F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

J O S E P H P. S H E L T O N , P etitioner
,

v

.

J O H N C. M A R S H A L L ; A T T O R N E Y G E N E R A L O F T H E S T A T E O F C A L I F O R

N I A , Respondents-Appellees

. N o. 13-15707

D.C. No. 4:10-cv-01100- PJ H

OPI NI ON

A ppeal from the United States District Court for the Northern District of California Phy llis J

. Hamilton, Chief District J udg e, Presiding

A rg ued and Submitted November 20, 2014 Submission Vacated November 25, 2014 Submitted Aug u st 7, 2015 San F rancisco, California

F iled Aug ust 7, 2015

B efore: Sidney

R. Thomas, Chief J udg e and Stephen Reinhardt and Morg a

n Christen, Circuit J udg es.

Opinion by

J udg e ReinhardtS H E L T O N V

. M A R S H A L L 2

SUMMARY *

Habeas Corpus

The panel reversed in part and affirmed in part the district court’s denial of California state prisoner J oseph She l t o n ’s h a b eas corpus petition challeng ing his convictions for th e first-deg ree murder of Kevin Thorpe, the second-deg r ee murder of L aura Craig , kidnapping , and theft.

The p a nel held that the prosecution’s suppression of a material part of its deal with k ey witness Norman T h omas violated Brady v. Maryland with respect to Shelton’s conviction f

or the f irst-deg ree murder of Thorpe, and ordered the writ g ranted as to that conviction. The panel ex p lained that Thomas’s testimony was central to the prosecution’s case that Shelton p remeditated and deliberated reg arding Thorpe’s murder, and h eld that there is a reasonable probabilit y 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 w ould have reached a di f f e rent result on that
count. The panel concluded, in a memorandum disposition, that had T h o m as been impeached by evidence of the secret deal with the prosecution reg arding his competency , there is
not a reasonable probability that the jury would have reached

a different result with respect to Shelton’s convictions f or the second-degree murder of Craig , kidnapping , and theft.

* T h is su m m ary co n stitu

tes n o part 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 urt staf

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

th e read er.S H E L T O N V

. M A R S H A L L 3

COUNSEL

W illiam L

. Osterhoudt ( a rg ued) and Dolores T. Osterhoudt, L a w O f f ices of William L

. Osterhoudt, San F rancisco, California, for Petitioner-Appellant.

P eg g y S. Ruffra ( arg ued), Supervising Deputy Attorne y General; Kamala Harris, Attorney General; Dane R. Gillette, Chief Assistant Attorney General; Gerald A. Eng le r, Senior Assistant A ttorney General; Christopher J

. W ei, Deputy Attorney General, San F rancisco, California, for RespondentAppellee.

OP INION

REI NHARDT, Circuit J udg e:

J o seph Shelton, w ho is serving 40 y ears to life f o r t h e brutal kidnapping and murder of Kevin Thorpe a nd L aura Craig in 1981, appeals from the denial of hi s p e t i t i o n for a writ of habeas corpus. W e hold that t he prosecution’s suppression of a material part of its deal with a key witness, Norman Thomas, v iolated Brady v. Ma r y l and

, 373 U .S. 83 (1963), with respect to Shelton ’ s conviction for the firstdeg ree murder of Thorpe and order the writ g ranted as to that conviction. Thomas’s testimony w as central to the prosecution’s case that Shelton premeditated and deliberated
reg arding Thorpe’s murder, and there is accor d i n gl y a

r e a s o n a ble probability that had the jury known of the prosecution’s serious do u b t s as to Thomas’s mental competence and of its successful efforts to prevent h im from obtain i n g a competency test until after he testified, it would have r eached a d ifferent result o n that c ount. W e conclude,S H E L T O N V

. M A R S H A L L 4

however, in a memorandum disposition filed along with this opinion that, had Thomas been impeached by evidence of the

s ecret deal with the prosecution reg arding his competen c y , there is not a reasonable probability that the jury would have reached a dif

f er e n t result with respect to Shelton’s convictions for the second-degr e e murder of Craig

