suspect with a J heri c url hairsty le and not wearing shoes, and was c onspicuously in pain from the police beating he suffered during

his arrest.

Having e x amined the record carefu lly

, we conclude that the state court could h ave reasonably determined that the lineup was not unnecessarily sug g estive. The videotape a nd photog raph of the lineup show that all six s u s p e c ts were similar in heig ht, weig ht, build, an d complex ion. They h ad similar hair color and all had some f a ci al hair. Althoug h Sanders was the only one wi t h a J h e r i curl, all the suspects had roug hly the same leng th hair. The suspects appear to be in the same ag e rang e. They w ere d r e s s e d in identical clothing

, with the ex c ep t i on of their footwear. Two o f the suspects were wearing slippers, three w ere wea ring tennis shoes, and Sanders was barefoot.

The r ecord shows that the suspects’ feet are not visible in the videotape, so neither Michael Malloy nor Tami Rog oway

saw that Sanders was barefoot when they selected hi m from the r ecorded lineup. T h e record does n ot make clear whether Sanders’s feet were visible to the witnesses who attended theS A N D E R S V

. C U L L E

N 69

live lineup, including Rhonda Robinson and I smael L una, but Detective Stallcup testified a t t r i al that he did not “ believe they could have seen [Sanders’s] feet,” based on the phy sical lay out of the a

uditorium where t h e l i neup was held. Detective Stallcup also testified that there was no evidence in the case sug g esting that the robbers w ere barefoot when they committed the crime.

Sanders had three fractured ri b s and subcutaneous emphy sema, which is a ty pe of s w e l l i ng below the skin, on the d ay of the lineup. Sanders’s arg ument that the lineup was impermissibly sug gestive because he was conspicuously in
p a i n from the alleg ed police beating also fails because the
state court could have reasonably determined that h e was not

n oticeably in pain. Sanders acknowledg es that his c lo t h i n g covered all of his injuries, but a rg ues that when he was asked
to repeat key phrases from the robbe ry , h e had d ifficulty speaking up. He was instructed to speak louder several times and closed his ey es when he finally spoke loud enoug h. The video recording shows that four other suspects in the lineup

were also instructed to speak louder and it i s n ot clear whether Sanders closed his e y es i n p a i n or in frustration at being asked to repeat himself. He moved somewhat more slowly than the other suspects, bu t d id not appear to have difficulty walking

.

On this record, the s t ate court could have reasonably determined that t h e lineup was not u nnecessarily sug g e stive and that a suppression motion would have b een un l i k e l y to succeed. “The failure to raise a meritless leg al arg ument does
not constitute ineffective assistance of counsel.” Baumann v

. United States
, 692 F .2d 565, 572 (9th Cir. 1982). I n lig ht o f
t he “doubly ” deferential standard created by Strickland a nd § 2254(d), the state cou r t c o uld have reasonably concludedS A N D E R S V

. C U L L E

N 70

that Sanders failed t o show his counsel’s performance was constitutionally deficient. W e af f i r m the district court’s denial of Sanders’s habeas petition with respect to the ineffective assistance of counsel claim for the failure to move to suppress the lineup.

IX. Cum ulative Error

F inally

, in claim 27, Sanders c ontends that the c umulative effect o f the g uilt-phase e rrors rendered h is trial fundamentally unfair and requires reversal of his convictions. S an ders is correct that “ prejudice may result from t h e cumulative impact o f m

u l t i ple deficiencies,” W

oods

, 7 6 4 F .3d
at 1 139 (quoting Cooper v. F itzharris

, 586 F. 2 d 1 325, 1333 ( 9 th Cir. 1 978)), but Sanders has not shown that there we r e multiple deficiencies in his g uilt-phase trial.

The prosecution disclosed Tami Rog oway ’ s relationship with notorious jailhouse informant L eslie W hite before trial, and the best indication we have is that the relationship b eg an several m onths after Rog oway identified Sanders at his preliminary hearing a

n d at the December 23, 1980 l i n eup. Sanders has not d emonstrated that W hite was in a position to influence Rog oway ’s identif i c a tion before the lineup or the preliminary hearing

, and h a s similarly failed to prove that Rog oway ’ s lineup card h ad ex culpatory value b e fore it was lost.

Althoug h Rhonda Robinson and Michael Malloy were

ex p osed to the p hotog raph of Sanders and Stewart holding fake g uns, they both identified Sanders at the lin e u p t w o months before they saw the pho t o

. Defense counsel was

aware of the risk t h at they had seen the photog raph at trial.S A N D E R S V

. C U L L E

N 71

At most, Robinson te s t ified incorrectly about whether she saw the blue notebook that contained the photog raph.

W h ether o r not Malloy incorrectly recalled who told him
to attend the December 23 lineup, he had the b est opportunity
t o observe the taller robber and he never wavered in his testimony identify ing Sand e rs. David L ind’s statement to Malloy to attend the lineup to “identify the g uy s” d id not sug g est that Malloy should s e l ect Sanders. I smael L una’s identification was alway s weak and he a d m i t ted a t both Sanders’s and F r eeman’s trials that he h ad d ifficulty identify ing black people.

B r enda Given s w as not a sked at Sanders’s trial whether she received mental health treatment after the robbery

, a nd there is no evidence that the prose c u t i o n suppressed this information. Givens’s testimony about her conversation with Stewart at the county jail was corroborated b y R odell Mitchell’s testimony and the stipulation t h a t , if called to testify

, Kim Clark w ould have stated that he w as also present

w h e n G ivens told Mitchell about the r obbery threa t

. Detective Stallcup’s deposition testimony and David L ind’s declaration in Rog o way ’s subsequent c i v i l suit do not demonstrate that Mitchell lied abo u t c alling the police o r filing an incident r eport. The jur y heard conflicting testimony from Mitchell, the police, a nd Davi d L i n d about the phone calls and the incident report, and h a d t h e opportunity

to evaluate Mitchell’s credibility

.

Andre G i l crest’s testimony at F reeman’s trial demonstrates that he lied on many ex traneous details, and h ad little compunction about ly ing

. B ut he was also ex posed a s

a liar w ith dubio u s motivations at Sanders’s trial, and it is clear that t h e j u r y did not accept all of his testimony

. TheS A N D E R S V

. C U L L E

N 72

facts of this case are disting uishable from Mesarosh

. Sanders

o f f ers o n ly g e neral e vidence a b o ut the jailhouse-informa n t scandal to support h is claim that the prosecution p lanted B ruce W oods in the jailhouse van to obtain incrimi n a t ing remarks, and there is no evidence in the record that W oods

w a s a go vernment ag ent or took any action to solicit the threats from Sanders. F inally

, the state court cou l d h ave reasonably determined that defense c ounsel did not render deficient performance by

failing to f

ile a motion to suppress because such a motion was unlikely to succeed. Cumulative error does not require reversal of Sanders’s convictions.

CONCLUSION

F or the foreg oing reasons, we affi r m t h e district court’s denial of Sanders’s petition for a writ of habeas corpus.

AF F IRMED.