FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

LACEY MARK SIVAK,  No. 08-99006

Petitioner-Appellant, D.C. No.

v.  1:96-CV-00056-

JOHN HARDISON, Warden, BLW

Respondent-Appellee. OPINION 

Appeal from the United States District Court

for the District of Idaho

B. Lynn Winmill, Chief District Judge, Presiding

Argued and Submitted

October 7, 2010—Seattle, Washington

Filed September 7, 2011

Before: Alex Kozinski, Chief Judge, Sidney R. Thomas and

Milan D. Smith, Jr., Circuit Judges.

Opinion by Judge Milan D. Smith, Jr.

16925
COUNSEL

Bruce D. Livingston (argued) and Colleen Brady Ward, Federal Defender Services of Idaho, Boise, Idaho; Todd Maybrown, Allen, Hansen & Maybrown, P.S., Seattle,

Washington, for the petitioner-appellant.

L. LaMont Anderson (argued), Deputy Attorney General,

Boise, Idaho, for the respondent-appellee.

SIVAK v. HARDISON 16929
OPINION

M. SMITH, Circuit Judge:

Dixie Wilson was murdered on April 6, 1981, while she

was working at the Baird Oil gas station in Garden City,

Idaho. Approximately $385 was taken from the station’s cash

drawer and safe. Both Petitioner Lacey Sivak and his codefendant Randall Bainbridge (who was tried separately)

admitted that they were present when the crime occurred, but

each insisted that the other was responsible for the murder and

robbery. The jury convicted Sivak of felony murder and/or

aiding and abetting felony murder, but acquitted him of premeditated murder. The trial judge then imposed the death penalty. After pursuing other remedies, Sivak filed a federal

habeas petition before the effective date of the Antiterrorism

and Effective Death Penalty Act of 1996 (AEDPA). The district court denied him relief.

Although we reject many of Sivak’s contentions on appeal,

we conclude that absent the State’s knowing presentation of

perjured inmate testimony, the result of Sivak’s penalty-phase

hearing could have been different. The only direct evidence

establishing that Sivak, not Bainbridge, committed the murder

came from Bainbridge’s unsworn statement during a police

interrogation, and a pair of jailhouse informants. One of the

informants admitted on the witness stand that he was a habitual liar; the other committed perjury regarding his motives for

testifying and his expectations of receiving preferential treatment from the State. Accordingly, we hold that the State violated Sivak’s due process rights under Napue v. Illinois, 360

U.S. 264 (1959), and we reverse the district court’s denial of

the writ with respect to Sivak’s death sentence.

FACTUAL AND PROCEDURAL BACKGROUND

A. Guilt Phase

The State charged Sivak with robbery, two counts of murder in the first degree (premeditated murder and felony mur16930 SIVAK v. HARDISON
der), and possession of a firearm during the commission of

the robbery and murder.

1. The Crime

According to her husband, Dixie Wilson left her home

around 6:20 on the morning of April 6, 1981, to go to her job

at the Baird Oil gas station.

By 7:00, she had been stabbed and shot repeatedly. Numerous witnesses testified that, when they found her on the gas

station floor, she was breathing faintly and appeared to be

unconscious, her “face was all bloody,” and blood was coming out of her mouth. One person noted that “her blouse was

kind of up above her breasts,” and another said that her shirt

was “pulled way up” so that “she was naked from . . . [the]

top of her breast down to her pants line.” There was a pool

of blood on the floor around her, and a knife blade was lying

on the ground. The gas station’s money drawer was open, and

contained only loose change, and no bills. An empty money

bag was sitting out on the countertop.

Wilson was unconscious when she arrived at the hospital,

and was declared dead less than an hour later. An autopsy

revealed that she had been shot at least five times in the head

and face, and the coroner recovered seven separate bullet

fragments from her skull. She was stabbed approximately

twenty times around the head, neck, and shoulder, as well as

on her left hand, which a physician described as a defensive

wound. An x-ray appeared to show the tip of a pocketknife

blade lodged in her skull, and the tip of a knife blade was

recovered from her hair.

The State sought to establish that Sivak had two motives

for the crime: to rob the gas station and to resolve a grudge

against Wilson. In addition to the two motives proffered by

the State, Sivak’s former supervisor suggested an alternative

motive for the robbery and killing: Bainbridge’s attraction to

SIVAK v. HARDISON 16931
Wilson. According to the supervisor, Bainbridge appeared at

the station two days after the murder and “started talking

about Dixie,” saying “two or three times . . . how she turned

him on.” Bainbridge appeared “very nervous,” his lips quivered, his voice broke, and his hands were shaky. (In fact, in

the separate prosecution of Bainbridge, “the prosecutor . . .

pursue[d] a sexual motivation theory.” State v. Bainbridge,

698 P.2d 335, 337 (Idaho 1985).)

2. Jailhouse Informants

During the trial, the State introduced testimony from a

number of inmate witnesses. The first, Jimmy Leytham, said

that when he and Sivak were in jail together, Sivak confessed

to murdering Wilson. Leytham claimed that he was interested

in learning about the crime because he had heard about the

murder on the television news, and had heard from other

inmates that the victim “always helped convicts and stuff.” He

asked Sivak “why he shot her and stabbed her so many

times,” and Sivak responded, “because she kept on moving.”

He then asked Sivak “what happened to the knife handle,”

and Sivak said that he “threw it in the river over by the fairgrounds.” He asked about what type of gun was used, and

Sivak said that “they used a .22.” He asked about Sivak’s

motive, and Sivak said that “he holds grudges against people,” and that “he used to work at the place” and Wilson had

“fired him.”

Leytham admitted to the jury that he had been in jail on

charges of burglary and escape. When asked about his motive

for testifying, Leytham said that he had “a wife and kids out

on the streets,” and he did not “want anything to happen to

them.” Asked whether he was seeking “any particular favoritism from State authorities” in exchange for his testimony,

Leytham said “[n]o.” Asked whether the prosecutor’s “office

or any other State agency” took any actions “with regard to

your incarceration [in] the Ada County jail,” Leytham said

only that his escape charge was dismissed after the prelimi16932 SIVAK v. HARDISON
nary hearing, and a charge pending in another city was also

dismissed. Leytham said that he did not know whether the

prosecutor’s office was involved in the dismissals.

On cross-examination, the defense asked Leytham about

his lengthy criminal history, which included convictions for

burglary and insufficient funds. The defense pointed out that

Leytham’s sentencing “[j]udge probably wasn’t real happy

about seeing [him] the second time” after being lenient during

his first conviction. Leytham acknowledged having a third

burglary charge against him, and admitted that, in the words

of Sivak’s counsel, he had been a “prime candidate for the

penitentiary” before his charges were dismissed following the

preliminary hearing. The defense also asked whether Leytham

talked to the other inmates, which elicited a discussion about

an inmate named Nathan Crispin. The defense asked Leytham

whether he had ever left the jail to travel to Kansas, and

Leytham said he had done so for “[p]ersonal reasons.” The

defense then asked Leytham whether he had testified against

Nathan Crispin in a murder trial in Kansas, and Leytham

responded cryptically and without elaboration, “You’ve got

the information.”

The defense closed its cross-examination of Leytham by

asking, “is it fair to say that you are a free man today because

you testified here today and because you testified in Nathan

Crispin’s case?” Leytham responded unequivocally, “No, sir.”

The State called a second inmate, Duane Grierson, to testify about Sivak’s jailhouse admissions. According to Grierson, Sivak was pleased that Grierson had testified against

Bainbridge, and Sivak wanted to tell his version of events to

Grierson. Sivak then said: “I didn’t rob anybody. . . . Bainbridge did. . . . I killed her, . . . and so did he.” Sivak also said

that “he reached a sexual climax from pushing on the body,”

and that Bainbridge “reached one from playing with her

boobs.”

SIVAK v. HARDISON 16933
Asked about why he was testifying, Grierson said, “Because I believe that they are guilty of it,” and “I believe that

what I am doing is right.” Asked whether “any . . . government entity” had made a deal in exchange for his testimony,

he said, “No, sir,” and that he did not “expect” any leniency

in his pending sentencing proceedings. On cross-examination,

Grierson admitted that he had testified in two other cases in

addition to Sivak’s and Bainbridge’s. Grierson initially denied

giving information in the interest of obtaining favorable treatment, but later admitted to writing an affidavit for his sentencing judge, which stated: “I have been promised deals by the

prosecuting attorney’s office, the main gist of which were that

if I testified in court in certain murder cases, I would not be

sent to any prison, but would receive, at best, a county jail

term.” He also wrote to the sentencing judge that he was “a

chronic liar,” and “lying was a way of life” for him.

3. The Verdict

The jury found Sivak guilty of robbery, first-degree felony

murder, possession of a firearm during the commission of a

robbery, and possession of a firearm during the commission

of a felony murder. The jury acquitted Sivak of first-degree

premeditated murder and possession of a firearm during the

commission of first-degree premeditated murder.

B. Penalty Phase

Consistent with Idaho and federal law at the time, the trial

judge was responsible for making the findings necessary to

impose the death sentence. See State v. Lovelace, 90 P.3d 298,

300-01 (Idaho 2004) (discussing impact of Ring v. Arizona,

536 U.S. 584 (2002), on Idaho capital-sentencing procedures).

Because of the complicated procedural history of the case, we

summarize here the evidence presented in all three of Sivak’s

sentencing hearings.

The defense emphasized two points in favor of a life sentence instead of a death sentence. First, Sivak was not “in that

16934 SIVAK v. HARDISON
last irredeemable, hopeless category of evil, ugly, horrible

people” for whom the death penalty is warranted. Second,

Bainbridge was primarily responsible for the robbery and

murder, or at the very least, Sivak and Bainbridge were

equally culpable in the robbery and murder, and Bainbridge

had been spared the death penalty.

In the initial sentencing proceeding, the defense called four

witnesses who testified about Sivak’s activities in his local

church and in his former job as an Avon cosmetics salesman.

The defense also presented mitigating evidence about Sivak’s

childhood. Sivak’s sister and mother testified that Sivak’s

alcoholic father “beat him,” and that the beatings occurred “a

lot.” Sivak’s mother also testified that Sivak was “hyperactive” as a child, and an expert witness discussed the association between attention deficit hyperactivity disorder and

criminal behavior. The evidence of Sivak’s hyperactivity was

meant not to exculpate him of responsibility, but to raise

doubts about whether it was an impulsive attack rather than

a “planned [and] rational” one. In addition to highlighting

Sivak’s character and upbringing, the defense also emphasized the magnitude of Bainbridge’s participation in the murder.

The judge found that “all of the mitigating circumstances

do not outweigh the gravity of each aggravating circumstance

so as to make unjust the imposition of the death penalty.”

(Citing State v. Charboneau, 774 P.2d 299 (Idaho 1989),

overruled on other grounds by State v. Card, 825 P.2d 1081,

1088 (Idaho 1991).) The judge concluded that, because Sivak

“actively participated in the brutal savage slaying and sexually molesting [sic] of a woman while at the same time butchering her alive,” he had “forfeited his rights to life,” and

“society must be protected.” Accordingly, he imposed the

death penalty.

JURISDICTION AND STANDARD OF REVIEW

We have jurisdiction under 28 U.S.C. §§ 1291 and 2253.

