FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JOSHUA RICHTER, 

Petitioner-Appellant,

No. 06-15614

v.  D.C. No.

R. Q. HICKMAN, Warden; CAL A. CV-01-00643-JKS

TERHUNE; ERNIE ROE,

Respondents-Appellees. 

CHRISTIAN BRANSCOMBE, 

Petitioner-Appellant, No. 06-15776

v. D.C. No.  CV-01-00643-JKS R. Q. HICKMAN, Warden; CAL A.

TERHUNE; ERNIE ROE, OPINION

Respondents-Appellees. 

Appeal from the United States District Court

for the Eastern District of California

James K. Singleton, Chief District Judge, Presiding

Argued and Submitted

October 15, 2007—San Francisco, California

Filed April 9, 2008

Before: Robert R. Beezer, Stephen S. Trott, and

N. Randy Smith, Circuit Judges.

Opinion by Judge Beezer

3657
COUNSEL

Cliff Gardner, Oakland, California, for petitioner-appellant

Joshua Richter. 

Ann C. McClintock, Assistant Federal Defender, Sacramento, California, for petitioner-appellant Christian Branscombe. 

Harry Joseph Colombo, Deputy Attorney General, and John

G. McLean, Supervising Deputy Attorney General, Sacramento, California, for the respondents-appellees.

OPINION

BEEZER, Circuit Judge: 

Appellants in these two consolidated cases were jointly

convicted of murder, attempted murder, robbery and burglary

in California state court. They were sentenced to life in prison

without the possibility of parole. In the present action, they

appeal the district court’s denial of writs of habeas corpus.

Appellants allege that they received ineffective assistance of

counsel at trial in violation of Strickland v. Washington, 466

U.S. 668 (1984). Appellants further allege that the prosecution suppressed exculpatory evidence at trial in violation of

Brady v. Maryland, 373 U.S. 83 (1963). Appellant Christian

Branscombe (“Branscombe”) argues that his trial counsel

failed to engage in “meaningful adversarial testing” in violaRICHTER v. HICKMAN 3661
tion of United States v. Cronic, 466 U.S. 648 (1984). Appellant Joshua Richter (“Richter”) alleges that the trial court violated his Eighth Amendment right to a jury trial and

Fourteenth Amendment right to due process by providing an

incorrect or inaccurate answer to a question of law posed by

the jury to the trial court. We affirm the district court’s denial

of appellants’ habeas petitions.

I

Joshua Gunner Johnson (“Johnson”), a friend of Richter

and acquaintance of Branscombe, lived in a house in Sacramento. On the evening of December 19, 1994, Richter and

Branscombe drove to Johnson’s house so that Richter could

pay Johnson some money he owed him and buy some marijuana from him. Richter and Branscombe were waiting in

their car in Johnson’s driveway when Johnson returned home,

accompanied by Patrick Klein (“Klein”) and another individual. Johnson did not recognize the car, and approached the car

with his .380 caliber Mac-12 handgun drawn. Upon recognizing the petitioners, Johnson put the Mac-12 away. Johnson,

Klein, Richter and Branscombe went into the house, where

they socialized for several hours. While they talked, Branscombe cleaned a .32 caliber handgun that he had recently

acquired from either Johnson or Johnson’s housemate. Richter

and Branscombe left Johnson’s residence shortly after

2:30 a.m. on December 20, 1994. Klein decided to stay the

night. 

At trial, appellants and appellee State of California (“the

State”) presented different accounts of the ensuing events.

The State presented evidence that after Richter and Branscombe left, Johnson went to sleep in his bedroom and Klein

lay down on the couch in the living room. Johnson woke up

early in the morning to find Richter and Branscombe in his

bedroom, likely attempting to steal Johnson’s gun safe, which

was allegedly located in Johnson’s bedroom closet. Branscombe shot Johnson, and Johnson later heard gunshots com3662 RICHTER v. HICKMAN
ing from another room. Johnson found Klein lying on the

couch bleeding and discovered that his Mac-12 was missing,

along with a hip sack that contained $6000 in cash. 

Richter and Branscombe presented evidence that they

returned to Johnson’s residence around 4:00 a.m. so they

could give Johnson’s housemate certain belongings and

wages, and so that Branscombe could return the .32 caliber

handgun. Richter stayed in his truck while Branscombe was

let into the house by Klein. Shortly thereafter, Richter heard

gunshots. He headed toward the house and heard more yelling

and gunshots as he approached the front door. Richter saw

Klein lying in the doorway to Johnson’s bedroom, and found

Branscombe “totally freaked out” standing in the middle of

the bedroom holding a firearm. Branscombe told Richter that

Johnson and Klein had fired at him and tried to kill him.

Branscombe picked up the Mac-12 from the floor and told

Richter that Johnson or Klein had fired it and had tried to

shoot him with it. Branscombe then ran outside and tried to

start the truck. Richter panicked and ran back out to the truck.

