FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JOSEPH P. SHELTON,

Petitioner,

v.

JOHN C. MARSHALL; ATTORNEY

GENERAL OF THE STATE OF

CALIFORNIA,

Respondents-Appellees.

No. 13-15707

D.C. No.

4:10-cv-01100-

PJH

OPINION

Appeal from the United States District Court

for the Northern District of California

Phyllis J. Hamilton, Chief District Judge, Presiding

Argued and Submitted November 20, 2014

Submission Vacated November 25, 2014

Submitted August 7, 2015

San Francisco, California

Filed August 7, 2015

Before: Sidney R. Thomas, Chief Judge and Stephen

Reinhardt and Morgan Christen, Circuit Judges.

Opinion by Judge Reinhardt
2 SHELTON V. MARSHALL

SUMMARY*

Habeas Corpus

The panel reversed in part and affirmed in part the district

court’s denial of California state prisoner Joseph Shelton’s

habeas corpus petition challenging his convictions for the

first-degree murder of Kevin Thorpe, the second-degree

murder of Laura Craig, kidnapping, and theft.

The panel held that the prosecution’s suppression of a

material part of its deal with key witness Norman Thomas

violated Brady v. Maryland with respect to Shelton’s

conviction for the first-degree murder of Thorpe, and ordered

the writ granted as to that conviction. The panel explained

that Thomas’s testimonywas central to the prosecution’s case

that Shelton premeditated and deliberated regardingThorpe’s

murder, and held that there is a reasonable probability that

had the jury known of the prosecution’s serious doubts as to

Thomas’s mental competence and of its successful efforts to

prevent him from obtaining a competency test until after he

testified, it would have reached a different result on that

count. The panel concluded, in a memorandum disposition,

that had Thomas been impeached by evidence of the secret

deal with the prosecution regarding his competency, there is

not a reasonable probability that the jury would have reached

a different result with respect to Shelton’s convictions for the

second-degree murder of Craig, kidnapping, and theft.

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

been prepared by court staff for the convenience of the reader.
SHELTON V. MARSHALL 3

COUNSEL

William L. Osterhoudt (argued) and Dolores T. Osterhoudt,

Law Offices of William L. Osterhoudt, San Francisco,

California, for Petitioner-Appellant.

Peggy S. Ruffra (argued), Supervising Deputy Attorney

General; Kamala Harris, Attorney General; Dane R. Gillette,

Chief Assistant Attorney General; Gerald A. Engler, Senior

Assistant Attorney General; Christopher J. Wei, Deputy

AttorneyGeneral, San Francisco, California, for RespondentAppellee.

OPINION

REINHARDT, Circuit Judge:

Joseph Shelton, who is serving 40 years to life for the

brutal kidnapping and murder of Kevin Thorpe and Laura

Craig in 1981, appeals from the denial of his petition for a

writ of habeas corpus. We hold that the prosecution’s

suppression of a material part of its deal with a key witness,

Norman Thomas, violated Brady v. Maryland, 373 U.S. 83

(1963), with respect to Shelton’s conviction for the firstdegree murder of Thorpe and order the writ granted as to that

conviction. Thomas’s testimony was central to the

prosecution’s case that Shelton premeditated and deliberated

regarding Thorpe’s murder, and there is accordingly a

reasonable probability that had the jury known of the

prosecution’s serious doubts as to Thomas’s mental

competence and of its successful efforts to prevent him from

obtaining a competency test until after he testified, it would

have reached a different result on that count. We conclude,
4 SHELTON V. MARSHALL

however, in a memorandum disposition filed along with this

opinion that, had Thomas been impeached by evidence of the

secret deal with the prosecution regarding his competency,

there is not a reasonable probability that the jury would have

reached a different result with respect to Shelton’s

convictions for the second-degree murder of Craig,

kidnapping, and theft. Thus, we affirm as to those counts.

I. Background

A. The offenses and trials

Shelton stands convicted of the first-degree murder of

Thorpe, the second-degree murder of Craig, two counts of

kidnapping, two counts of theft, and two weapons charges. 

Most of the basic facts are undisputed. On January 11, 1981,

Thorpe and Craig were driving through Madeline, California

on the way to college when Shelton, Thomas, and Benjamin

Silva spotted them at a gas station and subsequently abducted

them. The three men took the couple to Shelton’s cabin,

where Thorpe was chained to a tree while Craig was held

inside.

The next day, Thorpe was shot to death with a machine

gun. At Silva’s direction, Thomas dismembered Thorpe’s

body and the two men disposed of it in a remote location.

Craig was murdered on the side of the road a few days later.

She had been shot twice.

Thomas was subsequently arrested for a probation

violation. While in custody, Thomas told the police about the

murders and directed them to Thorpe’s remains and other

physical evidence of the crimes. Shelton turned himself in

shortly thereafter, waived his rights, and gave a series of
SHELTON V. MARSHALL 5

partially inculpatory though sometimes inconsistent

statements to the police. He also led them to Craig’s remains.

At Shelton’s trial, the State’s evidence consisted primarily

of Thomas’s testimony, Shelton’s own statements to

investigators, and a series of notes passed between Shelton

and Thomas while the two were in jail.1 The defense case

consisted of Shelton’s testimony that he had been present

during the crimes but that he was intoxicated on various drugs

and alcohol, did not willingly participate, and feared that if he

resisted or tried to leave, Silva would kill him and his family.

2

There was thus no dispute that Shelton was at least present

for all of the crimes. At issue with respect to Thorpe’s

murder—the only question we deal with in this opinion—is

the degree of Shelton’s participation and whether he

possessed the requisite mens rea, i.e, whether he “deliberated

and premeditated” as required by California law for a

conviction of first-degree murder. See infra note 13.

