F OR P UBLICATION



### UNI TED STATES COURT OF APPEALS FOR THE NI NTH CI R CUI T

R A N D A L L A M

A D O , Petitioner-Appellant
,

v

.

T E R R I G O N Z A L E Z , W arden, California Men’s Colony
,

Respondent-Appellee

. N o. 11-56420

D.C. No. 2:03-cv-00078- PA-E

ORDER AND OPI NI ON

A ppeal from the United States District Court for the Central District of California Percy Anderson, District J udg e, Presiding

Arg ued and Submitted J anuary 8, 2013—Pasadena, California

F iled J uly 11, 2014

B e fore: W illiam A. F letcher and J ohnnie B . Rawlinson, Circuit J udg es, and Alvin K. Hellerstein, Senior District

J udg e. *

Order; Opinion by J udg e Hellerstein; D issent by

J u dg e Rawlinson

* T h e Ho n o rab le A lv in K. Hellerstein
, Sen io r District J u d g e f o r th e U .S. District Co u rt f

o r th e S o u t

h ern District o f New Yo rk
, sittin g b y d esig n atio n

.A M A D O V

. G O N Z A L E Z 2

SUMMARY * *

Habeas Corpus

The panel withdrew an Opinion and Dissent filed October 30, 2013, filed a superseding Opinion and Dissent, d e n i ed a petition f or rehearing , and denied a petition for rehearing en banc on behalf of the court, in a n appeal from the denial of a 28 U. S

. C

. § 2254 habeas corpus petition in w hich the petitioner
, c onvicted of murder, arg ued that the prosecution violated his rig hts u n d er B rady v. Maryland by failing to disclose material information that would have ena b l ed defense counsel to i mpeach the credibility of a critical witness.

T h e panel g ave AEDPA deference to ruling s of t h e California Court o f Appeal, as required by H a r r i n gton v

. Richter a nd Johnson v. W

illiams
, but d id not g ive d e fe r e nce to the Superior Court’s finding of immateriality

.

The California Court of Appeal held under California Penal Code § 1181(8) that petitioner had not e s tablished (1)

“ the newly

- discovered nature of the evidence,” and (2) his counsel’s “inability to discover a nd produ c e the evidence at trial, with the ex ercise of due dilig ence.” The panel held that the Co u r t of Appeal’s decision that the petitioner had not established that the e viden c e w a s newly discovered was an unreasonable determination of the facts. The panel h e ld that the Cour t of Appeal’s r equirement of due dilig ence was

** T h is su m m ary co n stitu

t es n o p art o f t

h e o p in io n o f t h e c o u rt. It h as b een p rep ared b y

co u rt staf

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

th e read er.A M A D O V

. G O N Z A L E Z 3

contrary to, or involved an unreasonable app l i c a t ion of, clearly established federal law, as determined by the Supreme Court of the United States.

B e cause the Court o f Appeal’s decision did not survive AEDPA review, the panel reviewed the consti t u t i onality o f the petitioner’s conviction and, specifically
, his Brady c laim. Reviewing d

e n ovo , the panel held that the prosecution had a Brady o blig ation to produce the w itness’ conviction a nd
pro b a t i o n records and that the evidence was material, rendering the g overnment’s failure to disclose it prejudicial.

The p anel r emanded w ith in s t ructions to g rant the writ a nd
to r elease the petitioner unless the district attorney , within 60 day s, initiates proceeding s for a new trial.

J udg e Rawlinson dissented. She focused her analy sis on whether the state court’s denial of re l ief was objectively unreasonable, not whether the petitioner suffered prejudice in the first instance, and was unable to say t h a t no fairminded jurist could disag ree that the state court’s d e c i s i on a pply ing Brady was unreasonable. S h e c r iticiz ed the majority ’s conducting a de novo analy sis of, rather than deferring to the state court’s interpretation of, a state statute.

COUNSEL

J ohn L anahan (arg

ued), San Dieg o, California, for PetitionerAppellant.A M A D O V

. G O N Z A L E Z 4

K a m a l a D. Harris, Dane R. Gillette, L ance E. W inters, Kenneth C. B y

rne, and David A. W ildman (arg u ed), Office o f the Attorney G eneral of California, L os Ang eles, California, for Respondent-Appellee.

ORDER

The O pinion and Dissent filed O c t o ber 30, 2013, a nd appearing a t 734 F .3d 936 (9th Cir. 2013), a re hereby withdrawn. They may not be c ited a s precedent by or to this
court or a ny district court of the Ninth Circuit. A superseding Opinion and Dissent are being file d c o n c urrently with this order.

W ith the amended disposition, J udg e W

. F letcher voted to deny the petition for r ehearing a nd to reject the sug g e stion for

r e hearing en banc. J udg e Rawlinson voted to g ra n t t h e petition for r ehearing and to g rant the sug g estion for rehearing

en banc. A nd J udg e Hellerstein voted to deny the petition for rehearing and recommended r ejection o f the sug g estion f o r rehearing en banc.

The full court h a s been advised of the petition for rehearing en b a n c and no judg e has requested a vote on whether to r ehear the matter en banc. See F ed. R. App. P. 35.

According ly
, the petition f o r rehearing and re h e aring en b anc is hereby DENIED

. The court will e ntertain furth e r petitions for rehearing

and rehearing

en banc with respect to the superseding

Opinion.A M A D O V

. G O N Z A L E Z 5

OP INION

HEL L E RSTEI

N, Senior District J udg e:

Violence between street g an gs is a scourg e to communitie s

. The prosecutors w ho prosecute crimes committed by these g ang s perform a vit a l service. B ut prosecutors must be vig ilant that e x cessive z eal do es n ot violate a defendant’s constitutional r ig ht to a fair trial. W h en tha t o cc urs, the courts must balance the needs of the community with a defendant’s constitutio n a l rig ht to a fair trial.

Randall Amado was convicted in 1998 by a L os Ang eles jury of aiding and abetting a senseless murder in a p ublic bus. The prosecutor n eg lected, however, to discharg e his oblig ation to disclose material informat i o n that would have enabled defense counsel to impeach the credibility of a critical witness ag ainst Amado. W e hold in this opinion that the p rosecution’s failure, in violation of clearly e s tablished federal law as determined by the U .S. Suprem e Court, requires that Amado be g iven a new trial.

I. The F acts of

Record and the P rior P r oceedings

A. The Shooting

I n 1996 and 1997, the B ounty Hunter B loods and 118 E a st Coast Crips were r ival street g ang s in southern L os Ang eles. S o me members of the B ounty Hunter B loods g ang attend e d Centennial Hig h School, and traveled to and from school on public bus No. 53 throug h neig hborhoods claimed by the 118 East Coast Crips. The g ang members i d entified themselvesA M A D O V

. G O N Z A L E Z 6

by the colors o f their c lothing : red for the B loods, and blue for the Crips. As bus No. 53 passed throug h the Crips’ neig hb o r hoods, members of the B loods g ang on board frequently taunted, flashed g ang sig ns at, spit at, and threw objects at Crips g ang members standing at the bus stops.

On J a nuary 15, 1 997, two members of the 118 E a st Coast Crips, Robert J ohnson and W ilbert Pug h, decided to r etaliate. Their friend, Nicholas B rig g s, o verheard the two propose that

a l a r ge g roup of Crips board b us No. 53 and attack B loods

m embers inside. B rig g s testified that J ohnson carried a g un at that meeting
, b ut that there was no discussion of shooting
any one. J ohnson a

nd Pug h decided that the attack would

occur the n e x t d a y , but B rig g s had a c ourt appearance to attend and declined to join them.

The following afternoon, J ohns o n , Pug h
, and a g roup o f their friends met near the intersection o f I mperial Hig hway and Avalon B oulevard. W hen a No. 53 bus app r o a c h e d, at

a bout 3:20 pm, Pug h y elled “Y’all r eady ? ” and the g ro u p moved toward the bus as it pulled into a bus stop. Pug h and
at least o ne other unidentified g ang member boarded the bus, and Pug h cursed the B ounty Hunter B loods members in the back. One of the Crips, possibly Pug h
, s h o u t e d “Shoot this
m_____ f______ bus u

p,” and the Crips ex ited. J ohnson, behind the bus, poked a g un throug h the rear window, aimed
at a passeng e r dre s s e d in r ed, and fired, hitting two others. Corrie W illiams, a student at Centennial Hig h School, was shot in the neck and killed. Tammy F r eeman, her friend, was shot in the arm. The bus d r iver sped off, stopping a few blocks away

when he felt it was safe.A M A D O V

. G O N Z A L E Z 7

B. The Arrest and P rosecution

A m a d o was arrested with B rig g s the nex t nig ht. At t h e time, Amado and B rig g s w ere drinking and smoking marijuana in a backy ard near the location of the shooting
, a nd

across the street from Amado’s home. J ohnson and Pug h fled
to Milwaukee, W is c o n s in. J ohnson was arrested in Milwaukee ap p rox imately a week after the murder, a nd he confessed to the shooting

. Pug h w as also ar r ested in Mi l w aukee, althoug h n ot until a y ear after the bus attack occurred.

Amado was indicted in L os Ang eles Count y S uperior Court on charg es o f first deg ree murder, premeditated attempted murder, assault with a firearm, and shooting at an occupied motor vehicle. The p rosecution accused Amado o f aiding and abetting the shooting by running with Crips g ang members to ambush and surround the bus, and by carry ing a g un to the scene.

The court and p rosecution were c oncerned about intimidation of witnesses, and retalia t ion ag ainst those w ho testified. This fear was driven i n p a r t by the fact that Pug h

was still at larg e at the time the proceeding s beg an. B ased on interviews of witnesses in camera, the Superior Court ordered that the a d d r e s ses a

nd phone numbers of witnesses be withheld from the defense, and t h at the prosecution make witnesses available for interviews by the defense at the courthouse. W arren H a rdy w as one of those witnesses, but Amado’s trial counsel, Richard L apan, did not interview him.

