FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

RANDALL AMADO,

Petitioner-Appellant,

v.

TERRI GONZALEZ, Warden,

California Men’s Colony,

Respondent-Appellee.

No. 11-56420

D.C. No.

2:03-cv-00078-

PA-E

ORDER AND

OPINION

Appeal from the United States District Court

for the Central District of California

Percy Anderson, District Judge, Presiding

Argued and Submitted

January 8, 2013—Pasadena, California

Filed July 11, 2014

Before: William A. Fletcher and Johnnie B. Rawlinson,

Circuit Judges, and Alvin K. Hellerstein, Senior District

Judge.*

Order;

Opinion by Judge Hellerstein;

Dissent by Judge Rawlinson

* The Honorable Alvin K. Hellerstein, Senior District Judge for the U.S.

District Court for the Southern District of New York, sitting by

designation.
2 AMADO V. GONZALEZ

SUMMARY**

Habeas Corpus

The panel withdrew an Opinion and Dissent filed October

30, 2013, filed a superseding Opinion and Dissent, denied a

petition for rehearing, and denied a petition for rehearing en

banc on behalf of the court, in an appeal from the denial of a

28 U.S.C. § 2254 habeas corpus petition in which the

petitioner, convicted of murder, argued that the prosecution

violated his rights under Brady v. Maryland by failing to

disclose material information that would have enabled

defense counsel to impeach the credibility of a critical

witness.

The panel gave AEDPA deference to rulings of the

California Court of Appeal, as required by Harrington v.

Richter and Johnson v. Williams, but did not give deference

to the Superior Court’s finding of immateriality. 

The California Court of Appeal held under California

Penal Code § 1181(8) that petitioner had not established (1)

“the newly-discovered nature of the evidence,” and (2) his

counsel’s “inability to discover and produce the evidence at

trial, with the exercise of due diligence.” The panel held that

the Court of Appeal’s decision that the petitioner had not

established that the evidence was newly discovered was an

unreasonable determination of the facts. The panel held that

the Court of Appeal’s requirement of due diligence was

** This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
AMADO V. GONZALEZ 3

contrary to, or involved an unreasonable application of,

clearly established federal law, as determined by the Supreme

Court of the United States. 

Because the Court of Appeal’s decision did not survive

AEDPA review, the panel reviewed the constitutionality of

the petitioner’s conviction and, specifically, his Brady claim. 

Reviewing de novo, the panel held that the prosecution had a

Brady obligation to produce the witness’ conviction and

probation records and that the evidence was material,

rendering the government’s failure to disclose it prejudicial.

The panel remanded with instructions to grant the writ and

to release the petitioner unless the district attorney, within 60

days, initiates proceedings for a new trial.

Judge Rawlinson dissented. She focused her analysis on

whether the state court’s denial of relief was objectively

unreasonable, not whether the petitioner suffered prejudice in

the first instance, and was unable to say that no fairminded

jurist could disagree that the state court’s decision applying

Brady was unreasonable. She criticized the majority’s

conducting a de novo analysis of, rather than deferring to the

state court’s interpretation of, a state statute.

COUNSEL

John Lanahan (argued), San Diego, California, for PetitionerAppellant.
4 AMADO V. GONZALEZ

Kamala D. Harris, Dane R. Gillette, Lance E. Winters,

Kenneth C. Byrne, and David A. Wildman (argued), Office of

the Attorney General of California, Los Angeles, California,

for Respondent-Appellee.

ORDER

The Opinion and Dissent filed October 30, 2013, and

appearing at 734 F.3d 936 (9th Cir. 2013), are hereby

withdrawn. They may not be cited as precedent by or to this

court or any district court of the Ninth Circuit. A superseding

Opinion and Dissent are being filed concurrently with this

order.

With the amended disposition, Judge W. Fletcher voted to

deny the petition for rehearing and to reject the suggestion for

rehearing en banc. Judge Rawlinson voted to grant the

petition for rehearing and to grant the suggestion for rehearing

en banc. And Judge Hellerstein voted to deny the petition for

rehearing and recommended rejection of the suggestion for

rehearing en banc.

The full court has been advised of the petition for

rehearing en banc and no judge has requested a vote on

whether to rehear the matter en banc. See Fed. R. App. P. 35.

Accordingly, the petition for rehearing and rehearing en

banc is hereby DENIED. The court will entertain further

petitions for rehearing and rehearing en banc with respect to

the superseding Opinion.
AMADO V. GONZALEZ 5

OPINION

HELLERSTEIN, Senior District Judge:

Violence between street gangs is a scourge to

communities. The prosecutors who prosecute crimes

committed by these gangs perform a vital service. But

prosecutors must be vigilant that excessive zeal does not

violate a defendant’s constitutional right to a fair trial. When

that occurs, the courts must balance the needs of the

community with a defendant’s constitutional right to a fair

trial.

Randall Amado was convicted in 1998 by a Los Angeles

jury of aiding and abetting a senseless murder in a public bus. 

The prosecutor neglected, however, to discharge his

obligation to disclose material information that would have

enabled defense counsel to impeach the credibility of a

critical witness against Amado. We hold in this opinion that

the prosecution’s failure, in violation of clearly established

federal law as determined by the U.S. Supreme Court,

requires that Amado be given a new trial.

I. The Facts of Record and the Prior Proceedings

A. The Shooting

In 1996 and 1997, the BountyHunter Bloods and 118 East

Coast Crips were rival street gangs in southern Los Angeles. 

Some members of the Bounty Hunter Bloods gang attended

Centennial High School, and traveled to and from school on

public bus No. 53 through neighborhoods claimed by the 118

East Coast Crips. The gang members identified themselves
6 AMADO V. GONZALEZ

by the colors of their clothing: red for the Bloods, and blue for

the Crips. As bus No. 53 passed through the Crips’

neighborhoods, members of the Bloods gang on board

frequently taunted, flashed gang signs at, spit at, and threw

objects at Crips gang members standing at the bus stops.

On January 15, 1997, two members of the 118 East Coast

Crips, Robert Johnson and Wilbert Pugh, decided to retaliate. 

Their friend, Nicholas Briggs, overheard the two propose that

a large group of Crips board bus No. 53 and attack Bloods

members inside. Briggs testified that Johnson carried a gun

at that meeting, but that there was no discussion of shooting

anyone. Johnson and Pugh decided that the attack would

occur the next day, but Briggs had a court appearance to

attend and declined to join them.

The following afternoon, Johnson, Pugh, and a group of

their friends met near the intersection of Imperial Highway

and Avalon Boulevard. When a No. 53 bus approached, at

about 3:20 pm, Pugh yelled “Y’all ready?” and the group

moved toward the bus as it pulled into a bus stop. Pugh and

at least one other unidentified gang member boarded the bus,

and Pugh cursed the Bounty Hunter Bloods members in the

back. One of the Crips, possibly Pugh, shouted “Shoot this

m_____ f______ bus up,” and the Crips exited. Johnson,

behind the bus, poked a gun through the rear window, aimed

at a passenger dressed in red, and fired, hitting two others. 

Corrie Williams, a student at Centennial High School, was

shot in the neck and killed. Tammy Freeman, her friend, was

shot in the arm. The bus driver sped off, stopping a few

blocks away when he felt it was safe.
AMADO V. GONZALEZ 7

B. The Arrest and Prosecution

Amado was arrested with Briggs the next night. At the

time, Amado and Briggs were drinking and smoking

marijuana in a backyard near the location of the shooting, and

across the street from Amado’s home. Johnson and Pugh fled

to Milwaukee, Wisconsin. Johnson was arrested in

Milwaukee approximately a week after the murder, and he

confessed to the shooting. Pugh was also arrested in

Milwaukee, although not until a year after the bus attack

occurred.

Amado was indicted in Los Angeles County Superior

Court on charges of first degree murder, premeditated

attempted murder, assault with a firearm, and shooting at an

occupied motor vehicle. The prosecution accused Amado of

aiding and abetting the shooting by running with Crips gang

members to ambush and surround the bus, and by carrying a

gun to the scene.

The court and prosecution were concerned about

intimidation of witnesses, and retaliation against those who

testified. This fear was driven in part by the fact that Pugh

was still at large at the time the proceedings began. Based on

interviews of witnesses in camera, the Superior Court ordered

that the addresses and phone numbers of witnesses be

withheld from the defense, and that the prosecution make

witnesses available for interviews by the defense at the

courthouse. Warren Hardy was one of those witnesses, but

Amado’s trial counsel, Richard Lapan, did not interview him.