At trial, Thomas and Shelton testified to different versions

of the crimes. In both versions, Silva was the primary

instigator. Their testimony differed greatly, however,

1 The jury also heard testimony about the scene of the crimes, the

condition of the bodies, the property of the victims that was recovered, the

weapons and other items found in the cabin and the surrounding area, and

the local geography. None of this evidence conveyed anything about

Shelton’s particular role in the crimes, with the exception oftestimony that

Shelton’s fingerprints were found on a car stereo taken from the victims’

car and on sundry items in the cabin, and that he was wearing Thorpe’s

boots when he turned himself in. None of this testimony shed any light on

the question whether Shelton was guilty of first-degree deliberate and

premeditated murder.

2 At the time of the crimes, Silva was a Hell’s Angel and a fugitive.

Shelton and Thomas’s relationships to the Angels was less clear.
6 SHELTON V. MARSHALL

regarding the degree of Shelton’s participation. According to

Shelton, when Silva spotted the couple at the gas station and

proposed kidnapping them, Shelton said that he “didn’t want

no part of it.” He initially denied that the men had discussed

kidnapping and killing people before they saw Thorpe and

Craig, but when his recollection was refreshed with a copy of

a statement he gave to an investigator the day after he turned

himself in, he admitted that the three men had discussed

kidnapping a girl a few weeks before the crimes.

A few miles past the gas station, Silva used a red light to

pull the couple’s car over. Shelton testified that he was with

Silva when he purchased a light like the one used, but that it

was purchased for an unrelated prank and he never held it

during the kidnapping. Once the victims’ car stopped, Silva

and Thomas ran up to it, entered it, and abducted the couple

at gunpoint. Shelton remained in the truck in which the three

men had arrived and followed the couple’s car to his cabin;

he testified that he did not drive off because he believed that

“Silva would have killed me. . . . He would have killed my

family.” When they arrived at Shelton’s property, Silva told

Craig and Thorpe to get on the back of the truck, which

Shelton then drove to the cabin. Shelton then remained at the

cabin with Craig, Thorpe, and Silva, while Thomas left for a

short period. When Thomas returned, he and Silva took

Thorpe outside, and he later told Shelton that they had

chained Thorpe to a tree. Silva and Thomas then left until

morning. While they were gone, Shelton gave Thorpe a

sleeping bag.

Shelton testified that after Silva and Thomas returned the

next day, Silva “said he was moving [Thorpe] because he

could be seen from the road.” Shelton, who said that he

believed that he was unarmed, stated that he then walked with
SHELTON V. MARSHALL 7

Thorpe, who was still chained, up a hill, while “[Silva] took

off . . . to get . . . some more chain and stuff.” Shelton denied

knowing that Thorpe was being taken up the hill to be killed,

and said that he did not speak to Thorpe while they waited

“not [a] very long” time before Silva returned. Shelton

testified that when Silva returned, he “heard a click and . . .

turned around and [Silva] was standing there with a machine

gun;” Shelton said he was halfway between Silva and Thorpe

and “jumped behind a tree when the bullets started flying.”

After Silva emptied a clip (thirty bullets) into Thorpe, Shelton

said that Thorpe fell to the ground, and then Silva fired half

of another clip into him. According to Shelton, Silva then

“gave [Shelton] the gun and said shoot him.” Shelton

admitted that he then fired the rest of the clip at Thorpe, but

stated that he didn’t think that he hit him and that he “wasn’t

aiming at him.” He said that although he had previously told

police that he hit Thorpe in the eye, “that was something that

stuck in my mind from something else.” Shelton stated that

if he hadn’t shot at Thorpe, Silva would have killed him “the

second I said no.”

Shelton testified that in the days following Thorpe’s

murder, he tried to protect Craig from Silva. He said that at

one point he left the cabin with her and that they ran across a

meadow and over a hill “when [Silva] caught us.” He also

stated that he thought that he could talk Silva out of killing

Craig, that at one point he had in fact talked Silva out of

killing her, that Craig liked Shelton more than the others and

was not afraid of him, and that she could have left at any

time. He denied knowing that she would be killed when he

and Silva left the cabin with her, purportedly to take her to

see the head of the Hell’s Angels. Shelton stated that Silva

stopped along the way to buyCraig a Pepsi and that Silva was

very calm, leading him to believe that he would not shoot her.
8 SHELTON V. MARSHALL

Silva later stopped the truck to change drivers but then

suddenly shot Craig as he rounded the vehicle. Finally,

Shelton testified that he was on speed, “reds, valium, and pot”

the night of the kidnapping but that he was not intoxicated

when Craig was killed.

Thomas’s testimony about Shelton’s role in the crimes

differed considerably. In his account, none of the men

consumed any alcohol or drugs during the course of the

criminal activities. According to Thomas, Shelton and Silva

had discussed kidnapping people prior to the crimes and said

that if they did so, they would have to kill them. At the

Madeline gas station, Silva said he “wanted” Craig, and

Shelton remarked that she was pretty. Just prior to the

kidnapping, Thomas and Shelton swapped positions in the

truck after Shelton declined to do the kidnapping because he

was too well known in the area.

Thomas testified that it was Shelton and Silva who

chained Thorpe to the tree outside of the cabin, that it was

Thomas who gave him a sleeping bag, and that Shelton

became upset when Craig was left unguarded. With respect

to Thorpe’s murder, Thomas testified that Shelton was armed

when he left with Silva and Thorpe to go up the hill, that

Shelton returned and told Thomas to turn on the stereo, and

that Silva later returned and told him to turn up the

volume—the inference being that they wanted to mask the

sound of gunfire.

