F OR P UBLICATION



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

R A N D A L L A M

A D O , Petitioner-Appellant
,

v

.

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

Respondent-Appellee

. N o. 11-56420

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

OPI NI ON

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

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

F iled October 30, 2013

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

J udg e. *

Opinion by J udg e Hellerstein; D issent by

J u dg e Rawlinson

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

o r th e S o u t

h ern District o f New Yo rk
, s i t t in g b y d esig n atio n

.A M A D O V

. G O N Z A L E Z 2

SUMMARY *

Habeas Corpus

The p anel reversed the district c o u r t ’ s denial of a 28 U.S.C. § 2254 habeas corpus petition challeng ing a murder conviction b ased on a violation o f Brady v

. Maryland
, 373 U.S. 83 (1963).

Reviewing de n ovo because the hi gh e st state court only considered state law in deny ing relief to petitioner, the panel held t h at the prosecution violated Brady by suppressing material impeachment information about its witness, W arren Hardy

. The panel held that it would h a v e r e a c hed the same conclusion under a deferential standard of review. The panel also held that petitioner was prejud i c ed because Hardy ’s
statements w ere c ritical to the conviction, because Hardy was the only person to testify that petitioner broug ht a weapon to the scene, thus differentiating him from just a m ember of a crowd of onlookers after the shooting

.

J udg e Rawlinson dissented. She would hold that the state court did not unreasonably apply Brad y , that the record supports the aiding and abetting theory of conviction whether

or not petitioner h ad a weapon, and that the r e w as no prej udice to petitioner g iven the witness’ ex tensive selfimpeachment and the ex istence of other witness e s w ho attested to petitioner’s aidingand abetting in the crime.

* T h is su m m ary co n stitu

tes n o p art o f th e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

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

th e read er.A M A D O V

. G O N Z A L E Z 3

COUNSEL

J ohn L anahan (arg

ued), San Dieg o, California, for PetitionerAppellant.

Kamala D

. H a r r is, Dane R. Gillette, L ance E. W inters, Kenneth C. B y

rne, and David A. Wildman (arg ued), Office o f the Attorney G eneral of California, L o s Ang eles, California, for Respondent-Appellee.

OP INION

HEL L E RSTEI

N, Senior District J udg e:

Violence between street g angs i s a scourg e to communities. Th e prosecutors w ho prosecute crimes committed by these g ang s perform a vital service

. B ut prosecutors must be vig ilant that e x cessive z e a l d oes not violate a defendant’s constitutional rig ht to a fair trial. W h en that occurs, the courts must balance t h e n eeds of the community with a defendant’s constitutional rig h t to a fair trial.

Randall Amado was convicted in 1998 by a L os Ang eles jury of aiding and abetting a senseless murder in a public bus. The prosecutor n eg lected, however, to discharg e his oblig ation to disclose material information that w o u ld have enabled defense counsel to impeach the credibility of a critical witness ag ainst Amado. We hold in this opinion that the p rosecution’s failure, in violation of clearly estab l ished f ederal law as determined by the U.S. Supreme Cour t , requires that Amado be g iven a new trial.A M A D O V

. G O N Z A L E Z 4

I. The F acts of

Record and the P rior P r oceedings

A. The Shooting

I n 1996 and 1997, the B ounty Hunter B loods and 118 E a st Coast Crips were rival street g a ng s in southern L os Ang eles. Some members of the B ounty Hunter B loo d s g a ng attended Centennial Hig h School, and traveled to and from school on public b u s No. 53 throug h n eig h borhoods claimed by the 118 Ea s t Coast Crips. The g a n g members identified themselves by the colors of their clothing : red for the B loods, and blue for the Crips. As bus No. 53 passed throug h the Crips’ neig hborhoods, members of the B loods gang on board frequently taunted, flashed g ang sig ns at, spit at, and threw objects at Crips g ang members standing at the bus stops.

On J anua r y 1 5
, 1997, two members of 118 East Coast Crips, Robert J ohnson a

n d Wilbert Pug h, decided to r etaliate. Their friend, Nicholas B r ig g s, overheard the two propose that

a larg e g roup of Crips board bus No. 53 an d a t t a ck B loods members inside. B rig g s testified that J o hnson carried a g un at that meeting
, b ut that there was no discussion of shooting
any one. J ohnson a

nd Pug h decided that the attack would

occur the nex t d a y , b ut B rig g s had a c ourt appearance to attend and declined to join them.

The following afternoo n , J ohnson, Pug h
, and a g roup o f their friends met near the intersection o f I mperial Hig hway and Avalon B ou l e v a rd

. W hen a No. 53 bus approached, at about 3:20 p m, Pug h y el l e d “Y’all ready ? ” and the g roup moved toward the bus as it pulled into a bus stop. Pug h and
at least one other unidentified g a ng member boarded the bus, and Pug h cursed the B ounty Hunter B loods members in theA M A D O V

. G O N Z A L E Z 5

back. One of the Crips, possibly Pug h
, s h o u t e d “Shoot this
m_____ f______ bus u

p,” and the Crips ex ited. J ohnson, behind the bus, poked a g un throug h the rear window, aimed
at a passeng e r dressed in red, and fired, hitting t w o others. Corrie W illiams, a student a t Centennia l Hig h School, was shot in the neck and killed. Tammy F r eeman, her friend, was shot in the arm. The bus d river sped off, stop p i n g a few blocks away

when he felt it was safe.

B. The Arrest and P rosecution

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

across the street from Amado’s home. J ohnson and Pug h fled
t o M i lwaukee, W isconsin. J ohnson was arrested in Milwaukee a

pprox imately a we e k after the murder, a nd he confessed to the shooting

. Pug h w as also arre s ted in Milwaukee, althoug h not until a y ear a f t er the bus attack occurred.

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

The court and p rosecution were c oncerned about intimidation of witn e sses, and retaliation ag ainst those w ho testified. This fear was driven in part b y t h e fact that Pug h

was still at larg e a t the time the proceeding s beg an. B a sed onA M A D O V

. G O N Z A L E Z 6

interviews of witnesses in camera, the Superior Court ordered that the addresses and phone numbers o f w i t nesses be

w i thheld from the defense, and that the prosecution make witnesses available for interviews by the defense at the courthouse. W arren Hardy was one of th o se witnesses, but Amado’s trial counsel, Richard L apan, did not interview him.

Pug h, J ohnson, and Amado were tried tog ether before two juries, one for J ohnson, the alleg ed shooter, and the second, for Pug h and Amado, the alleg ed aiders and abettors. W hile
many witnesses testified as to Pug h ’s and J ohnson’s roles in the shooting
, the evidence ag ainst Amado was more limited. Two witnesses testified that Amado was p art of the g roup that
ga t h ered at the bus stop. J ohn Grisson, a hig h school classmate of Amado, testified o n d i r e ct that he w as at the intersection of I mperial H ig hway and A valon B oulevard, a nd

saw Amado, w ith others, running toward the bus. However, when pressed on cross Grisson testified that when h e had seen Amado with the g roup it had been a few m inutes before the shooting
, a

nd that he did n o t see Amado r u n t o w a rd the bus prior to the shooting
, or away from the bus after the shooting

. The second of the two witnesses, Natasha B arner, Pug h’s
g irlfriend a t the time of the shoo t i n g, t estified that she saw Amado, a long w i t h a crowd, “coming across the street” toward the bus stop p rior to the shooting

. 1 B arner said that

s he did not see Amado with a g u n. B arner, corrobora t e d b y another witness, testified that she knew only that J ohnson a nd

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

. Mo st w itn esses testif

ied th at o n ly tw o o f t

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

ied as o n e o f th e tw o

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

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

. G O N Z A L E Z 7

Pug h were members o f 118 East Coast Crips, and n o witness testified that Amado was a member o f the ga n g. Amado, however, did have the nickname “B ang ,” which some viewed
as a g ang moniker.