Pugh, Johnson, and Amado were tried together before two

juries, one for Johnson, the alleged shooter, and the second,
8 AMADO V. GONZALEZ

for Pugh and Amado, the alleged aiders and abettors. While

many witnesses testified as to Pugh’s and Johnson’s roles in

the shooting, the evidence against Amado was more limited. 

Two witnesses testified that Amado was part of the group that

gathered at the bus stop. John Grisson, a high school

classmate of Amado, testified on direct that he was at the

intersection of Imperial Highway and Avalon Boulevard, and

saw Amado, with others, running toward the bus. However,

when pressed on cross, Grisson testified that when he had

seen Amado with the group it had been a few minutes before

the shooting, and that he did not see Amado run toward the

bus prior to the shooting, or away from the bus after the

shooting. The second of the two witnesses, Natasha Barner,

Pugh’s girlfriend at the time of the shooting, testified that she

saw Amado, along with a crowd, “coming across the street”

toward the bus stop prior to the shooting.

1 Barner said that

she did not see Amado with a gun. Barner, corroborated by

another witness, testified that she knew only that Johnson and

Pugh were members of the 118 East Coast Crips, and no

witness testified that Amado was a member of the gang. 

Amado, however, did have the nickname “Bang,” which some

viewed as a gang moniker.

Warren Hardy, who originally identified himself to the

police as Warren Collins, was the keywitness against Amado. 

Hardylived less than a block from the intersection of Imperial

Highway and Avalon Boulevard. Hardy testified that, from

1 Contrary to the dissent’s suggestion, neither Grisson nor Barner

testified that they saw Amado board the bus. The two stated only that

Amado was among the group of six to eight teenagers at the bus stop. 

According to most of the witnesses, only two teenagers boarded the bus. 

Pugh was identified as one of the two. No witness testified that Amado

was the other.
AMADO V. GONZALEZ 9

his balcony, minutes before the shooting and from a distance

of approximately 35 feet, he saw a short, chubby boy with

slicked-back hair and a pony-tail carrying a handgun and

trailing a group of teenagers heading towards Avalon

Boulevard. Hardy testified that he then heard gunfire, and,

shortly after, he saw several of these same teenagers run down

the street. The next night, Hardy testified, he heard several

teenagers behind his building talking and laughing about the

shooting. Hardy testified that he called the police, who

responded, found Amado and Briggs in the area where Hardy

had placed the laughing teenagers, and arrested them.

At trial, Hardy could not identify Amado, neither as the

person who he said had carried a gun, nor as one of the

teenagers who had gathered the next night behind his

building. The best that Hardy could do was to identify

Amado’s hairstyle as similar to the hairstyle of the person he

saw with the gun. On cross examination, Hardy testified that

his vision was poor, that he could not remember key details

about what he saw behind his building, and that he did not

want to testify because he feared for his safety.

Because of Hardy’s reluctance to testify and his lack of

memory, the prosecution called LAPD Detective Michelle

Esquivel to testify about statements Hardymade the day after

the shooting, at the time of Amado’s arrest. Esquivel, reading

from the notes she had taken while interviewing Hardy,

testified that Hardy had identified Amado as the person who

had carried a gun to the shooting.

2 Esquivel quoted Hardy as

2 California law allows prior inconsistent statements of a witness to be

admitted into evidence, even if not made under oath. See, e.g., People v.

Ledesma, 140 P.3d 657, 710 (Cal. 2006) (affirming the trial court’s
10 AMADO V. GONZALEZ

describing the teenager as a “light-skinned, chubby male

black . . . [with] a blue short-sleeved shirt, and his hair was

long, slicked back.” Esquivel wrote that when the police

informed Hardy that Amado and Briggs had been arrested, a

fellow detective asked if they “had the correct guys,” and

Hardy answered, “Yes.”

During closing arguments, the prosecution emphasized

Hardy’s statement to the police that Amado carried a gun as

reliable evidence of his guilt:

Now, what did Mr. Hardy say? Randall

Amado or somebody that looks like him is the

guy that he saw on January the 16th, 1997,

carrying a gun. The only reason why he is

going to say that, or say words to the effect of

he’s possibly the guy that did the shooting is

because he thinks that’s the guy who he saw

on January the 16th, 1997, with a gun. That’s

the only reason why you make that statement. 

The only reason. Now, why is Randall

Amado carrying a gun to a fistfight? Is it

because he himself thought this could possibly

evolve into something else other than a

fistfight? And if so, did he think in his own

mind that the natural and probable

consequences of agreeing to get into a fight

could result in a shooting, so I better have

myself armed before I go over there?

decision to allowa police officer to testify as to his prior conversation with

a witness after that witness testified that he could not remember the

conversation).
AMADO V. GONZALEZ 11

On November 30, 1998, Amado was convicted of all

charges. He was sentenced to 27 years to life in prison.

C. Amado’s Motion for a New Trial and His Appeal

Following his conviction, Amado moved for a new trial. 

His attorney, Richard Lapan, based his motion on the failure

of the prosecution to produce a probation report on the main

witness against Amado, Warren Hardy. Lapan represented

that the probation report on Hardy came into Lapan’s

possession “after trial,”3and that the probation report

disclosed that Hardy had pleaded guilty to committing a

robbery,

4

that he was on probation for that offense, and that

Hardy had been a member of the Piru Bloods, an affiliated

Bloods gang. The prosecution had not disclosed those facts,

or given the probation report on Hardy to Amado’s counsel. 

Lapan then interviewed Hardy, and Hardy wrote out a

declaration (the “Hardy declaration”) stating that he had been

convicted of robbery “out of the Long Beach court” and that

he had been a member of the Piru Bloods.5

Amado moved for a new trial on the ground that the

prosecution had violated Brady v. Maryland, 373 U.S. 83

(1963), in failing to disclose Hardy’s probation report. At a

hearing held January 25, 1999, Lapan presented the Hardy

3 Lapan did not disclose how the probation report came into his

possession, stating only that he did not obtain it “until after trial.”

4 The record is not clear as to when Hardy was convicted. Lapan

represented to the Superior Court that Hardy plead guilty to robbery in

1996. In his declaration, Hardy said he was convicted of robbery in 1997.

 

5

 The declaration was dated January 21, but lacked a year.
12 AMADO V. GONZALEZ

declaration and represented that he had “just received

[Hardy’s] file on the robbery when he pled guilty in 1996 that

indicated he was a Piru Blood.” Lapan argued that there was

a reasonable probability that the result of the trial would have

been different had this “newly discovered evidence” been

available to impeach Hardy, and that Amado was entitled to

a new trial under Brady. The State countered that Lapan had

failed to diligently pursue information about Hardy and

therefore Amado was not entitled to a new trial, and that the

new evidence would not change Hardy’s credibility. The

State argued, based on how “the testimony played out and the

way that Mr. Hardy was found by the police and the way that

he came forward, it’s just not a situation where Mr. Hardy’s

credibility on what he testified to is going to be changed by

the introduction of this new evidence.”

The Superior Court held that, even though Hardy’s prior

conviction should have been disclosed to the jury, doing so

would not have changed the result. The court concluded that

other witnesses had placed Amado at the scene and that Hardy

had been cross-examined vigorously as to his observations:

Mr. Hardy is not the only person who put Mr.

Amado at the scene. I don’t think that any

more aggressive cross-examination—and he

was aggressively cross-examined on behalf of

Mr. Amado by Mr. Lapan about his

observations and his ability to perceive, and I

think that the jury had the benefit of

everything that they possibly could have short

of the information of the robbery, which in a

perfect world they should have had. But I

don’t know that it reaches the level that
AMADO V. GONZALEZ 13

warrants a new trial. I therefore am going to

respectfully deny the motion before me for

new trial.

Amado appealed to the California Court of Appeal,

Second Appellate District. In response to concerns expressed

by the appellate court at oral argument, Amado moved to

augment the record to document that the Hardy impeachment

evidence was “newly discovered.” Defense counsel Lapan

added the Hardy declaration to the record, and his own

declaration (the “Lapan declaration”). The Lapan declaration

stated that Lapan had received no information from the

prosecution about Hardy’s criminal background and gang

affiliation and that “I did not learn until after trial that Warren

Hardy was on felony probation as a result of a robbery

conviction and that in the probation report from that offense,

Hardy stated that he was a ‘Piru Blood.’” The appellate court

granted Amado’s motion to augment the record.