Pug h, J ohnson, and Amado were tried tog ether before two juries, one for J ohnson, the alleg ed shooter, and the second,A M A D O V

. G O N Z A L E Z 8

for Pug h and Amado, the alleg ed aiders and abettors. W hile
many witnesses testified as to Pug h ’s and J ohnson’s roles in the shooting
, the evidence ag ainst Amado was more limited. Two witnesses testified that A mado was p art of the g roup that
g athered at the bu s s t op. J ohn G risson, a hig h school classmate of Am a d o , testified o n direct that he w as at the intersection of I mperial Hig h w ay and A valon B oulevard, a nd

saw Amado, w ith others, running toward the bus. However,

w hen pressed on c r oss, Grisson testified that when he h a d

seen Amado w ith the g roup it h ad been a few minutes before the shooting
, and that h e did not see Amado run toward the bus prior t o t h e s hooting
, or away from the bus after the shooting

. The second of the two witnesses, Natasha B arner, Pug h’s g irlfriend at the time of the shooting
, testified that she

saw Amado, along with a crowd, “coming across the street” toward the bus stop p rior to t he shooting

. 1 B arner said that she did not see Amado w ith a g un. Ba r n e r, c orroborated b y another witness, testified that she knew only that J ohnson a nd Pug h we r e members of the 118 E a st Coast Crips, and no witnes s t e s t i f

ied that Amado was a member of the g ang

. A m a d o , h owever, did have the nickname “B ang ,” which s o m e viewed as a g ang moniker.

W a rren Hardy
, who orig inally identified himsel f to the police as W arren Collins, was the key witness ag ainst Amado. Hardy lived less than a block from the intersection of I mperial Hig hway and A v a l o n B oulevard. Hardy testified that, from

1 Co n trary to th e d issen t’ s su g g estio n , n e i t he r Grisso n n or B arn er t estif ied th at th ey saw A m ad o b o ard th e b u s. T h e tw o stated on ly th a t A m ad o w as am o n g th e g ro u p o f six to eig h t teen ag ers at th e b u s sto p

. A cco rd i n g to m o st o f

th e w itn esses, o n ly

tw o teen ag ers b o ard ed th e b u s. P u g h w as id en tif

ied as o n e o f th e tw o

. No w itn ess testif ied th at A m ad o

w as th e o th er.A M A D O V

. G O N Z A L E Z 9

his b a lcony
, minutes before the shooting and from a distance of approx imately 35 feet, h e s aw a short, c hubby boy with slicked-back hair and a p o ny -tail carry ing a handg un a

nd trailing a g ro u p o f teenag ers heading towards A valon B oulevard. H a r d

y testified that he then heard g unfire, and, shortly a fter, he saw several of these same teenag ers run down the st r e et

. T h e nex t n ig ht, Hardy testified, he heard several teenag ers behind his building talking a nd laug hing about the

s h ooting

. Hardy testified that he called the police, w h o responded, found Amado and B r ig g s in the area where Hardy had placed the laug

hing teenag ers, and arrested them.

At t r i a l
, Hardy could not identify A mado, neither a s the
person who h e said had carried a g un, nor as one o f the teenag ers wh o h a d g athered the nex t nig ht b ehind his building

. The best t h a t H a r dy c ould do was to identify Amado’s hairsty le as similar to the hairsty le of the person he

saw w ith the g un. O n cross ex a mination, Hardy testified that his vision was poor, that he could not r em em b er key d etails about what he saw behind his b u ilding
, a n d that he did not want to testify

because he feared for his safety

.

B e cause o f Hardy ’s r eluctance to testify and his lack o f
memory , the p rosecution called L APD Detective Michelle Esquivel to testify about statements Hardy made the day a fter the shooting
, at the time of Amado’s arrest. Esquivel, r eading from the notes she had t a k e n while interviewing H ardy
, testified that Hardy

had identified Amado as the person w ho had carried a g un to the shooting

. 2 Esquivel quoted Hardy a s

2 Calif o rn ia law allo w s p rio r in co n sisten t statem en t s o f a w itn ess to b e ad m i tted in to ev id en ce, ev en if n o t m ad e u n d er o ath

. S ee, e.g

. , Peo

p le v. Led esma , 1 40 P .3 d 6 5 7
, 7 1 0 (Cal. 2 00 6 ) (af f irm in g th e tr i a l c o u r t’ sA M A D O V

. G O N Z A L E Z 10

describing the teenag er as a “lig ht-skinned, ch ubby male black

. . . [ wi t h ] a blue short-sleeved shirt, and his hair was long
, slicked back.” E squivel wr o t e that w hen the police informed Hardy that Amado and B rig g s had been arrested, a fellow det e ctive asked if they “ had the correct g u y s,” a nd Hardy answered, “Yes.”

During closing arg uments, the p rosecution emphasiz ed Hardy ’s statement to the police that Amado carried a g u n a s reliable evidence of his g uilt:

No w, what did Mr. Hardy say ? Randall Amado or somebody that looks like him is the
g uy that he saw on J anuary the 16th, 1997,
carry ing a g un. The o nly reason why he is
g oing to say that, or say words to the effect o f he’s possibly the g uy that did the shooting is b e cause h e thinks that’s the g u y who he saw

on J anuary the 16th, 1997, with a g un. That’s the only reason why y ou make that statement. T he only reason. Now, why is Ra n d a l l A m a d o c arry

ing a g un to a fistfig ht? I s i t because he himself tho u g ht this could possibly evolve into something e lse other than a fistfig ht? And if so, did h e t h i nk in his own

m i n d t h a t t h e n a t u r a l a n d p r o b a b l e consequences o f ag reeing to g et into a fig ht could r esult in a shooting
, so I better ha v e my self armed before I

g o over there?

d ecisio n t o allo w a p o lice o f f icer to testif

y as to h i s p rio r co n v ersatio n w i th

a w itn ess af

ter t h at w itn ess testif

ied th at h e co u ld n o t rem em b er th e

co n v ersatio n ).A M A D O V

. G O N Z A L E Z 11

On November 30, 1998
, Amado was convicted of all charg es. He was sentenced to 27 y ears to life in prison.

C. Am a do’s Motion f

or a New Trial and His Appeal

F ollowing his conviction, Amado moved for a new trial. His attorney , Richard L apan, based h is motion on the failure of the prosecution to produce a probation report on the main witness ag ainst Ama d o , W arren Hardy

. L apan represented that the probation report on Hardy came into L a p a n’s possession “after tria l,” 3 a nd that the probation report disclosed that Hardy h ad pleaded g u ilty to c o m m itting a robbery
, 4 that he was on probation for that offense
, a n d t hat Hardy had been a m e m b e r of the Piru B loods, an affiliated B loods g ang

. The prosecution had not disclosed those facts,
or g iven the probation report on Hardy to Amado’s counsel. L apan then interviewed H ardy
, and Hardy wrote ou t a declaration (the “Hardy declaration”) stating that he had been convicted of robbery “out of the L ong B each court” and that he had been a member of the Piru B loods. 5

Amado moved for a n ew trial on the g round that t he prosecution had viola t e d Brady v

. Maryland
, 373 U.S. 83 (1963), in failing to disclo s e Hardy ’s probation report. At a hearing h eld J anuary 2 5, 1999, L apan presented the Hardy

3 L ap an d id n o t d isclo s e h o w th e p r o b a t i o n rep o rt cam e in to h is
p o ssessio n , statin g o n l y

th at h e d id n o t o btain

it “ u n t il af

ter trial.”

4 T h e reco rd is n o t clear as to w h en Hard y w as co n v icted

. L ap an rep resen ted to th e Su

p erio r C o u r t t h at Hard y plead g u ilty to ro b b ery in 1 9 9 6

. In h is d eclaratio n , Hard y said h e w as co n v icted o f ro b b ery in 1 9 9 7

.

5 T h e d eclaratio n

w as d ated J an

u ary 2 1 , b u t lack ed a y ear.A M A D O V

. G O N Z A L E Z 12

declaration and represented that h e h ad “just received [ Hardy ’s] file o n the robbery when he p led g uilty in 1 996 that indicated he was a Piru B lood.” L apan arg ued that there was

a reasonable probability that the r esult of the trial would have been differe n t had this “newly discovered evidence” been available to impeach Hardy
, and that Amado w as entitled to

a new trial under Brady

. The State countered that L apan h ad failed to d ilig ently pursue information about Hardy a nd therefore Amado was not entitled to a new trial, and that the

new evidence would not chan ge Hardy ’s credibility

. The State arg u e d, based on how “the testimony play ed out and the
way that Mr. Hardy was f ound by the p olice and the way that he came forward, it’s just not a situation where Mr. Hardy ’s credibili t y on what he testified to is g oing to be chang e d b y the introduction of this new evidence.”

The Superior Court held that, even thoug h Hardy ’s prior conviction should have b een disclosed to t he jury
, d o ing so would not have chang ed the result. The court concluded that other witnesses had placed Amado a t the scene and that Hardy had been cross-ex a mined vig orously as to his observations:

Mr. Hardy is n ot the o nly person who put Mr. Amado at the scene. I don’t think that any

more ag g ressive cross-ex a mination—and he

was ag g ressively cross-ex amined on behalf o f Mr. Amado by Mr. L apan about his observations and his ability to p erceive, and I
t h i n k that the jury had the benefit o f
every thing that they p ossibly could h ave short of the information o f t he robbery
, which in a perfect worl d they should have had. B ut I don’t k n o w that it reaches the level thatA M A D O V

. G O N Z A L E Z 13

wa r rants a new trial. I therefore am g oing to

r e spectfully deny the motion before me for new trial.