Richter and Branscombe drove away. 

Soon after the shootings, Johnson made a 911 call to police.

Before police arrived six minutes later, Johnson testified that

he made a phone call to his girlfriend’s father and took two

trips through the house and into the yard to hide his marijuana

plants. The police arrived at the house six minutes after Johnson’s 911 call. Upon arrival, they encountered a “hysterical”

Johnson, who had blood on his cheeks, shirt, hands and right

shoulder. The police saw Klein lying on top of a sleeping bag

on the living room couch, near death. 

A subsequent investigation found two spent .32 casings in

the bedroom where Johnson said he had been shot. The investigators found blood on the bed where Johnson said he had

been shot, and a pool of blood in the doorway to Johnson’s

bedroom. Investigators determined that Klein had been shot

twice, by a .22 and a .32 caliber bullet. They also found a

RICHTER v. HICKMAN 3663
spent .32 and a spent .22 casing in the living room near the

couch where Klein was lying. Later, while searching Richter’s

residence, investigators found Johnson’s gun safe haphazardly

laying on its back. Investigators found a .380 casing in Richter’s vehicle which they determined had been ejected from

Johnson’s Mac-12. 

The weapons used to kill Klein and injure Johnson were

never found, but investigators examined the bullets fired and

casings ejected at the scene. The .22 bullet removed from

Klein was a CCI Stinger. The bullet had markings consistent

with being ejected from a High Standard Sport King, although

investigators could not rule out the possibility that the bullet

had been fired from a different .22 caliber firearm. Investigators also found a CCI Stinger brand .22 caliber casing in Johnson’s living room, near the couch where Klein was found by

the police. The casing had markings consistent with (but not

exclusive to) having been fired from a High Standard Sport

King. While searching Richter’s residence, investigators

found a magazine loaded with CCI Stinger brand .22 cartridges. The magazine was identical in size and shape to High

Standard magazines designed specifically for a Sport King.

An investigator successfully fired a laboratory exemplar High

Standard Sport King using the magazine found in Richter’s

residence. 

A California Superior Court jury found Richter and Branscombe guilty of all charges after a trial lasting over three

weeks. Following their convictions, Richter and Branscombe

appealed to the California Court of Appeal, which affirmed

the judgments of the trial court. Appellants filed a petition for

review in the Supreme Court of California, which was denied.

Appellants sought writs of habeas corpus in the California

Supreme Court, which denied their petitions. Appellants

timely petitioned for writs of habeas corpus in the United

States District Court for the Eastern District of California,

which denied the petitions. Appellants sought certificates of

appealability from this court, which were granted. 

3664 RICHTER v. HICKMAN
II

Under the Antiterrorism and Effective Death Penalty Act of

1996 (“AEDPA”), we may not grant a habeas corpus petition

unless the state court decision “was contrary to, or involved

an unreasonable application of, clearly established Federal

law, as determined by the Supreme Court of the United States,”

1

or “was based on an unreasonable determination of the facts

in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d). When reviewing a state court’s

summary denial of a habeas petition, we “look through” the

summary disposition to the last reasoned state court decision.

Plascencia v. Alameida, 467 F.3d 1190, 1198 (9th Cir. 2006).

When no state court has explained its reasoning on a particular claim, we conduct “an independent review of the record to

determine whether the state court’s decision was objectively

unreasonable.” Sass v. Cal. Bd. of Prison Terms, 461 F.3d

1123, 1127 (9th Cir. 2006). 

We review a district court’s decision to grant or deny a writ

of habeas corpus de novo. Lewis v. Mayle, 391 F.3d 989, 995

(9th Cir. 2004). We review the district court’s findings of fact

for clear error. Bonin v. Calderon, 59 F.3d 815, 823 (9th Cir.

1995).

III

Appellants argue that they were denied effective assistance

of trial counsel as guaranteed by the Sixth Amendment. Under

Strickland, petitioners claiming ineffective assistance of coun1A state court decision is “contrary to” clearly established federal law

if the state court arrives at a conclusion opposite to that of the Supreme

Court of the United States on a question of law, or decides the case differently than the Supreme Court on a set of materially indistinguishable facts.

Williams v. Taylor, 529 U.S. 362, 405 (2000). A state court decision is an

“unreasonable application of” clearly established federal law if the state

court identified the correct governing legal rule but unreasonably applied

it to the facts at hand. Id. at 407. 

RICHTER v. HICKMAN 3665
sel must show both cause and prejudice to prevail on their

claim. 466 U.S. at 687. 

To show cause, petitioners must demonstrate that counsel’s

performance at trial was objectively unreasonable, i.e., “outside the wide range of professionally competent assistance.”