In a June 14, 2001 unpublished opinion, the California

Court of Appeal affirmed the Superior Court’s denial of

Amado’s motion for a new trial, but on different grounds. 

The Court of Appeal determined that the impeachment

material on Hardy was material, thus disagreeing with the

ruling of the Superior Court. The Court of Appeal recited that

“Hardy’s declaration establishes what evidence would be

available and its materiality (relevance to impeachment).” 

Nevertheless, the Court of Appeal affirmed.

The Court of Appeal’s decision was based on California

Penal Code § 1181(8). That section provides that a party

moving for a new trial based on new evidence must establish

that the evidence was newly discovered and could not have
14 AMADO V. GONZALEZ

been discovered with reasonable diligence.

6 The Court of

Appeal held that Hardy’s declaration did not satisfy § 1181(8)

because it “does not establish that the evidence is indeed

newly discovered . . . nor does it establish that defense

counsel could not have discovered the impeaching facts in the

exercise of due diligence.” The Court of Appeal further

explained that Lapan’s oral representation to the Superior

Court, that the impeachment evidence against Hardy was

newly discovered, did not satisfy § 1181(8) because it was not

evidence, since counsel “was making argument, not testifying

under oath.” The Court of Appeal therefore affirmed the

denial of Amado’s motion for a new trial because he did not

present “any evidence to establish that the impeaching facts

about Hardy were newly discovered and could not have been

discovered and produced at trial in the exercise of due

diligence, let alone the best available evidence.” And, since

Amado failed to show that the evidence was newlydiscovered

and could not have been discovered with due diligence, as

section 1181(8) required, there was no showing that the

prosecution’s failure to turn over the impeachment material

violated Brady v. Maryland.

7

6

“[T]he court may, upon his application, grant a new trial . . . [w]hen

new evidence is discovered material to the defendant, and which he could

not, with reasonable diligence, have discovered and produced at the trial. 

When a motion for a new trial is made upon the ground of newly

discovered evidence, the defendant must produce at the hearing, in support

thereof, the affidavits ofthe witnesses by whom such evidence is expected

to be given, and if time is required by the defendant to procure such

affidavits, the court may postpone the hearing of the motion for such

length of time as, under all circumstances of the case, may seem

reasonable.”

7 The Court of Appeal also affirmed the Johnson and Pugh convictions,

holding, among other things, that there was sufficient evidence to convict.
AMADO V. GONZALEZ 15

Amado filed a petition with the California Supreme Court

to review the Court of Appeal’s decision, but the Supreme

Court denied the petition. Amado thus “exhausted the

remedies available” in the California courts. See 28 U.S.C.

§ 2254(b)(1)(A).

D. Amado’s Habeas Petition

Amado filed a petition for a writ of habeas corpus with the

U.S. District Court, Central District of California on January

6, 2003. See 28 U.S.C. § 2254. On May 16, 2003, the

magistrate judge assigned to the case issued a Report and

Recommendation (“R & R”) recommending that Amado’s

petition be granted because the prosecution had violated

Amado’s constitutional rights under Brady. The R & R found

that “the undisclosed Brady evidence was ‘substantial and

was far more damaging to [Hardy’s] credibility than the

impeachment evidence available to the defense at trial.’”

(quoting Benn v. Lambert, 283 F.3d 1040, 1055 (9th Cir.

2002)).

The R & R lay in the district court for more than six years

without action. On December 14, 2009, Amado filed an

application for a ruling by the district court, but 19 more

months passed before any decision. On July 20, 2011, eightand-a-half years after Amado filed his petition, the district

court issued an order denying Amado’s petition, and denying

as well Amado’s request for a Certificate of Appealability. 

See 28 U.S.C. § 2253. Applying a deferential standard of

review, the court held that it was reasonable for the California

courts to find that the State had not suppressed evidence,

since Amado’s trial counsel had had an opportunity to speak

with Hardy, but had failed to do so. The court ruled also that
16 AMADO V. GONZALEZ

Amado had not demonstrated prejudice “[i]n light of the

substantial evidence against Petitioner on the prosecution’s

aiding and abetting theory.”

Amado filed a notice of appeal on August 16, 2011. This

Court granted a Certificate of Appealability on September 22,

2011 as to one issue: “whether prosecution’s suppression of

impeachment evidence violated appellant’s right to due

process under Brady v. Maryland, 373 U.S. 83 (1963).” We

have jurisdiction to hear Amado’s appeal under 28 U.S.C.

§§ 1291 and 2253.

II. Discussion

A. Standard of Review

1. The Requirements of AEDPA

Under the Antiterrorism and Effective Death Penalty Act

of 1996 (“AEDPA”) federal courts apply a deferential

standard of review in habeas cases. See 28 U.S.C. § 2254. If

a claim was “adjudicated on the merits in State court

proceedings,” a writ of habeas corpus may be granted only if

the state court adjudication:

resulted in a decision that was contrary to, or

involved an unreasonable application of,

clearly established Federal law, as determined

by the Supreme Court of the United States; or

. . . resulted in a decision that was based on an

unreasonable determination of the facts in

light of the evidence presented in the State

court proceeding.
AMADO V. GONZALEZ 17

28 U.S.C. § 2254(d). If the claim was not “adjudicated on the

merits” by the state court, the review is to be de novo. Pirtle

v. Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002).

The first step in determining whether we give deference

under § 2254(d) is to determine which state court decision we

review. Under the Supreme Court’s decision in Ylst v.

Nunnemaker, we look “to the last reasoned decision” that

finally resolves the claim at issue in order to determine

whether that claim was adjudicated on the merits. 501 U.S.

797, 804 (1991). When the last reasoned decision is a state

appellate court decision which “adopt[s]” or “substantially

incorporate[s]” lower state court decisions, we may review

those lower state court decisions as part of our review of the

state appellate court’s decision. Barker v. Fleming, 423 F.3d

1085, 1093 (9th Cir. 2005). But, where (as in this case) a

lower state court issues a decision that the state appellate

court does not agree with, we review the state appellate

court’s decision only and do not consider the lower state

court’s opinion. See id.; Towery v. Ryan, 673 F.3d 933, 944

n.3 (9th Cir. 2012).

The next consideration is whether the decision being

reviewed is an adjudication on the merits. Under AEDPA, an

adjudication on the merits is “a decision finally resolving the

parties’ claims . . . that is based on the substance of the claim

advanced, rather than on a procedural, or other, ground.” 

Lambert v. Blodgett, 393 F.3d 943, 969 (9th Cir. 2004)

(alteration in original) (quoting Sellan v. Kuhlman, 261 F.3d

303, 311 (2d Cir. 2001)).

If a federal claim was presented to the state court and the

state court denied all relief without specificallyaddressing the
18 AMADO V. GONZALEZ

federal claim, “it may be presumed that the state court

adjudicated the claim on the merits in the absence of any

indication orstate-law procedural principles to the contrary.” 

Harrington v. Richter, 131 S.Ct. 770, 784–85 (2011). In that

case, we “must determine what arguments or theories . . .

could have supported” the state court’s rejection of the federal

claim, and then give deference to those arguments or theories

under AEDPA. Id. at 786. The presumption that a court

adjudicated the claim on the merits is rebuttable, for example,

if “the state standard is quite different from the federal

standard” or “if a provision of the Federal Constitution or a

federal precedent was simply mentioned in passing in a

footnote or was buried in a string cite.” Johnson v. Williams,

133 S.Ct. 1088, 1096 (2013).

Furthermore, if the state court decision gave reasons for

its denial of the federal claim, we consider these reasons, and

determine if the state court’s adjudication was on the merits,

or procedural. See, e.g., James v. Ryan, 733 F.3d 911, 916

(9th Cir. 2013) (noting that Johnson “does not require us to

ignore a state court’s explicit explanation of its own

decision”).

To give deference, however, does not mean to surrender

all inquiry. Under AEDPA, the federal court must ascertain

if 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.” 