W a rren Hardy
, who orig inally identified himself to the police as W arren Collins, was the key witness ag ainst Amado. Hardy lived less than a block from the intersection of I mperial H i gh w ay and Avalon B o ulevard. Hardy testified that, f r o m his b a lcony
, minutes before the shooting and from a distance of app r o x imately 3 5 feet, he saw a short, c hubby boy with slicked-back hair and a p o ny -tail carry ing a handg un a

nd trailing a g roup of teenag ers headin g t o wards A valon B oulevard. Hardy testified that he then heard g unfire
, a nd, shortly a fter, he saw several of these same teenag ers run down the street. Th e n e x t n ig ht, Hardy testified, he heard several teenag ers behind his building talking and laug h ing about the shooting

. Hardy testified that he c a lled the police, w ho responded, found Amado and B r ig g s in the area where Hardy had placed the laug

hing teenag ers, and arrested them.

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

. The best that Hardy c o u ld d o w a s to identify Amado’s hairsty le a s similar to the hairsty le of the person he

saw with the g un. On cross e x amination, Hardy testified that his vision was poor, that he could not r em em b er key d etails

a b out what he saw behind his building
, and that he did not want to testify

because he feared for his safety

.

B e caus e o f Hardy ’s r eluctance to testify and his lack o f
memory , the p rosecution call ed L APD Detective MichelleA M A D O V

. G O N Z A L E Z 8

Esquivel to testify a

bout statements Hardy made the day a fter the shooting
, at the time of Amado’s arrest. Esquivel, r eading f r o m the notes she had taken while interviewing Hard y , testified that Hardy h a d identified A mado as the person w ho had carried a g un to the shooting

. 2 Esquivel quoted Hardy a s describing the tee n a g er as a “lig ht-skinned, chubby male black

. . . [ with] a blue short-sleeve d s h irt, and his hair was l ong , slicked back.” Esquivel w rote that when the p o l i c e informed Hardy

that Amado and B rig g s had been arrested, a fellow detective ask e d if they “ had the correct g u y s,” a nd Hardy answered, “Yes.”

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

Now, what d id Mr. Hardy say ? Randall Amado or somebody that looks like him is the
g uy that he saw on J anuary the 1 6th, 1997,
carry ing a g un. The onl y reason why he is
g oing to say that, or say words to the effect o f he’s possibly the g uy that did the shooting is because he thinks that’s the g u y who he saw

on J anuary the 16th, 1 997, w ith a g un. That’s the only reason why y ou make that statement. The only reason. Now, why is R a n d a ll Amado carry

ing a g un to a fist f

i gh t ? I s it

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

. S ee, e.g

. , Peo

p le v. Led esma , 1 40 P .3 d 6 5 7
, 7 1 0 (Ca l

. 2 0 0 6 ) (af f irm in g th e trial co u rt’ s d ecisio n t o allo w a p o lice o f f icer to testif

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

a w itn ess af

ter t h at w itn ess testif

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

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

. G O N Z A L E Z 9

be c ause he himself thoug ht this could possibly

e v o lve into something else other than a fistfig h t ? A nd if so, did he think in his own

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

g o over there?

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

C. Am a do’s Motion f

or a New Trial and His Appeal

A f ter the jury ’s verdict of Amado’s g uilt, a c opy of a probation report on Wa r r en Hardy came into the possession of L apan, Amado’s trial c o unsel. 3 The report disclosed that Hardy had pleaded g uilty to committing a r obbery
, 4 that he

was on probation f

or that offense, and that Hardy had been a member of the Piru B loods, an a ffiliat e d B loods g ang

. The prosecution had not d isclosed those facts, or g iven the probation report on Hardy to Amado’s counsel. L a p a n then interviewed Hardy
, and Hardy w rote out a declarati o n (t h e “Hardy declaration”) stating that he had been c o n v icted o f robbery “out of the L ong B each court” a nd that h e h a d been a member of the Piru B loods. 5

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

th at h e d id n o t o btain

it “ u n t il af

ter trial.”

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

. L ap an rep resen ted to th e Su

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

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

.

5 T h e d eclaratio n

w as d ated J an

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

. G O N Z A L E Z 10

Amado moved for a n e w trial on the g round that the prosecution had vi o l a ted Brady v

. Maryland
, 373 U.S. 83 (1963), in failing to disclose H ardy ’s probation report. At a hearin g held J anuary 25, 1999, L apan presented the Hardy declaration and re p re s ented that he had “just received [ Hardy ’s] file o n the r obbery when he p led g uilty in 1 996 that indicated he was a Piru B lood.” L apan arg ued that there was

a reasonable probability that the r esult of the trial would have been different had this “ newly disco v e r ed evidence” been available to impeach Hardy , and that Amado was entitled to

a new trial under Brady

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

new e v idence would not chang e Hardy ’s credibility

. The State arg ued, based on how “ the testimony play ed out and the
way that Mr. Hardy was f ound by the p olice and the way that he came forward, it’s just not a situation where Mr. Hardy ’s credibility on w hat he testified to is g o ing to be cha n ged b y the introduction of this new evidence.”

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

Mr. H ardy is not the only person who put Mr. Amado at the scene. I don’t think that any

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

was ag g ressively cross-ex amined on behalf o f Mr. Amado by Mr. L apan about his observations and his ability to perceive, and I think that the j u r y had the benefit o fA M A D O V

. G O N Z A L E Z 11

every thing that they possibly could have short of the information o f the robbery
, which in a perfect world they should have had

. B ut I don’t know that it reaches th e l e vel that
warrants a new trial. I therefore am g oing to respectful l y deny the motion before me for new trial.

Amado ap p ealed to the California Court of Appeal, Second Appellate District. I n response to concerns ex pressed by the appellate court at o ral arg u m ent, Amado moved to aug ment the record to document that the Hardy impeachment evidence was “newly discovered.” Defense counsel L a p an supported his motion by including the Hardy declaration a nd his own declaration ( the “ L apa n d eclaration”) which stated that L apan had received no information f rom the prosecution about Hardy ’s criminal backg round and g ang affiliation a nd that “ I did n ot learn until after trial that Warren Hardy was on felony probation as a result o f a robbery convicti o n an d that in the probation report from that offense, Hardy stated that he

was a ‘Piru B lood.’” The appellate court g r an ted Amado’s motion to aug ment the record.

