FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

RANDALL AMADO,

Petitioner-Appellant,

v.

TERRI GONZALEZ, Warden,

California Men’s Colony,

Respondent-Appellee.

No. 11-56420

D.C. No.

2:03-cv-00078-

PA-E

OPINION

Appeal from the United States District Court

for the Central District of California

Percy Anderson, District Judge, Presiding

Argued and Submitted

January 8, 2013—Pasadena, California

Filed October 30, 2013

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

Circuit Judges, and Alvin K. Hellerstein, Senior District

Judge.*

Opinion by Judge Hellerstein;

Dissent by Judge Rawlinson

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

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

designation.
2 AMADO V. GONZALEZ

SUMMARY*

Habeas Corpus

The panel reversed the district court’s denial of a

28 U.S.C. § 2254 habeas corpus petition challenging a murder

conviction based on a violation of Brady v. Maryland,

373 U.S. 83 (1963).

Reviewing de novo because the highest state court only

considered state law in denying relief to petitioner, the panel

held that the prosecution violated Brady by suppressing

material impeachment information about its witness, Warren

Hardy. The panel held that it would have reached the same

conclusion under a deferential standard of review. The panel

also held that petitioner was prejudiced because Hardy’s

statements were critical to the conviction, because Hardywas

the only person to testify that petitioner brought a weapon to

the scene, thus differentiating him from just a member of a

crowd of onlookers after the shooting.

JudgeRawlinson dissented. She would hold that the state

court did not unreasonably apply Brady, that the record

supports the aiding and abetting theory of conviction whether

or not petitioner had a weapon, and that there was no

prejudice to petitioner given the witness’ extensive selfimpeachment and the existence of other witnesses who

attested to petitioner’s aiding and abetting in the crime.

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

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

COUNSEL

John Lanahan (argued), San Diego, California, for PetitionerAppellant.

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

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

the Attorney General of California, Los Angeles, California,

for Respondent-Appellee.

OPINION

HELLERSTEIN, Senior District Judge:

Violence between street gangs is a scourge to

communities. The prosecutors who prosecute crimes

committed by these gangs perform a vital service. But

prosecutors must be vigilant that excessive zeal does not

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

that occurs, the courts must balance the needs of the

community with a defendant’s constitutional right to a fair

trial.

Randall Amado was convicted in 1998 by a Los Angeles

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

The prosecutor neglected, however, to discharge his

obligation to disclose material information that would have

enabled defense counsel to impeach the credibility of a

critical witness against Amado. We hold in this opinion that

the prosecution’s failure, in violation of clearly established

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

requires that Amado be given a new trial.
4 AMADO V. GONZALEZ

I. The Facts of Record and the Prior Proceedings

A. The Shooting

In 1996 and 1997, the BountyHunter Bloods and 118 East

Coast Crips were rival street gangs in southern Los Angeles. 

Some members of the Bounty Hunter Bloods gang attended

Centennial High School, and traveled to and from school on

public bus No. 53 through neighborhoods claimed by the 118

East Coast Crips. The gang members identified themselves

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

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

neighborhoods, members of the Bloods gang on board

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

objects at Crips gang members standing at the bus stops.

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

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

Their friend, Nicholas Briggs, overheard the two propose that

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

members inside. Briggs testified that Johnson carried a gun

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

anyone. Johnson and Pugh decided that the attack would

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

attend and declined to join them.

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

their friends met near the intersection of Imperial Highway

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

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

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

at least one other unidentified gang member boarded the bus,

and Pugh cursed the Bounty Hunter Bloods members in the
AMADO V. GONZALEZ 5

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

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

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

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

Corrie Williams, a student at Centennial High School, was

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

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

blocks away when he felt it was safe.

B. The Arrest and Prosecution 

Amado was arrested with Briggs the next night. At the

time, Amado and Briggs were drinking and smoking

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

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

to Milwaukee, Wisconsin. Johnson was arrested in

Milwaukee approximately a week after the murder, and he

confessed to the shooting. Pugh was also arrested in

Milwaukee, although not until a year after the bus attack

occurred.

Amado was indicted in Los Angeles County Superior

Court on charges of first degree murder, premeditated

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

occupied motor vehicle. The prosecution accused Amado of

aiding and abetting the shooting by running with Crips gang

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

gun to the scene.

The court and prosecution were concerned about

intimidation of witnesses, and retaliation against those who

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

was still at large at the time the proceedings began. Based on
6 AMADO V. GONZALEZ

interviews of witnesses in camera, the Superior Court ordered

that the addresses and phone numbers of witnesses be

withheld from the defense, and that the prosecution make

witnesses available for interviews by the defense at the

courthouse. Warren Hardy was one of those witnesses, but

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

Pugh, Johnson, and Amado were tried together before two

juries, one for Johnson, the alleged shooter, and the second,

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

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

the shooting, the evidence against Amado was more limited. 

Two witnesses testified that Amado was part of the group that

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

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

intersection of Imperial Highway and Avalon Boulevard, and

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

when pressed on cross Grisson testified that when he had seen

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

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

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

The second of the two witnesses, Natasha Barner, Pugh’s

girlfriend at the time of the shooting, testified that she saw

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

toward the bus stop prior to the shooting.

1 Barner said that

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

another witness, testified that she knew only that Johnson and

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

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

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

Most witnesses testified that only two of those teenagers boarded the bus. 