Our review is governed by pre-AEDPA standards. Lindh v.

SIVAK v. HARDISON 16935
Murphy, 521 U.S. 320, 326-27 (1997). As the State implicitly

concedes, this rule applies even though Sivak filed amended

petitions after AEDPA was enacted. See Robinson v. Schriro,

595 F.3d 1086, 1098-99 (9th Cir.) (applying pre-AEDPA

legal standards where initial petition was filed prior to

AEDPA’s enactment and amended petition was filed after

AEDPA’s enactment), cert. denied, 131 S. Ct. 566 (2010);

Hamilton v. Ayers, 583 F.3d 1100, 1105 (9th Cir. 2009)

(same); Jackson v. Brown, 513 F.3d 1057, 1068-69 (9th Cir.

2008) (same); accord Smith v. Mahoney, 611 F.3d 978,

993-95 (9th Cir.) (discussing this issue with respect to

AEDPA statute of limitations), cert. denied, 131 S. Ct. 461

(2010).

Under pre-AEDPA law:

We review the district court’s decision to grant

habeas relief de novo. We review de novo questions

of law and mixed questions of law and fact, whether

decided by the district court or the state courts. The

district court’s factual findings are reviewed for clear

error. We therefore accept its findings ‘absent a definite and firm conviction that a mistake has been

committed.’ State court factual findings are entitled

to a presumption of correctness, subject to eight

exceptions enumerated in the previous version of 28

U.S.C. § 2254(d).

Jackson, 513 F.3d at 1069 (citations omitted) (quoting Hovey

v. Ayers, 458 F.3d 892, 900 (9th Cir. 2006)).

DISCUSSION

A. Brady and Napue Claims

Sivak contends that the State violated his due process rights

under Brady v. Maryland, 373 U.S. 83 (1963), and Napue v.

Illinois, 360 U.S. 264 (1959), by failing to disclose impeach16936 SIVAK v. HARDISON
ment evidence regarding jailhouse informant Jimmy Leytham,

by allowing Leytham’s false testimony regarding his motives

for testifying to stand uncorrected, and by failing to disclose

statements made by another inmate, Louis Fazio, regarding

Bainbridge’s actions during the murder.

1. Procedural Challenges

Before addressing the merits of Sivak’s contentions, we

first address the State’s arguments that the Napue claim is

procedurally defaulted and unexhausted. 

a. Procedural Default

The district court assumed without deciding that the claim

was not procedurally defaulted, and concluded that it failed on

the merits. We review questions regarding procedural default

de novo. Robinson, 595 F.3d at 1099.

The State argues that the Napue claim is procedurally

defaulted because the Idaho Supreme Court held that “Sivak

has waived this issue under the provisions of I[daho] C[ode]

§ 19-2719(5).” Sivak v. State (Sivak V), 8 P.3d 636, 645

(Idaho 2000). That statutory provision requires defendants to

“file any legal or factual challenge to the sentence or conviction that is known or reasonably should be known” within

forty-two days after a death sentence is imposed. Idaho Code

§ 19-2719(3). If a defendant fails to comply, he is “deemed to

have waived such claims for relief as were known, or reasonably should have been known” within that forty-two day

period. Id. § 19-2719(5). The only exception is “for issues

that were not known or could not reasonably have been

known,” and which “cast doubt on the reliability of the conviction or sentence.” Id. § 19-2719(5)(a)-(b). Applying these

provisions, the Idaho Supreme Court concluded that Sivak’s

Napue claim “reasonably should have been known at the time

of Sivak’s first petition” for post-conviction relief in 1984.

Sivak V, 8 P.3d at 645.

SIVAK v. HARDISON 16937
[1] We have previously held that Idaho’s forty-two day filing deadline was inadequate in cases involving allegations of

ineffective assistance of counsel where the petitioner “continued to be represented by his original trial counsel during the

forty-two day period.” Hoffman v. Arave, 236 F.3d 523, 534

(9th Cir. 2001). The reason for our conclusion was selfevident: “it is the rare attorney who can be expected to contend on appeal that his representation was so poor that he

deprived his client of a fair trial.” Id. (alteration and internal

quotation marks omitted). As a result, we concluded that

“Idaho’s forty-two day filing deadline, as applied to Hoffman,

is uniquely harsh.” Id. Because the rule “frustrate[d] the exercise of a federal right,” it was “inadequate to preclude federal

courts from reviewing the merits of the federal claim.” Id. at

531 (internal quotation marks omitted).

Once again, we conclude that “Idaho’s forty-two day filing

deadline, as applied to [the petitioner], is uniquely harsh,” and

is therefore inadequate. Id. at 534. The Idaho Supreme

Court’s invocation of the § 19-2719(5) time bar in Sivak’s

case is perplexing. The court’s conclusion rested on the apparent premise that Sivak had not raised his Napue claim in his

direct appeal or his first petition for post-conviction relief. See

Sivak V, 8 P.3d at 645. But Sivak did present the Napue claim

in his first post-conviction petition. Sivak’s Second Amended

Petition for Post-Conviction Relief, filed in November 1984,

included a Fourteenth Amendment argument premised on the

prosecutor’s “failure . . . to reveal the substance of plea bargain agreements with two of his witnesses.” After the trial

court denied the petition, Sivak’s opening brief to the Idaho

Supreme Court discussed Napue at length under the subheading, “Presentation of false testimony.” The Idaho Supreme

Court then considered and rejected Sivak’s Napue claim on

the merits. Sivak v. State (Sivak II), 731 P.2d 192, 203 (Idaho

1986) (citing Napue, 360 U.S. 264); see also id. at 219-22

(Bistline, J., dissenting in relevant part) (discussing Napue

claim at length, explaining that “the majority’s conclusion

against Sivak [on this claim] is without doubt the most unsub16938 SIVAK v. HARDISON
stantiated and distorted holding in the case”). In light of these

undisputed facts, it is unsurprising that two justices dissented

from the subsequent invocation of the § 19-2719(5) time bar.

The justices wrote, correctly, that “Sivak’s claim concerning

the alleged deal between the prosecutor and Leytham was

raised, addressed on its merits, and denied in his prior petition

for post-conviction relief.” Sivak V, 8 P.3d at 646 (Trout &

Silak, JJ., dissenting).

[2] The Idaho Supreme Court’s application of § 19-

2719(5) is premised on an erroneous factual determination,

and Sivak has met his AEDPA burden of introducing clear

and convincing evidence to rebut the presumption that the

state court’s determination is correct. See 28 U.S.C.

§ 2254(e)(1) (2006). While it is unusual to reject a state

court’s use of a procedural bar on the ground that it was erroneously applied, “[t]he procedural default doctrine selfevidently is limited to cases in which a ‘default’ actually

occurred i.e., cases in which the prisoner actually violated the

applicable state procedural rule.” 2 Randy Hertz & James S.

Liebman, Federal Habeas Corpus Practice and Procedure

§ 26.2[c] (6th ed. 2011). Here, the state court applied the

state’s procedural rule to Sivak’s case in an erroneous and

arbitrary manner. Thus, we follow the Supreme Court and our

sister circuits in holding that an erroneously applied procedural rule does not bar federal habeas review.1

1

See James v. Kentucky, 466 U.S. 341, 351 (1984) (deeming state procedural bar inadequate where defendant “sought to invoke the substance of

his federal right”); Mapes v. Coyle, 171 F.3d 408, 429 (6th Cir. 1999)

(deeming state procedural bar inadequate where petitioner “properly raised

[the issue] on post-conviction review and Ohio courts erroneously refused

to consider it”); Forgy v. Norris, 64 F.3d 399, 402 (8th Cir. 1995) (deeming state procedural bar inadequate where state supreme court’s procedural

ruling was contrary to the record and applicable state rules); Kubat v. Thieret, 867 F.2d 351, 366 n.11 (7th Cir. 1989) (deeming state procedural bar

inadequate where state court “ruled that [petitioner] had waived the claim

by failing to raise it on direct appeal[,]” but “[t]he record clearly shows

. . . that [petitioner] did in fact raise and argue the issue in his brief on

direct appeal”). 

SIVAK v. HARDISON 16939
b. Exhaustion

The State also argues that, even if the Napue claim is not

procedurally barred, it is unexhausted because Sivak did not

present the factual basis of the Napue claim to the Idaho courts.2

In order to exhaust a claim, the petitioner must fully and

fairly “present both the factual and legal basis for the claim

to the state court.” Robinson, 595 F.3d at 1101; see also 28

U.S.C. § 2254(b) (1994). “Full and fair presentation . . .

requires a petitioner to present the substance of his claim to

the state courts, including a reference to a federal constitutional guarantee and a statement of facts that entitle the petitioner to relief.” Scott v. Schriro, 567 F.3d 573, 582 (9th Cir.)

(per curiam), cert. denied, 130 S. Ct. 1014 (2009).

[3] Sivak specifically argued to the Idaho Supreme Court

that his federal due process rights were violated under Napue

because “[t]he jury was never advised that there existed the

possibility of prospective benefits to Leytham depending

upon the quality of his testimony against petitioner.”

Although Sivak subsequently discovered documentary evidence to bolster this argument, he undeniably presented both

2We reject the State’s contention that Sivak conceded in the district

court that the Napue claim was not exhausted. It is not clear that Sivak

made such a concession, and the district court declined to rely on this

ground. Absent the district court’s reliance on Sivak’s concession, Sivak

is not bound by his prior assertions. See Reed Elsevier, Inc. v. Muchnick,

130 S. Ct. 1237, 1249 (2010) (“[W]e decline to apply judicial estoppel.

. . . [T]hat doctrine typically applies when, among other things, a ‘party

has succeeded in persuading a court to accept that party’s earlier position,

so that judicial acceptance of an inconsistent position in a later proceeding

would create the perception that either the first or the second court was

misled.’ ” (quoting New Hampshire v. Maine, 532 U.S. 742, 750 (2001)).

Even if Sivak’s purported concession had been accepted by the district

court, “this court can independently review the state court record to determine whether the issue has actually been exhausted.” Lopez v. Schriro,

491 F.3d 1029, 1041 n.7 (9th Cir. 2007). 

16940 SIVAK v. HARDISON
“the legal and factual basis of his federal constitutional claim”

to the state court. Robinson, 595 F.3d at 1102. He identified

evidence showing that Leytham knew that the prosecution

provided him benefits in exchange for his cooperation, that

the prosecution told him that it would consider providing him

with benefits, and that he testified at trial that he “d[id]n’t

know” whether or not the prosecution was involved in providing him benefits. This evidence was more than sufficient to

satisfy the exhaustion requirement. “[A]s long as the ‘ultimate

question for disposition’ has remained the same in state and

federal court, . . . ‘variations in the legal theory or factual allegations urged in its support’ are entirely legitimate.” Id. at

1102 n.14 (quoting Picard v. Connor, 404 U.S. 270, 277

(1971)). 

Because Sivak’s Napue claim is neither procedurally barred

nor unexhausted, we now turn to the merits of the Napue and

Brady claims.