Id. at 688, 690. Judicial scrutiny of counsel’s performance

“must be highly deferential.” Id. at 689. Counsel is “strongly

presumed to have rendered adequate assistance.” Id. at 690.

Courts reviewing counsel’s performance “evaluate the conduct from counsel’s perspective at the time,” to “eliminate the

distorting effects of hindsight.” Id. at 689. Strategic choices

made by counsel after thorough investigation are “virtually

unchallengeable.” Id. at 690. A decision not to investigate

must be assessed for reasonableness, applying a heavy measure of deference to counsel’s judgments. Id. at 691. 

To show prejudice, petitioners must demonstrate there is a

“reasonable probability that, but for counsel’s unprofessional

errors, the result of the proceeding would have been different.” Id. at 694. “When a defendant challenges a conviction,

the question is whether there is a reasonable probability that,

absent the errors, the factfinder would have had a reasonable

doubt respecting guilt.” Id. at 695.

A

Appellants first argue that trial counsel rendered ineffective

assistance under Strickland by (1) failing to develop and present testimony from firearms evidence experts, (2) failing to

develop and present expert testimony to contradict the state’s

serology evidence and (3) failing to develop and present testimony from pathology experts. Appellants now submit declarations from experts in each of these three areas to support

their assertion that they were prejudiced as a result of their

counsel’s failings. 

We need not decide whether appellants’ trial counsel acted

unreasonably in failing to consult and present experts in fire3666 RICHTER v. HICKMAN
arms evidence, serology and pathology. Even assuming that

trial counsels’ failure to consult and present such experts was

unreasonable, appellants do not show that such failure prejudiced their case. 

1. Firearms Evidence

Appellants argue that their counsel rendered ineffective

assistance by failing to develop and present expert testimony

demonstrating that Johnson’s Mac-12 firearm was prone to

jamming. 

At trial, the defense argued that Johnson attempted to shoot

Branscombe with his Mac-12, but the weapon jammed

because an empty shell failed to eject. Evidence that the Mac12 had jammed would have bolstered the defense’s case by

providing a non-incriminating explanation for why Klein had

been hit by both a .32 caliber and a .22 caliber bullet. According to the defense’s theory at trial, after Johnson’s Mac-12

jammed, he grabbed his .22 handgun. While trying to shoot

Branscombe with the .22 as Branscombe struggled with

Klein, Johnson missed and hit Klein instead. Branscombe

then fired his .32 at both Klein and Johnson in self-defense.

The theory also provides the defense with an explanation for

why an empty shell from the Mac-12 was found in Richter’s

vehicle: the shell failed to eject when Johnson fired the handgun at Branscombe, but ejected when Richter and Branscombe examined it after leaving the scene of the shootings.

At trial, the State’s criminalist, Robert Garbutt (“Garbutt”),

testified that he test-fired Johnson’s Mac-12 three times without a misfire. On cross-examination, Garbutt testified that

modifications Johnson made to the Mac-12 could cause it to

“malfunction or fail to fire.” Garbutt also testified that he did

not know whether these modifications would specifically

cause a failure to eject the shell. Garbutt’s testimony provided

some support for the theory that Johnson accidentally shot

Klein with a .22 bullet, but failed to explain why an empty

RICHTER v. HICKMAN 3667
shell, rather than an unfired bullet, was found in Richter’s

vehicle. 

Appellants now submit a declaration of an expert in firearms evidence who would have testified that the type of alterations made to Johnson’s Mac-12 “can cause the gun to fail

to eject a spent cartridge.” 

[1] Appellants’ counsel’s failure to have such an expert testify at trial did not prejudice their case. Even had the jury

heard the proffered expert’s testimony that the Mac-12 could

jam, there is no reasonable probability that the jury would

have accepted appellants’ theory that the Mac-12 did jam in

this case. The proffered expert offers no opinion on the actual

likelihood that such a modification would cause the weapon

to jam. Garbutt, the State’s own expert, admitted at trial that

the modifications to Johnson’s Mac-12 could possibly cause

it to fail to fire, but found that the weapon successfully fired

each of the three times that he tested it. To accept the appellants’ theory, the jury would have had to find that (1) the

Mac-12 malfunctioned when Johnson tried to fire it at Branscombe, even though it functioned normally when tested later,

(2) the .22 caliber bullet in Klein’s body came from a different firearm belonging to Johnson instead of one belonging to

Richter, (3) the bullet from Johnson’s .22 caliber hit Klein

even though Johnson was attempting to shoot Branscombe,

(4) Johnson would attempt to fire two different firearms at

Branscombe, even though Branscombe had been a social

guest in Johnson’s house just hours before, (5) Klein would

attack or threaten Branscombe in a manner justifying Branscombe’s shooting of Klein in self-defense, even though

Klein had been the person who let Branscombe into the house

minutes earlier and (6) it is mere coincidence that investigators found a magazine in Richter’s residence full of .22 CCI

Stinger cartridges—the same type as the casing found in

Johnson’s living room. 