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

I. Background

A. The of

f enses and trials

Shelt o n s t ands convicted of the first-deg ree murder o f Thorpe, the second-degree murder of Craig

, two counts o f kidnapping

, two counts o f theft, a n d t wo weapons charg es. Most of the basic f

acts are undisputed. On J anuary 1 1, 1981, Thorpe and Craig were driving throug h Madeline, California on the way

to colleg e when Shelton, Thomas, and B e njamin Silva spotted them at a g as station a nd subsequently abducted them. The three men took the couple to Shelton’ s c a b i n , where Thorpe was chained to a tree while Craig was h e l d inside.

The nex t day

, Thorpe was shot to death with a m achine
g un. At Silva’s direction, Thomas d i smembered Thorpe’s body and the two men disposed o f it in a remo t e l o cation. Craig was murdered on the side of the road a few day s later. She had been shot twice.

Thomas was subsequently a rrested for a p robation violation. While in custody

, Thomas told the police about the murders and directed them to Thorpe’s remains and ot her phy sical evidence of the crimes. Shelton turned himself in

s h o rt ly thereafter, waived his rig h ts, and g ave a series o fS H E L T O N V

. M A R S H A L L 5

p a r t i al l y i n c u l p a t o ry t h o u gh sometimes incon s i s t e n t statements to the police. H e also led them to Craig ’s remains.

At S h e l t o n ’ s trial, the State’s evidence consisted p rimarily of Thomas’s testimony

, Shelton’s o wn statements to investig ators, and a s e ri e s of notes passed between Shelton and Thomas while the two were in jail. 1 The defen s e c a se consisted of Shelton’s test i m o n y that he had been present during the crimes but that he w as intox icated on various drug s and alcohol, did not willing ly participate, and f eared that if he resisted or tried to leave, Silva w ould kill him and h is family

. 2 Ther e was thus no dispute that Shelton was at least present for all of the crimes. A t issue with respect to Thorpe’s murder—the only question we d eal with in this opinion—is the deg ree of Shelt o n ’ s participation and whether he possessed the requisite mens rea , i.e, whether he “deliberated and premeditated” as required by Cal i f o r n ia law for a conviction of first-deg ree murder. See infra note 13.

At trial, Thomas and Shelton testified to d i f f erent versions of the c r i m es. I n both versions, Silva was the primary instig a tor. Th e i r testimony d iffered g reatly

, however,

1 T h e j u ry also h eard testim o n y ab o u t th e scen e o f t

h e crim es, th e

co n d itio n o f t

h e bo d ies, th e p ro p erty of th e v ictim s th at w as reco v ered

, th e

w eap o n s an d o th er item s f o un d in th e cab in an d th e su rro u n d in g area, an d th e lo cal g eo g rap h y

. No n e o f th i s ev id en ce co n v ey ed an y th in g ab o u t Sh elto n ’ s particu l ar ro l e in th e crim es, w ith th e ex cep tio n o f testim on y th at Sh elto n ’ s f

in g erp rin ts w ere f

o un d o n a car stereo tak en f ro m th e v ictim s ’

car an d on su

n d ry item s in t

h e cab in

, an d t

h at h e w as w earin g T h o rp e’ s b o o ts w h en h e turn ed h im self in

. No n e of t h is testim o n y sh ed an y lig h t on th e q u e s t i o n w

h eth er Sh elto n w as g u ilty o f f irst-d eg ree d elib erate an d
p rem ed itated m

urd er.

2 A t th e tim e o f t h e crim es, Silv a w as a Hell’ s A n g el an d a f u g itiv e. Sh elto n an d T h o m as’ s relatio n sh ip s to th e A n g els w as less clear.S H E L T O N V

. M A R S H A L L 6

reg arding the deg ree of Shelton’s p articipation. According to Shelton, when Silva spotted the couple a t the g as station a nd proposed kidnapping them, Shelton said that he “didn’t want no part of it.” He initially denied that the men had discussed k i d napping and killing people before they saw Thorpe a n d Craig

, but when his recollection was refreshed with a c opy o f

a statement he g ave to a

n investig ator the day after he turned himsel f i n , he admitted that the three men h ad d iscussed kidnapping a g irl a few weeks before the crimes.