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

was the other.
AMADO V. GONZALEZ 7

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

testified that Amado was a member of the gang. Amado,

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

as a gang moniker.

Warren Hardy, who originally identified himself to the

police as Warren Collins, was the keywitness against Amado. 

Hardy lived less than a block from the intersection of Imperial

Highway and Avalon Boulevard. Hardy testified that, from

his balcony, minutes before the shooting and from a distance

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

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

trailing a group of teenagers heading towards Avalon

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

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

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

teenagers behind his building talking and laughing about the

shooting. Hardy testified that he called the police, who

responded, found Amado and Briggs in the area where Hardy

had placed the laughing teenagers, and arrested them.

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

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

teenagers who had gathered the next night behind his

building. The best that Hardy could do was to identify

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

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

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

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

want to testify because he feared for his safety.

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

memory, the prosecution called LAPD Detective Michelle
8 AMADO V. GONZALEZ

Esquivel to testify about statements Hardymade the day after

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

from the notes she had taken while interviewing Hardy,

testified that Hardy had identified Amado as the person who

had carried a gun to the shooting.

2 Esquivel quoted Hardy as

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

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

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

informed Hardy that Amado and Briggs had been arrested, a

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

Hardy answered, “Yes.”

During closing arguments, the prosecution emphasized

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

reliable evidence of his guilt:

Now, what did Mr. Hardy say? Randall

Amado or somebody that looks like him is the

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

carrying a gun. The only reason why he is

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

he’s possibly the guy that did the shooting is

because he thinks that’s the guy who he saw

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

the only reason why you make that statement. 

The only reason. Now, why is Randall

Amado carrying a gun to a fistfight? Is it

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

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

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

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

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

conversation).
AMADO V. GONZALEZ 9

because he himself thought this could possibly

evolve into something else other than a

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

mind that the natural and probable

consequences of agreeing to get into a fight

could result in a shooting, so I better have

myself armed before I go over there?

On November 30, 1998, Amado was convicted of all

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

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

After the jury’s verdict of Amado’s guilt, a copy of a

probation report on Warren Hardy came into the possession

of Lapan, Amado’s trial counsel.3 The report disclosed that

Hardy had pleaded guilty to committing a robbery,

4

that he

was on probation for that offense, and that Hardy had been a

member of the Piru Bloods, an affiliated Bloods gang. The

prosecution had not disclosed those facts, or given the

probation report on Hardy to Amado’s counsel. Lapan then

interviewed Hardy, and Hardy wrote out a declaration (the

“Hardy declaration”) stating that he had been convicted of

robbery “out of the Long Beach court” and that he had been

a member of the Piru Bloods.5

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

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

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

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

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

 

5

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

Amado moved for a new trial on the ground that the

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

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

hearing held January 25, 1999, Lapan presented the Hardy

declaration and represented that he had “just received

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

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

a reasonable probability that the result of the trial would have

been different had this “newly discovered evidence” been

available to impeach Hardy, and that Amado was entitled to

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

failed to diligently pursue information about Hardy and

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

new evidence would not change Hardy’s credibility. The

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

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

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

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

the introduction of this new evidence.”

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

conviction should have been disclosed to the jury, doing so

would not have changed the result. The court concluded that

other witnesses had placed Amado at the scene and that Hardy

had been cross-examined vigorously as to his observations:

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

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

more aggressive cross-examination—and he

was aggressively cross-examined on behalf of

Mr. Amado by Mr. Lapan about his

observations and his ability to perceive, and I

think that the jury had the benefit of
AMADO V. GONZALEZ 11

everything that they possibly could have short

of the information of the robbery, which in a

perfect world they should have had. But I

don’t know that it reaches the level that

warrants a new trial. I therefore am going to

respectfully deny the motion before me for

new trial.

Amado appealed to the California Court of Appeal,

Second Appellate District. In response to concerns expressed

by the appellate court at oral argument, Amado moved to

augment the record to document that the Hardy impeachment

evidence was “newly discovered.” Defense counsel Lapan

supported his motion by including the Hardy declaration and

his own declaration (the “Lapan declaration”) which stated

that Lapan had received no information from the prosecution

about Hardy’s criminal background and gang affiliation and

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

felony probation as a result of a robbery conviction and that

in the probation report from that offense, Hardy stated that he

was a ‘Piru Blood.’” The appellate court granted Amado’s

motion to augment the record.

In a June 14, 2001 unpublished opinion, the California

Court of Appeal affirmed the Superior Court’s denial of

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

The Court of Appeal, citingCalifornia Penal Code § 1181(8)6

6

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

evidence is discovered material to the defendant, and which he could not,

with reasonable diligence, have discovered and produced at the trial. 

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

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

thereof, the affidavits of the witnesses by whom such evidence is expected
12 AMADO V. GONZALEZ

and relying on People v. Martinez, 685 P.2d 1203 (Cal. 1984),

a state-law case that interprets that statute, held that the

procedural requirements for moving for a new trial had not

been satisfied, and that the Hardy declaration failed to

“establish that the evidence [on Hardy’s background] is

indeed newly discovered.” Furthermore, the Court of Appeal

ruled that Amado failed to “establish that defense counsel

could not have discovered the impeaching facts in the

exercise of due diligence.” As to defense counsel Lapan’s

representation that he had not learned of Hardy’s prior felony

conviction, probation status, and gang affiliation until after

trial, that was not admissible evidence, for attorney Lapan

“was making argument, not testifying under oath.” The Court

of Appeal concluded that “Amado failed to produce any

evidence to establish that the impeaching facts about Hardy

were newly discovered and could not have been discovered

and produced at trial in the exercise of due diligence, let alone

the best available evidence.”7

Amado filed a petition with the California Supreme Court

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

Court denied the petition. Amado thus “exhausted the

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

§ 2254(b)(1)(A).