[2] The totality of the evidence presented at trial weighs

strongly against appellants’ theory that the Mac-12 jammed

3668 RICHTER v. HICKMAN
and that Branscombe fired at Klein in self-defense. There is

no reasonable probability that the jury would have changed its

verdict had they heard additional testimony stating that the

Mac-12 could possibly malfunction in some manner. 

2. Serology

Appellants argue that their counsel rendered ineffective

assistance by failing to develop and present expert testimony

regarding the source of the pool of blood in the doorway to

Johnson’s bedroom. If the pool of blood included blood from

Klein, it would indicate that Klein had probably been killed

near the doorway, instead of on the living room couch. This

would contradict Johnson’s testimony that Klein had been

shot on the living room couch, and would instead support the

defense’s theory that Johnson had moved Klein to the couch

after the shootings. This would also support the defense’s theory that Klein had been shot by an errant bullet from Johnson’s .22 caliber as Klein struggled with Branscombe in the

vicinity of the bedroom door. 

At trial, the State’s serology expert testified that evidence

taken from a sample of blood in the doorway confirmed that

the blood tested came exclusively from Johnson. Appellants

now submit the declarations of two serology experts stating

that they “could not exclude” the possibility that the blood

sample contained a mixture of Johnson’s and Klein’s blood.

[3] There is no reasonable probability that the jury would

have rendered a different verdict had defendants’ proffered

serology experts testified at trial. The serology experts’ testimony, even if believed, would not significantly weaken the

State’s case. All the testimony says is that it is possible that

the blood sample taken from the bedroom doorway might be

a mixture of Klein and Johnson’s blood, instead of being

exclusively Johnson’s blood. Because these expert reports do

not foreclose the likelihood that the blood from the blood

sample came exclusively from Johnson, they do not impeach

RICHTER v. HICKMAN 3669
Johnson’s testimony that the blood came from him alone. The

expert reports also do nothing to contradict the weight of the

evidence presented at trial that supported the State’s theory of

the case.

3. Pathology

Appellants argue that their counsel rendered ineffective

assistance by failing to consult a pathology expert and present

testimony from such an expert at trial. Appellants argue that

a pathology expert could have determined whether Johnson’s

wounds were severe enough for Johnson to have been the

only source of the large pool of blood on the floor. Appellants

now proffer a declaration from a pathology expert stating that

“it is highly unlikely that the blood pool found in the doorway

between the bedroom and living room was caused by Mr.

Johnson’s wounds.” The expert’s rationale for this conclusion

is that Johnson was not bleeding enough, and did not remain

in the doorway long enough, to be the sole contributor to the

blood pool. 

[4] The lack of testimony from the pathology expert at trial

did not prejudice the appellants. The reasons the expert provided in reaching his conclusion are flawed and are partially

contradicted by the record. 

First, the expert states that it is unlikely that Johnson had

been bleeding significantly from his shoulder and cheek

wounds. The expert bases his conclusion upon the fact that

one of the policemen responding to Johnson’s 911 call “did

not notice that Mr. Johnson was injured until . . . several minutes after first contacting Mr. Johnson” inside the house. This

statement of fact, while technically correct, distorts the

record. The policeman in question, deputy Michael Wright

(“Wright”), testified that, immediately upon entering the

house, he noticed that Johnson had blood on him. Wright

stated that he noticed blood “on both [of Johnson’s] cheeks,

blood covering his shirt, . . . blood on his hands, and . . . on

3670 RICHTER v. HICKMAN
his right shoulder.” Wright did not confirm that Johnson’s

blood came from Johnson’s own wounds until several minutes

later. It appears from Wright’s testimony that there was so

much blood on and around Johnson’s cheek that Wright did

not notice Johnson had been shot in the cheek until Johnson

wiped the blood off. Wright’s testimony contradicts, rather

than supports, the defense expert’s conclusion that Johnson

was not bleeding enough to be the sole contributor to the

blood pool. 

Second, the expert states that the amount of blood likely to

result from a shoulder wound would likely be minimal. This

statement fails to undermine the State’s case. The statement

does not address the quantity of blood that could be produced

by a bullet wound in the cheek. The statement is speculative,

and is contradicted by Wright’s eyewitness testimony at trial.

[5] Third, the expert states that it is unlikely Johnson was

standing in the doorway long enough to create the pool of

blood. This observation adds little beyond what a lay jury is

qualified to observe. The expert does not provide any medical

or scientific basis for his conclusion. There is not a reasonable

probability that the expert’s testimony, based upon the same

observations that the jury was qualified to make, would have

affected the jury’s verdict. 