28 U.S.C. § 2254(d). If factual determinations are involved,

the federal court must ascertain if the state court decision

“was based on an unreasonable determination of the facts in

light of the evidence presented in the State court proceeding.” 

Id. If the federal court finds that the state court adjudication
AMADO V. GONZALEZ 19

on the merits does not withstand deferential scrutiny under

§ 2254(d), the federal court must then “decide the habeas

petition by considering de novo the constitutional issues

raised.” Frantz v. Hazey, 533 F.3d 724, 735 (9th Cir. 2008)

(en banc). This means that where a state court has

adjudicated a claim on the merits with a written decision

denying relief based on one element of the claim and

therefore does not reach the others, federal courts should give

§ 2254(d) deference to the element on which the state court

ruled and review de novo the elements on which the state

court did not rule.

2. Recent Supreme Court Developments

Regarding Deference

In two recent decisions, Harrington v. Richter, 131 S.Ct.

770 (2011), and Johnson v. Williams, 133 S.Ct. 1088 (2013),

the Supreme Court appears to have tightened the rule of

deference with regard to all elements of a claim.

In Harrington, the defendant petitioned for habeas relief,

claiming that his counsel provided him with a constitutionally

inadequate defense. 131 S. Ct. at 783. The California

Supreme Court dismissed the habeas claim by summary

order, giving no explanation for its determination. Id. The

federal district court denied his federal habeas petition, and a

three-judge panel of this court affirmed. Id. This Court, en

banc, reversed. Id.

The U.S. Supreme Court reversed our en banc decision

granting habeas relief. Id. at 792. The Supreme Court held

that when a state court’s order is unaccompanied by an

opinion explaining the reasons for denial of federal relief, “it
20 AMADO V. GONZALEZ

may be presumed that the state court adjudicated the claim on

the merits in the absence of any indication or state-law

procedural principles to the contrary.” Id. at 784–85. 

Accordingly, the Supreme Court said a federal habeas court

“must determine what arguments or theories . . . could have

supported” the state court’s rejection of the federal claim, and

then must give deference to those arguments or theories under

28 U.S.C. § 2254(d). Id. at 786.

In Johnson, the defendant was found guilty of a murder in

which a co-conspirator in a robbery killed the victim. 133 S.

Ct. at 1092. On appeal, the defendant complained that the

trial judge, in excusing a juror for bias because of the juror’s

expressed intention not to follow the judge’s instructions

about felony-murder, violated both the Sixth Amendment and

an analogous provision of California law. Id. at 1092–93. 

The California Court of Appeal denied the defendant’s appeal

on state-law grounds and, although citing a leading U.S.

Supreme Court case, did not discuss the defendant’s argument

under the Sixth Amendment. Id. at 1093. The defendant then

sought federal habeas review under 28 U.S.C. § 2254. Id. 

The district court, applying AEDPA’s deferential standard,

denied the defendant’s petition, but this court reversed,

holding that since the state court had failed to discuss the

Sixth Amendment, AEDPA deference did not apply. 133 S.

Ct. at 1093–94.

The Supreme Court reversed, id. at 1099, holding that

where a state-court opinion addresses some but not all of a

defendant’s claims, federal habeas courts should presume, as

Harrington requires, that the state court opinion adjudicated
AMADO V. GONZALEZ 21

the federal claims, as well as the state claims, on the merits. 

133 S. Ct. at 1094–97.8

3. The Standard of Review in This Case

In the case before us, the California Court of Appeal did

not incorporate, explicitly or implicitly, any element of the

decision of the Superior Court. The Superior Court denied

Amado’s claim because it considered the evidence that the

prosecutor failed to produce immaterial. The Court of Appeal

rejected that finding. “Hardy’s declaration,” the Court of

Appeal stated, “establishes what evidence would be available

8 But cf. Wiggins v. Smith, 539 U.S. 510, 534 (2003) (after finding that

a state court’s evaluation of the performance of counsel, in an ineffective

assistance of counsel claim, was unreasonable under § 2254, reviewing the

prejudice requirement for an ineffective assistance of counsel claim that

the state courts had not reached de novo); Rompilla v. Beard, 545 U.S.

374, 390 (2005) (same).

In Harrington v. Richter, the Supreme Court did not mention Wiggins

or Rompilla. Based on the dictum of Harrington that deference under

§ 2254 applies to the adjudication of a claim, rather than a component of

a claim, the Eleventh Circuit questioned if Rompilla remains good law. 

See Childers v. Floyd, 642 F.3d 953, 969 n.18 (2011) (en banc), cert.

granted, judgment vacated, 133 S. Ct. 1452 (2013). In contrast, the Sixth

and Seventh Circuits have concluded that Harrington did not change the

Supreme Court’s prior holdings. See Rayner v. Mills, 685 F.3d 631, 639

(6th Cir. 2012) (“[Supreme Court cases] mandate AEDPA deference to

both prongs when the state court decision summarily dismisses the claim

without explanation; when a state court decision relies only on one prong,

the cases mandate AEDPA deference to that prong and de novo

consideration ofthe unadjudicated prong.”); Sussman v. Jenkins, 642 F.3d

532, 534 (7th Cir. 2011) (“We certainly cannot assume that the Court

overruled sub silentio [inHarrington] its holding inWiggins—a precedent

so important to the daily work of the lower federal courts.”).
22 AMADO V. GONZALEZ

and its materiality (relevance to impeachment).” Hardy’s

habeas claim failed, the Court of Appeal ruled, not because

the evidence of Hardy’s recent felony conviction was not

material—his recent felony conviction, current probation

status, and Blood-gang affiliation clearly could have made a

difference—but because Amado’s counsel had failed to show

that the evidence was “newly discovered” and could not have

been discovered with due diligence. Hence, the court

explained, the prosecutor’s failure did not violate Brady v.

Maryland. As the Court of Appeal stated, “The record before

us does not establish the prosecution’s failure under Brady to

reveal this information to defense counsel.”

We give AEDPA deference to these rulings of the Court

of Appeal, as Harrington v. Richter and Johnson v. Williams

require. But we do not give deference to the Superior Court’s

finding of immateriality. Instead, deference, under

Harrington and Johnson, is owed to the Court of Appeal’s

rejection of the Superior Court’s finding. See James v. Ryan,

733 F.3d 911, 916 (9th Cir. 2013) (noting that Johnson “does

not require us to ignore a state court’s explicit explanation of

its own decision); Ylst, 501 U.S. at 804 (1991) (we look “to

the last reasoned decision” resolving a claim).9

9 We note that neither party addressed the issue of the proper standard

by which we are to review Amado’s habeas claim. Nevertheless, we have

the obligation to apply the correct standard, for the issue is non-waivable. 

See Gardner v. Galetka, 568 F.3d 862, 879 (10th Cir. 2009) (“We agree

with our sibling circuits that the correct standard of review under AEDPA

is not waivable.”); Brown v. Smith, 551 F.3d 424, 428 n.2 (6th Cir. 2008)

(“[A] party cannot ‘waive’ the proper standard of review by failing to

argue for it.”), overruled on other grounds by Cullen v. Pinholster, 131 S.

Ct. 1388, 1400 (2011); Eze v. Senkowski, 321 F.3d 110, 121 (2d Cir.

2003) (holding that AEDPA’s deferential standard ofreview applied even
AMADO V. GONZALEZ 23

We next discuss the rule of Brady, and consider whether

the decision of the Court of Appeal “was contrary to, or

involved an unreasonable application of, clearly established

Federal law, as determined by the Supreme Court of the

United States” or “was based on an unreasonable

determination of the facts in light of the evidence presented in

the State court proceeding.” See 28 U.S.C. § 2254(d).

B. The Requirements of Brady

Under the landmark case of Brady v. Maryland, 373 U.S.

83, 87 (1963), prosecutors are constitutionally obligated to

disclose “evidence favorable to an accused . . . [that] is

material either to guilt or to punishment.” This prosecutorial

duty is grounded in the Fourteenth Amendment, id. at 86,

which instructs that states shall not “deprive any person of

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

Const. amend. XIV, § 1. The purpose of Brady is to ensure

that “criminal trials are fair,” Brady, 373 U.S. at 87, and “that

a miscarriage of justice does not occur,” United States v.