Amado appealed to the Cali f ornia Court of Appeal, Second Appellate District. I n response to concerns ex pressed by t he a ppellate court at oral arg ument, Amado moved to aug ment the record to document that the Hardy impeachment evidence was “newly d iscovered.” Defense counsel L apan added the Hard y d e c l aration to the record, and his o wn declaration (the “L apan d e c laration”). The L apan declaration stated that L apan had received no information from the prosecution about Hardy ’s criminal backg roun d and g ang affiliation a

nd that “I did not learn until after trial that W arren Hardy was on f

elony probation as a result of a robbery conviction and that in the p robation report from that offense, Hardy stated that he was a ‘ Piru B lood.’” The appellate court g ranted Amado’s motion to aug ment the record.

I n a J u n e 1 4, 2 001 unpublished opinion, the California Court o f Appeal affirmed the Superior Court’s denial o f Amado’s motion for a new trial, but on different gr o u n d s. The Court of Appeal determined that the im p eachment

m a t e r i a l on Hardy was material, thus disag reeing w ith the ruling of the Superior Court. T h e Court o f Appeal recited that “Hardy ’s d eclaration establishes what evidence would be

a vailable and its materiality (relevance to impeachmen t )

. ” 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 f or a new trial b ased on new evidence must establish that the evidence was newly discovere d and could n o t haveA M A D O V

. G O N Z A L E Z 14

been discovered with reasonable dilig enc e

. 6 The Court o f Appeal held that Hardy ’s declaration did not satisfy § 1181(8) becaus e i t “does not establish that the evidence is indeed newly discovered

. . . n or does it e s t a b lish that defense counsel could not have discovered the impeaching f acts in the

ex e r cise of due dilig ence.” T h e Court of Appeal f urther

ex p lained that L a p an’s oral representation to the Superior Court, that the impeachment evidence ag ainst Har d y w a s newly discovered, did n ot satisfy § 1181(8) because it was not evidence, since counsel “was making arg ument, not testify ing under oath.” The Court o f Appeal therefore affi r m ed the denial of Amado’s motion for a new trial because he did not present “ any evidence to establish that the impeaching f acts about Hardy were newly discovered and could not h ave been discovered a n d p r o duced a t trial in the ex ercise of d ue dilig ence, let alone the best available evidence.” And, since Amado failed to show that the evidence was newly discovered and could not have b een discovered w i t h due dilig ence, a s section 1181(8) required, there was no showi n g that the prosecution’s failure to turn over the i m p eachment material violated Brady v. Maryland

. 7

6 “ [T ]h e co u

rt m ay , u p o n h is ap p licatio n , g ran t a new trial

. . . [w ]h en

n ew ev id en ce is d isco v ered m aterial t o th e d ef en d an t, an d w

h ich h e co u ld

n o t, w ith reaso n ab le d ilig en ce, h av e d isco v ered an d pro d u ced at th e trial. W h en a m o t io n f

o r a n ew trial is m ad e u po n t h e g ro u n d of n ew ly d isco v ered ev id en ce, th e d ef en d an t m u st pro d u ce at th e h earin g , in su p p o rt th ereo f
, th e af f id av its o f th e w itn esses b y w h o m su ch ev id en ce is ex p ected
to b e g i v e n , an d if tim e is req u ired by th e d ef en d an t to p ro cu re su ch af f id av its, th e co u rt m ay p ostp o n e th e h earin g o f th e m o tio n f o r su ch len g t h o f t im e as, u n d er all circu m stan ces o f th e case, m ay seem

reaso n ab le.”

7 T h e Co u rt o f A

p peal also af

f irm ed th e J o h n so n an d P u g h co n v ictio n s, h o ld in g , am o n g o t

h er th in g s, th at th ere w as su f f icien t ev id en ce t o co n

v ict.A M A D O V

. G O N Z A L E Z 15

Amado filed a petition w ith the California Supreme Court
to review the Court of Appe a l ’ s d ecision, but the Supreme Court denied the petition

. Amado thus “ex hausted the remedies avail a ble” in the California courts. See 28 U .S.C. § 2254(b)(1)(A).

D. Am a do’s Habeas P e tition

Amado filed a p etition f

or a writ of h abeas corpus with the U.S. District Court, Central D istrict of California on J anuary 6, 2003. See 2 8 U

. S

. C

. § 2254. On May 16, 2003, the
mag istrate j u d ge assig ned to the case issued a Report a nd Recommendation (“R & R”) recommending that Amado’s petition b e granted because the prosecution had v iolated Amado’s constitutional rig hts under Brady

. The R & R f ound that “the undisclosed B rad y evidence was ‘substantial a nd

was far more damag ing to [ Ha r d y ’s] credibility than the impeachment evidence available to the defense at trial.’” (quoting Benn v. Lambert
, 283 F .3d 1 0 40, 105 5 ( 9th Cir. 2002)).

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

w i t hout action. On December 14, 2009, Amado filed an application for a r

uling by the district c o u r t , but 19 more months passed before any decision. On J uly 20, 2011, eig h tand-a-half y ears after A m a do filed his petition, the district
court issued a

n order d eny ing Amado’s petition, a nd deny ing

as well Amado’s request for a Certificat e o f Appealability

. See 28 U.S.C. § 2253. Apply ing a deferential standard o f review, the court held that it was reasonable for the California

cour t s t o find that the State h ad 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 thatA M A D O V

. G O N Z A L E Z 16

Amado had n o t demonstrated prejudice “ [ i] n lig h t of the substantial eviden ce ag ainst Petitioner o n the prosecution’s aiding and abetting theory .”

Amado filed a notice of appeal on A ug ust 16, 2011. This Court g ranted a Certificate of Appealability on September 22, 2011 as to one issue: “whether prosecuti on’s suppression o f impeachment evidence violated appellant’s rig ht t o d ue process under Brady v. Maryland
, 373 U .S. 8 3 (1963).” W e have jurisdiction to hear Amado’s appeal u n d e r 28 U .S.C. §§ 1291 and 2253.

II. Discussion

A. Standard of

Review

1. The Requirem ents of AEDP A

Under the A ntiterrorism a nd Effective Death Penalty A ct of 1996 (“AEDPA”) federal cour ts apply a deferential standard of review in habeas cases. See 28 U.S.C. § 2254. I f

a c laim was “adjudicated on the merits in S t a t e court proceeding s,” a w rit of habeas corpus may be g ranted only if the state court adjudication:

resulted in a decision that w as co ntrary to, o r involved an u nreasonable a pp l ication of, clearly established F e deral law, as determined by the Supreme Court of the United States; o r

. . . resulted in a decision that was based on an unreasonable determi n a tion o f the facts in lig ht o f the evidence presente d in the State court proceeding

.A M A D O V

. G O N Z A L E Z 17

28 U.S.C. § 2 254(d). I f 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 f irst step in determining whether we gi v e deference under § 2254(d) is to d etermine which state court decision we review. Under the Supreme Court’s dec i s i o n in Y lst v

. Nunnemaker
, we look “to the la s t reasoned decision” that finally resolves the claim a t issue in order to determi n e whether that c laim was a djudicated on th e m e r i ts. 501 U.S. 7 9 7
, 804 (1991). W hen the last reasoned decision is a state appellate c ourt decision which “adopt[ s] ” or “substantially incorporate[ s] ” lower stat e c ourt d ecisions, we may r eview those lower state court decisions as p art of our review of the
state appellate court’s d ecision. Barker v. Fleming
, 423 F .3d 1085, 1093 (9th Cir. 2005). B ut, where ( a s i n this case) a lower state c ourt issues a decision that the sta t e appellate
court d oes not ag ree with, we revi ew the state appellate court’s decision only a

n d do not consi d e r the lower state court’s opinion. See id. ; Towery v. Ryan
, 673 F .3d 933, 944 n.3 (9th Cir. 2012).

The nex t considerati o n i s whether the decision being reviewed is an adjudication on the merits. Under AEDPA, an adjudication o n 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, g round.” Lambert v. Blodgett
, 393 F

. 3d 94 3
, 969 (9th Cir. 2 004) (alteration in orig inal) ( quoting S ellan v. Kuhlman
, 261 F .3d 303, 311 (2d Cir. 2001)).

I f a f ederal claim was presented to the state court and the
state court d e nied all relief without specifically addressing theA M A D O V

. G O N Z A L E Z 18

federal cl a i m , “ it may be presumed that the state court adjudicated the claim on th e m e rits in the absence of any indication o r state-law p rocedural principles to the contrary

. ” Harrington v. Richter
, 131 S.Ct. 770, 7 84–85 (2011). I n that
case, we “must d e termine what arg uments o r t h e ories

. . . could have supported” the state court’s rejection of the federal claim, and then g ive deference to those arg uments or theories under A EDPA

. I

d

. a t 786. The presumption that a court adjudicated the claim on the merits is rebuttable, for ex ample, if “the state standard is q uite d ifferent from the federal standard” or “if a pr o vision of the F ederal Constitution or a federal precedent was simply menti o n e d i n passing in a footnote or was b uried in a string cite.” Johnson v. W illiams
, 133 S.Ct. 1088, 1096 (2013).

F urthermore, if the state c o u r t decision g a ve reasons for its denial of the federal claim, we consider these reasons, a nd 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 n o t r e quire us to ig nore a state c o u r t’s ex plicit ex planation of its o wn decision”).

To g ive deference, however, d o es not mean to surrender all inquiry

. U nder AEDPA, the federal court must ascertain if the state court decision “w a s c o n t rary to, or involved an unreasonable application of, clearly established F ederal law,

as determined by t he Supreme Court of the United States.” 28 U.S.C. § 2254(d). I f factual determinations a re involved, the federal court must a scertain if the state court decision “was based on an unreasonable determination of the facts in lig ht of the e vidence presented in the State court proceeding

. ” Id. I f the federal court finds that the state court adjudicationA M A D O V

. G O N Z A L E Z 19

on the merits does not withstand deferential scrutiny under § 2254(d), the federal court must then “decide the h abeas petition by considering de novo t h e c onstitutional issues raised.” Frantz v

. Hazey
, 533 F

. 3d 724, 735 (9th Cir. 2008) (en banc)

. T h is means that where a state court has adjudicated a claim on the merits with a wr i t t en decision deny ing relief based on one element of the claim a nd therefore does not reach the others, federal courts should g ive § 2254(d) d e ference to the element on w h i c h t h e state court ruled and review d

e novo the elements on w h i c h the state court did not rule.