4. Aggregate Impact of the Proffered Testimony

[6] Strickland requires us to assess the aggregate impact of

counsel’s alleged failures when evaluating whether such

alleged failures prejudiced the defendants. 466 U.S. at 695-96.

The proffered testimony from the experts in firearms evidence, serology and pathology, considered in the aggregate,

does not demonstrate prejudice. The testimony is not compelling enough to conclude that there is a reasonable probability

that the jury would have reached a different verdict had they

heard the testimony.

RICHTER v. HICKMAN 3671
B

[7] Appellants next argue that their counsel rendered ineffective assistance by failing to consult and present an expert

on bloodstain pattern interpretation. We are unconvinced that

trial counsels’ failure to consult an expert on bloodstain pattern interpretation falls outside the wide range of professionally competent assistance. See Strickland, 466 U.S. at 690.

Before trial, it was not unreasonable for counsel to fail to

understand that an expert in bloodstain pattern interpretation

—someone who could testify as to “blood into blood patterns” and “satellite drops” that result from blood falling from

a certain height—would be valuable to his case. Counsel

highly experienced in trying cases involving bloodstain evidence might well have understood the value of such an expert,

but the Sixth Amendment does not guarantee defendants a

right to highly experienced counsel. See id. at 688, 690. 

Richter’s defense counsel, Mark Axup (“Axup”) stated that

he was surprised by the State’s decision at trial to call a detective as an expert on blood spatter evidence. The detective,

Robert Bell (“Bell”), had investigated the homicide of Klein.

Defense counsel had expected Bell to testify, but not as an

expert in bloodstain pattern interpretation. The State made a

last-minute decision to ask Bell to testify about the blood

spatter evidence. 

By the time Bell had testified, the trial was well underway

and Axup later stated that defense counsel had little to no time

to delve into the specifics of bloodstain pattern science. Given

the circumstances, it was reasonable for counsel to not spend

time attempting to locate and consult potential rebuttal

experts, particularly since it was not clear that such an expert

would disagree with the opinion of the State’s expert. Defense

counsel’s failure to call an expert on bloodstain pattern interpretation did not fall below the low threshold of performance

required by Strickland. 

3672 RICHTER v. HICKMAN
C

[8] Richter argues that Axup provided ineffective assistance by failing to call several lay witnesses to testify at trial.

Richter argues that the testimony of these witnesses would

have supported Richter’s claim that Johnson’s gun safe was

legitimately in Richter’s residence at the time of the shootings. If the jury believed this claim, Richter and Branscombe

could not have entered Johnson’s house with the motive to

steal the safe. 

Axup called one witness at trial, Stephanie Edwards

(“Edwards”), to support Richter’s claim. Edwards testified

that she saw the gun safe inside Richter’s residence on several

occasions, including two days before the shootings. Johnson

testified at trial that he had kept his safe at Richter’s residence

for one or two weeks, but that he had moved the safe to his

house at the end of November or the beginning of December.

Scott Brown testified that he had helped Johnson move the

safe from Richter’s residence to Johnson’s house during the

first or second week of December. 

The district court found that Axup made a tactical decision

not to call the additional witnesses in question. This finding

is not clearly erroneous. Axup testified in his 2004 deposition

that he believed the State’s cross-examination of these additional witnesses would harm their credibility, and that calling

the witnesses would not be in the best interest of his client.

The fact that, nearly nine years after trial, Axup could not

recall the exact reasons why he believed that the witnesses

were not credible does not mean that Axup had no basis for

his decision at the time he made it. Axup had already called

one witness who testified that the safe was in Richter’s residence before the shootings. Axup’s tactical decision not to

call the other lay witnesses was not unreasonable. See Strickland, 466 U.S. at 690 (stating that strategic choices made by

counsel after thorough investigation are “virtually unchallengeable”).

RICHTER v. HICKMAN 3673
D

[9] Richter argues that Axup provided ineffective assistance of counsel by not investigating whether it was possible

to retrieve a fragment of floorboard with a bullet hole in it.

The floorboard came from Johnson’s bedroom. Johnson testified that he made the hole when he accidentally fired his .22

caliber firearm while cleaning it a couple of weeks before the

shootings. During trial, the prosecutor sent Investigator Brian

Maloney (“Maloney”) to investigate the bullet hole. Maloney

photographed the hole with a measuring device next to it, and

then cut out the piece of floorboard with the hole in it in an

attempt to find the bullet. The floorboard fell into the crawl

space beneath the house. Maloney testified at trial that the

crawl space was inaccessible, and therefore he could not

retrieve the floorboard. Maloney testified that he believed the

hole was consistent with the size of a .22 caliber bullet. 