According to Thomas, Shelton later confessed his role in

Thorpe’s murder to Thomas, stating that he had watched

Thorpe while Silva went to get a machine gun; that Thorpe

cried and asked to be unchained; and that while waiting for

Silva, Shelton told Thorpe “to look at the mountain, because
SHELTON V. MARSHALL 9

it was the last thing he would see.” Thomas also said that

Shelton told him that Thorpe’s arm was reaching up after

Silva emptied the first clip into him, that Silva then shot him

again, and that then “[Shelton] took the machine gun and shot

the guy all over again.” Finally, Thomas testified that Shelton

laughed as he recounted the murder to him.

The jury also heard testimony regarding incriminating

statements that Shelton made to various law enforcement

officials after turning himself in, both via the reading of

transcripts and officer testimony.

3

In interviews on January

31, 1981 and February 1, 1981, Shelton professed to have

been intoxicated during the kidnapping, yet recounted details

of the events, including that the men discussed kidnapping a

female before the abduction. According to this testimony, he

also stated that he was armed during the initial kidnapping,

that he had sex with Craig in the cabin but that, unlike when

Silva and Thomas had sex with her, his sexual acts were not

forcible.4

During the initial interviews on January 31 and February

1, Shelton claimed that he was not present for Thorpe’s

murder and that he learned about it from Thomas. A sergeant

3 The jury heard (or was read): (1) a transcript of an interview on

January 31, 1981; (2) testimony from Sergeant Coulter of the Shasta

County Sheriff’s Office about interviews on February 1, 1981 and

February 2, 1981; (3) a transcript of an interview on February 2, 1981; and

(4) testimony froman investigator for the California Department ofJustice

about an unrecorded interview with Shelton on February 3, 1981.

4 On January 31, Shelton stated in a recorded interview that he was

“always armed” during this period in which the crimes took place. On

February 3, he said he might have been armed during the kidnapping but

wasn’t sure.
10 SHELTON V. MARSHALL

testified that Shelton stated that while he was inside the cabin

with Craig, “Mr. Thomas and Silva came in and told him to

turn the music up on the stereo. And a little later they came

back and told him to turn it up a little louder.” The sergeant

also testified that Shelton said that before Silva and he left the

cabin with Craig, Silva told him he was going to kill her with

a baseball bat, and that Shelton “indicate[d] that he didn’t

believe she had any chance to escape or leave.” Shelton’s

account of Craig’s murder was otherwise consistent with his

account on the stand—that Silva stopped the car to switch

drivers, but then, without any indication of his intent to do so,

suddenly shot Craig.

Shelton’s story regarding Thorpe’s murder changed

during interviews on February 2. He first denied being

present during Thorpe’s killing. Later, in interviews on that

day and the next, however, he admitted being present and

recounted the Thorpe killing consistently with his trial

testimony, except that he said nothing about what he thought

Silva was planning to do (either when they went up the hill or

when Silva left him with Thorpe) and he admitted that he

“might have” been armed at the time but wasn’t sure. In these

interviews, Shelton never gave any indication that he knew in

advance that Silva was planning to shoot Thorpe. At trial,

Shelton claimed that his story had changed from the initial

interviews because he had tried to block out the Thorpe

murder.

During an interview on February 2, Shelton said that the

reason he at one point took Craig across a meadow and over

a hill was that he thought the Hell’s Angels were coming and

that he and Silva “hadn’t come to an agreement yet as to what

was going to happen to her.” He explained that they might
SHELTON V. MARSHALL 11

make her “a prostitute, x-rated movie maker, club passaround” or someone’s “old lady.”

An investigator with the California Department of Justice

testified, on the basis of the only unrecorded interview, that

on February 3, 1981, Shelton stated that prior to the

kidnapping, “there had been a conversation that if in fact [a]

kidnapping were to take place that they might have to kill the

victims”; that “Mr. Silva spoke of it on numerous occasions”;

and that Silva and Shelton had purchased the red light in

preparation for committing a kidnapping. The investigator

also testified that Shelton told him that when he and Silva left

the cabin with Craig, he was convinced that she would be

murdered—about 90% sure—but “felt by his being present

perhaps somewhat he could intercede and save her.”

Shelton’s statements on February 2 and 3 regarding Craig’s

murder were otherwise the same as at trial.

The prosecution also introduced into evidence several

notes that Shelton wrote to Thomas while the two were in jail

subsequent to Shelton learning that Thomas was cooperating

with the prosecution and subsequent to all of Shelton’s

inculpatory statements to the police. The notes have no

bearing on the issue in this appeal, as they did not discuss

Thorpe’s murder or contain evidence of premeditation or

deliberation.5

5 For example, in one note Shelton told Thomas to tell his lawyer that he

decided to tell the truth because “Joe almost died last night, and was

refused medical attention, and you felt sorry for me.” In another note, he

told Thomas that “if the lawyer can’t get you off, I’ll break you out.” He

also said that Thomas should testify that Shelton received a ride from an

old cowboy after they saw the couple at the gas station and was not seen

again until the crimes were over. A third note told Thomas to start

attending bible study because it would help their case.
12 SHELTON V. MARSHALL

On November 17, 1981, after deliberating for two and a

half days, the jury convicted Shelton of the first-degree

murder of Thorpe, the second-degree murder of Craig, two

counts of kidnapping, two counts of theft, possession of a

machine gun, possession of a silencer, and one special

circumstance with respect to the Thorpe murder, making

Shelton eligible for the death penalty. Significantly, the

verdict reflects that the jury acquitted Shelton of the charge

of first-degree murder of Craig. After the jury declined to

impose a capital sentence for Thorpe’s murder, the court

sentenced Shelton to life without parole on that charge and

fifteen years to life for Craig’s murder in the second degree

to be served consecutively. It stayed its sentences with

respect to the other counts. On June 27, 1984, the California

Court of Appeal affirmed the judgment but struck the special

circumstance in an unpublished opinion. Shelton was then

resentenced to twenty-five years to life for the murder of

Thorpe.