A few miles p a st the g as station, Silva used a red lig ht to pull the couple’s car o ver. Shelton testified that he was with Silva when he purchased a lig ht like the one used, but that it

was p urchased for an unrelated pr a n k and he never held it during the kidnapping

. Once the victims’ car stopped, S i l v a and Thomas ran up to it, entered it, and abducted the couple
at g unpoint. Shelton remained in the truck in which the three

men had a

rrived and followed the couple’s car t o his cabin; he testified that he did n ot drive off because he believed that “Silva would have killed me.

. . . He w o u l d have killed my family .” W h en they arrived a t Shelton ’ s property , Silva told Cr ai g a n d Thorpe to g e t o n the back of the truck, which Shelton then drove to the cabin. Shelton then r emained at the cabin with Craig

, Thorpe, a n d Silva, while Thomas left for a sh o r t p eriod. W hen Thomas returned, he and Silva took Thorpe o utside, and h e l a t e r told Shelton that they h ad chained Thorpe to a tree. Silva a n d Thomas then left until mornin g. While they were g one, Shelton g ave Thorpe a sleeping bag

.

Shelton testified that a f

ter Silva and Thomas returned the

n e x t day

, Silva “said he was moving [ Thorpe] b ecause h e

co u l d b e seen from the road.” Shelton, who said that he believed that h e w as unarmed, stated that he then walked withS H E L T O N V

. M A R S H A L L 7

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

. . . to g et

. . . some more c hain and stuff.” Shelton denied knowing that Thorpe was being taken up the hill to b e killed, and said that he did not speak to T h orpe while they w a i t e d “not [ a] very long ” time be f o r e Silva returned. Shelton testified that when Silva re t u r n e d

, he “heard a click and

. . . turned around and [ Silva] was standing there with a machine
g un;” Shelton said he was halfway between Silva and Thorpe and “jumped b e hind a tree when the b ullets started fly ing

. ” After Silva emptied a clip (thirty b ullets) into Thorpe, Shelton said that T h o r

p e f e l l to the g round, and then Silva f ired half of another c lip into him. According to Shelton, Silva then

“ ga v e [ Shelton] the g un and said shoot him.” Shel t o n admitted that he then fired the rest o f 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 althoug h h e had previously told police that he hit Thorpe in the ey e , “that was something that stuck in my mind from something else.” S h e l t on stated that if he hadn’t shot at Thorpe, Silva would have killed him “the second I said no.”

Shelton testified that in th e day s following Thorpe’s murder, he tried to protec t Craig from Silva. H e said that at

one point he left the cabin w ith h er a nd that they ran across a

m e a d o w a n d over a h ill “when [ Silva] caug ht us.” He also

s t a t ed that he thoug ht that he could talk Silva out of killing Craig

, that at one point he h ad in fact talked Silva out o f killing her, that Craig liked Shelton more than the o thers a nd

was not afraid of him, a nd th a t s h e could have left at any time. He d enied knowing that she would be killed when he and Silva left the cabin w ith h e r , p u rportedly to take her to

see the head of the Hell’s Ang els. Shelton stated that Silva stopped along the way to buy Craig a Pepsi and that Silva was very calm, leading him to believe that he would not shoot her.S H E L T O N V

. M A R S H A L L 8

Silva later stopped the truck to chang e d r ivers but then suddenly sho t Craig a s he rounded the vehicle. F inally

, Shelton testified that he w as on speed, “reds, valium, and p ot” the nig ht of the kidnapping b u t t h a t he was not intox icated when Craigwas killed.