After trial, Richter’s father discovered that the crawl space

was accessible. He retrieved the floorboard and gave it to

Axup, who gave it to a firearms evidence expert, James Aiello

(“Aiello”), for testing. Aiello determined that the hole was

probably caused by a .380 caliber firearm, rather than a .22

caliber. This conclusion, if known at trial, would have given

some support to the defense’s theory that Johnson fired the

.380 caliber Mac-12 at Branscombe on the night of the shooting. It also would have contradicted Johnson’s testimony that

he created the hole while cleaning his .22 caliber. 

Axup’s decision not to attempt to recover the floorboard

was reasonable given the circumstances. Maloney testified

under oath at trial that the floorboard was inaccessible, and

Axup had no reason to disbelieve him. Given Maloney’s testimony that the hole was consistent in size with one created by

a .22 caliber bullet, Axup could reasonably believe that, even

were it possible to retrieve the floorboard, the evidence would

be inculpatory, not exculpatory. Further, Maloney did not cut

out the floorboard until a week after the start of trial. Consid3674 RICHTER v. HICKMAN
ering the considerable time pressures during this trial and

Maloney’s testimony that the floorboard was inaccessible,

Axup’s decision not to search for the floorboard was reasonable.

IV

Appellants argue that the prosecution suppressed exculpatory evidence at trial in violation of Brady v. Maryland, 373

U.S. 83 (1963). Appellants allege that the Brady violation

occurred when Maloney lost the floorboard containing the

bullet hole in the crawl space and incorrectly testified that

there was no possible way to retrieve it. 

[10] It is well-established under Brady and its progeny that

the State violates due process when it suppresses or fails to

disclose material exculpatory evidence. See Illinois v. Fisher,

540 U.S. 544, 547 (2004); Brady, 373 U.S. at 87. The

Supreme Court limited Brady’s reach in California v. Trombetta, 467 U.S. 479 (1984) and Arizona v. Youngblood, 488

U.S. 51 (1988). Trombetta holds that, for the Brady standard

to apply, “evidence must . . . possess an exculpatory value

that was apparent before the evidence was destroyed.” 467

U.S. at 489 (emphasis added); see also Youngblood, 488 U.S.

at 56 n.*. Youngblood holds that the State’s failure to preserve

“potentially useful” evidence does not constitute a due process violation unless the defendant can show bad faith on the

part of the police. 488 U.S. at 58; see also United States v.

Estrada, 453 F.3d 1208, 1212 (9th Cir. 2006) (drawing a distinction between “potentially exculpatory” and “apparently

exculpatory” evidence). 

Trombetta and Youngblood both involve evidence that the

police permanently lost or destroyed before its inculpatory or

exculpatory value could be conclusively determined. In both

cases, the police had no reason to believe that the evidence

would be exculpatory at the time the evidence was destroyed.2

2

In Trombetta, the Supreme Court determined that the State did not violate due process when it failed to preserve samples of respondents’ breath

RICHTER v. HICKMAN 3675
Here, similar to Trombetta and Youngblood, Maloney and the

prosecutor did not believe that the floorboard would be exculpatory evidence at the time that it fell into the crawl space

beneath the house. In contrast to Trombetta and Youngblood,

however, the evidence at issue here was recovered after trial

and was found to have exculpatory value. 

[11] We have not yet specifically addressed whether the

rules announced by the Supreme Court in Trombetta and

Youngblood apply in the unusual factual situation presented

here. By their own terms, Trombetta and Youngblood apply in

situations where, as here, the police did not believe evidence

to have exculpatory value when it was lost or misplaced, even

if the evidence is later recovered and determined to be exculpatory. 

[12] The Supreme Court made clear in Trombetta and

Youngblood that the dispositive issue for due process purposes is the state of mind of police or prosecutors at the time

the evidence is lost or destroyed. See Youngblood, 488 U.S.

at 56 n.*; Trombetta, 467 U.S. at 488-89.3 The Supreme Court

in cases where respondents were convicted of drunk driving. 467 U.S. at

491. The respondents claimed that, had the breath samples been preserved,

they would have been able to impeach the incriminating test results. Id. at

483. The Court held in Youngblood that the failure of the police to preserve semen on clothing that could have potentially exculpated the defendant of sexual assault charges did not violate due process. 488 U.S. at 58.

The defendant alleged that he had been misidentified as the perpetrator. Id.

at 54. The Court held that, absent a showing of bad faith, police do not

violate due process when they fail to disclose or preserve “evidentiary

material of which no more can be said than that it could have been subjected to tests, the results of which might have exonerated the defendant.”

Id. at 57. 

3

In Youngblood, for example, the Supreme Court focused specifically

on the police officers’ state of mind at the time the evidence was lost:

“Here, respondent has not shown that the police knew the semen samples

would have exculpated him when they failed to . . . refrigerate the boy’s

clothing; this evidence was simply an avenue of investigation that might

have led in any number of directions.” 488 U.S. at 56 n.* (emphasis

added). 