2. R e c e n t S u p r e m e C o u r t D e v e l o p me n t s Regarding Def

erence

I n two recent decisions, Harrington v. Richter
, 131 S.Ct. 770 (2011), and Johnson v. W illiams
, 1 33 S.Ct. 1088 (2013), the Supreme Court appears to have ti g h t e n e d the rule o f deference with reg ard to all elements of a claim.

I n Harrington
, the defendant petitioned for habeas relief, claiming that his counsel p rovided him with a constitutionally inadequate defense. 131 S. Ct. at 783. The California Supreme C o u rt dismissed the habeas claim by summary order, g iving no ex planation for its determination. Id. The federal d istrict court denied his federal habeas petition, and a three-judg e panel of this court affirmed. Id. This Court, en banc , reversed. Id.

The U.S. Supre m e Court r eversed our en b anc decision
g ranting habeas reli e f. Id. at 792. T he Supreme Court h eld that when a state c o u rt’s o rder is unaccompanied by an opinion ex plaining the r easons for denial of federal relief, “itA M A D O V

. G O N Z A L E Z 20

may be presumed that the state court a d judicated the claim on the merits in the absence of a ny indication or sta t e

- l aw procedural principles to t h e c ontrary

. ” Id. at 784–85. Accordin g ly
, the Supreme Court said a federal habeas court “must determine what arg uments o r theori e s

. . . could have supported” the state court’s rejection of the federal claim, a nd then must g ive deference to those arg uments or theories under 28 U.S.C. § 2254(d). Id. at 786.

I n Johnson
, the defendant w as found g uilty of a murder in which a co-conspirator in a robbery k illed the victim. 133 S. Ct. at 1092. O n appeal, t he defendant complained that the trial judg e, in e x c using a juror for bias because of the juror’s

ex p ressed intention not to f ollow the judg e’s instructions about felony -murder, violated both the Six th Amendment a nd

an analog ous provision o f Califo rn i a law. Id. at 1092–93. The California Court of Appeal denied the defendant’s appeal

on state-law g rounds and, a lthoug h c i t i n g a leading U.S. Supreme Court case, did not discuss the defe n d a n t ’ s arg ument under the Six th Amendment. Id. at 1093. The defendant then
soug h t federal habeas review under 28 U.S.C. § 2 2 5 4

. Id. The district court, apply ing AEDPA’s deferen t i a l standard, d e nied the defendant’s petition, but this court revers ed
, holding that since the state court had failed to d iscuss the Six th Amendment, AEDPA deference did not apply

. 133 S. Ct. at 1093–94.

The Supreme Court reversed, id. a t 1 0 9 9, holding that where a state-court opinion addresses some b u t n ot all o f a defendant’s claims, federal habeas courts should presume, a s Harrington requires, that the state court opinion adjudicatedA M A D O V

. G O N Z A L E Z 21

the federal claims, as w e l l as the state claims, on the merits. 133 S. Ct. at 1094–97. 8

3. The Standard of

Review in This Case

I n the case before us, the California Court of Appeal did
not incorporate, ex plicitly or implic i t l y , any element o f the decision of the S uperior Court. The Superior Court denied A m a do’s c laim because it c onsidered the evidence that t h e prosecutor failed to produce immaterial. The Court o f Appeal rejected that finding

. “Hardy ’s declara t i on,” the Court o f Appeal stated, “establishes what evidence would be available

8 Bu t cf. W

ig g i n s v. S mith , 5 3 9 U.S. 5 1 0, 5 3 4 (2 0 0 3 ) (af ter f in d in g th at

a state co u rt’ s ev alu atio n of th e p erf orm an ce o f co u n sel, in an in ef f ectiv e assistan ce o f co u n sel claim
, w as u n reaso n ab le u n d er § 2 2 5 4
, rev iew i n g th e p rej u d i c e req u irem en t f

o r an in ef f ectiv e assistan ce o f co u n sel claim th at th e state co u rts h ad n o t re a c h ed d e n ovo ); Ro mp illa v. Bea rd
, 5 45 U .S. 3 7 4 , 3 9 0 (2 0 0 5 ) (sam e).

In Ha rrin g to n v. Rich ter , th e Su p rem e Co u rt d id n o t m en tio n W ig g i n s

o r Ro mp i lla

. B ased on t h e d ictu m of H

a r rin g t o n th at d ef

eren ce u n der § 2 2 5 4 ap p lies to th e ad

j u d icatio n o f a claim
, rath er th an a co m p o n en t of

a claim
, t h e Elev en th Circu it q u estio n ed if Ro mp illa re m ain s g o o d law

. S e e C h ild ers v. Flo yd
, 6 4 2 F.3 d 9 5 3
, 9 69 n .1 8 (2 0 11 ) (en b an c), cert. g ra n ted

, j ud g men t va ca ted
, 1 3 3 S. Ct. 1 4 5 2 (2 0 1 3 ). In co n trast, th e Six th

an d Sev en th Circu its h av e co n clu d ed th at H a rrin g to n d id n o t ch an g e th e Su p rem e Co u rt’ s p rio r h o ld in g s

. S ee Ra yn er v. Mills
, 6 8 5 F.3 d 6 3 1, 6 3 9 (6 th Cir. 2 0 1 2 ) (“ [Su

p rem e Co u rt cases] m a n d ate A EDP A d ef eren ce to b o th p ro n g s w

h en th e state co u rt d ecisio n s u m m arily d ism isses th e claim

w ith o u t ex p lan atio n ; w

h en a state co u

rt d ecisio n relies o n ly o n o n e p ro n g , th e cases m an d ate A EDP A d ef e r e n c e t o th at p ro n g an d de n o v o

co n sid eratio n o f th e u n ad

j u dicated p ro n g .”); S

ussma n v. Jen kin s , 6 42 F.3 d 5 3 2
, 53 4 (7 t

h Cir. 2 0 11 ) (“ W e certain ly can n o t assu m e th a t t h e Co u rt

o v erru l ed su b silen tio [in Ha rrin gto n ] its h o l d in g in W ig gin s —a p reced en t

so im p ortan t to th e d aily

w o rk o f th e lo w er f

ed eral co u rts.”).A M A D O V

. G O N Z A L E Z 22

and its materiality (re levance to impeachment).” Hardy ’s habeas claim f

ailed, the Court o f Appeal ruled, not because
t h e evidence of Hardy ’s r ecent felony conviction was not materi a l

— his recent f

elony conviction, current p robation status, and B lood-g ang affiliation clearly could have made a difference—but because Amado’s counsel had failed to show that the evidence was “newly discovered” and could n ot have been d iscovered w ith d ue dilig e n c e

. Hence, the court

ex p l a i n e d
, the prosecutor’s failure did not violate B rady v

. Maryland

. As the Court o f Appeal stated, “The record before

us does not establish the prosecution’s failure under Brady to reveal this information to defense counsel.”

W e g ive AEDPA deference to these ruling s of the Court of Appeal, as H

arrington v. R ichter and Johnson v. W illiams require. B ut we do not g ive deference to the Superior Court’s finding of immateriality

. I nstead, defe r e nce, under Harrington a

nd 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 ig nore a state court’s ex plicit e x planation o f its own decision); Y

lst
, 501 U.S. at 804 (1991) (we look “to the last reasoned decision” resolving a claim). 9

9 W e n ote th at n eith er party ad d ressed th e issu e o f th e p ro per stan d ard b y w h ich w e are to rev iew A m ad o ’ s h ab eas claim

. Nev erth eless, w e h av e th e o b lig atio n to ap p ly th e co rrect stan dard
, f o r th e issu e is n o n

- w aiv ab le. S ee Ga rd n er v. Ga letka , 5 6 8 F .3 d 8 62
, 8 7 9 (1 0 th Cir. 2 0 0 9 ) (“ W e ag ree

w ith o u r sib lin g circu its th at th e co rrect stan d ard o f rev iew u n d er A EDP A is n o t w aiv ab le.”); Bro wn v. S mith
, 5 5 1 F.3 d 4 2 4, 4 2 8 n .2 (6 th Cir. 20 0 8) (“ [A ] p arty can n ot ‘ w aiv e’ t h e p ro per stan d ard o f rev iew by f ailin g to arg u e f o r it.”), o verru led o n o th er g ro u n d s b y Cu llen v. Pin h o lster
, 13 1 S. Ct. 1 3 8 8
, 1 4 0 0 (2 0 1 1 ); Ez e v. S en ko wski
, 3 21 F.3 d 1 1 0
, 1 21 (2 d Cir. 2 0 0 3 ) (h o ld in g th at A EDP A ’ s d ef eren tial s tan d ard o f rev iew ap p lied ev enA M A D O V

. G O N Z A L E Z 23

W e nex t discuss the rule of Brady
, and consider whether
t he decision of the Court of Appeal “was contrary t o , o r involved an unre a s o nable application of, clearly e stablished F ederal l a w , a s determined by the Supreme Court of the United States” or “was b ased on an unreasonable determination of the facts in lig ht of the evidence presented in the State court proceeding

. ” See 28 U.S.C. § 2254(d).