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

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

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

reasonable.”

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

holding, among other things, that there was sufficient evidence to convict.
AMADO V. GONZALEZ 13

D. Amado’s Habeas Petition

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

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

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

magistrate judge assigned to the case issued a Report and

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

petition be granted because the prosecution had violated

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

that “the undisclosed Brady evidence was ‘substantial and

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

impeachment evidence available to the defense at trial.’”

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

2002)).

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

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

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

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

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

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

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

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

courts to find that the State had not suppressed evidence,

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

with Hardy, but had failed to do so. The court ruled also that

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

substantial evidence against Petitioner on the prosecution’s

aiding and abetting theory.”

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

Court granted a Certificate of Appealability on September 22,
14 AMADO V. GONZALEZ

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

impeachment evidence violated appellant’s right to due

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

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

§§ 1291 and 2253.

II. Discussion

A. Standard of Review

1. The Requirements of AEDPA

Generally, federal courts apply a deferential standard of

review in habeas cases. Under the Antiterrorism and

Effective Death Penalty Act of 1996 (“AEDPA”), if a claim

was “adjudicated on the merits in State court proceedings,” a

writ of habeas corpus may be granted only if the state court

adjudication:

resulted in a decision that was contrary to, or

involved an unreasonable application of,

clearly established Federal law, as determined

by the Supreme Court of the United States; or

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

unreasonable determination of the facts in

light of the evidence presented in the State

court proceeding.

28 U.S.C. § 2254(d). In contrast, if a claim was not

“adjudicated on the merits” in state court, the review is de

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

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

court denied all relief, “it may be presumed that the state court
AMADO V. GONZALEZ 15

adjudicated the claim on the merits in the absence of any

indication or state-law procedural principles to the contrary.” 

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

presumption is rebuttable, for example, if “the state standard

is quite different from the federal standard” or “if a provision

of the Federal Constitution or a federal precedent was simply

mentioned in passing in a footnote or was buried in a string

cite.” Johnson v. Williams, 133 S.Ct. 1088, 1096 (2013).

Determining whether a claim was “adjudicated on the

merits” is not always a simple endeavor. Often, there are two

or more lower court decisions relevant to a habeas petitioner’s

claim. In those cases, we look to the decision that “finally

resolves” the claim at issue in order to determine whether that

claim was adjudicated on the merits. As we have held, a

claim is “adjudicated on the merits” if it is “a decision finally

resolving the parties’ claims . . . that is based on the substance

of the claim advanced, rather than on a procedural, or other,

ground.” Lambert v. Blodgett, 393 F.3d 943, 969 (9th Cir.

2004) (quoting Sellan v. Kuhlman, 261 F.3d 303, 311 (2d Cir.

2001)). Thus, AEDPA deference does not apply where a

lower state court addresses the merits but the state appellate

court fails to do so. See Thomas v. Horn, 570 F.3d 105,

114–17 (3d Cir. 2009) (concluding there has been no

“adjudication on the merits” in this situation because the state

lower court decision did not “finally resolve” the petitioner’s

claim); Liegakos v. Cooke, 106 F.3d 1381, 1385 (7th Cir.

1997) (reaching the same conclusion on the grounds that “the

last state court to issue an opinion” is the focus of the inquiry)

(following Ylst v. Nunnemaker, 501 U.S. 797, 804 (1991));

see also Barker v. Fleming, 423 F.3d 1085, 1093 (9th Cir.

2005) (“[F]ederal court[s] should review the last decision in
16 AMADO V. GONZALEZ

isolation and not in combination with decisions by other state

courts.”).

Another complexity occurs where a state court rules on

one element of the claim but not on others. In that situation,

the Supreme Court has said that federal courts should apply

a de novo standard of review to the elements of a claim on

which the state court did not rule. In Wiggins v. Smith,

539 U.S. 510, 534 (2003), for example, the Supreme Court

applied a de novo standard to the prejudice prong of an

ineffective assistance of counsel claim where the state court

addressed the deficiency prong of that claim but never

addressed the prejudice prong. See also Rompilla v. Beard,

545 U.S. 374, 390 (2005) (following Wiggins). In

Harrington, the Supreme Court held that where a state court

denies relief in a one-sentence summary order, federal courts

should still apply the AEDPA deferential standard of review

to the state court ruling. 131 S.Ct. at 785. In so holding, the

Supreme Court stated in dicta—and without reference to

Wiggins or Rompilla—that “§ 2254(d) applieswhen a ‘claim,’

not a component of one, has been adjudicated.” Id. at 784. 

Based on this language, the Eleventh Circuit has questioned

whether Rompilla remains good law on this point, but has not

actually decided the issue. See Childers v. Floyd, 642 F.3d

953, 969 n.18 (2011) (en banc), cert. granted, judgment

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

and Seventh Circuits have concluded that Harrington did not

change the Supreme Court’s prior holdings. See Rayner v.