I n a J une 14, 2001 unpublished opinion, the Ca l i f o rnia Court of A ppeal a ffirmed the Superior C o u rt’s denial o f Amado’s m o t i o n for a new trial, but on different g rounds. The Court of Appeal, citing California Penal Code § 1 181(8) 6

6 [T ]h e co u rt m ay , u

p o n h is ap p licatio n , g ran t a n ew trial

. . . [w ]h en n ew

ev id en ce is d isco v ered m aterial to th e def en d an t, an d w

h ich h e co u ld n o t,

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

o r a n ew trial is m ad e u po n th e g r o u n d of n ew ly d isco v ered ev id en ce, th e d ef en d an t m u s t p ro d u ce at th e h earin g , in su p p o rt th ereo f
, th e af f id av its o f th e w itn esses b y w h om su ch ev id en ce is ex p ectedA M A D O V

. G O N Z A L E Z 12

and relying on People v. Martinez
, 6 85 P.2d 1203 (Cal. 1984),

a state-law case t h a t interprets that statute, held that the proced u r al requirements for moving for a new trial had not been s a t i sfied, and that the Hardy declaration failed to “establish that the e vidence [ on H ardy ’s backg round] is indeed newly discovered.” F urthermore, the Court of Appeal ruled that Ama d o f

ailed to “establish that defense counsel could not have discovered the im p e a c h i ng facts in the

ex e r cise of due di l i ge n c e .” As to defense counsel L apan’s representation that he had not learned of Hardy ’s prior felony conviction, probation status, and g ang affil i a t ion u ntil a fter trial, that was not admissible evidence, f o r attorney L apan “was making arg ument, not testify ing under oath.” The Court of Appeal concluded that “Amado f ailed to produce a ny evidence to e stablish that the impeachin g facts a bout Hardy

were n ewly discovered and c ould not have been discovered and produced a t trial in the ex ercise of due dilig e nce, let alone the best available evidence.” 7

Amado filed a petition with the California Supreme Court
to review the Court of Appeal’s d ecision, but t h e S u preme Court denied the petition. Amado thus “e x hausted the remedies available” in the Californi a courts. See 28 U .S.C. § 2254(b)(1)(A).

to b e g i v e n , an d if tim e is req u ired by th e d ef en d an t to p ro cu re su ch af f id av its, th e co u rt m ay p ostp o n e th e h earin g o f th e m o tio n f o r su ch len g t h o f t im e as, u n d er all circu m stan ces o f th e case, m ay seem

reaso n ab le.”

7 T h e Co u rt o f A

p peal also af

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

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

v ict.A M A D O V

. G O N Z A L E Z 13

D. Am a do’s Habeas P e tition

Amado filed a petition f

or a writ of habeas corpus with the U.S. District Court, Central District of California on J anuary 6
, 2 0 0 3. See 28 U.S.C. § 2254. On May 16, 2003, t h e mag istrate judg e assig ned to the case issue d a R eport a nd Recommendation (“R & R”), recommending th a t A mado’s petition be g ranted because th e p rosecution had v iolated Amado’s constitutional rig hts u nder Brady

. The R & R f ound th a t “ the undisclosed Brady evidence was ‘substantial a nd

was far more damag ing to [ Hardy ’s] c r e dibility than the impeachmen t evidence available to the defense at trial.’” (quoting Benn v. Lambert
, 283 F .3d 1 0 40, 1055 (9th C i r. 2002)).

The R & R lay in the district court for more than six y ears without action. On December 14, 2 0 0 9
, Amado filed an application for a r

uling by the district c o u r t , but 19 more months passed before any decision. On J uly 20, 2011, eig h tand-a-half y ears after Amado filed his petitio n , t he district
court issued an order deny ing Amado’s petition, and deny ing

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

. See 28 U.S.C. § 2253. Apply ing a deferential standard o f review, the c ourt held that it was r easonable for the California
courts to find that the State h ad not suppressed e v i d e nce, since A mado’s trial counsel had had a n o pportunity to speak with Hardy
, but had f

ailed to do so. The court ruled also that Amado h a d not demonstrated prejudice “ [ i] n lig h t of the substantial evidence ag a inst Petitioner o n the prosecution’s aiding and abetting theory .”

Amado filed a n otice of a

ppeal on Aug ust 16, 2 011. This Court g ranted a Certificate o f Appealability on September 22,A M A D O V

. G O N Z A L E Z 14

2011 as to one issue: “whether prosecuti on’s suppression o f impeachment evidence violated appellant’s r ig ht to d ue process under Brady v. Maryland
, 373 U .S. 8 3 (1963).” W e have j u r i sdiction to hear Amado’s appeal under 28 U .S.C. §§ 1291 and 2253.

II. Discussion

A. Standard of

Review

1. The Requirem ents of AEDP A

Generally
, fed e ral c ourts apply a deferential standard o f

r e v i ew in habeas cases. Under the Antiterrorism a n d Effective Death Penalty A ct of 1 996 (“AEDPA”), if a claim

was “adjudicated on the merits in State c ourt proceeding s,” a writ o f habeas corpus may b e g ranted only if the s t ate court adjudication:

resulted in a decision that w as contrary to, o r i nvolved an unreasonable application of, clearly established F ederal law, as determined by the Supreme Court o f the United States; o r

. . . resulted in a decision that was based on an unreasonable determination o f the facts in lig ht o f the evidence pres en ted in the State court proceeding

.

28 U.S.C. § 2254(d)

. I n contrast, if a claim was not “adjudicated on the me r i t s ” in state c ourt, the review is de

novo. Pirtle v. Morgan
, 313 F .3d 1160, 1167 (9th Cir. 2002). I f a federal claim was presented to the state court and the state court d enied all relief, “it may be presumed that the state courtA M A D O V

. G O N Z A L E Z 15

adjudicated the claim o n t h e 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 ex ample, if “the state standard is quite different from the f ederal standard” or “ if a provision of the F ederal Constitution or a federal precedent was simply mentione d i n p assing in a footnote or was buried in a string cite.” J ohnson v. W

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

Determining whether a claim was “adjud i c a t ed o n the merits” is not alway s a simple e ndeavor. Often, there are two

or more lower court decisions relevant to a habeas petitioner’s claim. I n th o s e c ases, we look to the decision that “finally resolves” the c laim at issue in order to d etermine whether that claim was adjudi c a ted on the merits. As we have held, a claim is “adjudicated on the merits” if it is “a decision finally resolving the p arties’ claims

. . . that is based on the substance of the c laim advanced, rather than on a procedural, or other,
g round.” Lambert v. Blodgett
, 393 F

. 3 d 9 4 3
, 969 (9th Cir. 2004) ( quoting Sellan v. Kuhlman
, 261 F .3d 303, 311 (2d Cir. 2001)). T hus, AEDPA deferenc e d o e s not apply where a lower state court addresses the merits b u t the state appellate
court fa i l s t o d o so. See Thomas v. Horn
, 570 F .3d 105, 114–17 ( 3 d Cir. 2009) (concluding there has been no “adjudication on the merits” in this situation because the state lower court decision d id not “ finally resolve” the petitioner’s claim); Liegakos v. Cooke
, 106 F. 3 d 1381, 1385 (7th Cir. 1997) (reaching the same conclusion o n the g rounds that “the last state court to issue an opinion” is the focus of the inquiry) (following Y

lst v. Nunnem a k

er , 501 U.S. 797, 804 (1991));

see also Barker v. Fleming
, 4 2 3 F .3d 1085, 1093 (9th Cir. 2005) (“[ F ] ederal court[ s] should review the last decision inA M A D O V

. G O N Z A L E Z 16

isolation and not in combination with decisions by o ther state courts.”).