B. The Requirem ents of Brady

Under the landmark case of B rady v. Maryland
, 373 U.S. 8 3, 87 ( 1963), prosecutors a re constitutionally oblig ated t o disclose “ evidence favorab l e t o an accused

. . . [ that] is material either to g uilt or to p unishment.” This prosecutorial duty is g rounded i n t h e F ourteenth Amendment, id. a t 86, which instructs that states shall not “deprive any p e r s o n o f life, li b e rty , or property , without due process of law.” U.S. Const. amend. XI V, § 1. The purpose o f B r a d y is to ensure that “criminal trials are fair,” Brady
, 373 U.S. at 87, and “that

a miscarriag e of justice does not occur, ” U n i t e d States v

. B a gley
, 4 73 U.S. 667, 675 (1985). Placing the burde n o n prosecutors to disclose information “illustrate[ s] the special role play ed by the American prosecutor in the search for truth in criminal trials.” Strickler v

. G r e e n e , 527 U .S. 263, 281 (1999). The prosecution is trus ted to turn over evidence to the defense because its interest “is not that it shall win a c ase,

w h ere th e State f

ailed to arg u e f

o r i ts ap p l icatio n ); W

o rth v. Tyer
, 2 7 6 F.3 d 2 4 9
, 2 6 2 n .4 (7 th Cir. 2 00 1 ) (“ [T ]h e co u rt, n o t th e p arties, m u st d eterm in e th e stan d ard o f rev iew
, an d th eref o re, it can n ot b e w aiv ed .”). A s th e T en th Circu it ch aracterized th e issu e, “ [i]t i s o n e th in g to allo w p arties to f o rf eit claim s, d ef

en ses, o r lin es o f arg u m en t; it w o u ld be q u ite an o th er to allo w p arties to stip u l ate o r b in d u s t o ap p licatio n o f an in co rrect leg al stan d ard
, co n trary to th e co n g ressio n al p u rp o s e.” G a rd n er , 5 6 8 F.3 d at 8 7 9

.A M A D O V

. G O N Z A L E Z 24

but that justice shall be done.” Id. (quoting Berger v. United States , 295 U.S. 78, 88 (1935)).

The p rosecution’s duty to divulg e relevant information is

a “ b r o ad oblig ation.” Strickler
, 527 U.S. at 281. The prosecutor, althoug h “not required to d eliver his e ntire f ile to defense c ounsel,” is required to turn over evidence that is both favorable to the defendant and ma t erial to the case. Bagley
, 473 U

. S

. at 675. T his duty ex ists reg ardless of whether the defense made any request of the p rosecution; the prosecution is required to provide material, favorab l e i n formation even “where the defendant does not make a Brady request.” Id. at 680–82.

F avorable e v idence is n ot limited to evidence that is

e x c u l p atory , i.e., evidence that tends to prove the innocence of the defendant. F a vorable e v idence includes that which impeaches a prosecution witness. I n Giglio v. United States
, 405 U .S. 150, 154 (1972), “the Government’s case depended almost entirely ” o n one witness, y e t the p rosecution failed to inform the defense that the witness testif i e d in ex chang e for

a promise from the g overnment that he would not b e prosecuted. The Supreme Court held that the prosecution was required to inform the defense about its ag reement with the witness because “evidence o f any underst a n d ing or ag reement

as to a future p rosecution would be relevant to [ the witness’s] credibility and th e j u r y w as entitled to know of it,” and the Court ordered a n ew trial. Id. at 154–55. The Supreme Court has since made c lear that the prosecutio n must disclose all material impeachment evidence, not just evidence relating to cooperation ag

reements. See Bagley , 473 U.S. at 676.A M A D O V

. G O N Z A L E Z 25

The prosecution’s duty t o reveal favorable, material information e x t e n d s to information that is not in the possession of the individual prosecutor try ing the c ase. I n Kyles v. W

hitley
, 514 U.S. 419, 441–42 ( 1995), police learned that a wit n ess who implicated the defendant had provided a description of the suspect to the police that did not match the defendant. T he prosecutors were apparently unaware that this

ex c u lpatory information even e x isted. Still, the S u p r e me Cour t h e ld that the prosecutors had violated Brady
, f or they had “ a duty to learn o f any f avorable ev i d e nce known to the others acting o n the g overnment’s b ehalf in the c ase, including the police.” Kyl es , 5 1 4 U.S. at 437. This requirement meant that prosecutors had to pu t in place “procedures and reg ulations

. . . to insure communication o f all relevant informati o n on each c ase to every lawy e r w ho deals with it. ” I

d

. a t 438 (quoting Giglio
, 405 U.S. at 154). I nterpreting Kyles
, our circuit has observed tha t “[ b] ecause the prosecution is in a unique position to obtain information k n o w n to other ag ents of the g overnment, it may no t b e

ex c u sed f rom disclosing what it does not know but could have learned.” Carriger v. Stewart
, 132 F .3d 4 6 3
, 480 ( 9 th Cir. 1997) (en banc).

To summariz e, a B rady claim o f prosecutorial misconduct requires a petitioner to show that the e vidence suppressed b y the prosecutor satisfies three elements: “ The evidence at issue must be favorable to the accused, either because it is

ex c u lpatory
, or because it is impeaching ; that evidence must have been suppressed by the State, either w illfully o r inadvertently ; and prejud i ce must h ave ensued.” Banks v

. Dretke
, 540 U.S. 668, 691 (2004) (quoting Strickler
, 527 U.S. at 281–82).A M A D O V

. G O N Z A L E Z 26

The p rosecutor’s o blig a t i o n under B r ady is not e x cused b y

a defense c ounsel’s failure to ex ercise dilig ence with respect to suppressed evidence. However, defense counsel cannot lay

a trap f o r p r osecutors by failing to use evidence of which defense coun s e l is reasonably aware for, in such a case, the jury ’s verdi c t of g u ilty may be said to arise from defense counsel’s stratag em, not the prosecution’s failure to disclose. I n such a case, the prosecution’s failure to disclose Brady o r Giglio evidence wo uld n ot “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 bec a use Amado did not e stablish (1) “the newly

discovered nature o f the e vidence,” and (2) his counsel’s “inability to discover and produce the evidence at trial, with the ex e rcise of due dilig e n c e .” Un d e r AEDPA, we defer to that f inding unless the decision of th e C o u rt of Appeal is (1) “contrary

to, or involved an unreasonable application of, clearly established F ederal law, as determ i n e d by the Supreme Court of the United States;” or (2) “resulted in a decision that

was based o n an unreasonable d etermination of t h e facts in lig ht of the evidence presented in the State court proceeding

. ” 28 U. S

. C

. § 2254(d). As we discuss below, nothing in the record sug g e sts that d efense counsel knew before or d u ri ng trial, or otherwise r easonably had a vailable to h im, the key evidence that the prosecutor had failed to disclose, a nd which could have made a sig nificant difference in impeaching the key witness ag ainst Amado.A M A D O V

. G O N Z A L E Z 27

1. Was the Evidence New ly Discovered?

T h e C ourt of Appeal ruled that Amado did not establi s h “the newly d iscovered nature of the evidence.” I f his counsel had known of the impeachment material at or before the time of trial, th e prosecutor cannot be said to have suppressed
any t h ing
, and there was no Brady violation. See Banks
, 540 U.S. at 691. H o w e ver, the record does not support the Court of Appeal’s ruling
, and it was inconsistent with the proceeding s in the Superior Court. There, the p rosecutor did
not contest Amado’s arg u ment that his attorney did not receive Hardy ’ s probation report u ntil after trial, too late t o

use in cross ex amination. The Superior Cour t a c cepted Amado’s contention that the evidence was newly d iscovered, and ruled a g a inst him on other g rounds. And the trial record indicates that Amado’s counsel was unaware of this impeachment evidence at the time H a r d y was cross ex amined. Althoug h the Superior Court ruled that the cross ex amination of Hardy was vig orous, the cross ex a mination f o c u sed on Hardy ’ s vision. Had Amado’s counsel been aware of the probation r eport, he surely would have cross ex amined Hardy

r e g a r d i n g h i s p r i o r convictions, his f elony -probat i o n a

r y s t a t u s , and his connection with the Piru B loods.

The Court of Appeal ex plained its ruling by commenting that L a pan’s representation, that h e had n ot learned of the impeachment material until after trial, w a s “ arg ument,” a nd thus not evidence. B u t the Court of Appeal ig nored that it h ad
g ranted Amado’s mot ion to aug ment the record and that L apan’s sworn declaration provided record testimony that he “did not learn until after tr i a l that W a rren Hardy was on f e l o ny probation as a result of a robbery conviction a nd th at in the probation r eport from that o ffense, Hardy stated he wasA M A D O V

. G O N Z A L E Z 28

a ‘Piru B lood.’” There w as n o b asis to conclude that L apan had merely provided “arg ument,” to question L apan’s veracity
, or to overrule the Superior Court’s acceptance of the evidence as newly d iscovered.

Under § 2 254(d)’s unreasonable determination clause, “a federal c ourt may not second-g uess a s t a te court’s fact-finding
process unless, a f

t er review of the state-court record, it d e t ermines that the state c ourt was not merely wrong , b u t actually unreasonable.” Taylor v. Maddox
, 366 F .3d 992, 999 (9th Cir. 2004). “[ I ] t is not enoug h that we would reverse in similar circumstances if this w ere a n appeal from a district
court decision. Rather, we must b e con vinced that an appellate panel, apply ing the normal sta n d a rds of appellate review, c ould not reas o nably conclude that the f inding is supported b y the record.” Id. at 1000 (citations omitted). W e hold that the decision of the Court o f Appeal, that Amado h ad not established that the evidence was newly discovered, was

an “unreasonable determination of the facts, ” 2 8 U .S.C. § 2254(d)(2). There was nothing in the re c o r d that could support a findin g that L apan had the evidence that the prosecutor had suppressed when L apan conduct e d his defense of Amado.