Silva was tried after Shelton in January 1982. Thomas

was again the principal prosecution witness. Shelton was

called to testify, but invoked his Fifth Amendment privilege

against self-incrimination. See Silva v. Woodford (“Silva I”),

279 F.3d 825, 828 (9th Cir. 2002). Silva was convicted of the

first-degree murder of Thorpe, the kidnapping and theft of

both Thorpe and Craig, and possession of a machine gun and

silencer. Id. at 829. He was acquitted, however, of the murder

of Craig. He was then sentenced to death for the murder of

Thorpe. Id.

B. The prosecution’s secret deal with Thomas

In 1986, Silva’s counsel learned that before Shelton’s and

Silva’s trials, Thomas’s attorney, Rex Gay, approached
SHELTON V. MARSHALL 13

Lassen County District Attorney Paul DePasquale, the

prosecutor in both cases, and “indicated . . . that [Gay]

believed that Mr. Thomas was either unable to cooperate in

his own defense, or insane.” Prior to this, Gay had also

obtained a protective order prohibiting the undersheriff from

speaking with Thomas “based on the belief that he was

incapable of understanding [his] rights.” Prior to the crimes,

Thomas had suffered a severe motorcycle accident resulting

in an extended coma, and Gay “noted a certain slowness in

his mannerisms and a defect in his speech pattern.” Gay told

DePasquale that he “had immediate plans to have [Thomas]

interviewed by two psychiatrists.”

DePasquale agreed with Gay that he would be unable to

obtain a conviction of either Silva or Shelton without

Thomas’s cooperation. DePasquale and Gay also agreed that

a psychiatric analysis of Thomas would “supply ammunition

to the defense.” They then reached a plea agreement in which

Gay would refrain from having Thomas psychiatrically

examined, Thomas would testify against Shelton and Silva,

and DePasquale would drop murder charges against Thomas.

The portion of the deal pertaining to Thomas’s mental

competency was not disclosed to either Shelton or Silva.

Indeed, Shelton first learned about it when he read this

Court’s 2005 decision granting habeas relief to Silva.

C. Subsequent procedural history

In 2002, this Court, through a different panel of judges,

granted Silva’s habeas claim for penalty-phase ineffective

assistance of counsel and remanded for an evidentiaryhearing

on a Brady claim based on the prosecution’s failure to

disclose the portion of the deal with Thomas relating to
14 SHELTON V. MARSHALL

Thomas’s not undergoing a psychiatric examination.6Id. at

855–56. On remand, the district court found that the

prosecution had indeed made the secret deal but held that it

was not material to the convictions (or the penalty). See Order

Denying Claim D, Silva v. Woodford, No. 2:90-cv-03311-DT

(C.D. Cal. Dec. 22, 2003), ECF no. 200, at 9–15; see also

Silva v. Brown (“Silva II”), 416 F.3d 980, 984–85 (9th Cir.

2005). In 2005, the same panel of judges of this Court

reversed in part and ordered that the writ be granted as to

Silva’s conviction for the murder of Thorpe, but affirmed the

denial of relief as to the kidnapping, robbery, and firearms

convictions. Silva II, 416 F.3d at 992.

On November 8, 1991, Shelton filed his first federal

petition alleging that a post-arrest statement was unlawfully

obtained and that the trial court erred by failing to instruct the

jury on diminished capacity. This first petition was denied by

the district court but never considered on the merits by this

Court.7

Although Silva filed a state habeas petition in 1989 based

on the same underlying facts as the instant Brady claim,

Shelton did not learn of the matter until he discovered, in the

prison law library, this Court’s 2005 opinion granting relief

to Silva. On May 4, 2006, Shelton presented the instant Brady

6 Silva’s filed his habeas petition prior to AEDPA’s effective date. Silva

I, 279 F.3d at 831 & n.5.

 

7

 On December 16, 1992, Shelton’s first federal petition was denied in

full by the district court. On December 15, 1993, this Court declined to

consider the merits of the petition because Shelton failed to file a Notice

of Appeal with respect to the December 1992 order, although he had filed

a Notice of Appeal with respect to a November 1992 order in which the

district court denied the petition in part and stayed it in part.
SHELTON V. MARSHALL 15

claim to the California Superior Court, which denied relief in

a written decision on August 24, 2006 stating that the secret

agreement did not concern evidence that was “favorable to

petitioner.” The California Court of Appeal summarilydenied

relief on November 30, 2006, as did the Supreme Court of

California on June 13, 2007.

Shelton filed a second federal petition raising his Brady

claim on June 25, 2007. After the district court dismissed the

petition as second and successive, this Court granted

authorization to file a second petition on November 4, 2008

on the ground that the prosecution’s deal with Thomas

constituted newly discovered evidence. Shelton filed his

second petition on December 17, 2008. On April 8, 2013, the

district court denied the petition but granted a certificate of

appealability as to the materiality of the prosecution’s

undisclosed agreement with Thomas. Shelton appeals.