2. Legal Framework

[4] In Brady v. Maryland, the Supreme Court held that

“the suppression by the prosecution of evidence favorable to

an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective

of the good faith or bad faith of the prosecution.” Brady, 373

U.S. at 87. The Court has subsequently explained that “[t]here

are three components of a true Brady violation: [1] The evidence at issue must be favorable to the accused, either

because it is exculpatory, or because it is impeaching; [2] that

evidence must have been suppressed by the State, either willfully or inadvertently; and [3] prejudice must have ensued.”

Strickler v. Greene, 527 U.S. 263, 281-82 (1999). Brady

applies not only to information known to the prosecutor, but

also to “evidence ‘known only to police investigators and not

to the prosecutor.’ ” Id. at 280-81 (quoting Kyles v. Whitley,

514 U.S. 419, 438 (1995)).

SIVAK v. HARDISON 16941
In Napue v. Illinois, the Court held that “a conviction

obtained through use of false evidence, known to be such by

representatives of the State, must fall under the Fourteenth

Amendment.” Napue, 360 U.S. at 269. “A claim under Napue

will succeed when ‘(1) the testimony (or evidence) was actually false, (2) the prosecution knew or should have known that

the testimony was actually false, and (3) the false testimony

was material.’ ” Jackson, 513 F.3d at 1071-72 (quoting Hayes

v. Brown, 399 F.3d 972, 984 (9th Cir. 2005) (en banc)). It is

“irrelevant” whether the defense knew about the false testimony and failed to object or cross-examine the witness,

because defendants “c[an]not waive the freestanding ethical

and constitutional obligation of the prosecutor as a representative of the government to protect the integrity of the court and

the criminal justice system.” N. Mariana Islands v. Bowie,

243 F.3d 1109, 1122 (9th Cir. 2001); see also Belmontes v.

Brown, 414 F.3d 1094, 1115 (9th Cir. 2005) (“Whether

defense counsel is aware of the falsity of the statement is

beside the point.”), rev’d on other grounds sub nom., Ayers v.

Belmontes, 549 U.S. 7 (2006).

3. Analysis

a. Leytham’s Letters

i. Factual Background

During discovery in the district court, Sivak discovered

four letters in the prosecutor’s files regarding Leytham. 

The first letter was written on May 7, 1981, by Ada County

prosecutor Jim Harris to Dennis Albers, the prosecutor of a

neighboring county in which a charge was pending against

Leytham for escaping jail. Harris explained that Leytham had

“come to law enforcement in Ada County with very damaging

eviden[ce] against three inmates in the Ada County Jail presently being held on murder charges.” Harris acknowledged

that “[t]he escape charge that you have presently pending

16942 SIVAK v. HARDISON
against Mr. Leytham is . . . of serious concern to you and your

office[,]” but he nevertheless “request[ed] that charges against

Mr. Leytham in Idaho County, relating to the escape above

mentioned, be dismissed by your office.” Harris explained

that his request was “[b]ased on [Leytham’s] cooperation, as

well as the fact that Mr. Leytham is presently serving a sentence in the Ada County Jail resulting from” a prior offense.

Harris concluded by adding, “I do believe that based on the

fact that Mr. Leytham will obviously not be sentenced to the

State Penitentiary (based on his willingness to testify against

these individuals), justice will be served adequately without

proceeding further on the escape charge pending in your jurisdiction.” 

The second letter was written a few days later by Harris to

the chairman of the state Commission for Pardons and Parole.

Harris “recommend[ed]” that Leytham “be given additional

consideration for parole from the Idaho State Correctional

Institute” during his upcoming parole hearing the following

week. Harris’s “recommendation [was] based upon Mr.

Leytham’s cooperation” with respect to the two trials in the

Wilson murder, the murder trial in Kansas, and an additional

local murder investigation.

The third letter was written on July 13, 1981, by Leytham

to Jerry Brown, who was “evidently a Kansas prosecutor.”

Sivak V, 8 P.3d at 640. Leytham wrote that Idaho investigator

“Vaughn [Killeen] told me you are in the same position Idaho

is in. They say they will help me when I get out but don’t do

any thing [sic] about it.” Leytham added that he wanted

$6,000 “cash” as “wit[ ]ness fees as soon as you can.” A few

weeks later, Brown forwarded this letter to Killeen.

The fourth letter was written on July 27, 1981, by Killeen

to Leytham. The letter began: “Your witness fee should arrive

shortly. . . . I also wanted to communicate to you about your

status and what this office has done in regards to your current

status. If you recall you had information regarding the

SIVAK v. HARDISON 16943
Bainbridge-Sivak case and you approached me about a ‘deal.’

I informed you we couldn’t make ‘deals’ but if you desired

to testify I would attempt to do something for you but there

would be no guarantees.” Killeen then summarized the “arrangements” that were made in anticipation of Leytham’s testimony in the Sivak, Bainbridge, and Crispin cases: “the

dismissing of criminal charges against you in two jurisdictions, a reduction in sentence and a parole from the Idaho

State Correctional Institute.” Killeen closed by stating that

“[w]ithout our intervention you would still be in prison with

other pending criminal charges against you. I would suggest

you stop trying to make a living off the system . . . . I will see

you at the deposition” in Sivak’s case.

ii. Preliminary Brady/Napue analysis

These letters clearly satisfy the first two requirements of

Brady: they are “favorable to the accused . . . because [they

are] . . . impeaching,” and they “have been suppressed by the

State, either willfully or inadvertently.” Strickler, 527 U.S. at

281-82. 

[5] With respect to the first Brady requirement, the letters

are classic examples of impeachment evidence. It is well

established that “[e]vidence of a deal or promise of lenient

treatment in exchange for a witness’s testimony against a

defendant may constitute evidence that must be disclosed

under Brady and Napue.” Hovey, 458 F.3d at 916 (citing

Giglio v. United States, 405 U.S. 150, 154-55 (1972)); see

also Banks v. Dretke, 540 U.S. 668, 685, 700-02 (2004) (finding a Brady violation where prosecution failed to disclose that

key witness “was an informant and that he had been paid

$200 for his involvement in the case”). We have also

explained that “[t]he deal or promise need not be express; failure to disclose an agreement or guarantee of leniency ‘indicated without making a bald promise’ also may violate

Brady.” Hovey, 458 F.3d at 917 (quoting United States v. Butler, 567 F.2d 885, 888 n.4 (9th Cir. 1978) (per curiam)). We

16944 SIVAK v. HARDISON
have even found a Brady violation where the evidence “implie[d] that a tacit agreement was reached between [a witness]

and the government . . . in exchange for his cooperation.”

United States v. Shaffer, 789 F.2d 682, 689 (9th Cir. 1986).

Here, although there is no evidence of an explicit meeting of

the minds between Leytham and the prosecutor’s office, there

is ample evidence of an implicit quid pro quo between the

prosecutor’s office and Leytham, and that this agreement was

known to Harris, Killeen, and Leytham. We therefore agree

with the Idaho Supreme Court’s factual conclusion “that

Leytham and the prosecutor had reached some type of deal in

exchange for his cooperation.” Sivak V, 8 P.3d at 643. 

[6] With respect to the second Brady requirement, the state

undeniably suppressed the letters within the meaning of

Brady. The district court correctly concluded “that the State

suppressed the letters because they were not disclosed until

the Court granted discovery in this habeas matter.” This finding is sufficient to satisfy the second element of Brady. See

Benn v. Lambert, 283 F.3d 1040, 1053 (9th Cir. 2002) (“[T]he

terms ‘suppression,’ ‘withholding,’ and ‘failure to disclose’

have the same meaning for Brady purposes.”).

Having concluded that the letters were impeachment evidence and were withheld by the State, we next examine the

materiality of the letters collectively in combination with the

other Brady and Napue violations. See Jackson, 513 F.3d at

1076.

b. Leytham’s False Testimony

During the guilt phase of the trial, Leytham testified that he

had “a wife and kids out on the streets,” and he did not “want

anything to happen to them.” Asked directly whether he “ask-

[ed] for any particular thing—any particular favoritism from

State authorities” in exchange for his testimony, Leytham said

“[n]o.” Asked whether the prosecutor’s “office or any other

State agency” took any actions “with regard to your incarceraSIVAK v. HARDISON 16945
tion [in] the Ada County jail,” Leytham said only that his

escape charge was dismissed after the preliminary hearing,

and a charge pending in another city was also dismissed.

Leytham said that he did not know whether the prosecutor’s

office was involved in the dismissals.

The Idaho Supreme Court concluded that:

Much of [Leytham’s] testimony the prosecutor knew

to be inaccurate. As Killeen’s letter makes obvious,

Leytham approached Killeen about a “deal,” not out

of a sense of familial or civic responsibility.

Leytham also asked the prosecutor for monetary

compensation. Leytham knew that the prosecutor’s

office was responsible for his pending charges being

dismissed. Although he denied receiving any other

consideration, he also knew that the prosecutor’s

office was largely responsible for him receiving

parole.

Sivak V, 8 P.3d at 645. These factual findings are entitled to

a presumption of correctness, and the State has not rebutted

this presumption. 28 U.S.C. § 2254(d) (1994). In addition to

the false statements identified by the Idaho Supreme Court,

Leytham also falsely testified that he had traveled to Kansas

for personal reasons. The prosecutor knew or reasonably

should have know that Leytham had traveled to Kansas in

order to testify in the Crispin murder trial. Killeen’s July 27,

1981, letter to Leytham notes that Leytham “requested . . .

$6,000 for [his] continued testimony against Crisp[i]n,” and

Harris’s letter to the parole commission stated that Leytham

had “agreed to testify regarding a murder . . . in the State of

Kansas.”

[7] These findings about Leytham’s testimony establish the

first two elements of a Napue violation: “ ‘(1) the testimony

(or evidence) was actually false [and] (2) the prosecution

knew or should have known that the testimony was actually

16946 SIVAK v. HARDISON
false.’ ” Jackson, 513 F.3d at 1071 (quoting Hayes, 399 F.3d

at 984).

c. Fazio’s Statement to Police

Sivak also contends that the prosecution withheld a statement from inmate Louis Fazio, who told investigators that

Bainbridge had admitted to fondling the victim’s breasts as

she was dying. However, the statement was not suppressed

during the penalty phase. As the district court correctly found,

“Sivak’s counsel possessed this evidence before the 1988 sentencing hearing” and even “referred to it as part of Sivak’s

mitigation case.” Because the prosecution disclosed the material to Sivak, it was not suppressed for purposes of Brady during the sentencing phase. In addition, had the Brady material

regarding Fazio been disclosed during the guilt phase and

been admissible, the total mix of evidence would have been

essentially unchanged.

d. Materiality and Prejudice3

Under Brady, withheld “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 probability sufficient to undermine confidence in the outcome.” United

States v. Bagley, 473 U.S. 667, 682 (1985). In determining

materiality, the “suppressed evidence” must be “considered

collectively, not item by item.” Kyles, 514 U.S. at 436.

“[O]nce a reviewing court applying Bagley has found constitutional error there is no need for further harmless-error

review.” Id. at 435.

In contrast, under Napue, a conviction (or capital sentence)

3

“The terms ‘material’ and ‘prejudicial’ are used interchangeably in

Brady cases. Evidence is not ‘material’ unless it is ‘prejudicial,’ and not

‘prejudicial’ unless it is ‘material.’ ” Benn, 283 F.3d at 1053 n.9. 