Mills, 685 F.3d 631, 639 (6th Cir. 2012) (“[Supreme Court

cases] mandate AEDPA deference to both prongs when the

state court decision summarily dismisses the claim without

explanation; when a state court decision relies only on one

prong, the cases mandate AEDPA deference to that prong and
AMADO V. GONZALEZ 17

de novo consideration ofthe unadjudicated prong.”); Sussman

v. Jenkins, 642 F.3d 532, 534 (7th Cir. 2011) (“We certainly

cannot assume that the Court overruled sub silentio [in

Harrington]its holding in Wiggins—a precedentso important

to the daily work of the lower federal courts.”).

2. The Standard of Review in This Case

The threshold issue is the standard by which we are to

review the decision of the California Court of Appeal,

whether to defer to its rulings, review them de novo, or

perform our review according to some combination of both

standards. Although neither party in its briefs addressed the

issue of the proper standard of review, we have the obligation

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

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

(“We agree with our sibling circuits that the correct standard

of review under AEDPA is not waivable.”); Brown v. Smith,

551 F.3d 424, 428 n.2 (6th Cir. 2008) (“[A] party cannot

‘waive’ the proper standard of review by failing to argue for

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

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

(2d Cir. 2003) (holding that AEDPA’s deferential standard of

review applied even where the State failed to argue for its

application); Worth v. Tyer, 276 F.3d 249, 262 n.4 (7th Cir.

2001) (“[T]he court, not the parties, must determine the

standard of review, and therefore, it cannot be waived.”). As

the Tenth Circuit characterized the issue, “[i]t is one thing to

allow parties to forfeit claims, defenses, or lines of argument;

it would be quite another to allow parties to stipulate or bind

us to application of an incorrect legal standard, contrary to the

congressional purpose.” Gardner, 568 F.3d at 879. Because

we look to the case that “finally resolv[ed]” Amado’s claim,
18 AMADO V. GONZALEZ

we examine the California Court of Appeal’s decision, not the

Superior Court’s decision, to determine whether Amado’s

claim was “adjudicated on the merits.” Lambert, 393 F.3d at

969.

The Court of Appeal noted, first, that the appeal by

Amado was for a new trial pursuant to Section 1181(8) of the

California Penal Code. That section, quoted at note 6, supra,

provides for a new trial based on newly discovered evidence

if the new evidence is “material,” and if the defense could not,

“with reasonable diligence, have discovered and produced [it]

at the trial.”8In interpreting Section 1181(8), the Court of

Appeal relied on two decisions that had addressed the statute:

(1) People v. Martinez, 685 P.2d 1203, 1208–09 (Cal. 1984),

a decision of the California Supreme Court that found that

although the statute’s requirement of “due diligence” served

an important public policy, it should not be given “a strict

enforcement”; and (2) People v. Arguello, 390 P.2d 377, 379

(Cal. 1964), an earlier decision of the California Supreme

Court that similarly relied on the due diligence requirement.

Next, the Court of Appeal ruled that Amado’s counsel

was not duly diligent, as Section 1181(8) required. The Court

of Appeal ruled that counsel’s representation to the Superior

Court, that the impeachment evidence against Hardy was

newly discovered, was not of evidential quality because

counsel “was making argument, not testifying under oath,”

and thus did not satisfy the showing for a new trial required

8 Section 1181(8) requires also that defendant produce at the hearing

“the affidavits of the witnesses by whom such evidence [the newlydiscovered evidence] is expected to be given.”
AMADO V. GONZALEZ 19

by Section 1181(8).9In effect, the Court of Appeal found that

Amado was required to produce evidence that showed that the

“newly discovered evidence” was in fact newly discovered,

and Amado had failed to do so because the evidence that

Amado presented was unsworn.

Thus, the Court of Appeal denied Amado’s motion for a

new trial. But it did so without any consideration of the

requirements of Brady v. Maryland. Its rulings were based

totally on state law, specifically, California Penal Code

§ 1181(8), in relation to the standards for reviewing motions

for a new trial based on newly-discovered evidence. While

the Superior Court had addressed the merits of Brady, the

Court of Appeal ignored the lower court’s findings. The

Superior Court had ruled that the Hardy impeachment

evidence, even if it had been disclosed, would not have

changed the outcome of the trial, and thus the failure to

disclose was not prejudicial to Amado. The Superior Court

reasoned that two other witnesses had identified Amado as

joining the crowd that ran to the scene of the shooting (even

though none other than Hardy had seen a gun in Amado’s

hand). The Court of Appeal did not comment on this ruling. 

The Superior Court also had observed that “in a perfect world

[the jury] should have had” the Hardy impeachment

information. The Court of Appeal did not comment on this

finding either. Since the Court of Appeal failed to consider

the decisions of the U.S. Supreme Court on the prosecution’s

constitutional obligation under Brady to disclose exculpatory

information or, for that matter, anything other than Section

9 The Court of Appeal did not comment on the fact that it had granted

Amado’s motion to augment the record, nor did it comment on the

contents of the Lapan declaration.
20 AMADO V. GONZALEZ

1181(8) of the California Penal Code, no deference is to be

given to its conclusion that Amado is not entitled to a new

trial.10See Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir.

2002).