T h o m as’s testimony about Shelton’s role in the crime s differed considerably

. I n his account, none of the men consumed any alcohol or drug s d u r i ng the course of the criminal activities. According to Thomas, Shelton and Silva had discussed kidnapping p eople prior to the crimes and said that if they did so, they would h a v e t o k ill them. At the Madeline g as s t ation, Silva said h e “wanted” Craig

, a nd Shelton remarked t h a t she was pretty

. J ust prior to the kidnapping

, Thomas and S h e lton swapped positions in the truck after Shelton declined to do the k idnapping because he was too well known in the area.

Thomas testified that it w as Shelton and Silva w ho chained Thorpe to the tree o utside o f the c a b i n , that it was Thomas who g ave h im a sleeping b a g, a nd that Shelton became upset when Craig was left u ng uarded. W ith respect to Thorpe’s murder, Thomas testified that Shelton was armed when he left w ith Silva and Thorpe to g o up the h ill, that Shelton returned and tol d Thomas to turn on the stereo, a nd that Silva l a t e r r eturned and told him to turn up the volume—the inference being t h a t they wanted to mask the sound of g unfire.

According to Thomas, Shelton later confessed his role in Thorpe’s murder to Thom a s , stating that he had w atched Thorpe while Silva went to g e t a machine g un; that T h o rpe

c r i e d a n d a sked to be unchained; and that while w aiting for Silva, Shelton told Thorpe “to look a t the mountain, becauseS H E L T O N V

. M A R S H A L L 9

i t was the last thing he would see.” Thomas also said tha t Shelton told him that Thorpe’s arm was reach i n g up a fter Silva e mptied the first c lip into him, that Silva then shot him
ag ain, and that then “[ Shelton] took the machine g un and shot the g uy all over ag ain.” F inally

, Thomas testified that Shelton laug hed as he recounted the murder to him.

The jury al s o heard testimony reg arding incriminating
statements that Shelton made to various law enf o r c e ment officials a fter turning himself in, b oth via the reading o f transcripts a n d officer testimony

. 3 I n interviews on J anuary 31, 1981 a

nd F ebru ar y 1
, 1981, Shelton professed to have been intox icated during the kidnapping

, y et recounted d etails of the events, including that the men discussed kidnapping a female before the a

bduction. According to this testimony

, he al s o s t ated that he was armed during the initial kidnapping

, that he h ad sex with Craig in the cabin b ut that, unlike when Silva and Thomas had sex with her, his sex ual acts were not forcible. 4

During the initial interviews on J anuary 3 1 and F ebruary 1, S h e l t on claimed that h e was not present for Thorpe’s murder and that he learned about it from Thomas. A serg eant

3 T h e j u ry h eard (o r w as read ): (1 ) a tran scrip t o f an in ter v i e w on J an u ary 31
, 1 9 8 1 ; (2 ) testim o n y f ro m S erg ean t Co u lter o f th e Sh asta Co un ty Sh erif

f ’ s Of f ice ab o u t in terv iew s o n Feb ru ary 1
, 19 8 1 an d Feb ru ary 2
, 1 9 81 ; (3 ) a tran s crip t o f an in t erv iew o n Feb ru ary 2
, 1 9 8 1 ; an d (4 ) testim o n y f

ro m an in v estig ato r f

o r th e C alif

o rn ia Dep artm en t of J u stice ab o u t an u n reco rd ed in t erv i ew w ith Sh elto n o n Feb ru ary 3 , 1 9 8 1

.

4 On J anu ary 31
, Sh elto n stated i n a r e c o r d ed in terv iew th at h e w as “alw ay s arm ed ” durin g th is p erio d in w h ich th e crim es to o k p lace

. O n Feb ru ary 3
, h e said h e m ig h t h av e been arm ed d urin g th e k id n ap p in g b u t

w asn ’ t sure.S H E L T O N V

. M A R S H A L L 10

testified that Shelton stated that while he was inside the cabin with Craig

, “ Mr. Thom a s a n d Silva came in and told him to turn the music up o n the stereo. And a littl e later they came back and tol d h i m t o t urn it up a little louder.” The serg eant also testified that Shelton said that before Silva and he left the cabin with Craig

, Silva told him he was g oing to kill her with

a baseball b at, and that Shelton “indicate[ d] t h a t h e didn’t believe she h a d any chance t o escape or leave.” Shelton’s
account of Craig ’s murder was otherwise consistent with his
account on the stand—that Sil v a stopped the car to switch drivers, but then, without any indication of his intent to d o so, suddenly shot Craig

.