Bagley, 473 U.S. 667, 675 (1985). Placing the burden on

prosecutors to disclose information “illustrate[s] the special

role played by the American prosecutor in the search for truth

in criminal trials.” Strickler v. Greene, 527 U.S. 263, 281

(1999). The prosecution is trusted to turn over evidence to

the defense because its interest “is not that it shall win a case,

where the State failed to argue for its application); Worth v. Tyer, 276 F.3d

249, 262 n.4 (7th Cir. 2001) (“[T]he court, not the parties, must determine

the standard ofreview, and therefore, it cannot be waived.”). As the Tenth

Circuit characterized the issue, “[i]t is one thing to allow parties to forfeit

claims, defenses, or lines of argument; it would be quite another to allow

parties to stipulate or bind us to application of an incorrect legal standard,

contrary to the congressional purpose.” Gardner, 568 F.3d at 879.
24 AMADO V. GONZALEZ

but that justice shall be done.” Id. (quoting Berger v. United

States, 295 U.S. 78, 88 (1935)).

The prosecution’s duty to divulge relevant information is

a “broad obligation.” Strickler, 527 U.S. at 281. The

prosecutor, although “not required to deliver his entire file to

defense counsel,” is required to turn over evidence that is both

favorable to the defendant and material to the case. Bagley,

473 U.S. at 675. This duty exists regardless of whether the

defense made any request of the prosecution; the prosecution

is required to provide material, favorable information even

“where the defendant does not make a Brady request.” Id. at

680–82.

Favorable evidence is not limited to evidence that is

exculpatory, i.e., evidence that tends to prove the innocence

of the defendant. Favorable evidence includes that which

impeaches a prosecution witness. In Giglio v. United States,

405 U.S. 150, 154 (1972), “the Government’s case depended

almost entirely” on one witness, yet the prosecution failed to

inform the defense that the witness testified in exchange for

a promise from the government that he would not be

prosecuted. The Supreme Court held that the prosecution was

required to inform the defense about its agreement with the

witness because “evidence of anyunderstanding or agreement

as to a future prosecution would be relevant to [the witness’s]

credibility and the jury was entitled to know of it,” and the

Court ordered a new trial. Id. at 154–55. The Supreme Court

has since made clear that the prosecution must disclose all

material impeachment evidence, not just evidence relating to

cooperation agreements. See Bagley, 473 U.S. at 676.
AMADO V. GONZALEZ 25

The prosecution’s duty to reveal favorable, material

information extends to information that is not in the

possession of the individual prosecutor trying the case. In

Kyles v. Whitley, 514 U.S. 419, 441–42 (1995), police learned

that a witness who implicated the defendant had provided a

description of the suspect to the police that did not match the

defendant. The prosecutors were apparentlyunaware that this

exculpatory information even existed. Still, the Supreme

Court held that the prosecutors had violated Brady, for they

had “a duty to learn of any favorable evidence known to the

others acting on the government’s behalf in the case,

including the police.” Kyles, 514 U.S. at 437. This

requirement meant that prosecutors had to put in place

“procedures and regulations . . . to insure communication of

all relevant information on each case to every lawyer who

deals with it.” Id. at 438 (quoting Giglio, 405 U.S. at 154). 

Interpreting Kyles, our circuit has observed that “[b]ecause

the prosecution is in a unique position to obtain information

known to other agents of the government, it may not be

excused from disclosingwhat it does not know but could have

learned.” Carriger v. Stewart, 132 F.3d 463, 480 (9th Cir.

1997) (en banc).

To summarize, a Bradyclaim of prosecutorial misconduct

requires a petitioner to show that the evidence suppressed by

the prosecutor satisfies three elements: “The evidence at

issue must be favorable to the accused, either because it is

exculpatory, or because it is impeaching; that evidence must

have been suppressed by the State, either willfully or

inadvertently; and prejudice must have ensued.” Banks v.

Dretke, 540 U.S. 668, 691 (2004) (quoting Strickler, 527 U.S.

at 281–82).
26 AMADO V. GONZALEZ

The prosecutor’s obligation under Bradyis not excused by

a defense counsel’s failure to exercise diligence with respect

to suppressed evidence. However, defense counsel cannot lay

a trap for prosecutors by failing to use evidence of which

defense counsel is reasonably aware for, in such a case, the

jury’s verdict of guilty may be said to arise from defense

counsel’s stratagem, not the prosecution’s failure to disclose. 

In such a case, the prosecution’s failure to disclose Brady or

Giglio evidence would not “deprive the defendant of a fair

trial,” Bagley, 473 U.S. at 675.

C. Review of the Court of Appeal’s Decision

The Court of Appeal found that Amado’s Brady claim

failed because Amado did not establish (1) “the newlydiscovered nature of the evidence,” and (2) his counsel’s

“inability to discover and produce the evidence at trial, with

the exercise of due diligence.” Under AEDPA, we defer to

that finding unless the decision of the Court of Appeal is

(1) “contrary to, or involved an unreasonable application of,

clearlyestablished Federal law, as determined bythe Supreme

Court of the United States;” or (2) “resulted in a decision that

was based on an unreasonable determination of the facts in

light of the evidence presented in the State court proceeding.” 

28 U.S.C. § 2254(d). As we discuss below, nothing in the

record suggests that defense counsel knew before or during

trial, or otherwise reasonably had available to him, the key

evidence that the prosecutor had failed to disclose, and which

could have made a significant difference in impeaching the

key witness against Amado.
AMADO V. GONZALEZ 27

1. Was the Evidence Newly Discovered?

The Court of Appeal ruled that Amado did not establish

“the newly discovered nature of the evidence.” If his counsel

had known of the impeachment material at or before the time

of trial, the prosecutor cannot be said to have suppressed

anything, and there was no Brady violation. See Banks,

540 U.S. at 691. However, the record does not support the

Court of Appeal’s ruling, and it was inconsistent with the

proceedings in the Superior Court. There, the prosecutor did

not contest Amado’s argument that his attorney did not

receive Hardy’s probation report until after trial, too late to

use in cross examination. The Superior Court accepted

Amado’s contention that the evidence was newly discovered,

and ruled against him on other grounds. And the trial record

indicates that Amado’s counsel was unaware of this

impeachment evidence at the time Hardywas cross examined. 

Although the Superior Court ruled that the cross examination

of Hardy was vigorous, the cross examination focused on

Hardy’s vision. Had Amado’s counsel been aware of the

probation report, he surelywould have cross examined Hardy

regarding his prior convictions, his felony-probationarystatus,

and his connection with the Piru Bloods.

The Court of Appeal explained its ruling by commenting

that Lapan’s representation, that he had not learned of the

impeachment material until after trial, was “argument,” and

thus not evidence. But the Court of Appeal ignored that it had

granted Amado’s motion to augment the record and that

Lapan’s sworn declaration provided record testimony that he

“did not learn until after trial that Warren Hardy was on

felony probation as a result of a robbery conviction and that

in the probation report from that offense, Hardy stated he was
28 AMADO V. GONZALEZ

a ‘Piru Blood.’” There was no basis to conclude that Lapan

had merely provided “argument,” to question Lapan’s

veracity, or to overrule the Superior Court’s acceptance of the

evidence as newly discovered.

Under § 2254(d)’s unreasonable determination clause, “a

federal court maynot second-guess a state court’s fact-finding

process unless, after review of the state-court record, it

determines that the state court was not merely wrong, but

actually unreasonable.” Taylor v. Maddox, 366 F.3d 992, 999

(9th Cir. 2004). “[I]t is not enough that we would reverse in

similar circumstances if this were an appeal from a district

court decision. Rather, we must be convinced that an

appellate panel, applying the normal standards of appellate

review, could not reasonably conclude that the finding is

supported by the record.” Id. at 1000 (citations omitted). We

hold that the decision of the Court of Appeal, that Amado had

not established that the evidence was newly discovered, was

an “unreasonable determination of the facts,” 28 U.S.C.

§ 2254(d)(2). There was nothing in the record that could

support a finding that Lapan had the evidence that the

prosecutor had suppressed when Lapan conducted his defense

of Amado.