2. Is Due Diligence a F actor?

The Court of Appeal ruled that Amado’s B r a dy claim failed b ecause h e did not establish “an inability to discover and produce the evidence at trial, with t h e e x ercise o f d ue dilig ence.” T he issue is whether that ruling is “contrary to

. . . cl e a r l y established F ederal law, as d etermined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1).A M A D O V

. G O N Z A L E Z 29

A decision is “contrary to” Supreme Court precedent “if it applies a rule that contradicts the g overning law set forth in [ the Supreme Court’s] cases or if it confronts a set of facts that are materially indisting uishable from a d eci s ion of [ the Supreme] Court and nevertheless arrives at a result different from [ the Supreme C o urt’s] p recedent.” Early v. Packer
, 537 U.S. 3, 8 (2002) (internal quotation marks omitted).

Under Br a d

y , as the United States Supreme Court’s decisions clearly establi s h
, the prosecutor has a “broad duty

o f disclosure.” Strickler
, 527 U.S. at 2 81. The prosecutor must p resume in favor of d isclosure, a n d r e s o l v e h is doubts about the e x culpatory nature of a document i n f a vor o f producing it. See United States v. Agurs
, 427 U.S. 97, 108 (1976) (ruling t h a t “ the prudent prosecutor will resolve d o u b t f ul questions in favor of disclosure”). I f a p rosecutor has an open-file policy
, defense counsel is entitled to rely on that policy and assume that the file will cont a i n the documents that will be u seful for impeachment or that tend to

ex c u lpate his client. See Strickler
, 527 U.S. at 283 n.23 (“if

a prosecutor a sserts that he complies wi t h Brady throug h an open file policy
, defense counsel may reasonably r e ly o n that file to contain all materials the State i s constitutionally oblig ated to disclose under B rady ” ). See a lso Banks
, 540 U .S. at 695 (“Our decisions lend no support to the notion that defendants must scaveng e for hints of undisclosed Brady material when the pros e c u t ion represents that all such material has been disclosed.”). I n ot h er words, defense

c o u n s e l may rely on the prosecutor’s oblig ation to p roduce that which Brady and G iglio require him to produce.

The Court of Appeal’s requirement of due dilig e nce would flip that oblig ation, and enable a prosecutor to ex cuseA M A D O V

. G O N Z A L E Z 30

his failure by

arg uing that d efense counsel could have found the information himself. The proposition is contr a ry to federal law as clearly

established by the Supreme Court, see Early
, 537 U.S. a t 8
, and unsound public policy

. Especially in a period of strained p u

blic b udg e ts, a prosecutor should not be ex c used f

rom producing that which the la w r e q uires him
to produce, by pointing to that which conceivably could have been discovered had defense counsel ex pended the time and
money to enlarg e his investig ations. N o Brady case discusses such a requirement, and none should be imposed. See Banks
, 540 U.S. at 691 (setti n g fo r t h the essential elements of a Brady claim).

The State arg ues that our own precedents support such an arg ument. The cases are disting uishable. They hold only that defense counsel cannot ig nore that w hich is g iven to him o r of which he otherwise is aware, and not that he is oblig ed to conduct interviews or investig a tions himself. F o r ex ample, in United S tates v

. Aichele
, 941 F .2d 7 6 1, 764 (9 t h C i r

. 1991), the federal g overnment had g iven defense counsel a transcript of an interview with a crucial g overnment witn e s s and the witness’s rap sheet, b ut had not also s u p p l i ed the witness’s state prison records. W e held that Brady had b een satisfied, because “[ t] he prosecution is under no oblig ation to turn over materials not under its control,” and, “here, [ the] defendant ha[ d] enoug h information to be able to ascertain the supposed Brady material on his own.” Id. T his court has since c larified that Aichele stands for the propositio n that the federal
g overnment’s Brady oblig ation does not ex tend to “files that

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

. Lambert
, 283 F .3d 1040, 1061 (9th Cir. 2002).A M A D O V

. G O N Z A L E Z 31

I n United S

tates v. Dupuy
, 760 F. 2 d 1 492, 1501-02 (9th Cir. 1985), we ex plained that when d efense counsel was put

on n otice as to p otential Brady material and g iven t he opportunity to seek it out, then a defendant like l y c o u l d not later claim that a Brady v iolation h ad o c c u rred. No such

ex p licit notice was provided here. S ee a l s o U nited States v

. Bond , 552 F .3d 1092, 1 097 (9th Cir. 2009) (the g overnment h ad g iven the defendant “the essential factual d a t a t o determine whether the witness’ testimony mig ht be helpful”); United States v. Bracy
, 67 F .3d 1421, 1428-29 (9th Cir. 1 995) (no suppression where th e federal g overnment g ave the defense two reports on a g overnmen t witness’s criminal hist ory and a printout from a National Crime I n formation C e n t e r computer search a b out that witness, but did not provide details about t hat witness’s c riminal history a nd cooperation with law enforcement in two states).

Brady is not so limited as the State arg ues. I t is not likely that an interview of Hardy would have disclosed the facts that the State suppressed, as w e d iscuss in the n ex t s e c tion. W e hold that the Court of Appeal’s r equirement of d u e dilig e nce

was “ contrary to, or involved a n unreasonable application of, clearly established F ederal law, a s d e t ermined by the Supreme Court of the United States.” 28 U.S.C. §2254(d). 1 0

10 T h e C o u rt of A

p p eal’ s h o ld in g u n d er Calif o rn i a P en al Co d e § 1 1 8 1 (8 ), t

h at A m ad o f

ailed to s h ow th at t he ev id en ce w as n ew ly d isco v ered an d co u ld n o t h av e been disco v ered w ith du e dilig en ce, raises th e issu e o f an in d ep en d en t an d ad eq u ate state g r o u n d f o r th e decisio n , p reclu d in g f

ed eral h ab eas rev iew

. Ho w ev er, th e State d id n o t m ak e th is
arg u m en t, an d th eref

o re w aiv ed th e d ef

en se. S ee Va n g v

. N

eva d a , 3 2 9 F .3 d 1 0 6 9
, 1 0 7 3 (9 th Cir. 2 0 0 3 ). F u rth er, th e d ef en se d o es n o t ap p ly

.
First, it w a s n o t “ f

irm ly estab lish ed ” th at Calif o rn ia Pen al Co d eA M A D O V

. G O N Z A L E Z 32

D. Review of

Am ado’s Brady Claim

Since the Court o f Appeal ’s d ecision does not survive AEDPA review, w e now review the constitutionality o f 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 i s ex c u lpatory
, o r

§ 1 1 8 1 (8 ) req u i res a p arty seek in g a n ew trial to su b m it an atto rn ey ’s d eclaratio n d escrib in g w

h en t h e e v id en ce w as d isco v ered
, in lieu o f an atto rn ey rep resen tatio n co rro bo ratin g a w itn ess’ s d eclaratio n

. S ee Lee v. Kemn a , 5 3 4 U

. S

. 3 6 2
, 3 7 6 (2 00 2 ) (h o l d in g th at th e in d ep en d en t state g ro u n d m u st b e “ f irm ly estab l ish ed an d reg u larly f o llo w ed ”). T h e statu te itself d o es n ot req u ire su ch a d eclaratio n , n o r do es th e case th e C alif o rn ia Co u rt o f A

p p eal relied o n , Peo

p le v. Ma rtin ez , 6 8 5 P .2 d 1 2 0 3
, 1 2 0 5 (Cal. 1 9 8 4 ) (in ban k ), w

h ich states o n ly th at f

acts s u pp o rtin g a n e w trial m

u st

“ be sh o w n b y t h e b est ev id en ce o f w

h ich th e c a s e ad m its.” L ap an h ad

reaso n to b eliev e th at h is statem e n t t o t he Su p erio r Co u rt w as su f

f icien t

w ith o u t an acco m

p an y in g d eclaratio n becau se Calif o rn i a co u rts h av e h eld th at “ [s]tatem en ts o f a resp o n sib l e o ffi c er o f th e co u rt are tan tam o u n t to

sw o rn testim on y .” Peo

p l e v. W o lo zo n , 1 8 8 Cal. Rp tr. 3 5
, 3 7 n .4 (Cal. Ct. A p p. 1 9 82 ) (citin g Peo

ple v. La u d

ermilk
, 4 3 1 P .2 d 2 2 8, 2 3 8 (Cal. 1 9 6 7 )). In an y ev en t , L ap an d id f ile a d eclaratio n , an d th e Co u rt o f A p p eal, alth o u g h allo w in g A m ad o to au g m en t th e reco rd w ith th e d eclaratio n , sim p ly ig n o red it.

As to t h e req u irem en t t

h at A m ad o sh o w th at h e co u ld n o t h a v e

o b tain ed th e ev id en ce w ith d u e d i lig e n c e , t h a t ru le w as n o t sim p ly an in d ep en den t state p ro ced u ral ru le, b u t is in terw o v en w ith
, an d ch an g es th e

su b stan ce o f

, th e Bra d y req u i rem en t. See M

o ra les v. Ca ld

ero n , 8 5 F.3 d 1 3 8 7
, 1 3 93 (9 th C ir. 1 9 9 6) (“ Fed eral h ab eas rev iew is n o t b a r r e d if th e state d ecisio n fa i r l y ap p ears to rest prim arily on f ed eral law
, o r to b e in terw o v en

w ith th e f ed eral law ” (in tern al q u o tatio n m ark s o m itted ).).A M A D O V

. G O N Z A L E Z 33

because it is impeaching ; that e v idence must have been suppressed by the State, either w illfully o r inadvertently ; a nd prejudice must have ensued.” B a nks
, 540 U.S. at 691. Here, there is no dispute that the impeachment material meets the favorable-to -t h e

- accused standard. W e therefore turn to the other two e lements. Under W iggins w e consider those issues de novo , since they were not addressed b y t h e Court o f Appeal. 539 U.S. at 534; see also Frantz , 533 F .3d at 737.