Shelton’s story r eg a

rding Thorpe’s murder chang ed during interviews o n Fe b ruary 2. H e first denied being present during T h o rpe’s killing

. L ater, in interviews on that day and the nex t, however, he a dm i t t e d being present a nd recounted the Thorpe killing consist en t l y with his trial testimony

, ex cept that he said nothing about what h e thoug ht Silva was p lanning to do (either when they went up the h ill o r when Silva left him with Thorpe) and he admit t e d t h a t he “mig ht h ave” been armed at the time but wasn’t sure. I n these interviews, Shelton never g ave any indication that he knew in advance that Silva was planning to s h o ot Thorpe. At trial, Shelton c laimed that his story had chang ed from the initial interviews because h e h a d tried to block out the Thorpe murder.

During an interview on F ebruary 2, Shelton said that the reason he at one point took Craig across a meadow a

nd over

a hill w as that he thoug ht the Hell’s Ang els were coming a nd that he and Silva “hadn’t come to an ag reement y et as to what

was g oing to happen to her.” He ex plained that they m ig htS H E L T O N V

. M A R S H A L L 11

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

An investig ator with the California Department of J u stice
tes t i fi e d

, on the basis of the only u nrecorded interview, that

on F e bruary 3, 1981, Shelton stated that pr i o r to the kidnapping , “there had been a conversation that if in fact [ a] kidnapping w ere to take place that they mig ht have to kill the victims”; that “Mr. Silva spoke of it on numerous occasions”; and that Silva and Shelton ha d purchased the red lig h t in preparation for committing a k i d napping

. The investig ator also testified that Shelton told him that when he and Silva left the cabin with Craig

, he was convinced that she would be murdered—abo u t 90% sure—but “felt by his being present perhaps somewhat he could i n t e rcede and save h er.” Shelton’s statements on F e bruary 2 and 3 r egarding Craig ’s murder were otherwise the same as at trial.

T h e prosecution also introduced into evidence several
notes that Shelton wrote to Thomas while the two were in jail subsequent to Shelton learning that Thomas w as cooperating wi t h t h e p rosecution and subsequent to all of Shelton’s inculpa t o ry statements to the police. The notes have no bearing o n the issue i n this appeal, as they did not discuss Thorpe’s murder o r c o n tain evidence of premeditation o r deliberation. 5

5 Fo r ex am

p le, in o n e n o te Sh elto n to l d T h o m as to tell h is law y er t h at h e d ecid ed t o tell th e tru th b eca u se “ J o e alm o s t died last n ig h t, an d w as ref u sed m ed ical atten tio n , an d y ou f elt so rry f o r m e.” In an o t

h er n o te, h e to ld T h o m as th at “ if

th e law y er can ’ t g et y o u

o f f , I’ ll break

y o u o u t.” He also said th at T h o m as sh o u ld testif y th at Sh elto n receiv ed a rid e f ro m an

o ld co w b o y af ter th ey saw th e co u p le at th e g as statio n

an d w as n ot seen ag ain u n til th e crim es w ere o v er. A th ird n o t e to ld T h o m as to start atten d in g b ib le stu d y

b ecau se it w o u l d h elp th eir case.S H E L T O N V

. M A R S H A L L 12

On November 17, 1981, after d e liberating for two and a half day s, the jury co n victed Shelton of the first-deg r ee murder of Thorpe, the second-degree murder of C r a i g, two counts o f kidnapping

, two counts o f theft, possession of a

mac hine g u n, possession of a silencer, and one special circumstan c e w i th respect to the Thorpe murder, making Shelton elig ible f

or the d eath penalty

. Sig nificant ly

, the verdict reflects that the jury a c quitt e d S h e lton of the charg e of first-degr e e murder of Craig