2. Is Due Diligence a Factor?

The Court of Appeal ruled that Amado’s Brady claim

failed because he did not establish “an inability to discover

and produce the evidence at trial, with the exercise of due

diligence.” The issue is whether that ruling is “contrary to . . .

clearlyestablished Federal law, as determined bythe Supreme

Court of the United States.” 28 U.S.C. § 2254(d)(1).
AMADO V. GONZALEZ 29

A decision is “contrary to” Supreme Court precedent “if

it applies a rule that contradicts the governing law set forth in

[the Supreme Court’s] cases or if it confronts a set of facts

that are materially indistinguishable from a decision of [the

Supreme] Court and nevertheless arrives at a result different

from [the Supreme Court’s] precedent.” Early v. Packer,

537 U.S. 3, 8 (2002) (internal quotation marks omitted).

Under Brady, as the United States Supreme Court’s

decisions clearly establish, the prosecutor has a “broad duty

of disclosure.” Strickler, 527 U.S. at 281. The prosecutor

must presume in favor of disclosure, and resolve his doubts

about the exculpatory nature of a document in favor of

producing it. See United States v. Agurs, 427 U.S. 97, 108

(1976) (ruling that “the prudent prosecutor will resolve

doubtful questions in favor of disclosure”). If a prosecutor

has an open-file policy, defense counsel is entitled to rely on

that policy and assume that the file will contain the

documents that will be useful for impeachment or that tend to

exculpate his client. See Strickler, 527 U.S. at 283 n.23 (“if

a prosecutor asserts that he complies with Brady through an

open file policy, defense counsel may reasonably rely on that

file to contain all materials the State is constitutionally

obligated to disclose under Brady”). See also Banks,

540 U.S. at 695 (“Our decisions lend no support to the notion

that defendants must scavenge for hints of undisclosed Brady

material when the prosecution represents that all such

material has been disclosed.”). In other words, defense

counsel may rely on the prosecutor’s obligation to produce

that which Brady and Giglio require him to produce.

The Court of Appeal’s requirement of due diligence

would flip that obligation, and enable a prosecutor to excuse
30 AMADO V. GONZALEZ

his failure by arguing that defense counsel could have found

the information himself. The proposition is contrary to

federal law as clearly established by the Supreme Court, see

Early, 537 U.S. at 8, and unsound public policy. Especially

in a period of strained public budgets, a prosecutor should not

be excused from producing that which the law requires him

to produce, by pointing to that which conceivably could have

been discovered had defense counsel expended the time and

money to enlarge his investigations. No Brady case discusses

such a requirement, and none should be imposed. See Banks,

540 U.S. at 691 (setting forth the essential elements of a

Brady claim).

The State argues that our own precedents support such an

argument. The cases are distinguishable. They hold only that

defense counsel cannot ignore that which is given to him or

of which he otherwise is aware, and not that he is obliged to

conduct interviews or investigations himself. For example, in

United States v. Aichele, 941 F.2d 761, 764 (9th Cir. 1991),

the federal government had given defense counsel a transcript

of an interview with a crucial government witness and the

witness’s rap sheet, but had not also supplied the witness’s

state prison records. We held that Brady had been satisfied,

because “[t]he prosecution is under no obligation to turn over

materials not under its control,” and, “here, [the] defendant

ha[d] enough information to be able to ascertain the supposed

Brady material on his own.” Id. This court has since clarified

that Aichele stands for the proposition that the federal

government’s Brady obligation does not extend to “files that

were under the exclusive control of [state] officials.” Benn v.

Lambert, 283 F.3d 1040, 1061 (9th Cir. 2002).
AMADO V. GONZALEZ 31

In United States v. Dupuy, 760 F.2d 1492, 1501-02 (9th

Cir. 1985), we explained that when defense counsel was put

on notice as to potential Brady material and given the

opportunity to seek it out, then a defendant likely could not

later claim that a Brady violation had occurred. No such

explicit notice was provided here. See also United States v.

Bond, 552 F.3d 1092, 1097 (9th Cir. 2009) (the government

had given the defendant “the essential factual data to

determine whether the witness’ testimonymight be helpful”);

United States v. Bracy, 67 F.3d 1421, 1428-29 (9th Cir. 1995)

(no suppression where the federal government gave the

defense two reports on a government witness’s criminal

history and a printout from a National Crime Information

Center computer search about that witness, but did not

provide details about that witness’s criminal history and

cooperation with law enforcement in two states).

Brady is not so limited as the State argues. It is not likely

that an interview of Hardywould have disclosed the facts that

the State suppressed, as we discuss in the next section. We

hold that the Court of Appeal’s requirement of due diligence

was “contrary to, or involved an unreasonable application of,

clearlyestablished Federal law, as determined bythe Supreme

Court of the United States.” 28 U.S.C. §2254(d).10

10 The Court of Appeal’s holding under California Penal Code

§ 1181(8), that Amado failed to show that the evidence was newly

discovered and could not have been discovered with due diligence, raises

the issue of an independent and adequate state ground for the decision,

precluding federal habeas review. However, the State did not make this

argument, and therefore waived the defense. See Vang v. Nevada,

329 F.3d 1069, 1073 (9th Cir. 2003). Further, the defense does not apply.

First, it was not “firmly established” that California Penal Code
32 AMADO V. GONZALEZ

D. Review of Amado’s Brady Claim

Since the Court of Appeal’s decision does not survive

AEDPA review, we now review the constitutionality of

Amado’s conviction and, specifically, his claim of a violation

of Brady, under 28 U.S.C. § 2254(a). See Frantz, 533 F.3d at

737.

Recall that a Brady prosecutorial misconduct claim must

meet three essential elements: “The evidence at issue must be

favorable to the accused, either because it is exculpatory, or

§ 1181(8) requires a party seeking a new trial to submit an attorney’s

declaration describing when the evidence was discovered, in lieu of an

attorney representation corroborating a witness’s declaration. See Lee v.

Kemna, 534 U.S. 362, 376 (2002) (holding that the independent state

ground must be “firmly established and regularly followed”). The statute

itself does not require such a declaration, nor does the case the California

Court of Appeal relied on, People v. Martinez, 685 P.2d 1203, 1205 (Cal.

1984) (in bank), which states only that facts supporting a new trial must

“be shown by the best evidence of which the case admits.” Lapan had

reason to believe that his statement to the Superior Court was sufficient

without an accompanying declaration because California courts have held

that “[s]tatements of a responsible officer of the court are tantamount to

sworn testimony.” People v. Wolozon, 188 Cal. Rptr. 35, 37 n.4 (Cal. Ct.

App. 1982) (citing People v. Laudermilk, 431 P.2d 228, 238 (Cal. 1967)). 

In any event, Lapan did file a declaration, and the Court of Appeal,

although allowing Amado to augment the record with the declaration,

simply ignored it.

As to the requirement that Amado show that he could not have

obtained the evidence with due diligence, that rule was not simply an

independent state procedural rule, but is interwoven with, and changes the

substance of, the Brady requirement. See Morales v. Calderon, 85 F.3d

1387, 1393 (9th Cir. 1996) (“Federal habeas review is not barred if the

state decision fairly appears to rest primarily on federal law, or to be

interwoven with the federal law” (internal quotation marks omitted).).
AMADO V. GONZALEZ 33

because it is impeaching; that evidence must have been

suppressed by the State, either willfully or inadvertently; and

prejudice must have ensued.” Banks, 540 U.S. at 691. Here,

there is no dispute that the impeachment material meets the

favorable-to-the-accused standard. We therefore turn to the

other two elements. Under Wiggins we consider those issues

de novo, since they were not addressed by the Court of

Appeal. 539 U.S. at 534; see also Frantz, 533 F.3d at 737.

1. The Prosecutor’s Duty to Turn Over the

Impeachment Material

Under Kyles, the fact that the individual prosecutors who

brought the case against Amado may not themselves have had

the Hardy impeachment material in their possession is not a

bar to Amado’s Brady claim. At oral argument before this

Court, the State conceded that the prosecution had access to

Hardy’s conviction and probation records, for Hardy was

prosecuted bythe same office that prosecuted Amado, the Los

Angeles County District Attorney’s Office.

11 Pursuant to

Kyles, the prosecution had a Brady obligation to produce

these records. 514 U.S. at 437. Cf. Giglio, 405 U.S. at 154

(“To the extent [a Brady obligation] places a burden on the

large prosecution offices, procedures and regulations can be

established to carry that burden and to insure communication

of all relevant information on each case to every lawyer who

deals with it.”).