1. The Pr osecutor’s Duty to Turn Over the Im peachm e nt Material

Under Kyles
, the fact that the individual prosecutors w ho broug ht the case ag ainst Amado may not themselves have h ad the Hardy impeachment material in their p o s s ession is not a bar to Amado’s Brady claim

. A t o ral arg ument before this Court, the State c onceded that the prosecution h ad access to Hardy ’s conviction and probation rec o r d s, for Hardy was prosecuted b y the same office that p rosecuted Amado, the L os Ang eles County District Attorney ’s Offic e

. 1 1 Pursuant to Kyles
, the prosecution had a Brady oblig a tion to p ro duce these records. 514 U.S. at 437. Cf. Giglio
, 405 U.S. at 154 (“To the ex tent [ a Brady oblig ation] pla c es a b urden on the larg e prosecution offices, procedu r es a nd reg ulations can be established to c arry that burden a nd to insure communication of all r elevant information on each case to every lawy er w ho deals with it.”).

11 Hard y s tated i n h is declaratio n th at h e w as p ro secu ted in L on g B each

. L o n g B each f

a l l s u n d er t

h e au sp ices o f th e L o s A n g eles Co u n ty District A tto rn ey ’ s Of

f ice.A M A D O V

. G O N Z A L E Z 34

At oral arg ument, the St a te questioned whether prosecutors had access to records on Hardy ’s g ang affiliation. H o w e v e r , that information was discussed in the very same probation repo r t that discussed Hardy ’s prior felony conviction. Had the State obtained that repo rt , as the State concedes it was required to do, it also w ould have discovered Hardy ’s g ang affiliation.

2. P rejudice

W e nex t 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 w as not p r o d uced is material. A s we noted above, the Court of Appeal concluded that t h e e vidence was material. F or the following reasons, we ag

ree with the Court of Appeal.

“The evidence is material only if th e r e i s a reasonable probability that, had the evidence been disclosed to the defense, the r esu l t o f the proceeding would have been different. A ‘r e a s o n a

b l e p r obability ’ is a probability sufficient
to undermine confidence in the outcome.” Bagley
, 473 U.S.
at 682. The test for materiality “ is not a su fficiency o f

e v i d en ce test.” Kyles
, 514 U.S. a t 434. Evidence can be sufficient to sustain a verdict, and still B rady can be violated. Id. at 43 4

– 4 5

. I f “the f avorable evidence [not produced] could r easona

b l y b e taken to put the w hole case in such a different lig ht as to undermine confiden c e i n the v erdict,” Brady has been violated. Id. at 435.A M A D O V

. G O N Z A L E Z 35

3. P rejudice – The Jurors’ View of Hardy

The State withheld not one b u t t h ree pieces of evidence that h a d t h e potential of undermining Hardy ’ s testimony

. F irst, Hardy had a robbery felony conviction. Defense counsel could have arg ued that this conviction rendered him

an untrustworthy witness. Second, Hardy was on p r obation f o r t h a t conviction at the time he testified. D efense counsel could have arg ued that H ardy w as seeking favor with his probation offi c ers by helping the police solve a wellpubliciz ed murder c ase. Third, Hardy was a former member

o f a B loods g ang , and the defense could have arg ued th at Hard y was biased ag a inst a member or friend of the rival Crips.

L apan’s cross-ex a mination of Hardy did not address any of these points, for L apan, without the suppressed impeachment evidence, lacked a g ood- f a i t h basis to ask the appropriate questions. L a p a n ’s cross-ex amination was short, focusing on Hardy ’ s weak vision and his arg uable inability to identify people running across his field of vision. The suppressed information would have a d ded to the force of the

cross-ex amination and defense c o u nsel’s closing arg ume n t

. There is a r e asonable probability that the suppressed information would have made a difference, causing t he jury
to view Hardy ’s implication o f Amado with a g r eat deal more suspicion.

The State makes two a r gu m ents why the jurors’ view o f Hardy would not have chang e d. F irst, th e State arg u es that Hardy was already impeached by the cross

- e xa m i n a t i o n on his weak v i sion. The suppressed information, however, could have been used to show that H ardy had a motive to embellishA M A D O V

. G O N Z A L E Z 36

the truth, and even to lie. T his is an entirely different reason to cast doubt on Hardy ’s w ords than the one presented at trial.

The State’s second arg ument is that H ardy ’ s reluctance to testify a nd limite d m em ory show that he was not biased
ag ainst Amado. I f Hardy was testify ing ag ainst Amado in order to win favor with the prosecution, he would have been much more h elpful and supplied detailed answers while on the stand, the State r easons. T his arg ument, however, ig nores Hardy ’s c ooperation with th e p olice the nig ht after the shooting

. Hardy provided substantial assistance to the police

on that day
, voluntarily calling the authorities and identify ing Amado as the teenag er he s aw w i t h the g un. The details o f Hard y ’s initial implication of Amado were admitted into evidence throug h the testimony of Detective Esquivel, w ho helped fill in the g aps of Hardy ’s sometimes spotty testimony

. Thus, Hardy ’s initial identifi c ation of Amado—possibly tainted by Hardy ’s motives f or b en d i n g the truth—made it into the mix of evidence considered by the jury

.

4. P rejudice – Reasonable P robability of a Dif f erent Result

Hardy ’s statements ag ainst Amado, in his testimony a nd

as introduced throug h Detective E squivel, were cri t ical to Amado’s c onviction. Hardy was the only person to testify
t h at Amado broug ht a weapon to the scene. W ithout su c h testimony
, it is doubtful that the jury would have found that Amado had the r equisite criminal intent to aid and abet J ohnson’s a ttack on th e p a sseng ers on the bus. I ndeed, without such e vidence, Amado was just one m e m b e r of a crowd. Mere prese n c e i n a crowd is not sufficient to renderA M A D O V

. G O N Z A L E Z 37

a person an accomplice. See People v. Salga d o , 1 05 Cal. Rptr. 2d 373, 381–82 (Cal. Ct. App. 2001).

At trial, the prosecution emphasiz ed the critical nature o f Hardy ’s testimony

. The prosecutor arg ued during summation that Hardy ’ s testimony on A mado’s carry ing of a g un showed he was involve d i n t h e “sig n ificant a mount o f planning a nd talking ” about the attack prior t o the shooting

. The
p r osecution emphasiz e d that Hardy “specifically d escrib e s somebody that looks like Randall A mado, and then later picks that person out t h e nex t day .” Hardy was the one w ho “hear[ d] people discussing the shooting ” and called the police
to set the case in motion. T h e p r osecution told the jury that “the only reason” H a r d y had to identify Amado was that he truly believ e d that Amado was “the g uy who he saw on J anuary the 16th, 1997, with a gu n

. ” W ould the p rosecutor have arg u ed with such conviction if Hardy h ad been impeached by his recent r obbery convicti o n , his felony
p r o b ation status with a motive to curry favor with t h e author i t ies, and his past membership in the B loods, in frequent rivalry and conflict with members of the Crips? The prosecutor’s fa i l ure to discharg e his Brady o blig ations enabled him to b olster H ardy ’s credibility wel l bey ond the credibility Hardy w ould have had if all the impeaching information had been made available to defense counsel and, by defense counsel, to the jury

. Rely ing on Califo r

n i a c a s es that broadly apply accomplice l i ability to g a

ng members, the State contends that even if Hardy had n ot testified at all, Amado still could have been

conv i c ted. See, e.g ., People v. Medina
, 209 P.3d 105, 112 (Cal. 2009) (g ang member involved in a fistfig ht responsible for shooting committed by another member of his g ang );A M A D O V

. G O N Z A L E Z 38

Pe o p l e v

. A yala
, 105 Cal. Rptr. 3d 575, 585 (Cal. Ct. App. 2010) (g ang member p a r ticipates in murder when he rides with a fellow g ang member to a s s i st him in a beating of a rival g a ng ); People v. Montes
, 8 8 Cal. Rptr. 2d 482, 486 (Cal. Ct. App. 1999) (g ang member who wielded a chain in a g ang fig ht r esponsible for shooting committed by a f ellow g ang member). B ut without H ardy
, the only evidence ag ainst Amado was B arner’s a

n d Grisson’s testimony
, which showed that, at best, Amado ran to the bus w i t h m a n y others w ho

were not indicted. On su c h e v i dence, it is questionable if a jury could have convic t e d A m ado of intending to facilitate murder. See Salgado , 105 Cal. Rptr. 2d at 381–82.

W e d o not need to decide more than the question before us—whether the prosecu t o r ’s v iolation of Brady was p r e j u d i c ial. The standard is not whether there is sufficient evidence for conviction, but whether the r e i s a “reasonable probability ” that the o utcome woul d have been different, meaning that “the favorable evidence could reasonably be taken to put the whole case in such a di f f e r ent lig ht as to undermine confidence in the verdict.” Kyles
, 514 U.S. at 435. He r e , t h at standard is met. The impeaching evidence was strong enoug h to cast a cloud o f doubt ove r H ardy ’s testimony

. W ith that cloud of d oubt, the remaining evidence
ag ainst A mado was weak. While B arner and Grisson b oth put Amado at the scene of the crime, neither of them testified that they saw him wit h a weapon or heard him make any statements, or heard others make stateme n t s , that sug g ested that Amado intended to participate in an assault. There was

no proof that Amado had a ny discussions with J ohns o n and Pug h, o r had a strong relationship with them that would have
sug g ested that J ohnson a

nd Pug h had shared their plan with Amado. Hardy ’s testimony th at A m ado carried a g un wasA M A D O V

. G O N Z A L E Z 39

influential to the jury

in delivering a verdict ag ainst Amado, and it is reasonably probable that a jury
, if made aware of the i m p eaching information ag ainst Hardy
, would have g iv e n little
, if any , credence to his testimony and would have returned a different verdict.

III. Conclusion

I n failing to d iscl o se material impeachment evidence to Amado before or during trial, the State vi olated Amado’s rig ht to due process under Brady

. W e reverse an d r e m a nd

w ith instructions to g rant the writ of habeas corpus a n d release Amado from custody u n l e s s the district attorney o f L os Ang eles County
, w ithin 60 day s, initiates proceeding s for a new trial.