II. Analysis

A. Standard of Review

Shelton’s habeas petition raising the instant Brady claim

was filed after the effective date of the Antiterrorism and

Effective Death Penalty Act of 1996 (AEDPA). AEDPA

therefore applies to Shelton’s claim, although it was

inapplicable in Silva’s case.8

 Under AEDPA, a federal court

8 Shelton did not learn of the prosecution’s bargain with Thomas that he

would not submit to mental examination before Shelton’s trial until some

time following this Court’s issuance of its decision in Silva’s case in 2005.

He asks the panel to toll the application of AEDPA based on the State’s

misconduct in failing to advise him of its deal with Thomas even after it

began litigating an essentially identical Brady claim in Silva’s case—as

early as 1989. We do not reach that issue in light of our holding below.
16 SHELTON V. MARSHALL

may not grant the writ based on a claim adjudicated on the

merits by a state court unless that 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). The district court’s

denial of the writ is reviewed de novo. Lambert v. Blodgett,

393 F.3d 943, 964 (9th Cir. 2004).

B. Application of AEDPA

There are three distinct elements of a Brady violation:

First, “[t]he evidence at issue must be favorable to the

accused, either because it is exculpatory, or because it is

impeaching.” Strickler v. Greene, 527 U.S. 263, 281–82

(1999). Second, “that evidence must have been suppressed by

the State, either willfully or inadvertently.” Id. at 282. Third,

“prejudice must have ensued.” Id.9 The decision of the

California Superior Court was the last reasoned state court

decision in this case and is accordingly the subject of our

review.10In that decision, the court ruled only on the first

element of Shelton’s claim—whetherthe suppressed evidence

was favorable to Shelton.

9 The terms “prejudice” and “materiality” are used interchangeably. See,

e.g., Silva II, 416 F.3d at 985.

10 Where a state court of last resort issues a postcard denial of a habeas

petition, the federal court “looks through” the summary denial and

considers the last reasoned decision by a state court. Ylst v. Nunnemaker,

501 U.S. 797, 803–04 (1991); see also Avila v. Galaza, 297 F.3d 911, 918

(9th Cir. 2002).
SHELTON V. MARSHALL 17

The California Superior Court’s denial of Shelton’s

habeas corpus petition on the ground that “it is difficult to

conclude that anything favorable to petitioner was

suppressed” is contrary to clearly established law, as

determined by the Supreme Court. Evidence that the

prosecution believed Thomas to be incompetent was powerful

fodder for impeaching his testimony against Shelton. See

Silva II, 416 F.3d at 987. The State does not dispute that

impeachment evidence, like exculpatory evidence, plainly

constitutes evidence that is favorable to the accused under

Brady’s first prong. See, e.g., United States v. Bagley,

473 U.S. 667, 676 (1985) (“Impeachment evidence . . . as

well as exculpatory evidence, falls within the Brady rule.

Such evidence is ‘evidence favorable to an accused . . . .’”

(citations omitted)).11 We hold that under clearly established

Supreme Court precedent, Shelton satisfies the “evidence

favorable to the accused” element of Brady error. As to the

second element, the State concedes that it made a deal with

Thomas requiring that his competency not be examined prior

to his testimony against Shelton, and that it failed to disclose

the deal to the defense.

No state court decision has addressed the third element of

Shelton’s Brady claim—whether the suppression of the

impeachment evidence prejudiced him, i.e., was “material.”

The district court applied AEDPA deference in its review of

the materiality of the suppressed evidence because it believed

11 See also Banks v. Dretke, 540 U.S. 668, 691 (2004) (“Farr’s paid

informant status, qualifies as evidence advantageous to Banks.”);

Strickler, 527 U.S. at 280 (“We have . . . held that the duty to disclose . . .

encompasses impeachment evidence as well as exculpatory evidence.”

(citation omitted)); Giglio v. United States, 405 U.S. 150, 154 (1972)

(holding “nondisclosure of evidence affecting credibility falls within” the

Brady rule).
18 SHELTON V. MARSHALL

that the state court meant “material” when it said “favorable.”

We will not read the state court opinion as meaning

something other than what it plainly said. We accordingly

examine the materiality question de novo. See Porter v.

McCollum, 558 U.S. 30, 38–39 (2009); Rompilla v. Beard,

545 U.S. 374, 390 (2005); Wiggins v. Smith, 539 U.S. 510,

534 (2003); see also Amado v. Gonzalez, 758 F.3d 1119,

1131, 1136–38 (9th Cir. 2014).

C. Materiality

“[The] touchstone of materiality is a ‘reasonable

probability’ of a different result . . . . The question is not

whether the defendant would more likely than not have

received a different verdict with the evidence, but whether in

its absence he received a fair trial, understood as a trial

resulting in a verdict worthy of confidence.” Kyles v. Whitley,

514 U.S. 419, 434 (1995). The relevant question is whether

“the government’s evidentiary suppression ‘undermines

confidence in the outcome of the trial.’” Id. (quoting Bagley,

473 U.S. at 678). The omitted evidence “must be evaluated in

the context of the entire record.” United States v. Agurs,

427 U.S. 97, 112 (1976).12

Thomas provided “the glue that held the prosecution’s

case [for the first-degree murder of Thorpe]together.” Horton

v. Mayle, 408 F.3d 570, 579 (9th Cir. 2005). His “testimony

was the only direct evidence establishing that [Shelton] had

a premeditated plan to kill” or that he deliberated—the key

issue with respect to whether he was guilty of first-degree,

rather than second-degree, murder. Gonzalez v. Wong,

12 Once prejudice is shown under this standard, further harmless-error

review does not apply. See Kyles, 514 U.S. at 435.
SHELTON V. MARSHALL 19

667 F.3d 965, 986 (9th Cir. 2011).13 The district court

appreciated that there exists a “reasonable probability of a

different result” where, had the suppressed evidence been

disclosed, the defendant might well have been convicted of a

different offense or a different degree of the crime. Kyles, 514

U.S. at 434. That is, a probability of a total acquittal is not

required to establish prejudice.