11 Hardy stated in his declaration that he was prosecuted in Long Beach. 

Long Beach falls under the auspices of the Los Angeles County District

Attorney’s Office.
34 AMADO V. GONZALEZ

At oral argument, the State questioned whether

prosecutors had access to records on Hardy’s gang affiliation. 

However, that information was discussed in the very same

probation report that discussed Hardy’s prior felony

conviction. Had the State obtained that report, as the State

concedes it was required to do, it also would have discovered

Hardy’s gang affiliation.

2. Prejudice

We next consider whether Amado was prejudiced as a

result of the State’s failure to produce the Brady information. 

A defendant is prejudiced if the evidence that was not

produced is material. As we noted above, the Court of

Appeal concluded that the evidence was material. For the

following reasons, we agree with the Court of Appeal.

“The evidence is material only if there is a reasonable

probability that, had the evidence been disclosed to the

defense, the result of the proceeding would have been

different. A ‘reasonable probability’ is a probabilitysufficient

to undermine confidence in the outcome.” Bagley, 473 U.S.

at 682. The test for materiality “is not a sufficiency of

evidence test.” Kyles, 514 U.S. at 434. Evidence can be

sufficient to sustain a verdict, and still Brady can be violated. 

Id. at 434–45. If “the favorable evidence [not produced]

could reasonably be taken to put the whole case in such a

different light as to undermine confidence in the verdict,”

Brady has been violated. Id. at 435.
AMADO V. GONZALEZ 35

3. Prejudice – The Jurors’ View of Hardy

The State withheld not one but three pieces of evidence

that had the potential of undermining Hardy’s testimony. 

First, Hardy had a robbery felony conviction. Defense

counsel could have argued that this conviction rendered him

an untrustworthy witness. Second, Hardy was on probation

for that conviction at the time he testified. Defense counsel

could have argued that Hardy was seeking favor with his

probation officers by helping the police solve a wellpublicized murder case. Third, Hardy was a former member

of a Bloods gang, and the defense could have argued that

Hardy was biased against a member or friend of the rival

Crips.

Lapan’s cross-examination of Hardy did not address any

of these points, for Lapan, without the suppressed

impeachment evidence, lacked a good-faith basis to ask the

appropriate questions. Lapan’s cross-examination was short,

focusing on Hardy’s weak vision and his arguable inability to

identify people running across his field of vision. The

suppressed information would have added to the force of the

cross-examination and defense counsel’s closing argument. 

There is a reasonable probability that the suppressed

information would have made a difference, causing the jury

to view Hardy’s implication of Amado with a great deal more

suspicion.

The State makes two arguments why the jurors’ view of

Hardy would not have changed. First, the State argues that

Hardywas alreadyimpeached bythe cross-examination on his

weak vision. The suppressed information, however, could

have been used to show that Hardy had a motive to embellish
36 AMADO V. GONZALEZ

the truth, and even to lie. This is an entirely different reason

to cast doubt on Hardy’s words than the one presented at trial.

The State’s second argument is that Hardy’s reluctance to

testify and limited memory show that he was not biased

against Amado. If Hardy was testifying against Amado in

order to win favor with the prosecution, he would have been

much more helpful and supplied detailed answers while on

the stand, the State reasons. This argument, however, ignores

Hardy’s cooperation with the police the night after the

shooting. Hardy provided substantial assistance to the police

on that day, voluntarily calling the authorities and identifying

Amado as the teenager he saw with the gun. The details of

Hardy’s initial implication of Amado were admitted into

evidence through the testimony of Detective Esquivel, who

helped fill in the gaps of Hardy’s sometimes spotty testimony. 

Thus, Hardy’s initial identification of Amado—possibly

tainted by Hardy’s motives for bending the truth—made it

into the mix of evidence considered by the jury.

4. Prejudice – Reasonable Probability of a

Different Result

Hardy’s statements against Amado, in his testimony and

as introduced through Detective Esquivel, were critical to

Amado’s conviction. Hardy was the only person to testify

that Amado brought a weapon to the scene. Without such

testimony, it is doubtful that the jury would have found that

Amado had the requisite criminal intent to aid and abet

Johnson’s attack on the passengers on the bus. Indeed,

without such evidence, Amado was just one member of a

crowd. Mere presence in a crowd is not sufficient to render
AMADO V. GONZALEZ 37

a person an accomplice. See People v. Salgado, 105 Cal.

Rptr. 2d 373, 381–82 (Cal. Ct. App. 2001).

At trial, the prosecution emphasized the critical nature of

Hardy’s testimony. The prosecutor argued during summation

that Hardy’s testimony on Amado’s carrying of a gun showed

he was involved in the “significant amount of planning and

talking” about the attack prior to the shooting. The

prosecution emphasized that Hardy “specifically describes

somebody that looks like Randall Amado, and then later picks

that person out the next day.” Hardy was the one who

“hear[d] people discussing the shooting” and called the police

to set the case in motion. The prosecution told the jury that

“the only reason” Hardy had to identify Amado was that he

truly believed that Amado was “the guy who he saw on

January the 16th, 1997, with a gun.” Would the prosecutor

have argued with such conviction if Hardy had been

impeached by his recent robbery conviction, his felony

probation status with a motive to curry favor with the

authorities, and his past membership in the Bloods, in

frequent rivalry and conflict with members of the Crips? The

prosecutor’s failure to discharge his Brady obligations

enabled him to bolster Hardy’s credibility well beyond the

credibility Hardy would have had if all the impeaching

information had been made available to defense counsel and,

by defense counsel, to the jury.

Relying on California cases that broadlyapplyaccomplice

liability to gang members, the State contends that even if

Hardy had not testified at all, Amado still could have been

convicted. See, e.g., People v. Medina, 209 P.3d 105, 112

(Cal. 2009) (gang member involved in a fistfight responsible

for shooting committed by another member of his gang);
38 AMADO V. GONZALEZ

People v. Ayala, 105 Cal. Rptr. 3d 575, 585 (Cal. Ct. App.

2010) (gang member participates in murder when he rides

with a fellow gang member to assist him in a beating of a

rival gang); People v. Montes, 88 Cal. Rptr. 2d 482, 486 (Cal.

Ct. App. 1999) (gang member who wielded a chain in a gang

fight responsible for shooting committed by a fellow gang

member). But without Hardy, the only evidence against

Amado was Barner’s and Grisson’s testimony, which showed

that, at best, Amado ran to the bus with many others who

were not indicted. On such evidence, it is questionable if a

jury could have convicted Amado of intending to facilitate

murder. See Salgado, 105 Cal. Rptr. 2d at 381–82.

We do not need to decide more than the question before

us—whether the prosecutor’s violation of Brady was

prejudicial. The standard is not whether there is sufficient

evidence for conviction, but whether there is a “reasonable

probability” that the outcome would have been different,

meaning that “the favorable evidence could reasonably be

taken to put the whole case in such a different light as to

undermine confidence in the verdict.” Kyles, 514 U.S. at 435. 

Here, that standard is met. The impeaching evidence was

strong enough to cast a cloud of doubt over Hardy’s

testimony. With that cloud of doubt, the remaining evidence

against Amado was weak. While Barner and Grisson both put

Amado at the scene of the crime, neither of them testified that

they saw him with a weapon or heard him make any

statements, or heard others make statements, that suggested

that Amado intended to participate in an assault. There was

no proof that Amado had any discussions with Johnson and

Pugh, or had a strong relationship with them that would have

suggested that Johnson and Pugh had shared their plan with

Amado. Hardy’s testimony that Amado carried a gun was
AMADO V. GONZALEZ 39

influential to the jury in delivering a verdict against Amado,

and it is reasonably probable that a jury, if made aware of the

impeaching information against Hardy, would have given

little, if any, credence to his testimony and would have

returned a different verdict.

III. Conclusion

In failing to disclose material impeachment evidence to

Amado before or during trial, the State violated Amado’s

right to due process under Brady. We reverse and remand

with instructions to grant the writ of habeas corpus and

release Amado from custody unless the district attorney of

Los Angeles County, within 60 days, initiates proceedings for

a new trial.

REVERSED and REMANDED.