SIVAK v. HARDISON 16947
is “set aside whenever there is ‘any reasonable likelihood that

the false testimony could have affected the judgment of the

jury.’ ” Jackson, 513 F.3d at 1076 (quoting Hayes, 399 F.3d

at 985). Although “Napue does not create a ‘per se rule of

reversal[,]’ ” “[w]e have gone so far as to say that ‘if it is

established that the government knowingly permitted the

introduction of false testimony reversal is virtually automatic.’ ” Id. (quoting Hayes, 399 F.3d at 978, 984).

In Jackson, we explained the proper method of analyzing

Brady and Napue errors in tandem:

[W]e first consider the Napue violations collectively

and ask whether there is “any reasonable likelihood

that the false testimony could have affected the judgment of the jury.” If so, habeas relief must be

granted. However, if the Napue errors are not material standing alone, we consider all of the Napue and

Brady violations collectively and ask whether “there

is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding

would have been different.” At both stages, we must

ask whether the defendant “received a trial resulting

in a verdict worthy of confidence.”

Id. (ellipsis and citations omitted). 

[8] If Brady and Napue violations were prejudicial with

respect to either the guilt or penalty phase of the trial, Sivak

is entitled to relief. See, e.g., Cone v. Bell, 129 S. Ct. 1769,

1784 (2009) (“Evidence that is material to guilt will often be

material for sentencing purposes as well; the converse is not

always true, however . . . .”); see also Jackson, 513 F.3d at

1076-77 (analyzing materiality of Napue violation with

respect to sentencing phase).

i. Guilt Phase

[9] Sivak has failed to show that the State’s Napue and

Brady violations prejudiced him during the guilt phase of pro16948 SIVAK v. HARDISON
ceedings. Although the evidence of Sivak’s guilt was not

quite as “overwhelming” as the State repeatedly contends in

its brief, we are confident that the State’s misconduct could

not reasonably have affected the jury’s verdict.

In his testimony to the jury, Sivak did not deny the fact that

he was present at the crime scene when Wilson was shot five

times and stabbed twenty times. Sivak’s theory of the case

was that Bainbridge was the primary actor in the robbery and

murder. Sivak contended he was merely present at the offense

and was incapable of intervening because of his own fear and

Bainbridge’s implicit and explicit threats against Sivak and

Sivak’s family. 

Ample evidence rebutted Sivak’s contentions. One eyewitness testified that prior to the murder, “it was [a] real uneasy

atmosphere” in the gas station and Wilson appeared uncomfortable in Sivak and Bainbridge’s presence. This testimony

rebutted Sivak’s claim that the murder was spontaneous.

Another eyewitness testified that Bainbridge “was going

through the drawer” that contained the cash, which rebutted

Sivak’s claim that Bainbridge kept the derringer pointed at

him following the murder. Witnesses testified that Bainbridge

and Sivak seemed normal after the murder, which suggested

that Sivak was not scared of Bainbridge. In fact, Bainbridge’s

wife and a friend each testified that Bainbridge seemed more

nervous than usual that morning after the murder, but no one

(other than Sivak himself) testified that Sivak was similarly

affected by the crime.

In addition, a number of employees from the gas station

testified that Sivak disliked Wilson and thought she had been

changing his deposits. They also testified about the station’s

practice of keeping a limited amount of cash in the upper part

of the safe and the remainder of the cash in the lower locked

portion of the safe, and that Sivak thought Wilson had a key

to the lower portion. Another employee testified that someone

who sounded like Sivak called a few days before the murder

SIVAK v. HARDISON 16949
to ask which employee would be working on Monday morning. Accordingly, there was ample evidence supporting the

State’s theory of the case, as summarized in the State’s closing argument: “Lacey Sivak thought that Dixie still had the

key to the lower part of that safe. He knew that on Monday

the receipts from the previous weekend were in the lower part

of that safe.”

Finally, and most importantly, Sivak himself admitted

(after first denying it on the stand) that he stole the .22 pistol,

derringer, and ammunition from the store where his mother

worked. Sivak’s fingerprint was on the barrel of the .22, and

he could not explain why there were no other fingerprints on

the gun.

[10] Thus, even if the State had not violated Napue and

Brady, we have full confidence that the jury would still have

convicted Sivak of first-degree murder. It is important to

recall that the jury found Sivak guilty of first-degree felony

murder, and that the jury was properly instructed that anyone

who “aid[s] and abet[s]” a crime is “equally guilty” as the

person who “directly commit[s] . . . the offense.” 

Under Idaho law, Sivak could have been convicted of

either aiding and abetting Bainbridge’s felony murder or

directly committing the felony murder.4 Thus, the Napue violations could not reasonably have affected the guilt-phase out4Because Idaho “treats aiding and abetting as a theory and not as a separate offense with distinct elements, . . . there is no basis for a specific unanimity instruction” that would “requir[e] the basis for the jury’s verdict

(aider and abettor or principal) be a unanimous decision.” State v. Johnson, 188 P.3d 912, 919-20 (Idaho 2008); see also Schad v. Arizona, 501

U.S. 624, 632 (1991) (plurality opinion) (“ ‘[T]here is no general requirement that the jury reach agreement on the preliminary factual issues which

underlie the verdict.’ ”); Schad, 501 U.S. at 649 (Scalia, J., concurring)

(“[I]t has long been the general rule that when a single crime can be committed in various ways, jurors need not agree upon the mode of commission.”). 

16950 SIVAK v. HARDISON
come. There is no doubt that a robbery occurred and that

Wilson was killed during the course of that robbery, thus supporting a first-degree felony-murder conviction. The only real

dispute was, if Bainbridge committed both the murder and the

robbery, whether Sivak aided and abetted either of those acts.

The jury heard and rejected Sivak’s contentions that he knew

nothing about the plan to commit robbery and/or murder, that

he did not participate in the robbery or murder, and that he

was threatened into assisting Bainbridge cover up the crimes.

[11] In light of this strong evidence of guilt under either a

direct felony-murder theory or an aiding-and-abetting felonymurder theory, the Napue violations could not have changed

the jury’s guilt determination. Leytham’s testimony was

wholly cumulative to the other evidence of Sivak’s guilt.

Leytham’s testimony tended to establish that Sivak, not Bainbridge, was the actual killer, and tended to bolster Grierson’s

testimony to the same effect. But even if the jury disbelieved

Leytham entirely and, in turn, disbelieved Grierson (an admitted liar whose testimony was corroborated only by Leytham),

there still is no “reasonable likelihood that the false testimony

could have affected the judgment of the jury.” Jackson, 513

F.3d at 1076 (emphasis and internal quotation mark omitted).

As in Morris v. Ylst, 447 F.3d 735, 746 (9th Cir. 2006), Sivak

“testified in his own defense and implicated [others] in the

crime, but the jury disbelieved him,” and “the physical evidence” and various other pieces of evidence “pointed to his

guilt.” Thus, we follow Morris and hold that Sivak has not

shown prejudice on account of the guilt-phase Napue violations. Cf. Maxwell v. Roe, 628 F.3d 486, 507-08 (9th Cir.

2010) (finding prejudice where perjured witness “was the

‘make-or-break’ witness for the State” (citing Hall v. Dir. of

Corrs., 343 F.3d 976, 978, 984-85 (9th Cir. 2003) (per

curiam); Killian v. Poole, 282 F.3d 1204, 1209 (9th Cir.

2002))), petition for cert. filed, 80 U.S.L.W. 3004 (U.S. June

21, 2011).

We reach the same result under Brady and our collective

Napue-Brady analysis. Had the Brady material regarding

SIVAK v. HARDISON 16951
Leytham been disclosed, Leytham would have been thoroughly discredited, and Grierson’s testimony would likewise

have suffered. But Leytham’s substantive testimony was

duplicative to the other evidence presented at trial with

respect to Sivak’s guilt, and, as a result, we have full confidence in the verdict. 

[12] Because the errors are not prejudicial standing alone,

we must “consider all of the Napue and Brady violations collectively and ask whether ‘there is a reasonable probability

that . . . the result of the proceeding would have been different.’ ” Jackson, 513 F.3d at 1076 (emphasis omitted). We

conclude that the result would not have been different. Even

if the jury had been properly advised that Leytham was committing perjury and heard from Fazio that Bainbridge admitted to fondling the victim, the guilt-phase verdict would have

been the same. There was simply too much evidence placing

Sivak at the scene of the crime while it occurred, and the jury

rejected Sivak’s exculpatory testimony. Accordingly, there

was no prejudice during the guilt phase on account of the

Napue and Brady violations.

ii. Penalty Phase

We reach a contrary conclusion regarding penalty-phase

prejudice. The penalty phase differed from the guilt phase in

two important respects. First, under Idaho law, the prosecution was required to prove beyond a reasonable doubt that the

murder satisfied at least one of Idaho’s statutory aggravating

circumstances. Idaho Code § 19-2515(g) (West 1992).5 Sec5The sentencing judge relied on the following provisions: 

(5) The murder was especially heinous, atrocious or cruel, manifesting exceptional depravity. 

(6) By the murder, or circumstances surrounding its commission,

the defendant exhibited utter disregard for human life. 

(7) The murder was one defined as murder of the first degree by

section 18-4003, Idaho Code, subsections (b), (c), (d), (e) or (f),

16952 SIVAK v. HARDISON
ond, the prosecution was required to prove that one of these

aggravating circumstances outweighed all of the mitigating

circumstances, and that the death penalty was warranted.

Idaho Code § 19-2515(c) (West 1992); Charboneau, 774 P.2d

at 323-24; see also Fetterly v. Paskett, 997 F.2d 1295, 1301

(9th Cir. 1993) (“For whatever reason, Idaho has chosen to

prohibit the grouping of aggravating circumstances in connection with their weighing against whatever elements of mitigation that appear in a given case.”); accord Hayes, 399 F.3d at

988 (noting that Napue violation “would have affected not

only the special circumstance verdict, but also the jury’s ultimate decision to impose the penalty of death”).

[13] Thus, in determining whether Sivak suffered prejudice as a result of the State’s misconduct, we must be confident in the trial judge’s conclusion that Sivak caused or

intended to cause Wilson’s death, and in the judge’s balancing

of aggravating and mitigating circumstances. The Idaho

Supreme Court has observed that it is difficult to conduct

harmless error review in capital-sentencing cases because

“[a]ggravating and mitigating factors are of a more subjective

nature than evidence of guilt or innocence that can be objectively examined to determine whether a jury’s deliberations

would have come out the same way as to the underlying

offense.” State v. Lovelace, 90 P.3d 298, 304 (Idaho 2004)

(internal quotation marks omitted). In conducting this “subjective” balancing process, the sentencer must be carefully

attuned to “[t]he relative weights of the various types of”

available evidence. Sivak II, 731 P.2d at 205. In light of these

guiding principles of state sentencing law, it is important also

to keep in mind the appropriate prejudice/harmless error stanand it was accompanied with the specific intent to cause the death

of a human being. 

(8) The defendant, by prior conduct or conduct in the commission

of the murder at hand, has exhibited a propensity to commit murder which will probably constitute a continuing threat to society.

Idaho Code § 19-2515(g) (West 1992). 