Despite the Court of Appeal’s clear focus on Section

1181(8), the State insists that the Court of Appeal did address

the merits of Brady when it said “[t]he record before us does

not establish the prosecution’s failure under Brady to reveal

this information to defense counsel.” Read in context,

however, this one-sentence statement is a reference to the

insufficiency of the Hardy declaration to meet the

requirements of Section 1181(8), not a discussion of a Brady

claim.

10 The California Court of Appeal’s reliance on state law raises the

question of whether the independent and adequate state law doctrine bars

our consideration of this issue. The State does not explicitly argue that

this doctrine applies, and therefore has waived this defense. See Vang v.

Nevada, 329 F.3d 1069, 1073 (9th Cir. 2003). Further, it was not “firmly

established” that California Penal Code § 1181(8) requires a party seeking

a new trial to submit an attorney’s declaration describing when the

evidence was discovered, in lieu of an attorney representation

corroborating a witness’s declaration. See Lee v. Kemna, 534 U.S. 362,

376 (2002) (holding that the independent state ground must be “firmly

established and regularly followed”). The statute itself does not require

such a declaration, nor does the case the California Court of Appeal relied

on, People v. Martinez, 685 P.2d at 1205, which states only that facts

supporting a new trial “be shown by the best evidence of which the case

admits.” Lapan had reason to believe that his statement to the Superior

Court was sufficient without an accompanying declaration because

California courts have held that “[s]tatements of a responsible officer of

the court are tantamount to sworn testimony.” People v. Wolozon,

188 Cal. Rptr. 35, 37 n.4 (Cal. Ct. App. 1982) (citing People v.

Laudermilk, 431 P.2d 228, 238 (Cal. 1967)).
AMADO V. GONZALEZ 21

Furthermore, even if the State is correct that the California

Court of Appeal addressed the merits of Brady, a de novo

standard of review would still apply to the issue of whether

Amado was prejudiced. The State concedes that the

California Court of Appeal did not discuss the issue of

prejudice. Where a state court addresses only one element of

a claim, federal courts reviewing a habeas petition on that

claim apply a de novo standard of review to the elements of

a claim that the state court did not discuss. Wiggins v. Smith,

539 U.S. 510, 534 (2003). Thus, under the State’s own

theory, the standard of review on the issue of prejudice is de

novo even if, as the State argues, a deferential standard of

review should apply to the issue of whether the prosecution

suppressed evidence in violation of Brady.

We next discuss the rule of Brady.

B. Suppression

1. The Requirements of Brady

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

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

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

material either to guilt or to punishment.” This prosecutorial

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

which instructs that states shall not “deprive any person of

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

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

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

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

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

prosecutors to disclose information “illustrate[s] the special
22 AMADO V. GONZALEZ

role played by the American prosecutor in the search for truth

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

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

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

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

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

The prosecution’s duty to divulge relevant information is

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

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

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

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

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

defense made any request of the prosecution; the prosecution

is required to provide material, favorable information even

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

680–82.

Favorable evidence is not limited to evidence that is

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

of the defendant. Favorable evidence includes that which

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

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

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

inform the defense that the witness testified in exchange for

a promise from the government that he would not be

prosecuted. The Supreme Court held that the prosecution was

required to inform the defense about its agreement with the

witness because “evidence of anyunderstanding or agreement

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

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

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

since has made clear that the prosecution must disclose all
AMADO V. GONZALEZ 23

material impeachment evidence, not just evidence relating to

cooperation agreements. See Bagley, 473 U.S. at 676.

A prosecutor’s duty to reveal favorable, material

information extends to information that is not in the

possession of the individual prosecutor trying the case. In

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

that a witness who implicated the defendant had provided a

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

defendant. The prosecutors were apparentlyunaware that this

exculpatory information even existed. Still, the Supreme

Court held that the prosecutors had violated Brady, for they

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

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

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

requirement meant that prosecutors had to put in place

“procedures and regulations . . . to insure communication of

all relevant information on each case to every lawyer who

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

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

the prosecution is in a unique position to obtain information

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

excused from disclosing what it does not know but could have

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

1997) (en banc).

TheSupreme Court has not tempered the Brady obligation

of prosecutors by imposing a due diligence standard on

defense counsel. Clearly, defense counsel cannot lay a trap

for prosecutors by failing to mention or use favorable

impeachment or exculpatory evidence of which they were

aware, for the prosecution’s failure to disclose that evidence

in such a case cannot be said to have “deprive[d] the
24 AMADO V. GONZALEZ

defendant of a fair trial.” Bagley, 473 U.S. at 675. But there

is no indication in the case before us that defense counsel

knew before or during trial that Hardy had committed a

felony, or was on probation, or had been a Piru Blood. Nor,

as we discuss in the next section, could defense counsel be

expected to know this information without the prosecution’s

disclosure.

2. Application of the Brady Standard

Under Kyles, the fact that the individual prosecutors who

brought the case against Amado may not themselves have had

the Hardy impeachment material in their possession is not a

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

Court, the State conceded that the prosecution had access to

Hardy’s conviction and probation records, for Hardy was

prosecuted bythe same office that prosecuted Amado, the Los

Angeles County District Attorney’s Office.

11 Pursuant to

Kyles, the prosecution had a Brady obligation to produce

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

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

large prosecution offices, procedures and regulations can be

established to carry that burden and to insure communication

of all relevant information on each case to every lawyer who

deals with it.”).