We conclude that had Thomas’s testimony against

Shelton been excluded as a result of the prosecution’s secret

efforts to preclude an inquiry into his competency, there is a

reasonable probability that the jury would not have found

Shelton guilty of deliberate and premeditated first-degree

murder—that the outcome of the proceedingwould have been

different. Certainly, viewing the record as a whole we cannot

be confident that the verdict would have been the same. We

13 The jury was instructed that first-degree murder was either:

(1) “murder which occurs during the commission or attempt to commit the

crime of robbery,” or (2) “murder which is perpetrated by any kind of

willful, deliberate and premeditated killing.” The verdict reflects that the

jury convicted Shelton of the first-degree murder of Thorpe based on the

latter theory and rejected the former.

Although we hold in a memorandum disposition filed concurrently

with this opinion that the evidence, apart from Thomas’s testimony

regarding Shelton’s intentional participation in the kidnapping of Thorpe

and Craig, precludes a finding of a reasonable probability of a different

outcome on the kidnapping counts, at the time of trial kidnapping was not

a predicate offense for first-degree felony murder. Rather, murder

occurring in the course of a kidnapping was punishable as second-degree

murder only. See Cal. Penal Code § 189 (West 1970 & Supp. 1988). In

1990, Proposition 115 amended section 189 to include kidnapping as a

predicate offense for first-degree felony murder. See Cal. Penal Code

§ 189 (West Supp. 1999) (“Historical and Statutory Notes”); People v.

Davis, 896 P.2d 119, 146 & n.11 (Cal. 1995). The amendment did not

apply retroactively, however. See id.
20 SHELTON V. MARSHALL

do not rely on the possibility that Thomas’s testimony was

excludable, however, as we also hold that there was a

reasonable probability of a different outcome had Thomas’s

testimony been admitted and then impeached by evidence of

the prosecution’s undisclosed deal with him.

We cannot overemphasize the importance of

allowing a full and fair cross-examination of

government witnesses whose testimony is

important to the outcome of the case. Had the

full extent of the prosecution’s deal with

Norman Thomas been disclosed to the

defense, a full cross-examination of this

critical witness would have revealed that even

the prosecution viewed Thomas’s testimony

with some doubt.

Silva II, 416 F.3d at 986–87 (internal citations and quotation

marks omitted).

Shelton and Thomas gave very different accounts of

Thorpe’s murder and Shelton’s role in it, with Shelton

asserting that he was surprised and even endangered by

Silva’s actions, while Thomas claimed that Shelton clearly

knew what was about to happen to Thorpe and indeed

actively and eagerly played a part in it. According to Shelton,

(1) he thought that he was taking Thorpe up the hill in order

to conceal him and that Silva went to get more chains; (2) he

did not know that Thorpe would be killed; (3) he was

surprised when Silva opened fire on Thorpe and had to jump

out of harm’s way himself; and (4) he shot at Thorpe only

after Silva had already felled him with forty-five bullets (a

clip and a half) and only because he believed that Silva would

shoot him on the spot if he did not comply with his order. By
SHELTON V. MARSHALL 21

contrast, Thomas testified that (1) Shelton guarded Thorpe

knowing that Silva was going to retrieve a machine gun; (2)

Shelton returned from the hill in order to turn up the

stereo—indicating that he knew in advance that Thorpe

would be shot and tried to conceal the sound; (3) while

waiting for Silva’s return, Shelton told Thorpe to “look at the

mountain, because it was the last thing he would see”; and (4)

Shelton laughed while recounting Thorpe’s murder. Thomas

also described Shelton as taking the gun from Silva in order

to shoot Thorpe, rather than being ordered to do so or risk

being shot himself.

No other evidence corroborated this account by Thomas

of Shelton deliberating and premeditating the killing of

Thorpe—not Shelton’s statements to investigators, his trial

testimony, the notes he passed to Thomas in jail, or any

physical or forensic evidence. “[I]t was [Thomas’s tainted

testimony alone] that revealed that [Shelton] confessed” to

knowing in advance that Thorpe would be killed and to

participating willingly in his execution, Horton, 408 F.3d at

579—by far the most damning evidence heard by the jury,

see Arizona v. Fulminante, 499 U.S. 279, 296 (1991).

The materiality of evidence “is best understood by taking

the word of the prosecutor.” Kyles, 514 U.S. at 444; see also

Banks v. Dretke, 540 U.S. 676, 700 (2004); Horton, 408 F.3d

at 579. In his closing argument, DePasquale emphasized the 

“look at the mountain” statement, arguing that it

demonstrated that Thorpe never had a chance to survive.

Moreover, in entering the judgment, the trial judge cited “the

transactions . . . of turning up the hi-fi or this loud speaker”

as the basis of the first-degree conviction because it

demonstrated that “Shelton had advance knowledge of the

plan involving Thorpe” and that “the purpose of the mission
22 SHELTON V. MARSHALL

at the time [was] the execution of Thorpe.” This evidence that

the prosecutor and the district judge found central to the firstdegree conviction came solely from Thomas—a witness

whose testimony even the prosecution seriously doubted and

whom it precluded from obtaining a competency

examination.