SIVAK v. HARDISON 16953
dards: if there is any “reasonable probability that . . . the result

. . . would have been different” without the Brady error, Bagley, 473 U.S. at 682, or if “there is any reasonable likelihood

that” the sentencer’s weighing process “could have” been different without the Napue error, Jackson, 513 F.3d at 1076

(internal quotation marks omitted), then we must grant

Sivak’s petition.

The State first contends that Leytham’s perjury and the

suppressed letters were not prejudicial because the sentencing

judge had ample reasons to disbelieve Leytham. We disagree.

In Jackson, the defense thoroughly cross-examined one of the

witnesses “about his own attempts to benefit from his cooperation.” Id. at 1077. We held that this cross-examination was

an inadequate substitute for hard evidence of the witness’s

cooperation: “evidence of an explicit promise of assistance by

the trial prosecutor likely would have carried far greater

weight than any speculative benefit [the witness] might have

thought he could achieve on his own.” Id. Similarly, Jackson’s jury was aware that robbery charges were pending

against the state’s other key witness, and could have “speculated” he was cooperating to try and get a better deal. Id. We

held that “this speculation pales in comparison to the reality

that law enforcement officers had actually promised” favors

to the witness. Id. We concluded that the two witnesses’

“willingness to lie under oath to keep the promises secret

would cast doubt on [their] entire testimony.” Id.; accord

Silva v. Brown, 416 F.3d 980, 989 (9th Cir. 2005) (holding

that withheld impeachment evidence was material under

Brady because “the undisclosed evidence was not duplicative

of the impeachment evidence actually presented, but rather

was of a different kind”).

[14] Like the witnesses in Jackson, Leytham refused to

admit that he was seeking (and indeed, had received) money

and favorable treatment in exchange for his testimony. This

testimony invited the factfinder to “speculate” about the possibility that he was testifying out of self-interest rather than

16954 SIVAK v. HARDISON
public-minded generosity. Leytham even lied about his motivations for testifying and the benefits he had received from

the prosecution. Had the sentencing judge known about

Leytham’s true motivations for testifying, and had the judge

known that Leytham had lied on the witness stand about those

motivations, the judge very likely would have rejected

Leytham’s testimony about Sivak’s purported confession.

There are a number of reasons why the sentencing judge’s

assessment of Leytham’s testimony might have been different

if the State had corrected his falsehoods or disclosed the four

impeaching letters to Sivak. We have explained the importance of disclosing that a witness has received “prosecutionprovided benefits”: “ ‘Disclosure of an agreement to provide

such benefits, as well as evidence of the benefits themselves,

could have allowed the jury to reasonably conclude that the

informant had a motive other than altruism for testifying on

behalf of the State. Such a finding could have substantially

impeached the informant’s credibility as a witness.’ ” Benn,

283 F.3d at 1057 (alterations omitted) (quoting Singh v.

Prunty, 142 F.3d 1157, 1162 (9th Cir. 1998)). The Supreme

Court has suggested that such information is even more significant if the witness has not received a firm commitment

from the prosecution, because witnesses have greater incentives to lie if the potential benefits are “not guaranteed

through a promise or binding contract.” Bagley, 473 U.S. at

683. And as we explained on remand from the Court, “ ‘[t]he

more uncertain the agreement, the greater the incentive to

make the testimony pleasing to the promisor.’ ” Bagley v.

Lumpkin, 798 F.2d 1297, 1302 (9th Cir. 1986) (quoting Boone

v. Paderick, 541 F.2d 447, 451 (4th Cir. 1976)). 

In addition, if a witness’s false testimony is corrected by

the prosecution, his “willingness to lie under oath” is exposed

and his credibility is irreparably damaged. Jackson, 513 F.3d

at 1077. There is a substantial difference between “general

evidence of untrustworthiness and specific evidence that a

witness has lied.” Benn, 283 F.3d at 1056-57. “ ‘All the other

SIVAK v. HARDISON 16955
evidence used by the defense to punch holes in the informant’s credibility amount[s] only to circumstantial reasons

why the informant might alter the truth to continue to feather

his own nest. A lie would be direct proof of this concern,

eliminating the need for inferences.’ ” Id. at 1057 (alterations

omitted) (quoting United States v. Bernal-Obeso, 989 F.2d

331, 336 (9th Cir. 1993)).

Furthermore, these rules are of particular significance when

the witness is incarcerated. We have repeatedly observed that

inmate testimony is inherently unreliable. “Defendants or suspects with nothing to sell sometimes embark on a methodical

journey to manufacture evidence and to create something of

value, setting up and betraying friends, relatives, and cellmates alike.” Bowie, 243 F.3d at 1124.

All of these considerations are relevant in this case. Had

Leytham’s lies been exposed, the factfinder very likely would

have rejected Leytham’s testimony about Sivak’s confession.

If the factfinder had rejected Leytham’s testimony, it would

have been forced to reconsider Grierson’s testimony as well.

See id. (“Frequently, and because they are aware of the low

value of their credibility, criminals will even go so far as to

create corroboration for their lies by recruiting others into the

plot.”). Absent Leytham’s corroborating testimony regarding

Sivak’s confession, Grierson’s version of Sivak’s confession

would have been called into doubt. Because Grierson’s own

lies were uncovered at trial and he even admitted to being a

“chronic liar,” the corroborating power of Leytham’s testimony vis-a-vis Grierson’s is clear. Absent the overlap

between Leytham’s and Grierson’s testimony about Sivak’s

confession, the judge reasonably would have reconsidered his

firm conviction that Sivak personally committed the murder.

[15] Once Sivak’s purported confessions to Leytham and

Grierson are removed from the mix of evidence, the sentencing judge’s aggravating findings are significantly weakened.

We have repeatedly held that Brady and Napue violations

16956 SIVAK v. HARDISON
were prejudicial where they impacted testimony regarding the

defendant’s purported confession, particularly when the

remaining case against the defendant was entirely circumstantial. Maxwell, 628 F.3d at 508; Jackson, 513 F.3d at 1077-79;

Silva, 416 F.3d at 987; Horton v. Mayle, 408 F.3d 570,

579-81 (9th Cir. 2005); Hayes, 399 F.3d at 985-87; Hall, 343

F.3d at 984. Such a conclusion derives from common sense:

a confession is typically “powerful evidence,” Premo v.

Moore, 131 S. Ct. 733, 744 (2011), but is substantially less

powerful if heard secondhand from a witness with a motive

to lie and a demonstrated pattern of lying, cf. Barker v. Fleming, 423 F.3d 1085, 1097 (9th Cir. 2005) (rejecting Brady

claim where the record contained ample evidence in which

the jury heard that the witness was “a serial liar whose story

that [the defendant] confessed was highly doubtful”).

[16] In light of these considerations, we are compelled to

conclude that there is a reasonable likelihood that the sentencing outcome could have been different if the State had corrected Leytham’s perjury. Sivak simply did not receive a trial

that “ ‘result[ed] in a [sentence] worthy of confidence.’ ”

Jackson, 513 F.3d at 1076 (quoting Kyles, 514 U.S. at 434).

Although the trial judge heard ample evidence establishing

Sivak’s presence at the scene of the crime, the only direct evidence of Sivak’s personal participation in the crime consisted

of testimony from inmates (Leytham and Grierson) and

Sivak’s co-perpetrator Bainbridge. Given that these three

pieces of evidence are inherently unreliable,6 we cannot be

6

“Bainbridge’s statement had been obtained under questionable circumstances shortly after he was arrested and in custody when he was first confronted with the full impact of the state’s accusation that he was guilty of

murder. Few aspects of the criminal law are more familiar than the phenomenon of co-defendants who implicate each other. . . . Bainbridge had

every reason to lie.” State v. Sivak (Sivak III), 806 P.2d 413, 424 (Idaho

1990) (Bistline, J., dissenting); see also State v. Sivak (Sivak I), 674 P.2d

396, 414 (Idaho 1983) (Bistline & Huntley, JJ., dissenting) (“How a district judge could divine from the two sources of evidence, to wit, the

sworn and unsworn statements of Sivak as against the unsworn statements

of Bainbridge, who was telling the truth, if either, is beyond my powers

of comprehension.”). 

SIVAK v. HARDISON 16957
confident that the trial judge would have reached the same

conclusion, had he known that Leytham (in addition to Grierson) lied on the witness stand.

Contrary to the State’s arguments, the Napue violations in

the sentencing phase are not harmless errors that are merely

cumulative to other evidence known to the factfinder. Unlike

the cases cited by the State, this is not a case in which the witness at issue had already been exposed to the factfinder as a

liar, e.g., Heishman v. Ayers, 621 F.3d 1030, 1035 (9th Cir.

2010) (per curiam), petition for cert. filed, No. 10-10953

(U.S. June 1, 2011); Morris, 447 F.3d at 741, 746, the witness

already testified that he received immunity, Heishman, 621

F.3d at 1035, the witness “explained the conditions of his plea

agreement in open court,” Hamilton, 583 F.3d at 1111, or the

witness admitted that he “ ‘hope[d]’ ” to “receiv[e] lenient

treatment in exchange for his testimony,” Hovey, 458 F.3d at

921. Furthermore, unlike our harmless error analysis of the

guilt phase of this case, there is not “overwhelming evidence

of [Sivak’s] guilt” with respect to the aggravating factors supporting the death sentence, Hamilton, 583 F.3d at 1112, and

there is not reliable independent evidence that Sivak personally caused or intended to cause Wilson’s murder, such as

clear physical evidence and a reliable confession from the

defendant, e.g., Morris, 447 F.3d at 738-39, 741, 746.

[17] Accordingly, we conclude that the State’s failure to

correct Leytham’s false testimony violated Sivak’s due process rights with respect to his capital sentence.7

B. Double Jeopardy Clause

Sivak also contends that the trial court violated the Double

Jeopardy Clause because its sentencing findings conflicted

7Having found Napue error, we need not address Sivak’s Brady claims.

See Jackson, 513 F.3d at 1076 (setting forth two-step procedure for considering related Napue and Brady claims). 

16958 SIVAK v. HARDISON
with the jury’s acquittal on the premeditated murder count. In

his briefs, Sivak argues that this acquittal “necessarily determined that he lacked the specific intent to commit murder.”

At oral argument, Sivak offered the more expansive argument

that the acquittal established “that he was not the actual killer.” We disagree with both versions of Sivak’s Double Jeopardy claim.

1. Legal Framework

[18] In Ashe v. Swenson, 397 U.S. 436 (1970), the

Supreme Court “held that the Double Jeopardy Clause precludes the Government from relitigating any issue that was

necessarily decided by a jury’s acquittal in a prior trial.”

Yeager v. United States, 129 S. Ct. 2360, 2366 (2009). “In

evaluating collateral estoppel claims, we follow a three-step

process. First, we identify the issues in the two actions to

determine whether they are sufficiently material and similar

to justify invoking the doctrine; second, we examine the

record in the prior case to determine whether the similar issue

was litigated; third, we examine the record of the prior proceeding to determine whether the issue was necessarily

decided in the first case.” Wilson v. Belleque, 554 F.3d 816,

830 (9th Cir.), cert. denied, 130 S. Ct. 75 (2009). Analysis of

“[t]he preclusive effect of the jury’s verdict . . . is a question

of federal law which we . . . review de novo.” Schiro v. Farley, 510 U.S. 222, 232 (1994). “The burden is ‘on the defendant to demonstrate that the issue whose relitigation he seeks

to foreclose was actually decided in the first proceeding.’ ” Id.

at 233 (quoting Dowling v. United States, 493 U.S. 342, 350

(1990)).8

8We assume, as the Supreme Court did in Schiro, that in capitalsentencing proceedings, “collateral estoppel could bar the use of [an] . . .

aggravating circumstance” that is inconsistent with the jury’s verdicts. Id.

at 232. The Eleventh Circuit appears to be the only circuit court to reach

this issue. Delap v. Dugger, 890 F.2d 285, 316 (11th Cir. 1989) (holding

that Ashe’s collateral estoppel “principle properly extends to the sentencing phase of a capital trial”). 