At oral argument, the State questioned whether

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

However, that information was discussed in the very same

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

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

Attorney’s Office.
AMADO V. GONZALEZ 25

probation report that discussed Hardy’s prior felony

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

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

Hardy’s gang affiliation.

The State argues that Amado’s counsel has not

sufficiently shown when or how he learned of the Brady

material that the prosecution failed to produce. However,

Lapan’s declaration sufficiently states that he did not know

this information “until after trial,” and there is no reason to

question his veracity. Lapan declared: “I did not learn until

after trial that Warren Hardy was on felony probation as a

result of a robbery conviction and that in the probation report

from that offense, Hardy stated he was a ‘Piru Blood.’” 

Lapan similarly represented to the Superior Court that “I

didn’t know [Hardy] had a prior felony record [at the time of

trial]” and “I didn’t know he was a Blood.” The Superior

Court accepted this representation, holding against Amado on

different grounds.

The State’s primaryargument is not that Amado’s counsel

knew of the Hardy impeachment evidence, but that Amado’s

counsel should have known about this evidence. The State,

relying on several cases from this circuit, contends that

Hardy’s background was accessible to Amado’s counsel and

that the State cannot be said to have suppressed information

that, with diligence, could have been discovered. For

example, in United States v. Aichele, 941 F.2d 761, 764 (9th

Cir. 1991), we stated: “[w]hen . . . a defendant has enough

information to be able to ascertain the supposed Brady

material on his own, there is no suppression by the

government” (citing United States v. Dupuy, 760 F.2d 1492,

1501 n.5 (9th Cir. 1985)). See also United States v. Bond,
26 AMADO V. GONZALEZ

552 F.3d 1092, 1096 (9th Cir. 2009) (holding that there is no

suppression where defendants have the means of discovering

the favorable information on their own and “there was no

government action to throw the defendant off the path of the

alleged Brady information”); United States v. Bracy, 67 F.3d

1421, 1428–29 (9th Cir. 1995).

In all of these cases, however, the defendants had been

advised specifically of the source and nature of the Brady

material, and could not complain, having been so advised,

that they could not obtain that material. In Dupuy, for

example, the case that started this line, the prosecutor did not

turn over her work product, notes of her conversations with

the defendant’s co-defendants that contained exculpatory

information. However, the court told the defendant to obtain

the exculpatory information from the co-defendants

themselves, and defendant failed to make a showing that he

could not have had full recourse by following the court’s

suggestion. 760 F.2d at 1501–02. In Aichele, the government

had given defense counsel a transcript of an interview with a

crucial government witness and the witness’s rap sheet, but

had not also supplied the witness’s prison records. 941 F.2d

at 764. Similarly, in Bracy, the government gave the defense

two reports on a government witness’s criminal history and a

printout from a National Crime Information Center computer

search about that witness, but did not provide details about

that witness’s criminal history in two states. The production,

the court ruled, was sufficient. See 67 F.3d at 1428. And in

Bond, the government had given the defendant “the essential

factual data to determine whether the witness’ testimony

might be helpful.” 552 F.3d at 1097. These cases hold that

there is no violation of Brady if the government provides the

defendant with the core Brady materials and the defendant
AMADO V. GONZALEZ 27

fails to show that additional materials would have made a

difference at the trial.

In essence, the State interprets its Brady duty to require it

to produce only what defense counsel shows that it could not

have known, and found, on its own. Brady is not so limited. 

Under Brady, as clearly established by Supreme Court law,

the prosecutor has a “broad duty of disclosure.” Strickler,

527 U.S. at 281; cf. United States v. Agurs, 427 U.S. 97, 108

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

doubtful questions in favor of disclosure”). In Strickler, the

Court noted that “if a prosecutor asserts that he complies with

Brady through an open file policy, defense counsel may

reasonably rely on that file to contain all materials the State is

constitutionally obligated to disclose under Brady.” 527 U.S.

at 283 n.23. In other words, if the defense has a good reason

to believe that prosecutors are required to turn over a

particular piece of information, the defense is not required to

hunt down that information on its own.

Here, the prosecution failed to provide anyBradymaterial

on Hardy. The prosecution never suggested to the defense

that Hardy had a criminal background, even though, under

California law, as well as under Brady, the prosecution must

disclose to the defendant “[t]he existence of a felony

conviction of any material witness whose credibility is likely

to be critical to the outcome of the trial.” California Penal

Code § 1054.1(d). Moreover, Amado’s counsel could not

easily have obtained the Hardy impeachment information

without the assistance of the prosecution, for it was “the

policy of the [California] Department of Justice to release rap

sheets only to prosecutors, and defense disclosure requests

[were required to] go through the prosecutor’s office.” 
28 AMADO V. GONZALEZ

People v. Little, 68 Cal. Rptr. 2d 907, 911 (Cal. Ct. App.

1997) (citation omitted). We therefore hold that the

prosecution suppressed information on Hardy’s criminal

background and gang affiliation, in violation of Brady.

While we believe a de novo standard of review is

appropriate here given that the California Court of Appeal did

not address Brady, we would reach the same conclusion even

if we were to apply a deferential standard of review. Any

finding by the California Court of Appeal that the prosecution

had not suppressed evidence was an “unreasonable

application of, clearly established Federal law, as determined

by the Supreme Court of the United States.” 28 U.S.C.