In Silva II, this Court explained why the very deal at issue

in this case, had it not been illegally suppressed, would have

severely undermined the State’s case and created “a

reasonable probability of a different result”:

Had the prosecution’s deal foreclosing a

psychiatric examination of Thomas been

revealed, it could have had a profound effect

on the jury’s assessment of Thomas’s

testimony. . . .The fact of the undisclosed deal

bears critically and directly on Thomas’s

competence and credibility as a witness. Had

the defense known that the prosecution had

required, as a condition of Thomas’s plea

bargain, that he agree not to be psychiatrically

evaluated before testifying, competent defense

counsel would have ensured that the jury was

made aware of the potentially devastating fact

that the state itself doubted Thomas’s mental

competency. . . . [T]he very fact that the

prosecution had sought to keep evidence of

Thomas’s mental capacity away from the jury

might have diminished the State’s own

credibility as a presenter of evidence.

In sum, the fact of the prosecution’s

undisclosed deal with Thomas, had it been
SHELTON V. MARSHALL 23

presented to the jury, would have put the

testimony of this critical witness in a

substantially different light, both directly, by

casting doubt on the accuracy of Thomas’s

testimony, and indirectly, by inducing the

defense to focus the jury’s attention on

Thomas’s lapses and inconsistencies and by

calling into question the prosecutor’s faith in

the competence of his own witness.

Silva II, 416 F.3d at 987–88 (citations and internal quotation

marks omitted).

The district court nonetheless believed that the suppressed

evidence was not material because of Shelton’s statements

“that he accompanied Silva in walking Thorpe up the hill,

guarded Thorpe in Silva’s absence, . . . jumped behind a tree

to avoid being shot . . . [, and] admitted that he shot Thorpe

with Silva’s machine gun after Silva fired one and a half clips

into the victim.” While these statements provide

corroboration of Shelton’s participation in Thorpe’s murder

such that even a jury informed of the deal with Thomas might

well have found Shelton guilty of second-degree

murder—that is, murder in the course of a kidnapping—they

are fully consistent with and simply form a part of Shelton’s

explanation that he was not aware in advance of what was

about to happen to Thorpe and thought that he was helping

move him to a location out of the public view. Thus, the

statements viewed in context provide little if any evidence as

to the premeditation or deliberation required for a first-degree

conviction. See supra note 13. Indeed, Shelton’s testimony

that he had to jump out of the line of fire, if credited, would

be evidence that he was surprised by Silva’s conduct, and the

fact that Shelton told the investigators that, in fear for his own
24 SHELTON V. MARSHALL

life, he fired at Thorpe after Silva had already shot him fortyfive times does not indicate premeditation and deliberation.

Had defense counsel been able to cross-examine Thomas

thoroughly about the deal’s requirement that he not receive a

psychiatric examination before testifying and explain to the

jury that even the prosecution was concerned about his

mental stability, if not his sanity, there is a reasonable

probability that the jury would not have reached the verdict

it did. Certainly, as Thomas’s evidence was the primary

evidence upon which the prosecution relied to establish

premeditation and deliberation, we cannot say with

confidence that had his testimony been impeached on the

ground of his potential mental incapacity or insanity and the

prosecution’s unlawful deal to keep that information from the

jury, the jury would have nevertheless returned a verdict of

first-degree rather than second-degree murder.

True, Shelton’s admissions that he was present for

Thorpe’s killing, watched Thorpe while waiting for Silva, and

shot at his body after Silva already had fired forty-five rounds

into him, if taken in isolation, could constitute circumstantial

evidence that he knew in advance that Thorpe would be

killed. Nevertheless, we have held that prejudice is

established where the concealed evidence would impeach the

only witness to provide direct evidence of the defendant’s

mens rea. See Hayes v. Brown, 399 F.3d 972, 985 (9th Cir.

2005) (en banc) (finding suppressed evidence material where

tainted witness’s testimony “was the centerpiece of the

prosecution’s case” and “[n]early all of the other evidence

against Hayes was circumstantial.”); see also Gonzalez,

667 F.3d at 986; Horton, 408 F.3d at 580; Benn v. Lambert,

283 F.3d 1040, 1062 (9th Cir. 2002). We repeat: Thomas’s

testimony supplied the only direct evidence that Shelton

deliberated and premeditated Thorpe’s murder, as opposed to
SHELTON V. MARSHALL 25

acting on Silva’s command and in fear for his life. Moreover,

this Court has previously held the suppression of the

prosecution’s deal with Thomas to be prejudicial in Silva’s

case, notwithstanding physical evidence of the crime

corroborating Thomas’s story, fingerprint analysis placing

Silva at the scene, and Silva’s equivocating statements to the

police post-arrest. See Silva II, 416 F.3d at 984. See also

Order Denying Claim D, Silva v. Woodford, No. 2:90-cv03311-DT (C.D. Cal. Dec. 22, 2003), ECF no. 200, at 9–15.

There is similarly a reasonable probability that the jury would

have in this case reached a different verdict had Thomas been

thoroughly impeached, notwithstanding the fact that Shelton

admitted being present for Thorpe’s murder after having

initially denied as much. In short, we reiterate, the

suppression by the prosecution of its agreement with Thomas

that he not obtain a mental examination prior to his testimony

undermines confidence in the verdict.

The State argues that a statement that Shelton made to an

investigator on February 1 demonstrates the veracity of

Thomas’s account of Thorpe’s murder and rendered his

testimony superfluous. According to an investigator’s

testimony, while Shelton was denying his presence at

Thorpe’s murder in that interview, he claimed that he was in

the cabin at the time and that Thomas told him to turn up the

stereo. At trial DePasquale argued that this made it “almost

obvious that [Shelton is] putting Thomas in his position and

what he’s saying there is in essence an admission that he was

trying to lay at Thomas’ feet an admission that he went in

there and he said turn up that stereo.”