SIVAK v. HARDISON 16959
When determining the preclusive effect of a jury verdict,

we must “examine the record of [the] prior proceeding, taking

into account the pleadings, evidence, charge, and other relevant matter, and conclude whether a rational jury could have

grounded its verdict upon an issue other than that which the

defendant seeks to foreclose from consideration.” Ashe, 397

U.S. at 444 (internal quotation marks omitted). If “there is

more than one rational conclusion that can be drawn from the

first jury’s verdict,” then collateral estoppel cannot apply

because the issue was not necessarily decided by the jury’s

verdict. Santamaria v. Horsley, 133 F.3d 1242, 1246 (9th Cir.

1998) (en banc). “The inquiry ‘must be set in a practical

frame and viewed with an eye to all the circumstances of the

proceedings.’ ” Ashe, 397 U.S. at 444 (quoting Sealfon v.

United States, 332 U.S. 575, 579 (1948)). 

2. Analysis

Sivak was charged with two separate counts of first-degree

murder. Count two of the Information charged that he murdered Wilson “willfully, unlawfully, deliberately, with premeditation and with malice aforethought.” Count three

charged him with murdering Wilson “in the perpetration of a

robbery.” The jury found Sivak guilty on count three (felony

murder) but not count two (premeditated murder).

[19] We reject Sivak’s argument that these verdicts conclusively establish that he did not personally stab and shoot

Wilson. Sivak is correct that it is possible that the jury concluded that Bainbridge used the murder weapons. However,

we cannot agree that the jury “necessarily decided” whether

Sivak or Bainbridge was the killer. Yeager, 129 S. Ct. at 2366.

We have previously rejected a similar argument, using language directly applicable to this case: although the “two verdicts may be harmonized by concluding that the jury found

that [Sivak] was guilty as an aider and abettor[,] . . . it is also

conceivable that all twelve jurors were convinced beyond a

reasonable doubt that [Sivak] played some role, either as the

16960 SIVAK v. HARDISON
shooter or as an aider and abettor, without ascertaining

exactly which role. We have no way of knowing, because

these alternatives . . . are rationally consistent with the jury’s

verdict in th[is] case.” Santamaria, 133 F.3d at 1246. By convicting Sivak on count three, the jury determined that either

Sivak or Bainbridge committed a murder “in the perpetration

of, or attempt to perpetrate robbery,” and, to the extent that it

found that Bainbridge committed the murder, that Sivak “aid-

[ed] and abet[ted] in its commission.”

9

 By acquitting Sivak on

count two, the jury found reasonable doubt as to whether

Sivak or Bainbridge committed a “willful, deliberate and premeditated killing,” or, to the extent it found that Bainbridge

committed a “willful, deliberate and premeditated killing,”

that there was reasonable doubt whether Sivak aided and abetted that crime. In other words, there are numerous “rational

conclusion[s] that can be drawn from the . . . jury ‘s verdict,”

and we are therefore unable to conclude that the jury found

that Bainbridge, not Sivak, committed the murder. Id. Sivak’s

argument rests entirely on impermissible “guesswork,” “conjecture,” and “speculation.” Yeager, 129 S. Ct. at 2368. 

Sivak also argues that his acquittal on count two (premeditated murder) should have precluded the sentencing judge

from finding beyond a reasonable doubt that he acted with the

“specific intent” to kill Wilson. He contends that Idaho’s

“specific intent to kill” aggravating factor requires the State

to establish all the elements of first-degree premeditated murder: namely, that “there must be wilfulness, deliberation and

premeditation in addition to malice aforethought.” State v.

Porter, 128 P.3d 908, 911 (Idaho 2005) (quoting State v. Aragon, 690 P.2d 293, 297 (Idaho 1984)).

We are unpersuaded by Sivak’s construction of Idaho law.

At the time of the final sentencing proceeding, the Idaho Code

9Neither Idaho law nor the federal constitution require jury unanimity

regarding whether Sivak was guilty as a principal or as an aider and abettor. See supra at 16950 n.4. 

SIVAK v. HARDISON 16961
included the following statutory aggravating factor: “[1] The

murder was one defined as murder of the first degree by section 18-4003, Idaho Code, subsections (b), (c), (d), (e) or (f)

[which establish various types of felony murder], and [2] it

was accompanied with the specific intent to cause the death

of a human being.” Idaho Code § 19-2515(g)(7) (West 1992).10

Sivak does not dispute that his particular felony-murder conviction fits within the first part of this statute, as it was a

“murder committed in the perpetration of, or attempt to perpetrate, . . . robbery.” Id. § 18-4003(d). Instead, he argues that

the jury’s acquittal on count two conclusively established that

he did not act “with the specific intent to cause the death of

a human being,” id. § 19-2515(g)(7), and that he therefore

may not be subjected to the death penalty on this ground.

Sivak’s argument is unavailing. The Idaho courts have held

that the “specific intent to kill” aggravating factor is identical

to the intent-to-kill element of first and second-degree murder,11

10The Code has subsequently been amended to state: “The murder was

committed in the perpetration of, or attempt to perpetrate, arson, rape, robbery, burglary, kidnapping or mayhem and the defendant killed, intended

a killing, or acted with reckless indifference to human life.” Idaho Code

§ 19-2515(9)(g). 

11In State v. Windsor, 716 P.2d 1182 (Idaho 1985), the court upheld the

death penalty due to the jury’s finding that the defendant “intentionally

murdered [the victim] while perpetrating or attempting to perpetrate a burglary.” Id. at 1191 (quoting jury instructions; emphasis added by Idaho

Supreme Court). Despite the lack of a premeditation finding, the court

held that the jury’s finding of intent was sufficient to satisfy both Idaho

law’s statutory “specific intent to kill” aggravating factor and the Eighth

Amendment “inten[t] to kill” requirement set forth in Enmund v. Florida,

458 U.S. 782, 798 (1982). Id. at 1191-92. 

Similarly, in State v. Dunlap, 873 P.2d 784 (Idaho 1993), the court held

that a guilt-phase finding of “express malice” is sufficient to establish a

penalty-phase finding of specific intent to kill, because express malice

exists “when there is manifested a deliberate intention to unlawfully take

away a life.” Id. at 788 (citing Idaho Code § 18-4002). The Dunlap court

added that “implied malice” was not sufficient to establish intent to kill,

as implied malice exists “when the circumstances attending the killing

16962 SIVAK v. HARDISON
and we are unable to determine conclusively that the jury

acquitted Sivak of premeditated murder because he lacked an

intent to kill. Instead, the jury could have acquitted Sivak on

numerous grounds other than his intent to kill—for example,

if there was an absence of premeditation or deliberation, or if

Bainbridge committed the murder. By acquitting Sivak of

first-degree premeditated murder, the jury determined (in the

language of the jury instruction) that Sivak did not commit a

“willful, deliberate and premeditated killing.”

12 The jury could

show an abandoned and malignant heart.” Id. (citing Idaho Code § 18-

4002). Dunlap thus establishes that something more than implied malice

(i.e., “abandoned and malignant heart” murder) is required to satisfy the

“specific intent to kill” aggravating factor, and that express malice (i.e., a

deliberate and intentional killing) is sufficient. 

The Idaho courts’ approach is consistent with the traditional common

law distinction between first- and second-degree murder: an intentional

killing will support a second-degree murder conviction, and if the intentional killing is done with premeditation and deliberation, a first-degree

murder conviction is appropriate. See 2 Charles E. Torcia, Wharton’s

Criminal Law § 142 (15 ed. 2010 Supp.) (“Although an intent to kill,

without more, may support a prosecution for common law murder, such

a murder ordinarily constitutes murder in the first degree only if the intent

to kill is accompanied by premeditation and deliberation.”); 2 Wayne R.

LaFave et al., Substantive Criminal Law § 14.7(e) (2d ed. 2008) (“[I]ntentto-kill murder without the added ingredients of premeditation and deliberation is second degree murder.”); accord State v. Pina, 233 P.3d 71, 74-78

(Idaho 2010) (interpreting Idaho criminal law in light of statutory text and

common law). 

12Because the judge did not define the terms “willful,” “deliberate,” and

“premeditated,” these terms “must be given their plain, non-technical

meanings.” State v. Henry, 63 P.3d 490, 493 (Idaho Ct. App. 2003). Here,

the jury’s understanding of these undefined terms is best understood in

light of counsel’s closing arguments. See Schiro, 510 U.S. at 233-35 (relying on arguments of counsel to determine collateral estoppel effect of jury

verdict). Defense counsel explained that “willful, premeditated, [and]

deliberate murder . . . doesn’t require that you deliberate about it for any

particular amount of time, but you have to meditate about it and think

about it.” Counsel also explained that premeditation and deliberation

required “that [Sivak] thought about it and decided to do it before it hapSIVAK v. HARDISON 16963
have reached one of the following conclusions under the jury

instructions: (1) Sivak did not intend to kill Wilson (and thus

did not act willfully, deliberately, or with premeditation); (2)

even if Sivak intended to kill Wilson, he did not form this

intent to kill prior to killing her (and thus did not act deliberately or with premeditation); or (3) even if Sivak formed an

intent to kill prior to killing Wilson, he did not reflect on this

intention (and thus did not act with premeditation). If we take

into account the court’s aiding and abetting instruction, the

number of possible conclusions is multiplied: if the jury concluded that Bainbridge committed the murder, it could have

acquitted Sivak of aiding and abetting because (4) Bainbridge

did not act intentionally, (5) Bainbridge did not form an intent

prior to acting, (6) Bainbridge did not reflect on his intent, or

(7), even if Bainbridge did commit a premeditated murder,

Sivak did not aid and abet the murder.

[20] Viewing the record with “realism and rationality,”

Ashe, 397 U.S. at 444, we must conclude that there is “more

pened.” In rebuttal, the State observed that “[i]f a woman who has been

stabbed 20 times or so and shot five times is not evidence of premeditation

and malice, then premeditation and malice don’t exist.” 

The jury presumably followed the attorneys’ explanations, which were

consistent with the plain meaning of the relevant terms, with Idaho law,

and with the facts in the record. The plain meaning of “willful” is “done

deliberately[;] not accidental[ly] or without purpose.” Webster’s Third

New International Dictionary 2617 (2002). The plain meaning of “deliberate” is “consideration of effects and consequences” and “awareness of the

implications or consequences of one’s actions.” Id. at 596. The plain

meaning of “premeditation” is “previous deliberation.” Id. at 1789. These

definitions are consistent with the Idaho Supreme Court’s explanation that

willfulness is “the intent to take life,” premeditation is “conceived beforehand,” and deliberation is “done with reflection.” Aragon, 690 P.2d at 298.