REVERSED and REMANDED.

RAW L I NSON, Circuit J udg e, dissenting :

I respectfully dissent from the majority ’s c onclusion that the s t a t e court’s denial of Randall Amado’s Brady 1 claim entitles A mado to habeas r elief. As the majority acknowledg es, this case is g overned by the provisions of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). See Majority O p i n i on, pp. 16–17. U nder the
str i c t ures set forth in AEDPA, our review of state court ruling s is severely cabined. Under A E D PA, even d e novo review is n ot r eally d

e novo

. Rather, w e review the state court

1 Bra d y v. Ma ryla n d , 3 73 U.S. 8 3 (1 9 6 3 ).A M A D O V

. G O N Z A L E Z 40

decision for reasonableness. Only if the state court decision is objectively unr easonable is habeas relief warranted. See W i g gins v. Smith
, 539 U.S. 510, 520–21 (2003). H a be a s relief is not warranted simply because w e think the state court g ot it wrong

. Rather, under AEDPA we must g ive deference
to the state court decision, affording state courts “the benefit of the doubt

. . .” Cullen v. Pinholster
, 1 3 1 S. Ct. 1388, 1398 (2011).

As the U nited States Supre m e Court emphasiz ed in Harrington v. Richter
, 1 31 S. Ct. 7 70, 785 (2011), “an

u n r easonable a

pplication of f

ederal law is different from a n i ncorrect application of f ederal law. A state court mus t b e g ranted a deference and latitude that are not in operation when the case involves review u n der the [ Brady ] standard i t s e lf.” (citation and internal quotation marks omitted).

I n R i ch ter , we w ere reminded that “[ a] state court’s determination that a claim lacks merit p r e cl udes federal habeas relief, so long a s fairminded jurists could disag ree on the c o rr e c t ness of the state court’s decision.

. . .” Id

. at 786 (citation and internal q

uotation marks omitted). The Supreme Court cautioned us: “I t bears repeating that even a strong case for relief does not mean the state c ourt’s contrary conclusion was unreasonable.” Id

. (citation omitted).

The Supreme Court left no doubt that habeas r elief should
not be g ranted readily
, stating in no uncertain terms: “I f [ the habeas] st a n d a r d is d ifficult to meet, that is because it was meant to be.

. . .” Id

. T h e Supreme Court ex plained that AEDPA stop p e d just short of completely p rohibiting reliti ga t i o n in federal court of claims of e rror that were previously rejected in state c o urt. See id

. The Supreme CourtA M A D O V

. G O N Z A L E Z 41

clarified that AEDPA only “preserves authority to issue the writ in cases where there is no poss ibility fairminded jurists could disag ree that the state court’s d ecision confli c t s with [ Supreme Court] precedents. I t g oes n o farther.” I d

. Rather than providing a pathway to second g uessin g state court decisions, h a

beas corpus as a mended by AEDPA “is a g uard
ag ainst ex trem e malfunctions in the state criminal justice
sy stems, not a substitute f or ordinary error correction throug h appeal.

. . .” Id

. ( citation and internal q uotation marks omitted).

F inally
, w e must keep in mind that the more g eneral the rule being a

pplied, the more leeway the state has to apply the rule in case-by -case applications. See id

. B r a d y i s a rule o f
g eneral application, see Unite d S t a tes v

. Bagley
, 473 U.S. 667, 682–83 (1985) (adopti n g the b road prejudice standard established in Strickland v. W ashington
, 466 U .S. 668 (1984) for Brady materiality analy sis); s e e a l so Cobb v. Thaler
, 682 F

. 3d 3 64, 381 ( 5th Cir. 2012) (“[ L ] ike Brady' s disclosure requirement, the materiality standard is a g eneral rule, meaning a wide r ang e of reasonable applications ex ist.

. . .”) (citation o mitted). According ly
, we must a f f o r d the state considerable leeway in apply ing the principles articulated in the Brady decision. W e must also keep in the forefront of our analy sis the limitations of o ur revie w

. T h e majority ’s conclusion simply c annot be reconciled with these precepts.

Amado wa s convicted a s an aider and abettor, which

means that the prosec u t o r had no o blig ation to prove that Amado fired the shots that killed one victim and w o u n d ed another, or that he actually boarded the bus. See, e.g. , People

v. Salgado
, 88 Cal. App. 4th 5, 15 (2001) (“Aiding a nd abetting requires a person to promote, encourag e o r instig ateA M A D O V

. G O N Z A L E Z 42

the crime w ith knowledg e of its unlawful p u r p o s e .”) (citations omitted). Therefore, a

ny testimony reg a

r d i n g w h e t

h e r A mado had a g un or actually boarded the b us was not material. See Banks v. Dretke
, 540 U.S. 6 68, 698 (2004) (d ef ining materiality in ter m s o f its potential e f fect on the outcome o f the case).

Unlike the majority
, I focus my analy sis on whether the
state court’s denial of relief was objectively unreasonable, not wh e t her Amado suffered prejudice in the first instance. See Richter
, 131 S. Ct. at 7 85 ( caution i n g a g ainst directly reviewing the federal ru l e r a ther than reviewing the state court’s application of that r ule). Viewed throug h that prism, I am u nable to say that n o fairminded ju r i s t could disag r ee that the state court’s decision was unreasonable, and neither should the majority

. S ee id

. at 786; see a lso W iggins
, 539 U.S. at 520–21 (incorporating the “objectively unreasonable” standard). The state c o u rt applied Brady
, a rule of g eneral application, thereby implicating the considerable leeway contemplated by the Suprem e Court to review of the resulting determination. See Richter
, 131 S. Ct. at 786.

I ag ree with the presumably fairminded district court that the s t a te court did not unreasonably apply Brady

. On the i s sue of prejudice, which is the fulcrum of the majo r i t y ’s analy sis, the reco r d r eflects that there w as testimony
, other than that of W a

rren Hardy
, to support the aiding and abetting theory of c onviction. Natasha B arner identified Amado a s p a rt of the g roup at the bus stop who boarded the b u s t o confront rival g a

ng members. W i t n e s s J ohn Grisson also identified Amado a s among the “g roup of g uy s” who “ranA M A D O V

. G O N Z A L E Z 43

across the street” towa r d the bus stop where the shooting occurred, boarded the bus, and fled following the shooting

. 2

The r ecord also reveals that Hardy w a s f a r from being a stellar witness f

or the prosecution. As t h e district court observed, Hardy endeavored to recant his testimony at every turn. He could not “remember the f ace” of the individual he previously identif

i ed as having a g un. He could not remember identify

ing any one to the police. H ardy also confirmed that he d i d n o t witness the shooting and that he failed to identify Amado from a photog raph that was presented to him during the trial. Give n H a r dy ’s ex tensive self-impeachme nt and the ex istence of other witnesses w ho attested to Amado’s aiding and abetting of the shooting
, it
was not o bjectively unreasonable for the state court to find a lack o f prejudice to Amado, i.e
., that the undisclosed evidence would not have affected the jury ’s verdict. See S t i c k l e r v

. Greene
, 527 U.S. 263, 293–94 ( 1999); see a l so Richter
, 131 S. Ct. at 786 (“[ H] abeas corpus is a g uard ag ainst extreme malfunctions in state criminal justice sy stems, not a substitute for ordinary error c orrection throug h a p peal.

. . .” ) (citation and internal quotation marks omitted) ( emphasis added). I n view o f the “deference, latitude and leeway ” we are to afford the state c ourt’s application of the B rady rule, id
., it is hard to comprehend how one c o u l d conclude that the state court’s decision “was so lacking in justificatio n t h a t there was an

error well understood a n d c omprehended in ex isting law bey ond a ny possib ility far from f

airminded disag reement.” Id . at 786–87.

2 A s n o ted p rev i o u sly
, o n an aid in g an d ab ettin g th eo ry o f cu lp ab ility
, i t

m ak es n o d if

f eren ce w h ich in d iv id ual m em

b ers o f th e g ro u

p actu ally b o ard ed th e b u s. S

ee S a lg ad o , 8 8 Cal. A p p . 4 th

at 1 5.A M A D O V

. G O N Z A L E Z 44

The majority o pinion disag rees ex tensively with the California Court of Appeal’s application of California Penal Code § 1 181(8). See Majority Opinion, pp. 13–14 and pp. 22. However, our deference to a state court d ecision should be at its z enith when the state co u r t i s i nterpreting a state statute. See Bradshaw v. Richey
, 546 U.S. 74, 76 (2005) (reminding that “ the Supreme Court h as r epeatedly held that a state court’ s interpretation of state law, including one announced

on direct appeal o f the challeng ed conviction, binds a federal
court sitting in habeas corpus”) (citations omitted). However, far from deferring to the state court’s interpretation o f its o wn state’s statute, the majority proceeds to completely ig nore the
state court’s a naly sis, and conduct its own de novo analy sis, including whether t h e California Court of Appeal properly applied Californ i a l a w

. See Majority Opinion, pp. 26–39 (discussing the Califo r n ia Court of Appeal’s reliance on California Penal Code § 1181 and i n t erpreting v arious California c ases to determine that Amado suffered prejudice).

W e re the full feast of direct review spread before us, we would be free to g n aw away at the trial court’s Brady ruling

. See, e.g ., United States v. Sedaghaty
, 728 F .3d 885, 898–903 (9th Cir. 2013) (revi e w i n g B rady issue on direct appeal without deference to the trial court’s ruling ). However, the Supreme Court has to l d t

h i s C i r c u i t s p e c i f

ically
, emphatically
, and repeatedly
, to curb our appetite when it comes to h abeas review. See Richter
, 1 31 S. Ct. at 785– 8 6 ( c h astising this Circuit for conducting a d e novo review with no deference to the state court decision).

I respectfully decline to join a ruling that so clearly flouts Suprem e Court precedent. W ith respect, I dissent f rom the majority opinion.