. After the jury declined to impose a capital sentence for Thorpe’s murder, the court sentenc e d S h e lton to life without parole on that charg e a nd fifteen y ears to life f

or Craig ’s murder i n t he second deg r ee to be served consecutively

. I t s t ay e d its sentences with respect to the other counts. On J une 27, 1984, the California Court of Appeal affirmed the judg ment but struck the special circumstance in an unpublished o p inion. Shelton was then resentenced to twenty -five y ears to life f o r t h e murder o f Thorpe.

Silva was t r i e d after Shelton in J a nuary 1982. T h omas

was ag a in the principal prosecution witness. Shelton was called to testify , but invoked his F ifth Amendment privileg e ag ainst self-incrimination. See Silva v. W oodford (“ Silva I

”), 279 F .3d 825, 8 28 ( 9th Cir. 2002). Silva was convicted of the first-deg ree murder o f Thorpe, th e k i dnapping and theft o f both Thorpe and Craig

, and possession of a machine g un a nd silencer. Id. at 829. He w as acquitted, h owever, of the murder of Craig

. He was then sentence d to death for the murder o f Thorpe. I d.

B. The prosecution’s secret deal w ith Thom as

I n 1986, Silva’s counsel learned that before Shelton’s a nd Silva’s trials, Thomas’s attorney , Rex G ay , a p proachedS H E L T O N V

. M A R S H A L L 13

L assen County Distric t Attorney Paul D ePasquale, the prosecutor in both ca s e s , a n d “indicated

. . . that [ Gay ] believed that Mr. Thomas was e ither unable to cooperate in h i s own defense, or insane.” Prior to this, Gay ha d a l s o obtained a protective order prohibiting the undersheriff from speaking w ith Thomas “based on the belief t h a t he was incapable of understanding [ his] rig hts.” Prior to the crimes, Thomas had suffered a severe motorcy cle accident r esulting in an ex tended coma, and Gay “n o t ed a certain slowness in his mannerisms and a d efect in his speech pattern.” Gay told DePasquale that he “had immediate plans to have [ Thomas] interviewed by

two psy chiatrists.”

DePasqual e a gr e e d with Gay that he would be u nable to obtain a conviction o f either Silva or Shelton without Thomas’s cooperation. DePasquale a nd Gay also ag reed that

a psy chiatric a

naly sis of Thomas would “supply ammunition
to the defense.” They then reached a plea ag reement in which Gay would re f

r a in from h aving Thomas psy chiatrically

ex a mined, Thomas would testify ag ainst Shelton and Silva, and DePasquale w ould drop murder charg es ag ainst Thomas. The portion of the d e a l pert a i n i ng to Thomas’s mental competency was not disclosed to either Shelton or S i l v a. I ndeed, Shelton first learned about it when he read th is Court’s 2005 decision g r a n ting habeas relief to Silva.

C. Subsequent procedural history

I n 2002, this Court, throug h a different p anel o f j u dg es, g ranted Silva’s habeas c laim f o r penalty -phase ineffective assistance of counsel and remanded for an evidentiary h earing

on a Brady claim b ased on the p r o s e cution’s failure to disclose the portion of the deal with Thomas relating toS H E L T O N V

. M A R S H A L L 14

Thomas’s not unde r go i n g a psy chiatric ex amination. 6 Id. at 855–56. On remand, the district c o u r t found that the
prosecu t ion had indeed made the secret deal but h eld that it

was not material to the c o n victions (or the penalty ). See Order Deny ing Claim D, Silva v. W

o odford

, No. 2:90-cv-03311-DT (C.D. Cal. Dec. 22, 2 003)

, E C F no. 200, at 9–15; see also Silva v. Brown (“ Silva II ”), 416 F .3d 980, 984–85 (9th Cir. 2005). I n 2005, the same p anel of judg es of this Court reversed in part and ordered that the writ be g r anted as to Silva’s conviction for the murder o f Thorpe, but affirmed the denial of relief as to the kidnapping

, robbery

, and f irearms convictions. Silva II

, 416 F .3d at 992.