Another c o m p l ex ity occurs where a state court rules on

one element of the claim but not on others. I n that situation, the Supreme Court has said that federal c ourts should a pply

a de novo stan d a r d o f r eview to the elements of a claim on

w h ich the state court did not rule. I n W iggins v. S

m i t h
, 539 U.S. 510, 534 (2003), for e x ampl e, the Supreme Court applied a de novo standard to the prejudice prong of an ineffective assistanc e o f c o unsel claim w here the state court addressed the deficiency prong of t h a t claim but never addressed the prejudice prong

. S ee also R o mpilla v. Beard
, 545 U.S. 3 7 4
, 3 90 ( 2005) (following W iggins ). I n 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 r eview
to the state court ruling

. 131 S.Ct. at 785. I n so holding
, the Supreme Court stated in dicta—and w ithout reference to W iggins or Rompilla —that “§ 2254(d) appl i e s w h e n a ‘ c l aim,’
not a component of one, has been adjudic a t e d

. ” Id. at 784. B ased on this lang uag e, the Eleventh Circuit has questioned whether Rompilla remains g ood law on this point, but has not actually decided the issue. See Childers v. F loyd
, 6 42 F .3d 953, 969 n.18 (2011) (en banc), cert. g r a nted, judgment vacated
, 133 S. Ct. 1 4 5 2 (2013). I n contrast, both the Six th and Seventh Circuits have concluded that Harrington did not chang e the Suprem e C o urt’s prior holding s. S ee Rayner v

. Mills
, 685 F .3d 631, 6 3 9 ( 6th Cir. 2012) (“[ Supreme Court cases] mandate A EDPA deference to both prong s w hen t h e stat e c ourt decision summarily dismisses the claim without

ex p lanation; when a state court decision relies only on o ne prong , the cases mandate AEDPA deference to that prong a ndA M A D O V

. G O N Z A L E Z 17

de novo consideratio n o f t

h e u n a d j u d icated prong .”); Sussman

v. Jenkins
, 6 42 F .3d 5 32, 534 (7th Cir. 2 011) (“W e c ertainly
cannot assume that the Cou r t overruled sub silentio [ in Harrington ] its holding in W iggins —a pre c e d e n

t s o 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 w e a re to review the decision of the California Court of Appeal,

w hether to d efer to its ruling s, review them de n o v o , o r perform our review according to some combination of bo th standards. Althoug h neither party in its briefs addressed the issue of the proper standard of review, we have the oblig ation
to ap p l y t h e correct standard, for the issue is non-waivable. See Gardner v. Galetka
, 568 F .3d 862, 879 (10th Cir. 2 009) (“W e ag r ee w ith our sibling c ircuits that the correct standard of review under A EDPA is not waivable.”); Brown v

. Smith
, 551 F .3d 424, 428 n .2 (6th Cir. 2008) (“ [ A ] p a r ty cannot ‘waive’ the proper standard of review by failing to arg ue for it.”), overruled on o ther grounds by Cullen v. Pinholster
, 131 S.Ct. 1388, 1400 (2011); Eze v. Senkowski
, 321 F .3d 110, 121 (2d Cir. 2 003) (holding that AEDPA’s deferential standard o f review applied even where the State fail e d t o arg u e for its application); W

orth v

. Tyer
, 276 F. 3 d 249, 2 62 n.4 (7th Cir. 2001) (“[ T] he court, not t h e p arties, must determine the standard of review, and therefore, it cannot be waived.”). A s the Tenth Circuit characteriz ed the issue, “[ i] t is one thing to allow parties to forfeit claims, defenses, or lines of arg ument; it would be quite another to allow parties to stipulate o r bind

us to application of an incorrect leg a l standard, contrary to the
cong ressional purpose.” Gardner
, 568 F .3d at 879. B ecause

we look to the case that “finally resolv[ ed] ” Amado’s claim,A M A D O V

. G O N Z A L E Z 18

we ex amine 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
, 3 93 F .3d at 969.

The Court of Appeal noted, first, that the appeal b y Amado was for a new trial pursuant to Section 1181(8) of the California Penal Code. That section, q uoted at note 6, supra, provides for a new trial based o n newly d iscovered evidence if the n ew evidence is “material,” and if the defense could not, “with reasonable dili g ence, have discovered and produced [ it]
at the trial.” 8 I n i n t e r

p reting Section 1181(8), the Court o f Appeal relied o n two decisions that had addressed the statute: (1) People v. Martinez
, 685 P.2d 1203, 1 208–09 (Cal. 1984),

a decision of the California Supreme Court that found that althoug h the statute’s requirement o f “due dilig ence” served

an important p ublic policy
, it should not be g iv en “ a strict enforcement”; and ( 2) P e ople v

. Arguello
, 390 P.2d 377, 379 (Cal. 1964), a

n earlier decision of th e California Supreme Court that similarly

relied on the due dilig ence requirement.

Nex t, t h e Court o f Appeal r uled that Amado’s counsel

was not duly dilig ent, as Section 1 181(8) required. The Court of Appeal ruled that c o u nsel’s representation to the Superior Co u r t , that the impeachment evidence ag ainst Hardy was newly d iscovered, was not of evidential quali t y because counsel “was m aking a

rg u ment, n ot testifying under oath,” and thus did n o t s at i s f

y the showing f

or a new trial r equired

8 Sectio n 1 1 8 1(8 ) req u ires also th at d ef en d an t p ro d u ce at th e h earin g

“ t h e af f id av its of th e w itn esses b y w h o m su ch ev i d en ce [th e n ew ly

d isco v ered ev id en ce] is ex p ected to b e g i v en .”A M A D O V

. G O N Z A L E Z 19

by Section 1181(8). 9 I n effect, the Court of Appeal found that Amado was required to produce e vidence that showed that the “newly discovered evidence” was in fact newly d iscovered, and A mado had failed to do so beca u s e the evidence that Amado presented was unsworn.

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

new trial. B ut it d id so without any consideration of the requirements of Br a d

y v. Maryland. I ts ruling s were based
to t a l ly on state law, specifically
, California Penal Code § 1181(8), in relation to the standards for reviewing motions for a n ew trial based on n e wly -discovered evidence. W hile the Superior C o u r t h a d addressed the merits of Brady
, the Court of A p p e al ig nored the lower c o u rt’s finding s. The Superior Court h a d ruled that the Hardy impeachment evidence, even if it h a d b een disclosed, w ould not have chang ed the outcome of the tri al, and thus the failure to disclose was not prejudicial to Amad o. The Superior Court reasoned that two other w itnesses had i d e n t ified Amado a s joining the crowd that ran to the scene of the shooting (even thoug h none othe r t h a n Hardy had seen a g un in Amado’s hand). The Court o f Appeal did not comment on this ruling

. The Superior Court also had observed that “in a perfect w orld [ the jury ] sho u l d h a ve had” the Hardy impeachment infor m a t i o n. T he Court of Appeal d id not comment on this finding either. Since t h e Court o f Appeal failed to consider the d ecisions of the U.S. Supreme Court on the prosecution’s constitutional o blig ation under Brady to d isclose ex culpatory information or, for that m a tter, any thing other than Section

9 T h e Co u rt o f A

p p eal d id n o t co m

m en t on th e f

act th at it h ad g ran ted A m ad o ’s m o t i o n to au g m en t t h e reco rd
, n o r d id it co m m en t o n th e

co n ten ts o f

th e L ap an

d eclaratio n

.A M A D O V

. G O N Z A L E Z 20

1181(8) o f the California Penal Code, no deference is to be
g iven to its conclusion that Amado is no t e n titled to a new trial. 1 0 See P irtle v. M

organ , 313 F .3d 1160, 1 167 (9th Cir. 2002).

Despite the Court of Appeal’s clear f ocus o n S e c tion 1181(8), the State insists that the Court of Appeal did address the merits o f Brady when it said “[ t] he r e cord before us does
not e stablish the prosecution ’ s failure under Brady to reveal this information to defense counsel.” Read in contex t, however, this one-sentence statement is a reference to the insufficiency of t h e H a rdy declaration to meet the requirements of Section 1 181(8), n ot a discussion of a Brady claim.