3676 RICHTER v. HICKMAN
reached this conclusion based upon their stated “unwillingness to read the . . . Due Process Clause as imposing on the

police an undifferentiated and absolute duty to retain and to

preserve all material that might be of conceivable evidentiary

significance in a particular prosecution.” Youngblood, 488

U.S. at 58 (citation omitted). The Supreme Court did not

approve a constitutional standard where acceptable management of evidence by law enforcement could retroactively be

found unconstitutional if, after trial and conviction, a defendant shows that the evidence would have been exculpatory.

The post-trial retrieval of the floorboard does not entitle

appellants to a retroactive determination that Maloney violated appellants’ due process rights by inadvertently losing or

misplacing the evidence. 

[13] Applying the Trombetta-Youngblood rule here, we

find no evidence in the record of bad faith on the part of

Maloney or the prosecution. Maloney testified that he

believed the floorboard to be in an inaccessible location after

he cut it out of the floor in Johnson’s residence. The prosecution fully disclosed the nature and location of the evidence. At

worst, Maloney’s actions could be described as negligent.

Appellants were not denied due process of law, and the state

court’s denial of habeas relief on this ground was not an

unreasonable application of federal law. 

V

[14] Branscombe argues that his trial counsel, Thomas

Dixon (“Dixon”), failed to subject the prosecution’s case to

meaningful adversarial testing in violation of United States v.

Cronic, 466 U.S. 648 (1984). In Cronic, the Supreme Court

identified three situations where the Court does not require a

showing of prejudice to establish a violation of the Sixth

Amendment right to counsel. See id. at 658-61. These situations include (1) where there has been a complete denial of

counsel at a critical stage of trial, (2) where counsel “entirely

fails to subject the prosecution’s case to meaningful adverRICHTER v. HICKMAN 3677
sarial testing” and (3) where “surrounding circumstances

made it . . . unlikely that any lawyer could provide effective

assistance.” Id. at 659-61. The Supreme Court later emphasized that Cronic’s exception for failing to test the prosecution’s case applies only when the attorney’s failure to do so

is complete. Bell v. Cone, 535 U.S. 685, 697 (2002). An attorney’s failure to oppose the prosecution at specific points during the trial does not rise to the level of a Cronic violation.

See id. Rather, the attorney’s failure must implicate the proceeding as a whole. United States v. Thomas, 417 F.3d 1053,

1057 (9th Cir. 2005) (citing Bell, 535 U.S. at 697). 

[15] Branscombe argues that Dixon’s lack of investigation

and preparation for trial resulted in a failure to subject the

prosecution’s case to meaningful adversarial testing. We are

not persuaded that Dixon’s lackluster preparation for trial

resulted in a complete failure to contest the prosecution’s

case. To the contrary, the record shows that Dixon engaged in

adversarial testing on numerous occasions throughout trial. As

the district court and the state appellate court noted, Dixon

cross examined most of the witnesses, successfully moved to

suppress statements and strike testimony, successfully moved

to exclude evidence and had a witness perform a demonstration. Dixon also asked several questions of Richter at trial to

support the theory that Branscombe had returned to Johnson’s

house to give Johnson a firearm, and had fired the weapon in

self-defense. Dixon’s participation at trial demonstrates that

he did not entirely fail to subject the prosecution’s case to

meaningful adversarial testing.4

4We agree with the State that Branscombe’s Cronic claim is unexhausted. Branscombe did not present to the California state courts the

“substantial equivalent” of the claim presented in federal court. Lopez v.

Schriro, 491 F.3d 1029, 1040 (9th Cir. 2007). The factual basis for Branscombe’s current Cronic claim rests primairly upon new evidence that the

California state courts did not have the opportunity to consider on direct

review. The State did not expressly waive its exhaustion defense before

the district court. The State may therefore raise the defense here, even

3678 RICHTER v. HICKMAN
VI

Richter alleges that the trial court violated his Eighth and

Fourteenth Amendment rights by providing an incorrect or

inaccurate answer to a request for clarification that the jury

submitted to the trial court during deliberations. The jury

requested the following clarification from the trial court: “If

a defendant is found to have aided & abetted in [robbery], is

he guilty of all charges (or can you find him guilty of lesser

charges) as found for the other defendant.” The trial court

responded “yes” (i.e., that the defendant is guilty of all

charges), over defense counsel’s objections. Richter argues

that this response was an incorrect statement of California

law, that this error violated Richter’s rights to a jury trial and

to due process of law and that a writ of habeas corpus must

issue as a result. 

To obtain habeas relief following an erroneous response to

a jury’s request for clarification, a petitioner must show that

(1) the response was an incorrect or inaccurate application of

state law, (2) constitutional error resulted and (3) the error

was not harmless. See Morris v. Woodford, 273 F.3d 826, 833

(9th Cir. 2001). To determine whether constitutional error

occurred, we ask “whether there is a reasonable likelihood

that the jury has applied the challenged instruction in a way

that violates the Constitution.” Estelle v. McGuire, 502 U.S.