Consistent with defense counsel’s statements to the jury, the Idaho

Supreme Court has also explained that “[p]remeditation does not require

an appreciable space of time between the intention to kill and the killing;

rather, it may be as instantaneous as two successive thoughts of the mind.”

State v. Olin, 648 P.2d 203, 210 (Idaho 1982). 

16964 SIVAK v. HARDISON
than one rational conclusion that can be drawn from the . . .

jury’s verdict” of acquittal. Santamaria, 133 F.3d at 1246. We

have no way of knowing which of these seven conclusions the

jury actually reached. Accordingly, we agree with the district

court’s conclusion that “Sivak has not established that the

[sentencing judge’s] finding of specific intent ‘was actually

decided in his favor’ ” and “[t]he trial court was free to conclude during the subsequent penalty phase, based on all of the

evidence before it, that Sivak intended to kill Wilson.” (Quoting Schiro, 510 U.S. at 236.)

C. Ex Parte Information

Sivak argues that Judge Newhouse violated due process by

basing his sentencing decision on extrajudicial information,

including: (1) telephone calls and letters the judge received

before (and possibly after) the initial sentencing; (2) an

encounter with Sivak’s father where the father exclaimed,

“Why the hell don’t you kill the son of a bitch”; (3) a telephone conversation with a person from the company that

owned the Baird Oil gas station, in which the person indicated

he had opposed the death penalty prior to Sivak’s case but

changed his mind afterwards; (4) a conversation with Judge

Newhouse’s clerk, in which she indicated that she had

changed her attitude toward the death penalty because of

Sivak’s case; and (5) exposure to “stories” and “rumors”

about Sivak having an “unnatural relationship” with his

mother.

In Gardner v. Florida, 430 U.S. 349 (1977), a defendant

challenged his death sentence because the sentencing judge

announced that he was relying, in part, on a confidential presentence investigation report that had not been provided to the

defense. Id. at 351, 353. The Gardner plurality observed that

when a sentencing judge relies on information not disclosed

to the defendant, there is an inherent risk that the information

“may be erroneous, or may be misinterpreted.” Id. at 359. The

plurality stated that the “truth-seeking function of trials”

SIVAK v. HARDISON 16965
requires courts to afford defense counsel the opportunity to

comment on facts that might influence the judge’s sentence.

Id. at 360. Ultimately, the plurality concluded that the defendant “was denied due process of law when the death sentence

was imposed, at least in part, on the basis of information

which he had no opportunity to deny or explain.” Id. at 362.

[21] A majority of the justices in Gardner agreed with the

plurality that, because the confidential information in the presentence report had never been provided to the defendant, the

defendant’s conviction must be vacated. Id.; see also id. at

363-64 (White, J., concurring); id. at 364 (Brennan, J., concurring). But because of the fragmented nature of the Gardner

decision, the Court has subsequently clarified the scope of

Gardner’s holding. In O’Dell v. Netherland, 521 U.S. 151,

162 (1997), the Court concluded that Justice White’s concurrence, not the plurality opinion, was the controlling decision

in Gardner. The O’Dell Court explained that Gardner stands

only for the “narrow” proposition that “ ‘a procedure for

selecting people for the death penalty which permits consideration of secret information relevant to the character and

record of the individual offender‘ violates the Eighth Amendment’s requirement of ‘reliability in the determination that

death is the appropriate punishment.’ ” O’Dell, 521 U.S. at

162 (ellipsis and alteration omitted) (quoting Gardner, 430

U.S. at 364 (White, J., concurring) (emphasis added in

O’Dell)).

As our sister circuits have recognized, O’Dell’s interpretation of Gardner is now the law of the land. See Vining v.

Sec’y, Dep’t of Corr., 610 F.3d 568, 571 n.1 (11th Cir. 2010),

cert. denied, 131 S. Ct. 2898 (2011); Holland v. Anderson,

583 F.3d 267, 280 (5th Cir. 2009), cert. denied, 130 S. Ct.

2100 (2010); see also O’Dell v. Netherland, 95 F.3d 1214,

1224 (4th Cir. 1996) (relying on Justice White’s Gardner concurrence), aff’d, 521 U.S. 151. Although we have previously

relied on the Gardner plurality opinion, e.g., McKenzie v.

McCormick, 27 F.3d 1415, 1419-20 (9th Cir. 1994), we are

16966 SIVAK v. HARDISON
bound to follow the intervening interpretation set forth in

O’Dell, see Miller v. Gammie, 335 F.3d 889, 900 (9th Cir.

2003) (en banc) (“[W]here intervening Supreme Court authority is clearly irreconcilable with our prior circuit authority[,]

. . . a three-judge panel of this court . . . should consider

[it]sel[f] bound by the intervening higher authority and reject

the prior opinion of this court as having been effectively overruled.”).13

[22] Applying the narrow standard articulated in Justice

White’s Gardner concurrence, along with our case law establishing that the petitioner bears the burden of proving a Gardner violation, see McKenzie, 27 F.3d at 1420, Sivak’s

Gardner claims plainly lack merit. The sentencing judge’s

phone calls, letters, conversation with Sivak’s father, and conversation with the court clerk did not contain “ ‘information

relevant to the character and record of the individual offender.’ ” O’Dell, 521 U.S. at 162 (internal quotation mark omitted). As the Idaho Supreme Court correctly observed, the

“calls and letters received by Judge Newhouse . . . apparently

contained no more than an expression of personal opinions”

rather than “factual information.” Sivak II, 731 P.2d at 200.

Although Judge Newhouse’s subsequent deposition has provided additional details regarding his ex parte contacts, Sivak

has not satisfied his burden of demonstrating that the trial

judge received any “information” about Sivak’s “character

and record” as a result of the phone calls, conversations, and

written correspondence. 

13After the Court handed down O’Dell, we discussed Gardner at some

length in Correll v. Stewart, 137 F.3d 1404 (9th Cir. 1998), without relying on the Court’s intervening discussion in O’Dell. Correll does not constitute binding circuit precedent regarding the proper application of

Gardner. Our holding in Correll rested on the petitioner’s failure to show

cause and prejudice to overcome his procedural default in state court; we

did not address the merits of the Gardner claim. Correll, 137 F.3d at

1415-16. 

SIVAK v. HARDISON 16967
Sivak identifies only one item of ex parte information that

contained facts about Sivak’s character and record: rumors

regarding Sivak’s “unnatural relationship” with his mother.

But even though these rumors were “ ‘relevant to [Sivak’s]

character,’ ” O’Dell, 521 U.S. at 162 (emphasis omitted), they

did not constitute “secret information” for purposes of Gardner. Unlike the confidential, undisclosed information at issue

in Gardner, Sivak knew that the trial judge had received information suggesting that Sivak had an unusual relationship with

his mother. The Presentence Report (which was disclosed to

Sivak) stated that “[s]everal” individuals had informed investigators about the “uniquely close” relationship between Sivak

and his mother, and some individuals even “mistakenly

referred to the defendant’s mother as his wife on several occasions.” Because Gardner requires only that the defendant be

given an “opportunity to respond” to the information at issue,

Gardner, 430 U.S. at 364 (White, J., concurring), and here

Sivak had ample opportunity to explain the nature of his relationship with his mother, Sivak’s due process rights were not

violated.

Accordingly, we hold that there was no Gardner violation

during Sivak’s sentencing proceedings.

D. Judicial Bias

Sivak also contends that he was denied due process because

the sentencing judge exhibited bias toward him and his counsel. Sivak raises two related arguments. First, Sivak argues

that because Judge Newhouse made up his mind following the

initial sentencing proceeding in 1981, he viewed subsequent

resentencing hearings with “contempt” and “felt an overwhelming need to vindicate his initial ruling.” Second, Judge

Newhouse “became ‘embroiled in a running, bitter controversy’ with [Sivak] and his counsel,” “such that a detached

observer must conclude that a fair and impartial hearing was

unlikely.” (Quoting Mayberry v. Pennsylvania, 400 U.S. 455,

465 (1971).)

16968 SIVAK v. HARDISON
[23] “The Due Process clause ‘requires a fair trial in a fair

tribunal before a judge with no actual bias against the defendant or interest in the outcome of his particular case.’ ” Smith,

611 F.3d at 997 (quoting Bracy v. Gramley, 520 U.S. 899,

904-05 (1997)). However, “ ‘[o]nly in the most extreme of

cases would disqualification on the basis of judge bias be constitutionally required.’ ” Id. (alteration omitted) (quoting

Aetna Life Ins. Co. v. Lavoie, 475 U.S. 813, 821 (1986)). In

addition to cases involving actual judicial bias, 

Supreme Court precedent reveals only three circumstances in which an appearance of bias—as opposed

to evidence of actual bias—necessitates recusal.

First, due process requires recusal of a judge who

“has a direct, personal, substantial pecuniary interest

in reaching a conclusion against one of the litigants.”

Second, due process requires recusal if a judge

becomes “embroiled in a running, bitter controversy” with one of the litigants. . . . Third, due process

requires recusal if the judge acts as “part of the accusatory process.” 

Crater v. Galaza, 491 F.3d 1119, 1131 (9th Cir. 2007) (alterations and citations omitted).

Although the standard of review governing judicial bias

claims in pre-AEDPA cases “is not entirely clear,” Poland v.

Stewart, 117 F.3d 1094, 1103 (9th Cir. 1997), we have repeatedly concluded that a “state court’s finding that the trial judge

was impartial . . . is a finding of historical fact that is entitled

to a presumption of correctness” under 28 U.S.C. § 2254(d)

(1994), Gretzler v. Stewart, 112 F.3d 992, 1009 (9th Cir.

1997); see also Ortiz v. Stewart, 149 F.3d 923, 938 (9th Cir.

1998); Villafuerte v. Stewart, 111 F.3d 616, 632 (9th Cir.

1997) (per curiam). Petitioners must also overcome an additional presumption against their claim—the “strong presumption that a judge is not biased or prejudiced.” Rhoades v.

SIVAK v. HARDISON 16969
Henry, 598 F.3d 511, 519 (9th Cir. 2010) (citing Bracy, 520

U.S. at 909).

Here, Sivak has failed to overcome the twin presumptions

against finding actual bias: the state courts determined that

Judge Newhouse was impartial, and, in any event, we presume that Judge Newhouse was impartial because he was a

judicial officer. The state courts’ conclusions are instructive.

When Sivak filed a motion to disqualify Judge Newhouse

during the final round of sentencing in 1992, the motion was

referred to another trial judge, Gerald Schroeder (who later

became Chief Justice of the Idaho Supreme Court). Judge

Schroeder determined that there was “nothing before this

Court that indicates Judge Newhouse cannot decide the merits

of this case based upon facts that may properly be considered.” Judge Schroeder also determined that there was “no

current record as to the judge’s attitude towards either the

defendant or the defendant’s attorney”—i.e., Sivak had failed

to introduce evidence of bias. Judge Schroeder accordingly

denied Sivak’s motion to recuse Judge Newhouse, subject to

Judge Newhouse’s “final review” to determine actual bias.