10 T h e Calif

o rn ia Co u rt o f A

p p eal’ s relian ce o n state law raises th e q u estio n o f w

h eth er th e in d ep en den t an d ad eq u ate state law d o ctrin e b ars

o u r co n sid e r a t io n o f th is issu e. T h e State d o es n o t ex p licitly arg u e th at th is do ctrin e ap p lies, an d th eref o re h as w aiv ed t

h is d ef en s e. S ee Va ng v. Neva d a , 3 2 9 F.3 d 1 0 6 9
, 1 0 73 (9 th Cir. 2 0 0 3). Fu rth er, it w as n ot “ f

irm ly estab lish ed ” t

h at Calif o rn ia Pen al C o d e § 11 8 1 (8 ) req u ires a p arty seek in g

a n ew trial to su

b m it an atto rn ey ’ s d eclaratio n d escrib i n g w h en th e

e v i d e n ce w as d isco v ered
, in lieu o f an atto rn ey rep resen tatio n

co rro b o ratin g a w itn ess’ s d eclaratio n

. S ee Lee v. Kemn a , 5 3 4 U.S. 3 6 2
, 3 7 6 (2 00 2 ) (h o ld in g th at th e i nd ep en den t state g ro u n d m u st be “ f irm ly estab lish ed an d reg u larly f o llo w ed ”). T h e statu te itse l f d o e s n o t req u ire

su ch a d eclaratio n , n o r d o es th e case th e Calif orn ia Co u rt o f A

pp eal relied

o n , Peo ple v. Ma rtin ez , 6 8 5 P .2 d at 1 2 0 5
, w h ich states o n ly th at f

acts

su p p o rtin g a n ew trial “ b e sh o w n b y th e b est ev id en ce o f w

h ich th e case ad m i ts.” L ap an h ad reaso n to b eliev e th at h is statem en t t o t h e Su p erio r Co u rt w as su f

f ici en t w ith o u t an acco m p an y in g d eclaratio n b ecau s e Calif o rn ia co u rts h av e h eld th at “ [s]tatem en ts o f a r esp o n sib le of f icer of th e co u rt a r e tan tam o u

n t to s w o rn testim o n y .” Peo p le v. W o lo zo n , 1 8 8 Cal. Rp tr. 3 5
, 3 7 n .4 (Cal. C t. A p p

. 1 9 8 2 ) (citin g P e o

p l e v. La u d ermilk , 4 3 1 P .2 d 2 2 8 , 2 3 8 (Cal. 1 9 6 7 )).A M A D O V

. G O N Z A L E Z 21

F urthermore, even if the State is c orrect that the California Court of A ppeal addressed the merits of Brady
, a d e n o v o standard o f revi e w would still apply to the issue of whether Amado was prejudiced. T he State concedes that the California Court of Appeal did not discuss t h e issue o f prejudice. W here a state court addresses only one element o f

a claim, federal courts reviewing a habe a s p etition on that claim apply a d e novo standard of review t o the elements o f

a claim that the state court did not d iscuss. W iggins v. Smith
, 539 U.S. 5 10, 5 3 4 ( 2 0 03). Thus, under the State’s o wn theory , the standard of review on the issue of prejudice is de

n o v o even if, as the State arg ues, a deferential standard o f review should apply to the issue of whet h e r t h e prosecution suppressed evidence in violation of Brady

.

W e nex t discuss the rule of Brady

.

B. Suppression

1. The Requirem ents of Brady

Under the landmark case of B rady v. Maryland
, 373 U.S. 83, 87 ( 1963), prosecutors are const i t utionally o blig ated to disclose “ evidence favorable to an accused

. . . [ t h at ] is material either to g uilt or to p unishment.” This prosecutorial duty is g rounded in the F o u r t e e n th Amendment, id. a t 86, which instructs that states s h a l l not “deprive any person o f life
, liberty
, or property , without due process of law.” U.S. C o n s t

. am end. XI V, § 1. The purpose of Brady is to e nsure that “criminal trials are fair,” Brady
, 373 U.S. at 87, and “that

a mi s c a r r i ag e of justice does not occur,” United States v

. Bagley
, 4 7 3 U.S. 667, 675 (1985). Placing the burden on prosecutors to disclose information “illustrate[ s] the specialA M A D O V

. G O N Z A L E Z 22

role play ed by the American prosecutor in the search for truth in criminal trials

. ” S trickler v. Greene
, 527 U .S. 263, 281 (1999). The pro secution is trusted to turn over evidence to the defense because its interest “is not that it shall win a c ase, but that justice shall be done.” Id. (quoting Berger v. United States , 295 U.S. 78, 88 (1935)).

The p rosecution’s d

uty to divulg e relevant information is

a “ b r o ad oblig ation

. ” Strickler
, 527 U.S. at 281. The prosecutor, althoug h “not required to d eliver his entire file to defense counsel,” is required to turn over evidence that is both favorable to the d efendant and material to the case. Bagley
, 4 7 3 U.S. at 675. This duty e x ists reg ardless of whether t h e defense made any request of the p rosecution; the prosecution is required to provide material, favorab l e i n formation even “where the defendant does not make a Brady request.” Id. at 680–82.

F avor a ble evidence is n ot limited to evidence that is

ex c u lpatory
, i.e., evidence that tends to p rov e t h e innocence of the defendant. F a vorable evidence includes that which impeaches a prosecution witness. I n Giglio v. United States
, 405 U .S. 150, 154 (1972), “the Government’s case depended almost entirely ” on one witness, y et the p rosecution failed to inform the defense that th e w itness testified in ex chang e for

a promise f

rom the go v e rnment that he would not be prosecuted. T he Supreme Court held that the prosecution was required to inform the defense about its ag reement with the witness because “evidence o f any underst a n d ing or ag reement

as to a future p rosecution would b e relevant to [ the witness’s]

cr e d i b i l i t y a

nd 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 c lear that the prosecutio n must disclose allA M A D O V

. G O N Z A L E Z 23

material impeachment evidence, not just evidence relating to cooperation ag

reements. See Bagley , 473 U.S. at 676.

A p ros e cu t or’s duty to reveal favorable, material i n f ormation ex tends to information that is not in t h e possession of the individual prosecutor try ing the c ase. I n Kyles v. W

hitley
, 514 U.S. 419, 441–42 (1995), police learned that a witness w h o implicated the defendant had provided a description of the suspect to the police that did not match the defendant. The prosecutors were apparently unaware that this

ex c u lp a t o r y information even e x isted. Still, the Supreme C o u r t held that the prosecutors had violated Brady
, for th e y had “ a duty to learn o f any f avorable ev i d e nce known to the others acting on the g overnment’s behalf in the cas e, including t h e p o l ice.” Kyles
, 514 U.S. at 437. This requirement meant th a t prosecutors had to put in place “procedures and reg

ulations

. . . to insure communication of all relevant information on e a ch c a s e to every lawy e r w ho d e a l s w ith it.” Id. a t 438 ( quoting Giglio
, 405 U.S. at 1 5 4 ). I nterpreting Kyles
, our circuit has observ e d that “[ b] ecause the prosecution is in a unique position to obtain information known to other ag ents of t h e g o v ernment, it may not be

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

T h e S u p r e m e Court has not tempered the Brady oblig ati o n of prosecutors by imposing a due d i l ig ence standard on defense c ounsel. Clearl y , d efense counsel cannot lay a trap f o r prosecutors by failing to mention or u se favorab l e impeachm ent or ex culpatory evidence of w hich they were aware, for the prosecution’s failure to disclose that evidence in such a c ase c a nnot be said to have “deprive[ d ] theA M A D O V

. G O N Z A L E Z 24

defendant of a fair trial.” Bagley
, 473 U.S. at 675. B ut 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 B lood. Nor,

as we discuss in the nex t section, could d e f e nse counsel be

ex p ected to know this information without the prosecution’s disclosure.