This disputed statement about the stereo is not, however,

sufficient to give us confidence in the first-degree verdict.

The case is riddled with inconsistencies regarding who did
26 SHELTON V. MARSHALL

what. Indeed, at one point, Thomas told the prosecution “that

he was with Silva when Thorpe was killed.” Silva II, 416 F.3d

at 988 (emphasis added). Moreover, the investigator who

testified to Shelton’s statement about the stereo also testified

that he “[didn’t] remember exactly what [Shelton] told

[him].”14

A comparison of the evidence against Shelton with

respect to Craig’s murder strongly supports our conclusion

that he was prejudiced by the State’s Brady violation. The

jury heard evidence of premeditation and deliberation with

respect to Craig’s murder—Shelton’s admission to the

investigators that the men had discussed kidnapping and

killing a girl prior to the crimes—yet it returned a verdict of

only second-degree murder with respect to Shelton’s role in

her killing. The State concedes that this was because of the

jury’s “finding that there was insufficient evidence of

deliberation or premeditation in killing Craig.” Meanwhile,

the only direct evidence that Shelton deliberated or

premeditated the killing of Thorpe came from a witness

whose vulnerability to charges of incompetency or insanity

the State felt compelled to conceal. The other evidence that

pertained to premeditation and deliberation applied equally,

if not more strongly, to the murder of Craig as to that of

Thorpe. It follows that if the jury had known about the

prosecution’s secret deal with Thomas, there is an even

stronger probability than in Craig’s case that it would have

returned a verdict other than first-degree murder—that it

14 At trial, Shelton maintained that the conversation about the stereo

volume occurred several hours before Thorpe was taken up the hill and

was unconnected to the killing, that he never said otherwise, and that the

investigator either intentionally lied about what Shelton said regarding the

stereo in the interview or mistakenly recounted an interview with Thomas.
SHELTON V. MARSHALL 27

would have found insufficient evidence to conclude beyond

a reasonable doubt that Shelton premeditated and deliberated

as to Thorpe’s killing.

15

We reject the State’s contention that evidence of the

prosecution’s secret deal with Thomas would have been

cumulative to the impeachment evidence presented to the

jury. Thomas’s accident and the fact that the prosecution had

dropped murder charges against him in exchange for his

cooperation were mentioned briefly during the trial.

However, “the undisclosed evidence was not duplicative of

the impeachment evidence actually presented, but rather was

of a different kind. It ‘would have provided the defense with

a new and different ground of impeachment.’” Silva II,

416 F.3d at 989 (quoting Benn, 283 F.3d at 1056). Evidence

that murder charges had been dropped “could cast doubt only

on Thomas’s forthrightness, not his competence to testify,”

id. at 989, and the defense’s argument that Thomas “does not

have a good memory” was far less compelling than the

suppressed evidence that the prosecution doubted his mental

stability to the degree that it stopped him from being

psychiatrically examined.

Finally, “[t]he prosecutor’s own conduct in keeping the

deal secret underscores the deal’s importance.” Silva II,

416 F.3d at 990. His “actions . . . speak as loud as his

words. . . . The State’s deliberate and strategic decision to

15 Moreover, if the implausibility of Shelton’s claims that Craig was

there voluntarily, even after her boyfriend had been killed, did not

persuade the jury to find him unworthy of belief and to reject his account

of being surprised by her murder, there is no reason to think that the

inconsistencies in his statements would have caused it to reach a verdict

of first-degree murder with respect to Thorpe, either.
28 SHELTON V. MARSHALL

make the deal and not to disclose it suggests the weakness of

its post hoc claims that the evidence was irrelevant.” Id. If

Thomas’s testimonywas unnecessaryto Shelton’s conviction

as the State now claims, then there was no reason for it to

take furtive actions to ensure that the jury never heard that

both it and Thomas’s lawyer believed that he might well be

incompetent or insane. Indeed, the deal was premised on

DePasquale’s agreement with Gay that credible testimony by

Thomas was necessary to obtaining a conviction of both

Shelton and Silva.

III. Conclusion

In sum, the prosecution committed Brady error by

concealing from the defense and the jury its deal precluding

an examination of the mental competency of its star witness.

We find this error prejudicial with respect to Shelton’s firstdegree murder conviction in part because Thomas was the

only witness who provided direct evidence that Shelton

deliberated and premeditated the murder of Thorpe, and in

part because it is the prosecution’s suppression of the

powerful impeachment evidence that “‘undermines

confidence in the outcome of the trial.’” Kyles, 514 U.S. at

434 (quoting Bagley, 473 U.S. at 678). Although we have

serious doubts about the good-faith of the prosecution as a

whole and find DePasquale’s misconduct inexcusable, the

extremelystrong evidence in the record, aside from Thomas’s

testimony, regarding Shelton’s commission of the other

crimes precludes us from granting relief with respect to those

convictions.16 We leave those charges, which we address in

the memorandum disposition filed concurrently with this

opinion, undisturbed. The district court is directed to issue the

 

16 Shelton does not challenge his convictions for weapons offenses.
SHELTON V. MARSHALL 29

writ ordering the State to retry Shelton for the murder of

Thorpe within a reasonable time or to resentence him based

on the remaining convictions.

REVERSED IN PART, AFFIRMED IN PART, AND

REMANDED FOR ISSUANCE OF A WRIT.