Judge Newhouse then stated on the record that “I feel no basis

for disqualification.” In a similar motion filed a few months

later during post-conviction proceedings, Judge Newhouse

concluded that he could “render a fair and impartial determination based upon the evidence placed before [him].” On

Sivak’s appeal, the Idaho Supreme Court unanimously

affirmed Judge Newhouse’s determination “that he could sit

fairly and impartially and perform the proper legal analysis

which the law requires to be performed.” State v. Sivak (Sivak

IV), 901 P.2d 494, 496 (Idaho 1995).

Despite having the opportunity to depose Judge Newhouse

during federal habeas proceedings, Sivak has failed to identify

evidence of actual bias sufficient to overcome the presumptions against his claim. Judge Newhouse’s deposition contains

various statements expressing frustration with the Idaho

Supreme Court’s repeated reversals of his sentencing deci16970 SIVAK v. HARDISON
sions. But even if a case has been reversed on appeal, “ ‘[i]t

has long been regarded as normal and proper for a judge to

sit in the same case upon its remand and to sit in successive

trials involving the same defendant.’ ” Poland, 117 F.3d at

1103 (quoting Liteky v. United States, 510 U.S. 540, 551

(1994)). While “[s]ome may argue that a judge will feel the

‘motivation to vindicate a prior conclusion’ when confronted

with a question for the second or third time, for instance, upon

trial after a remand, . . . we accept the notion that the ‘conscientious judge will, as far as possible, make himself aware of

his biases of this character, and, by that very self-knowledge,

nullify their effect.’ ” Liteky, 510 U.S. at 562 (Kennedy, J.,

concurring) (citations omitted). Although Judge Newhouse

said that the Idaho Supreme Court’s remands were “ridiculous,” he also explained that after each remand, he “did it

over, looked it over with the additional matters and came to

the same conclusion” as he had in the original proceeding.

Sivak’s evidence of purported bias pales in comparison to

the cases he relies upon. Unlike in Porter v. Singletary, 49

F.3d 1483, 1489 (11th Cir. 1995) (per curiam), Sivak has not

identified “specific and ostensibly reliable evidence that the

judge had a fixed predisposition to sentence this particular

defendant to death if he were convicted by the jury.” In Porter, the court clerk submitted a declaration that “before or during Porter’s trial,” the trial judge said that “ ‘he would send

Porter to the chair.’ ” Id. at 1487 (quoting declaration); see

also Franklin v. McCaughtry, 398 F.3d 955, 962 (7th Cir.

2005) (finding due process violation where trial judge “decided that Franklin was guilty before he conducted Franklin’s

trial”). Here, in contrast, Judge Newhouse made his sentencing decision after hearing the parties’ evidence and arguments

during both the guilt and sentencing phases of trial. 

Nor is this case like Harrison v. McBride, 428 F.3d 652

(7th Cir. 2005), another case cited by Sivak. In Harrison, a

witness told police detectives that the trial judge was connected with the local drug community. Id. at 655. The trial

SIVAK v. HARDISON 16971
judge essentially “transformed” a pretrial hearing “into a proceeding to vindicate ‘the credibility of this Court[,]’ “ id. at

669 (quoting trial transcript), and engaged in conduct that “revealed a personal interest in protecting his name and the judiciary in Posey County, an interest he specifically admitted,”

id. at 670 (internal quotation marks omitted). We cannot agree

with Sivak’s argument that Harrison is “much like,” or even

anything like, this case. There is no evidence in the record

establishing that Judge Newhouse conducted Sivak’s proceedings with the goal of vindicating himself or his court.

Sivak also suggests that Judge Newhouse harbored personal bias against Sivak and his counsel, pointing to the

judge’s statements expressing frustration with Sivak and his

counsel for filing multiple disqualification motions. Judge

Newhouse complained that the motions were creating a “carnival atmosphere,” that was turning the proceedings into a

“Roman circus.” These statements do not establish judicial

bias. In Ortiz, we addressed a similar set of facts. The postconviction judge had complained about the seemingly endless

cycle of ineffective assistance of counsel claims, calling the

petitions part of a “game” aimed at extending proceedings

into the indefinite future. Ortiz, 149 F.3d at 939 (emphasis

omitted). We rejected the petitioner’s due process claim,

explaining that the judge’s statements “simply reflect[ed] the

judge’s frustration with the number of petitioners who attempt

to manipulate the criminal justice system to serve their own

ends,” and did not reveal “deep-seated favoritism or antagonism that would make fair judgment impossible.” Id. at 940

(internal quotation marks omitted). The same conclusions

apply here. 

Although Judge Newhouse at one point suggested that

Sivak’s “over-zealous counsel” had “fabricated” ”innuendos

of a partisan and personal nature,” the judge’s statements

were fully consistent with the general rule that “[r]umor, speculation, beliefs, conclusions, innuendo, suspicion, opinion,

and similar non-factual matters” do not form the basis of a

16972 SIVAK v. HARDISON
successful recusal motion. Clemens v. U.S. Dist. Ct. for the

Cent. Dist. of Cal., 428 F.3d 1175, 1178 (9th Cir. 2005) (per

curiam) (internal quotation marks omitted). Judge Newhouse

had previously allowed Sivak to present evidence to substantiate his argument that the judge received ex parte information

from letters and phone calls. Sivak’s witness (a reporter from

a local newspaper who had written an article about the judge)

failed to provide probative information supporting the claim.

Judge Newhouse’s single reference to Sivak’s counsel’s “fabricat[ion]” does not establish that he was “personally

embroiled . . . in a running, bitter controversy” with Sivak or

his counsel. See Mayberry, 400 U.S. at 465 (internal quotation

marks omitted); see also Little v. Kern Cnty. Super. Ct., 294

F.3d 1075, 1083 (9th Cir. 2002) (finding due process violation

where trial judge presided over contempt proceeding against

attorney after, in judge’s words, attorney “ ‘smirkingly’ ” submitted a drawing containing an “ ‘obscene characterization’ ”

of the judge that was “ ‘offensive in the extreme’ ”). Sivak

relies upon Anderson v. Sheppard, 856 F.2d 741, 747 (6th Cir.

1988), but in that case the “judge exhibit[ed] . . . open hostility and bias [from] the beginning of [the] . . . proceeding,”

essentially telling the pro se plaintiff he would lose and then

“assum[ing] the posture of an advocate” to ensure as much.

Nothing like that occurred here; Judge Newhouse simply concluded that Sivak had not met his burden of substantiating his

allegations that the judge had received ex parte information.

Sivak also suggests that Judge Newhouse violated his due

process rights “when he decided to sit for an interview with

a news reporter to discuss [Sivak’s] case and his initial sentencing decision.” While various state and federal canons of

judicial ethics proscribe such conduct, it is important to

remember that “ ‘[t]he Due Process Clause demarks only the

outer boundaries of judicial disqualifications. Congress and

the states . . . remain free to impose more rigorous standards

for judicial disqualification than those’ ” imposed by the federal Constitution. Caperton v. A.T. Massey Coal Co., 129 S.

Ct. 2252, 2267 (2009) (quoting Aetna Life Ins., 475 U.S. at

SIVAK v. HARDISON 16973
828). Although Sivak cites numerous cases in which trial

judges have been ordered recused, e.g., United States v. Cooley, 1 F.3d 985, 995 (10th Cir. 1993), or in which different

judges have been assigned to the case upon remand, e.g.,

United States v. Microsoft Corp., 253 F.3d 34, 115 (D.C. Cir.

2001) (en banc) (per curiam), he has not identified a single

case holding that a judge violated a litigant’s constitutional

rights by talking with the media. 

[24] Sivak has failed to overcome the presumption that the

Idaho courts correctly determined that Judge Newhouse

lacked actual bias, as well as the presumption that judicial

officers act impartially. Sivak’s case does not involve the type

of “extreme facts” establishing a violation of his due process

rights to an impartial judge. Caperton, 129 S. Ct. at 2265-66.

E. Confrontation Clause

Sivak contends that the sentencing court violated his Confrontation Clause rights by considering Bainbridge’s out-ofcourt statement. This argument is foreclosed by Williams v.

New York, 337 U.S. 241 (1949), which held that the Confrontation Clause does not bar courts from considering unconfronted statements during sentencing proceedings. Sivak

acknowledges that Williams is dispositive, and raises this

argument solely to preserve it for review. The district court

properly denied relief on this claim.

F. Evidentiary Hearing and Further Discovery

Habeas petitioners are “entitled to an evidentiary hearing

only if they allege[ ] facts that, if proved, would entitle them

to relief and if they did not receive a full and fair evidentiary

hearing in the state court.” Swan v. Peterson, 6 F.3d 1373,

1384 (9th Cir. 1993). “[I]f the record refutes the applicant’s

factual allegations or otherwise precludes habeas relief, a district court is not required to hold an evidentiary hearing.”

Schriro v. Landrigan, 550 U.S. 465, 474 (2007).

16974 SIVAK v. HARDISON
“[D]iscovery is available only in the discretion of the court

and for good cause shown.” Rich v. Calderon, 187 F.3d 1064,

1068 (9th Cir. 1999). “Good cause exists ‘where specific allegations before the court show reason to believe that the petitioner may, if the facts are fully developed, be able to

demonstrate that he is . . . entitled to relief.’ ” Smith, 611 F.3d

at 996 (quoting Bracy, 520 U.S. at 908-09). “We review the

district court’s denial of discovery and an evidentiary hearing

for abuse of discretion.” Id. at 997. 

The district court considered Sivak’s discovery requests

and granted Sivak limited discovery. Sivak has not identified

any colorable claims that were not developed in federal or

state court. Nor has Sivak identified any “disputed facts” that

would entitled him to relief if resolved in his favor after an

evidentiary hearing. Hendricks v. Vasquez, 974 F.2d 1099,

1103 (9th Cir. 1992) (citing Harris v. Pulley, 885 F.2d 1354,

1378 (9th Cir. 1988)). Accordingly, the district court did not

abuse its discretion by denying further discovery and an evidentiary hearing.

G. Uncertified Issues

We decline to address the issues not included in the district

court’s certificate of appealability. See Cooper-Smith v. Palmateer, 397 F.3d 1236, 1245 (9th Cir. 2005) (citing 9th Cir.

R. 22-1(e)).

CONCLUSION

The State violated Sivak’s federal due process rights under

Napue when it allowed jailhouse informant Jimmy Leytham

to testify falsely. Absent this due process violation, Sivak’s

penalty-phase proceedings could have resulted in a different

outcome. We accordingly remand for the district court to

vacate Sivak’s death sentence. Of course, “the State is not

precluded from seeking to impose a death sentence upon petitioner, ‘provided that it does so through a new sentencing

SIVAK v. HARDISON 16975
hearing at which petitioner is permitted to present any and all

relevant mitigating evidence that is available.’ ” Hitchcock v.

Dugger, 481 U.S. 393, 399 (1987) (quoting Skipper v. South

Carolina, 476 U.S. 1, 8 (1986)).

The judgment of the district court denying the petition as

to Sivak’s conviction is affirmed, the judgment of the district

court denying the petition as to Sivak’s death sentence is

reversed, and the case is remanded to the district court with

instructions that the court enter an appropriate order for a

penalty-phase retrial, if the State elects to seek such a retrial.

The parties shall bear their own costs.

AFFIRMED IN PART, REVERSED IN PART, AND

REMANDED.

16976 SIVAK v. HARDISON