62, 72 (1991) (internal quotations and citation omitted). In

other words, constitutional error occurs when (1) there is a

reasonable likelihood that the jury understood the trial judge’s

response to a request for clarification as stating a certain rule

of law, (2) that rule, as potentially understood by the jury, was

though the district court did not address the exhaustion issue. See 28

U.S.C. § 2254(b)(3). We deny Branscombe’s unexhausted petition on the

merits. See 28 U.S.C. § 2254(b)(2). For the reasons stated above, we find

it perfectly clear that Branscombe does not raise even a colorable Cronic

claim. See Cassett v. Stewart, 406 F.3d 614, 623-24 (9th Cir. 2005). 

RICHTER v. HICKMAN 3679
incorrect or inaccurate and (3) the rule, so understood, was

unconstitutional as applied to the defendant. See Calderon v.

Coleman, 525 U.S. 141, 147 (1998). In attempting to determine what the jury understood the response to mean, the

response “may not be judged in artificial isolation, but must

be considered in the context of the instructions as a whole and

the trial record.” Estelle, 502 U.S. at 72 (internal quotations

and citation omitted). 

To determine whether the error was harmless, we consider

whether the error had a “substantial and injurious effect or

influence on the jury’s verdict.” Calderon, 525 U.S. at 147.

“If we are in grave doubt as to whether the error had such an

effect, the petitioner is entitled to the writ.” Morris v. Woodford, 273 F.3d 826, 833 (9th Cir. 2001) (internal quotations

and citation omitted). 

[16] The trial court’s response to the jury’s request for clarification could be interpreted as an inaccurate statement of

California law. The jury’s request and the trial court’s answer

(referred to hereafter as the “colloquy”) created an ambiguity.

The most natural reading of the colloquy is that it correctly

states California’s felony murder rule: when a defendant aids

and abets a robbery, and someone is killed during the robbery,

the defendant is guilty of both robbery and murder, even if his

accomplice does the killing. See People v. Washington, 402

P.2d 130, 134 (Cal. 1965). But the colloquy goes further. It

permits the jury to conclude that a defendant who aids and

abets a robbery-murder must be found guilty of robbery and

murder even if he does not begin to aid or abet the robbery

until after the murder has already occurred. This interpretation

of the colloquy results in an incorrect statement of California

law. California permits a defendant who aids and abets a robbery to be found guilty of felony murder only if he began his

aiding and abetting before the commission of the killing. See

People v. Pulido, 936 P.2d 1235, 1236 (Cal. 1997). 

[17] Constitutional error did not result because it is not reasonably likely that the jury interpreted the colloquy in a man3680 RICHTER v. HICKMAN
ner that misstates the law. In phrasing the request for

clarification the way they did, it is unlikely that the jury was

attempting to determine whether someone who began to aid

and abet a robbery only after a murder had been committed

must be found guilty of the murder. If the jury were intending

to pose such a question to the judge, they likely would have

done so in a more direct manner. The manner in which the

question was phrased strongly suggests that the jury was asking for a clarification of the felony murder rule for accomplices, as described above. Given the question that the jury

was posing to the trial judge, it is not reasonably likely that

the jury understood the response to mean anything more than

a straightforward and accurate statement of California’s felony murder rule. 

Even if the trial court did commit constitutional error, the

error was harmless. For the error to have an injurious effect

or influence in determining the jury’s verdict, the jury must

have believed that Branscombe committed robbery and murdered Klein, but that Richter did not begin to aid or abet the

robbery until after the murder occurred. To believe this, the

jury would have to have found, based on the facts presented

to them at trial, that (1) Richter had no intention of robbing

Johnson (or of helping Branscombe rob Johnson) when he

and Branscombe drove to Johnson’s house around 4:00 that

morning, (2) Branscombe, unbeknownst to Richter, decided to

rob Johnson and shoot Klein, (3) after Klein was shot, Richter

decided to aid and abet Branscombe in committing the robbery. Neither the State nor the defendants argued such a theory of the case. Such a conclusion would go against

significant evidence presented at trial, including the evidence

showing that Richter owned the same type of bullets used to

shoot Klein. This conclusion would also be inconsistent with

the testimony of both Richter and Johnson. It is unlikely that

any member of the jury arrived at this conclusion. 

[18] Because the trial court did not commit constitutional

error, and because any error would have been harmless, Richter is not entitled to a writ of habeas corpus on this claim. 

RICHTER v. HICKMAN 3681
VII

We affirm the district court’s denial of Richter and Branscombe’s petitions for writs of habeas corpus. 

AFFIRMED.

3682 RICHTER v. HICKMAN