§ 2254(d)(1). Strickler and Kyles show that it is the

prosecution’s duty to provide material impeachment

information to the defense, not the defense’s duty to find that

information by itself. The California Court of Appeal’s

finding that Amado was required to demonstrate diligence in

obtaining this information is at odds with this Supreme Court

case law.

C. Prejudice

This court next must consider whether Amado was

prejudiced as a result of the State’s failure to produce the

Brady information. A defendant is prejudiced if the evidence

that was not produced is material. “The evidence is material

only if there is a reasonable probability that, had the evidence

been disclosed to the defense, the result of the proceeding

would have been different. A ‘reasonable probability’ is a

probability sufficient to undermine confidence in the

outcome.” Bagley, 473 U.S. at 682. The test for materiality

“is not a sufficiency of evidence test.” Kyles, 514 U.S. at 434. 
AMADO V. GONZALEZ 29

Evidence can be sufficient to sustain a verdict, and still Brady

can be violated. Id. at 434–45. If “the favorable evidence

[not produced] could reasonably be taken to put the whole

case in such a different light as to undermine confidence in

the verdict,” Brady has been violated. Id. at 435.

1. The Jurors’ View of Hardy

The State withheld not one but three pieces of evidence

that had the potential of undermining Hardy’s testimony. 

First, Hardy had a robbery felony conviction. Defense

counsel could have argued that this conviction rendered him

an untrustworthy witness. Second, Hardy was on probation

for that conviction at the time he testified. Defense counsel

could have argued that Hardy was seeking favor with his

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

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

Hardy was biased against a member or friend of the rival

Crips.

Lapan’s cross-examination of Hardydid not address these

points, for Lapan, without the suppressed impeachment

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

questions. Lapan’s cross-examination was short, focusing on

Hardy’s weak vision and his arguable inability to identify

people running across his field of vision. The suppressed

information would have added to the force of the crossexamination and defense counsel’s closing argument. There

is a reasonable probability that the suppressed information

would have made a difference, causing the jury to view

Hardy’s implication of Amado with a great deal more

suspicion.
30 AMADO V. GONZALEZ

The State makes two arguments why the jurors’ view of

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

Hardywas alreadyimpeached bythe cross-examination on his

weak vision. The suppressed information, however, could

have been used to show that Hardy had a motive to embellish

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

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

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

testify and limited memory shows that he was not biased

against Amado. If Hardy was testifying against Amado in

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

much more helpful and supplied detailed answers while on

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

Hardy’s cooperation with the police the night after the

shooting. Hardy provided substantial assistance to the police

on that day, voluntarily calling the authorities and identifying

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

Hardy’s initial implication of Amado were admitted into

evidence through the testimony of Detective Esquivel, who

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

Thus, Hardy’s initial identification of Amado—possibly

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

into the mix of evidence considered by the jury.

2. Reasonable Probability of a Different Result

Hardy’s statements against Amado, in his testimony and

as introduced through Detective Esquivel, were critical to

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

that Amado brought a weapon to the scene. Without such

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

Amado had the requisite criminal intent to aid and abet
AMADO V. GONZALEZ 31

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

without such evidence, Amado was just one member of a

crowd. Mere presence in a crowd is not sufficient to render

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

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

At trial, the prosecution emphasized the critical nature of

Hardy’s testimony. The prosecutor argued during summation

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

he was involved in the “significant amount of planning and

talking” about the attack prior to the shooting. The

prosecution emphasized that Hardy “specifically describes

somebodythat looks like Randall Amado, and then later picks

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

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

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

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

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

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

have argued with such conviction if Hardy had been

impeached by his recent robbery conviction, his felony

probation status with a motive to curry favor with the

authorities, and his past membership in the Bloods, in

frequent rivalry and conflict with members of the Crips? The

prosecutor’s failure to discharge his Brady obligations

enabled him to bolster Hardy’s credibility well beyond the

credibility Hardy would have had if all the impeaching

information had been made available to defense counsel and,

by defense counsel, to the jury.

Relying on California cases that broadlyapplyaccomplice

liability to gang members, the State contends that even if

Hardy had not testified at all, Amado still could have been
32 AMADO V. GONZALEZ

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

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

for shooting committed by another member of his gang);

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

2010) (gang member participates in murder when he rides

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

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

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

fight responsible for shooting committed by a fellow gang

member). But without Hardy, the only evidence against

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

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

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

jury could have convicted Amado of intending to facilitate

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

We do not need to decide more than the question before

us—whether the prosecutor’s violation of Brady was

prejudicial. The standard is not whether there is sufficient

evidence for conviction, but whether there is a “reasonable

probability” that the outcome would have been different,

meaning that “the favorable evidence could reasonably be

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

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

Here, that standard is met. The impeaching evidence was

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

testimony. With that cloud of doubt, the remaining evidence

against Amado was weak. While Barner and Grisson both put

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

they saw him with a weapon or heard him make any

statements, or heard others make statements, that suggested

that Amado intended to participate in an assault. There was

no proof that Amado had any discussions with Johnson and
AMADO V. GONZALEZ 33

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

suggested that Johnson and Pugh had shared their plan with

Amado. Hardy’s testimony that Amado carried a gun was

influential to the jury in delivering a verdict against Amado,

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

impeaching information against Hardy, would have given

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

returned a different verdict.

III. Conclusion

In failing to disclose material impeaching evidence to

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

right to due process under Brady. Amado is entitled to a new

trial. We reverse and remand with instructions to grant the

writ of habeas corpus and release Amado from custody unless

the district attorney of Los Angeles County, within 60 days,

initiates proceedings for a new trial.