2. Application of

the Brady Standard

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

y c l a i m. At oral arg ument before this Court, the State c onceded that the prosecution had access to Hardy ’s conviction a n d probation records, for Hardy was prosecuted b y the same office that prosecuted Amado, the L os Ang eles County District Attorney ’s Offic e

. 1 1 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 ex tent [ a Brady oblig ation] pla c es a b urden on the larg e prosecution offices, procedures a nd reg ulations can be established to carry that burden and to insure communication of all relevant information on e ach case to every lawy er w ho deals with it.”).

At oral ar gument, the State questioned whether prosecutors had a ccess to records on Hardy ’s g ang affiliation. However, that information was discussed in t h e v e r y same

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

. L o n g B each f

a l l s u n d er t

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

f ice.A M A D O V

. G O N Z A L E Z 25

probation report that di s cussed Hardy ’s prior felony conviction. Had the State obtained that report, as the S t a te concedes it was required to do, it also would have discovered Hardy ’s g ang affiliation.

The State arg u e s that Amado’s counsel has not sufficiently shown when or how he lear n ed of the Brady material that th e p r o secution f ailed to produce. However, L apa n ’s declaration sufficiently states that he did not know this informati o n “ until after trial,” a nd there is n o reason to question his veracity . L apan declared: “I did not learn until after trial that W arren H a r d y was o n felony probation as a result of a robbery conviction and that in the probation report from t h a t o ffense, Hardy stated he was a ‘Piru B lood.’” L apan similarly represented to the Superior Court that “I didn’t know [ Hardy ] had a prior felony record [ at the time o f trial] ” and “I didn’t k

now he w as a B lood.” The Superior Court accepted this representation, holding ag ainst Amado on different g rounds.

The State’s primary arg ument is not that Amado’s cou n sel knew of the Hardy impeachment evidence, but that Amado’s counsel should have known about this evidence. Th e S tate,

r e l y i ng on several cases from this c ircuit, contends that Hardy ’s backg round was accessible to A mado’s counsel a nd that the State cannot b e said to have suppressed information that, with dilig e nce, could have been discovered. F o r

ex a mple, in United States v. Aichele
, 9 41 F .2d 761, 764 (9th Cir. 1991), we stated: “[ w ] hen

. . . a d e f e n dant h a s enoug h i n formation to be a

ble to ascertain the supposed Bra d y material on his o w n , t h ere is no suppression by the
g overnment” (citing U

nited States v. Dupuy
, 760 F .2d 1492, 1501 n.5 (9th Cir. 1985)). See also Uni t e d S t a tes v

. Bond
,A M A D O V

. G O N Z A L E Z 26

552 F .3d 1092, 1096 (9th Cir. 2 009) (holding that there is no suppression where defendants have the means of discovering the favorable information on their own and “there was no g overnment action to throw the defendant off the path of the alleg ed Brady information”); United S tates v. Bracy
, 67 F .3d 1421, 1428–29 (9th Cir. 1995).

I n a ll o f t h e s e c ases, however, the defendants had been advised specifical l y o f the source a nd nature of the Brady

ma t e r i a l
, and could not complain, having been so advised, that they could not o b tain that material. I n D u puy , for

ex a mple, the case that started this line, the prosecutor did not turn o ver her work product, n otes of her conversations with the defend a n t’s co-defendants that c ontained ex culpatory information. However, the court told the defendant to obtain the ex culpatory information f rom the co- d efendants themselves, and defendant failed t o m ake a showing that he could not have had full recourse b y f o l l owing the court’s
sug g estion. 760 F .2d at 1501–02. I n Aichele
, the g overnment had g iven defense counsel a transcript of an interview with a crucial g overnment witness and the witne s s ’s rap sheet, but had not also supplied the witness’s p rison records. 941 F .2d
at 764. Similarly
, in Bracy
, the g overnment g ave the defense
two r eports on a g overnment witness’s criminal history a nd a printout from a National Crime I nformation Center computer search about that witness, but d i d n ot p rovide details about that w itness’s c riminal history in two states. The production, the court ruled, was sufficient. See 67 F .3d at 1428. And in Bond
, the g overnment had g iven the defendant “ the essential factual data to determine whether the witness’ tes t i mony mig ht be h elpful.” 5 5 2 F.3d at 1 097. These cases hold that there is no violation of Brady if the g overnment provides the defendant with the core Brady materia l s and the defendantA M A D O V

. G O N Z A L E Z 27

fails to show that addi tional materials would h ave made a difference at the trial.

I n essence, the State interprets its Brady duty to r equire it
to produce o nly 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 C o u rt law, the pr o secutor has a “broad duty of d isclosure.” S trickler
, 527 U.S. a t 281; cf. United States v. Agurs
, 427 U.S. 97, 108 (1 9 7 6 ) (finding that “the prudent prosecutor will resolve doubtful questions in favor o f disclosure”). I n Strickler
, the Court noted that “if a prosecutor a sserts that he c omplies with Brady throug h a

n open file policy
, defense c o u n s e l may reasonably r ely on that file to contain all materials the State is constitutionally oblig ated to d isclose under Brady .” 5 2 7 U.S.
at 2 83 n.23. I n other words, if the defense has a g ood reason to believe that prosecutors ar e r e quired 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 any Brady material

on Hardy

. The prosecution never sug g ested to the d e fense that Har d y h ad a criminal backg round, even thoug h, under California law, as well as u nder Brady
, the prosecution must di s c l ose to the defendant “[ t] he ex istence of a felony conviction of any material w itness whose credibility is likely
to be crit i c al to the outcome of the trial.” California Penal Code § 1054.1(d). Moreover, Ama d o ’ s counsel could not easily have obtained the Hardy impeachment information wi t h o u t the assistance o f the prosecution, for it was “the policy of the [ California] Department o f J ustice to r elease rap sheets only to prosecutors, and defense disclosure requests [ were required to] g o throug h the prosecutor’s o f fice.”A M A D O V

. G O N Z A L E Z 28

Pe o p l e v. Little
, 68 Cal. Rptr. 2 d 907, 911 (Cal. Ct. App. 1997) ( citati o n omitted). W e therefore hold that the
p rosecution suppressed information on H ardy ’s crimin al backg round and g ang affiliation, in violation of Brady

.

W h ile we believe a de novo standard of review is appropriate here g iven that the California Court of Appeal did
not address Brady
, we would reach the same conclusion even if w e w ere to appl y 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 F ederal law, as determined by the Supreme Court o f the U nited States.” 2 8 U .S.C. § 2 2 5 4 (d)(1). Strickler and Kyles show that it is the prosecution’s duty to p r o v ide material impeachment information to the defense, not the defense’s duty to find that information by itself. T h e C a l i fo rnia Court of Appeal’s finding that Amado was required to demonstrate dilig ence in obtaining this information is at odds with this Supreme Court case law.