RAWLINSON, Circuit Judge, dissenting:

I respectfully dissent from the majority’s conclusion that

the state court’s denial of Randall Amado’s Brady1claim

entitles Amado to habeas relief. As the majority

acknowledges, this case is governed by the provisions of the

Antiterrorism and Effective Death Penalty Act of 1996

(AEDPA). See Majority Opinion, pp. 16–17. Under the

strictures set forth in AEDPA, our review of state court

rulings is severely cabined. Under AEDPA, even de novo

review is not really de novo. Rather, we review the state court

 

1 Brady v. Maryland, 373 U.S. 83 (1963).
40 AMADO V. GONZALEZ

decision for reasonableness. Only if the state court decision

is objectively unreasonable is habeas relief warranted. See

Wiggins v. Smith, 539 U.S. 510, 520–21 (2003). Habeas

relief is not warranted simply because we think the state court

got it wrong. Rather, under AEDPA we must give deference

to the state court decision, affording state courts “the benefit

of the doubt . . .” Cullen v. Pinholster, 131 S. Ct. 1388, 1398

(2011).

As the United States Supreme Court emphasized in

Harrington v. Richter, 131 S. Ct. 770, 785 (2011), “an

unreasonable application of federal law is different from an

incorrect application of federal law. A state court must be

granted a deference and latitude that are not in operation when

the case involves review under the [Brady] standard itself.”

(citation and internal quotation marks omitted).

In Richter, we were reminded that “[a] state court’s

determination that a claim lacks merit precludes federal

habeas relief, so long as fairminded jurists could disagree on

the correctness of the state court’s decision. . . .” Id. at 786

(citation and internal quotation marks omitted). The Supreme

Court cautioned us: “It bears repeating that even a strong case

for relief does not mean the state court’s contrary conclusion

was unreasonable.” Id. (citation omitted).

The Supreme Court left no doubt that habeas relief should

not be granted readily, stating in no uncertain terms: “If [the

habeas] standard is difficult to meet, that is because it was

meant to be. . . .” Id. The Supreme Court explained that

AEDPA stopped just short of completely prohibiting

relitigation in federal court of claims of error that were

previously rejected in state court. See id. The Supreme Court
AMADO V. GONZALEZ 41

clarified that AEDPA only “preserves authority to issue the

writ in cases where there is no possibility fairminded jurists

could disagree that the state court’s decision conflicts with

[Supreme Court] precedents. It goes no farther.” Id. Rather

than providing a pathway to second guessing state court

decisions, habeas corpus as amended by AEDPA “is a guard

against extreme malfunctions in the state criminal justice

systems, not a substitute for ordinary error correction through

appeal. . . .” Id. (citation and internal quotation marks

omitted).

Finally, we must keep in mind that the more general the

rule being applied, the more leeway the state has to apply the

rule in case-by-case applications. See id. Brady is a rule of

general application, see United States v. Bagley, 473 U.S.

667, 682–83 (1985) (adopting the broad prejudice standard

established in Strickland v. Washington, 466 U.S. 668 (1984)

for Brady materiality analysis); see also Cobb v. Thaler,

682 F.3d 364, 381 (5th Cir. 2012) (“[L]ike Brady's disclosure

requirement, the materiality standard is a general rule,

meaning a wide range of reasonable applications exist. . . .”)

(citation omitted). Accordingly, we must afford the state

considerable leeway in applying the principles articulated in

the Brady decision. We must also keep in the forefront of our

analysis the limitations of our review. The majority’s

conclusion simply cannot be reconciled with these precepts.

Amado was convicted as an aider and abettor, which

means that the prosecutor had no obligation to prove that

Amado fired the shots that killed one victim and wounded

another, or that he actually boarded the bus. See, e.g., People

v. Salgado, 88 Cal. App. 4th 5, 15 (2001) (“Aiding and

abetting requires a person to promote, encourage or instigate
42 AMADO V. GONZALEZ

the crime with knowledge of its unlawful purpose.”) (citations

omitted). Therefore, anytestimony regardingwhetherAmado

had a gun or actually boarded the bus was not material. See

Banks v. Dretke, 540 U.S. 668, 698 (2004) (defining

materiality in terms of its potential effect on the outcome of

the case).

Unlike the majority, I focus my analysis on whether the

state court’s denial of relief was objectively unreasonable, not

whether Amado suffered prejudice in the first instance. See

Richter, 131 S. Ct. at 785 (cautioning against directly

reviewing the federal rule rather than reviewing the state

court’s application of that rule). Viewed through that prism,

I am unable to say that no fairminded jurist could disagree

that the state court’s decision was unreasonable, and neither

should the majority. See id. at 786; see also Wiggins,

539 U.S. at 520–21 (incorporating the “objectively

unreasonable” standard). The state court applied Brady, a

rule of general application, thereby implicating the

considerable leeway contemplated by the Supreme Court to

review of the resulting determination. See Richter, 131 S. Ct.

at 786.

I agree with the presumably fairminded district court that

the state court did not unreasonably apply Brady. On the

issue of prejudice, which is the fulcrum of the majority’s

analysis, the record reflects that there was testimony, other

than that of Warren Hardy, to support the aiding and abetting

theory of conviction. Natasha Barner identified Amado as

part of the group at the bus stop who boarded the bus to

confront rival gang members. Witness John Grisson also

identified Amado as among the “group of guys” who “ran
AMADO V. GONZALEZ 43

across the street” toward the bus stop where the shooting

occurred, boarded the bus, and fled following the shooting.

2

The record also reveals that Hardy was far from being a

stellar witness for the prosecution. As the district court

observed, Hardy endeavored to recant his testimony at every

turn. He could not “remember the face” of the individual he

previously identified as having a gun. He could not

remember identifying anyone to the police. Hardy also

confirmed that he did not witness the shooting and that he

failed to identify Amado from a photograph that was

presented to him during the trial. Given Hardy’s extensive

self-impeachment and the existence of other witnesses who

attested to Amado’s aiding and abetting of the shooting, it

was not objectively unreasonable for the state court to find a

lack of prejudice to Amado, i.e., that the undisclosed evidence

would not have affected the jury’s verdict. See Stickler v.

Greene, 527 U.S. 263, 293–94 (1999); see also Richter,

131 S. Ct. at 786 (“[H]abeas corpus is a guard against extreme

malfunctions in state criminal justice systems, not a substitute

for ordinary error correction through appeal. . . .”) (citation

and internal quotation marks omitted) (emphasis added). In

view of the “deference, latitude and leeway” we are to afford

the state court’s application of the Brady rule, id., it is hard to

comprehend how one could conclude that the state court’s

decision “was so lacking in justification that there was an

error well understood and comprehended in existing law

beyond any possibility far from fairminded disagreement.” 

Id. at 786–87.

2 As noted previously, on an aiding and abetting theory of culpability, it

makes no difference which individual members of the group actually

boarded the bus. See Salgado, 88 Cal. App. 4th at 15.
44 AMADO V. GONZALEZ

The majority opinion disagrees extensively with the

California Court of Appeal’s application of California Penal

Code § 1181(8). See MajorityOpinion, pp. 13–14 and pp. 22. 

However, our deference to a state court decision should be at

its zenith when the state court is interpreting a state statute. 

See Bradshaw v. Richey, 546 U.S. 74, 76 (2005) (reminding

that “the Supreme Court has repeatedly held that a state

court’s interpretation of state law, including one announced

on direct appeal of the challenged conviction, binds a federal

court sitting in habeas corpus”) (citations omitted). However,

far from deferring to the state court’s interpretation of its own

state’s statute, the majority proceeds to completely ignore the

state court’s analysis, and conduct its own de novo analysis,

including whether the California Court of Appeal properly

applied California law. See Majority Opinion, pp. 26–39

(discussing the California Court of Appeal’s reliance on

California Penal Code § 1181 and interpreting various

California cases to determine that Amado suffered prejudice).

Were the full feast of direct review spread before us, we

would be free to gnaw away at the trial court’s Brady ruling.

See, e.g., United States v. Sedaghaty, 728 F.3d 885, 898–903

(9th Cir. 2013) (reviewing Brady issue on direct appeal

without deference to the trial court’s ruling). However, the

Supreme Court has told thisCircuitspecifically, emphatically,

and repeatedly, to curb our appetite when it comes to habeas

review. See Richter, 131 S. Ct. at 785–86 (chastising this

Circuit for conducting a de novo review with no deference to

the state court decision).

I respectfully decline to join a ruling that so clearly flouts

Supreme Court precedent. With respect, I dissent from the

majority opinion.