REVERSED and REMANDED.

RAWLINSON, Circuit Judge, dissenting:

I respectfully dissent from the majority’s conclusion that

the state court’s denial of Randall Amado’s Brady12claim

entitles Amado to habeas relief. As the majority

acknowledges, this case is governed by the provisions of the

Antiterrorism and Effective Death Penalty Act of 1996

(AEDPA). See Majority Opinion, p. 14. Under the strictures

 

12 Brady v. Maryland, 373 U.S. 83 (1963).
34 AMADO V. GONZALEZ

set forth in AEDPA, our review of state court rulings is

severely cabined. Under AEDPA, even de novo review is not

really de novo. Rather, we review the state court decision for

reasonableness. Only if the state court decision is objectively

unreasonable is habeas relief warranted. See Wiggins v.

Smith, 539 U.S. 510, 520–21 (2003). Habeas relief is not

warranted simply because we think the state court got it

wrong. Rather, under AEDPA we must give deference to the

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

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

(2011).

As the United States Supreme Court emphasized in

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

unreasonable application of federal law is different from an

incorrect application of federal law. A state court must be

granted a deference and latitude that are not in operation when

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

(citation and internal quotation marks omitted).

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

determination that a claim lacks merit precludes federal

habeas relief, so long as fairminded jurists could disagree on

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

(citation and internal quotation marks omitted). The Supreme

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

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

was unreasonable.” Id. (citation omitted).

The Supreme Court left no doubt that habeas relief should

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

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

meant to be. . . .” Id. The Supreme Court explained that
AMADO V. GONZALEZ 35

AEDPA stopped just short of completely prohibiting

relitigation in federal court of claims of error that were

previously rejected in state court. See id. The Supreme Court

clarified that AEDPA only “preserves authority to issue the

writ in cases where there is no possibility fairminded jurists

could disagree that the state court’s decision conflicts with

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

than providing a pathway to second guessing state court

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

against extreme malfunctions in the state criminal justice

systems, not a substitute for ordinary error correction through

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

omitted).

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

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

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

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

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

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

for Brady materiality analysis); see also Cobb v. Thaler, 682

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

requirement, the materiality standard is a general rule,

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

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

courts considerable leeway in applying the principles

articulated in the Brady decision. We must also keep in the

forefront of our analysis the limitations of our review. The

majority’s conclusion simply cannot be reconciled with these

precepts.

Amado was convicted as an aider and abettor, which

means that the prosecutor had no obligation to prove that
36 AMADO V. GONZALEZ

Amado fired the shots that killed one victim and wounded

another. See, e.g., People v. Salgado, 88 Cal. App. 4th 5, 15

(2001) (“Aiding and abetting requires a person to promote,

encourage or instigate the crime with knowledge of its

unlawful purpose.”) (citations omitted). Therefore, any

testimony regarding whether Amado had a gun was not

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

(defining materiality in terms of its potential effect on the

outcome of the case).

Unlike the majority, I focus my analysis on whether the

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

whether Amado suffered prejudice in the first instance. See

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

reviewing the federal rule rather than reviewing the state

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

I cannot say that no fairminded jurist could disagree that the

state court’s decision was unreasonable, and neither should

the majority. See id. at 786; see also Wiggins, 539 U.S. at

520–21 (incorporating the “objectively unreasonable”

standard). The state court applied Brady, a rule of general

application, thereby implicating the considerable leeway

contemplated by the Supreme Court to review of the resulting

determination. See Richter, 131 S. Ct. at 786.

I agree with the presumably fairminded district court that

the state court did not unreasonably apply Brady. On the

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

analysis, the record reflects that there was testimony, other

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

theory of conviction. Natasha Barner identified Amado as

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

confront rival gang members. Witness John Grisson also
AMADO V. GONZALEZ 37

identified Amado as among the “group of guys” who “ran

across the street” toward the bus stop where the shooting

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

The record also reveals that Hardy was far from being a

stellar witness for the prosecution. As the district court

observed, Hardy endeavored to recant his testimony at every

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

previously identified as having a gun. He could not

remember identifying anyone to the police. Hardy also

confirmed that he did not witness the shooting and that he

failed to identify Amado from a photograph that was

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

self-impeachment and the existence of other witnesses who

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

was not objectively unreasonable for the state court to find a

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

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

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

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

malfunctions in state criminal justice systems, not a substitute

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

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

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

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

comprehend how one could conclude that the state court’s

decision “was so lacking in justification that there was an

error well understood and comprehended in existing law

beyond any possibility for fairminded disagreement.” Id. at

786–87.

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

would be free to gnaw away at the state court’s Brady ruling.
38 AMADO V. GONZALEZ

See, e.g., United States v. Sedaghaty, No. 11-30342, — F.3d

—, 2013 WL 4490922, at *9–*12 (9th Cir. August 23, 2013)

(reviewing Brady issue on direct appeal without deference to

the trial court’s ruling). However, the Supreme Court has told

this Circuit specifically, emphatically, and in no uncertain

terms, to curb our appetite when it comes to habeas review. 

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

conducting a de novo review with no deference to the state

court decision).

I respectfully decline to join a ruling that so clearly flouts

Supreme Court precedent. With respect, I dissent from the

majority opinion.