C. P rejudice

This court nex t must c o n sider whe t h e r Amado was prejudiced as a r esult of the St a te’s f ailure 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 r easonable probability that, had the evidence been d isclosed to the defense, the r esul t o f the proceeding would have been different. A ‘reasonabl e p r o b ability ’ is a probability sufficient to undermine confide nce in the outcome.” Bagley , 473 U.S. at 682. The test for materiality “is not a sufficiency of e vidence test.” Kyles
, 514 U.S. at 434.A M A D O V

. G O N Z A L E Z 29

Evidence can b e sufficient to sustain a verdict, and still Brady

can b e violated. I

d

. at 434–45. I f “ the favorable evidence [ not p r oduced] could reasonably b e taken to put the whole

case in such a d i f

ferent lig ht as to undermine confidence in the verdict,” Brady has been violated. Id. at 435.

1. The Jurors’ View of Hardy

The State withheld n o t o n e but three pieces of evidence that had the p otential of undermining Hard y ’ s testimony

. F irst, Hardy had a robbe r y felony conviction. Defense counsel could have arg ued that this c onviction rendered him

an untrustwort h y witness. Second, Hardy was on p robation for that conviction at the t i m e h e testified. Defense counsel could have arg ued that H ardy w as seeking favor with his probation officers b y helping the police solve a wellpubliciz ed murder c ase. Third, Hardy was a former member of a B loods g a

ng , and the defense c o uld h a ve a rg ued that Hardy was biased ag ainst a member or fri e nd of the rival Crips.

L apan’s cross-ex amination of Hardy did not a ddress these
p oints, for L apan, without the suppressed impeachment evidence, lacked a g ood-faith basis to ask the ap p ropriate questions. L apan’s cross-ex a mination was short, focusing on Hardy ’s weak vision and his arg uable inability to id e n tify
p eople running across his field of vision. The suppre s s e d information w ould have added to the force of the crossex a mination and defense counsel’s closing arg ument. There is a reasonable probability that the suppressed information would ha v e made a difference, causing the jury to view Hardy ’s implication of Amado with a g reat deal more suspicion.A M A D O V

. G O N Z A L E Z 30

T h e S t a te makes two arg uments why the jurors’ view o f Hardy would not have chang e d. F irst, th e State arg u es that Hardy was already impeached by the cross

- e xa m i n a t i o n on his weak v i sion. The suppressed information, however, could have been used to show that H ardy had a motive to embellish the truth, and even to lie. T his is a n entirely different reason to cast d o ubt o n H ardy ’s words than the one presented at trial.

The State’s second arg ument is that Hardy ’s reluctance to testify and limited memory s h o ws that he was not biased
ag ainst Amado. I f Hardy was testify ing ag ainst Amado in order to win favor with the prosecution, he would have been much more h elpful and supplied detailed answers while on the stand, the State reasons. T his arg ument, however, ig nores Hardy ’s c oop e r ation w ith the police the nig ht after the shooting

. Hardy provided substantial assistance to the police

on that day
, voluntarily calling the authorities and identify ing Amado as the teenag er he saw w ith th e gu n

. The details o f Hardy ’s initial implication of A mado were ad mitted into evidence throug h the testimony of Detective Esquivel, w ho helped fill in the g aps of Hardy ’s sometimes spotty testimony

. Thus, Hardy ’s initial iden t ification of Amado—possibly tainted b y H ardy ’s motives for bending the truth—made it into the mix of evidence considered by the jury

.

2. Reasonable P robability of a Dif f erent Result

Hardy ’s statements ag ainst Amado, in his testimony and

a s introduced throug h Detective Esquivel, were critical to Amado’s conviction. Hard y was the only person to testify that Amado broug ht a weapon to t h e scene. W ithout such testimony
, it is doubtful if the jury w o u l d h a v e found that Amado had the requisite criminal intent to aid and abetA M A D O V

. G O N Z A L E Z 31

J ohnson’s a t t a ck on the passeng ers on the bus. I ndeed, without such ev i d e n ce, Amado was just one member of a crowd. Mere pre s e n ce in a crowd is not sufficient to render

a pers o n a n accomplice. See People v. Salgado
, 105 Cal. Rptr. 2d 373, 381–82 (Cal. Ct. App. 2001).

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

. The prosecutor arg ued during summation that Hardy ’s testimony on Amado’s c arry ing of a g un showed he was involved in t h e “ s i gnificant a mount o f planning a nd talking ” about t h e attack prior to the shooting

. The prosecutio n e mphasiz ed that Hardy “specifically describes somebody that looks like Randall A mado, and then later picks
t h a t person out the nex t day .” Hardy was the one w h o “hear[ d] people discussing the shooting ” and called the police
to set the case in motion. T h e p r osecution told the jury that “the only reason” Hardy had to i d e n tify Amado was that he
tr u l y believed that Amado was “the g uy who he saw on J anuary the 16th, 1997, with a g un.” W o u l d the p rosecutor have arg u ed with such conviction if Hardy h ad been impeached by his r ecent robbery conviction, his felony probation status with a mo t i v e t o curry favor with the authorities, and his past membership i n the B loods, in frequent rivalry and conflict w ith members of the Crips? The prosecutor’s failure to discharg e his B r a dy o blig ations enabled him to b olster H ardy ’s credibility well b ey o nd the credibility Hardy w ould have had if all the impeaching information had been made available to defense c ounsel and, by defense counsel, to the jury

. Rely ing on California cases t h a t b r o a dly apply accomplice liabil i t y to g a

ng members, the State contends that even if Hardy had n ot testified at all, Amado still could have beenA M A D O V

. G O N Z A L E Z 32

co n v icted. See, e.g ., People v. Medina
, 209 P.3d 105, 112 (Cal. 2009) (g ang member involved in a fistfig ht responsible for shooting committed by another member of his g ang ); People v

. A

y a l a , 105 Cal. Rptr. 3d 575, 585 (Cal. Ct. App. 2010) (g ang member participates in murder w h e n he rides with a fellow g ang member to a ssist him in a beating of a rival g a ng ); People v. Montes
, 88 Cal. Rptr. 2d 482, 486 (Cal. Ct. App. 1999) (g ang member who wielded a c hain in a g ang fig ht r esponsible for shooting committed by a fellow g ang member). B ut without Hardy
, the only evidence ag ainst Amado was B arner’s and Grisson’s testimony
, which showed that, at best, Amado ran to the bus w ith others, many of whom

were not indi c t e d

. On such evidence, it is questionable if a jury could have convicted Am a d o o f intending to facilitate murder. See Salgado , 105 Cal. Rptr. 2d at 381–82.

W e do n ot need to decide more t h a n the question before us—whether the prosecutor’ s v i olation of Brady was prejudicial. T he standard is not w hether there is s u f f i cient evidence for conviction, but whether the r e i s a “reasonable probability ” that the o utcome would have been d iffer ent, meaning that “the favorable evidence could reasonably be taken to put the whole case in such a di f f e r ent lig ht as to undermine confidence in the verdict.” Kyles
, 514 U.S. at 435. Here, that standard i s m e t

. The impeaching evidence was strong enoug h to cast a cloud o f doubt o v er Hardy ’s testimony

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

no proof tha t A m ado had a ny discussions with J ohnson a ndA M A D O V

. G O N Z A L E Z 33

Pug h, o r had a strong relationship with them that would have
sug g ested that J ohnson a

nd Pug h had shared their plan with A m a d o. Hardy ’s testimony that Amado carried a g un w a s influential to the jury

in delivering a verdict ag ainst Amado, and it is reasonably probable that a jury
, if made aware of the impeaching information ag ain s t Hardy
, would have g iven little, if any , credence to his testimony and would have returned a different verdict.

III. Conclusion

I n failing to disclose material im p ea c hing evidence to Amad o before or during trial, the State violated Amado’s rig ht to due process under Brady

. Amado is entitled to a new trial. W e reverse a

nd r emand with instructions to gr a n t the writ of habeas corpus and release Amado from custody unless the district attorney o f L os Ang eles County
, wit h i n 6 0 day s, initiates proceeding s for a new trial.

REVERSED and REMANDED.

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

I respectfully dissent from the majority ’s conclusion that the state court’s denial of Randall Amado’s Brady 1 2 claim entitles A mado to habeas r elief. As the majority acknowledg es, this case is g overned by the p rovisions of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). See Majority Opinion
, p. 14. Under the strictures

12 Bra d y v. Ma ryla n d , 3 7 3 U.S. 8 3 (1 9 6 3 ).A M A D O V

. G O N Z A L E Z 34

set forth in AEDPA, our review o f state court ruling s is severely cabined. U nder AEDPA, even de novo review is not really d e novo

. Rather, we review the state court decision for reasonableness. Only if the state court decision is objectively unreasonable is habeas relief warranted. See W iggins v

. Smith
, 539 U.S. 510, 5 20–21 (2003). Habeas r el ief is not warranted simply because w e t hink the state court g ot it
wrong

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

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

As the U nited States Supreme Court emphasiz e d in Harrington v. Richter
, 131 S. Ct. 770, 785 (2011), “an unreasonable application of federal law is different f r o m an incorrect application of federal law. A state cou r t m ust be
g ranted a deference and latitude that are not in operation when the case involves review u n der the [ Brady ] sta n d a r d itself.” (citation and internal quotation marks omitted).

I n Richter
, we were reminded that “[ a] state c o u rt’s de t e r m ination that a claim lacks merit precludes federal habeas relief, so long as fairminded jurists could disag ree on the correctness of the state court ’ s d e c ision.

. . .” Id

. at 786 (citation and internal quotation marks omitted). The Supreme Court cautioned us: “I t bears repeating that even a strong case for r elief d oes not mean the state c ourt’s contrary conclusion was unreasonable.” Id

. (citation omitted).

The Supreme Court left no doubt that habeas r elief should
not be g ranted readily
, stating in no uncertain terms: “I f [ the h a b e a s ] standard is difficult to meet, that is because it w a s meant to be.

. . .” Id

. T h e Supreme Court ex plained thatA M A D O V

. G O N Z A L E Z 35

AEDPA stopped just s h o r t of completely p rohibiting reli t i ga t i o n in federal court of claims of e rror that were previously rejected in state court. See id

. The Supreme Court clarified that AEDPA only “preserves authority to issue the writ in cases wher e there is n o possibility fairminded jurists could disag ree that the state court’s d ec i s i on conflicts with [ Supreme Court] precedents. I t g oes n o farther.” I d

. Rather than provid i ng a pathway to second g uessing state court decisions, habeas corpus as amended by AEDPA “is a g uard
ag ainst ex treme malf

u n ctions in the state criminal justice
sy stems, not a substitute for o rdinary error correction throug h appeal.

. . .” Id

. (cit a t i on and internal q uotation marks omitted).

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

pplied, the more leeway the state has to apply the rule in case-by -case a p p l i c a tions. See id

. Brady is a rule o f
g eneral application, see United Stat es v

. Bagley
, 473 U.S. 667, 682–83 (1985) (adopting the broad prejudice standard established in Strickland v. W ashington
, 4 66 U.S. 6 6 8 (1984), for B rady materiality analy sis); see also Cobb v

. Thaler
, 682 F .3d 3 64, 381 (5th Cir. 2012) (“[ L ] ike Brady’s dis c l o s ure requirement, the materiality standard is a g eneral rule, meaning a wide r ang e of reasonable applications ex ist.

. . .”) (citation o mitted). According ly
, we must a fford t h e state courts considerable leeway in apply i ng the principles articulated in the Brady d ec i s i o n

. W e must also keep in the forefront of o u r analy sis the limitations of our review. The majority ’s conclusion simply cannot be r econciled with these precepts.

Amado was convicted as an ai d er and abettor, which

means that the prosecutor had no obli ga t i o n to prove thatA M A D O V

. G O N Z A L E Z 36

Amado fired the shots that killed one victim a n d wounded another. S

ee, e.g. , People v

. Salgado
, 88 Cal. A pp. 4th 5, 15 (2001) ( “Aiding and abetting requires a person to promote, encourage o r instig ate the crime with knowledg e of its unlawful pur

p o se.”) (citations omitted). Therefore, any testimony r eg arding wheth er Amado had a g un w as not material. See Banks v. D retke
, 540 U.S. 668, 698 (2004) (defining materiality in terms of i t s p otential e ffect on the outcome of the case).

Unlike the majority
, I focus my analy sis on whether the
state court’s denial of relief was objectively unreasonable, not whether Amado suffered prejudice in the first instance. S ee Rich t e r , 131 S. Ct. a t 785 (cautioning ag ainst directly reviewing the federal rule r at h er t han reviewing the state court’s application of that rule). Viewed throug h that prism, I c a nnot say that no fairminded jurist could disag r ee that the
state court’s decision was unreasonable, a nd neither should the majority

. See id

. at 786; see also W igg i n s , 5 3 9 U.S. at 520–21 (incorporating the “obj ectively unreasonable” standard). The state court applied Brad y , a rule o f g eneral 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 ag ree with the presumably f airminded district court that the state c ou r t did not unreasonably apply Brady

. On the i s s u e o f p rejudice, w hich is the fulcrum of the majority ’s analy sis, t h e record r eflects that there w as testimony
, other than that of W a

rren Hardy
, to support the aiding and abetting theory of c onviction. Natash a B arner identified Amado a s part o f t h e group at the bus stop who boarded the bus to confront rival g a

ng members. W itness J ohn Gri s s o n alsoA M A D O V

. G O N Z A L E Z 37

identified Amado as a mong the “group of g uy s” who “ran

across the street” toward t h e bus stop where the shooting occurred, boarded the bus, and fled following the shooting

.

The r ecord also reveals that Hardy was f ar f r o m b eing a stellar witness f

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

ing any one to the police. H ardy also confirmed that he d id n o t w itness the shooting and that he failed to identify Amado from a photog raph that was presented to him during the trial. Give n H a r dy ’s ex tensive self-impeachment a nd the ex istence of other witnesses w ho attested to Amado’s aiding and abetting of the shooting
, it

was not objectively unreasonable f or the state court to find a lack o f prejudice to Amado, i.e
., that the undisclosed evidence would not have affected the jury ’s verdict. S e e S t i c kler v

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

. . . .”) (citation and internal quotation marks omitted) ( emphasis added). I n view o f the “deference, latitude and leeway ” we are to afford the state c ourt’s application of the B rady rule, id

. , it is hard to comprehend how one could c o n c l ude that the state court’s decision “was so lacking in justificatio n t h a t there was an

error well understood and c o mpre h en d e d in ex isting law bey ond any possibility f

o r fairminded disag reement.” Id

. at 786–87.

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

.A M A D O V

. G O N Z A L E Z 38

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

—, 2013 WL 4490922, at *9–*12 (9th Cir. Aug ust 23, 2 013) (reviewing Brady issue on direct appeal without deference to the trial court’s ruling ). However, the Supreme Court has told this Circuit s p e cifically
, emphatically
, and in n o uncertain terms, to c urb our appetite when it come s t o h abeas review. See Richter , 131 S. Ct. at 785–86 (chastising this Circuit for conducting a de n o v o review w ith no deference to the state court decision).

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