On Novem b e r 8, 1991, Shelton filed h is f irst federal petition alleg ing tha t a post-arrest statement was unlawfully obtained and that the trial court erred by f ailing to instruct the jury on d iminished capacity

. This first petition was d enied b y the district court but never considered on the merits by this Court. 7

Althoug h Silva filed a state habeas petition in 1989 based

on the same underlying facts a s the instant Brad y c l a im, Shelton did not learn of the matter until h e discovered, in the prison law library

, this Court’s 2 005 opinion g r anting relief
to Silva. On May 4, 2006, Shelton presented the instant Brady

6 Silv a’ s f i led h is h ab eas petitio n p rio r to A EDP A ’ s ef f ectiv e d ate. S ilva I , 2 7 9 F.3 d at 8 3 1 & n .5

.

7 On Decem

b er 1 6 , 1 9 9 2 , Sh elto n ’ s f

irst f ed eral p etitio n

w as den ied in f u ll b y th e d istrict co urt. On Decem b er 1 5
, 1 9 9 3
, th is Co u rt d eclin ed to

co n sid er th e m erits o f

th e p etitio n

b ecau se Sh elto n f

ailed to f i le a No t i ce

o f A p p eal w ith resp ect to th e D ecem b er 19 9 2 o rd er, alth o u g h h e h ad f iled

a No tice o f A

p peal w i th resp ect to a No v em b er 1 9 9 2 o rd er in w

h ich th e d istrict co urt d en i ed th e p etitio n inp art an d stay ed it in p art.S H E L T O N V

. M A R S H A L L 15

claim to the California Superior Court, which denied r elief in a written decision on Aug u st 2 4, 2006 stating that the secret
ag reement did not conc e rn evidence that was “favorable to pe t i t i o n er.” The California Court of Appeal summarily denied relief on November 30, 2006, as did the Supreme Court o f California on J une 13, 2007.

Shelton filed a second fede r a l petition raising his Brady claim on J une 25, 2 0 07. After the district court dismissed the petition a s second and suc c es sive, this Court g ranted authori z a t ion to file a second p etition on November 4, 2008

on the g round that the prosecution’s deal wi t h T h omas constituted n ewly dis c o vered evidence. Shelton filed his second p etition on December 17, 2008. On April 8, 2013, the district court denied the petition b ut g ranted a certif i cate o f appealability as to the materi a l i ty of the prosecution’s undisclosed ag reement 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 o f the Antiterrorism a nd Effective Death Penalty Act of 1 996 (AEDPA). AEDPA therefore a p p l i e s to Shelton’s claim, althoug h it was inapplicable in Silva’s case. 8 Under AEDPA, a federal court

8 Sh elto n did n o t learn o f th e p ro secu t io n ’ s b arg ain w i th T h o m as t h at h e

w o u ld n o t su

b m it to m en tal ex am in atio n bef o re Sh elto n ’ s trial u n t il so m e tim e f o l lo w in g th is Co urt’ s issu an ce o f its d ecisio n in Silv a’ s case in 2 0 0 5

. He ask s th e p an el to to ll t h e ap p licati o n of A EDP A b ased o n th e State’ s

m isco n d u ct in

f ailin g to ad v ise h im of its d eal w ith T h o m as ev en af ter i t b eg an l i tig atin g an essen t ially id en tical Bra d y claim in Silv a’ s case—as early as 1 9 8 9 . W e d o n ot reach th at issu e in lig h t o f o u r h o ld in g b elo w

.S H E L T O N V

. M A R S H A L L 16

may not g rant the writ based on a claim adjudicated on the merits by a state court unless that adjudication “resulted in a d e cision that was contrary to, or involved an unreasona b l e application of, clearly e stablished F ederal law, as determined by the Supreme Court o f the United States; o r

. . . resulted in

a decision that was b a sed o n an unreasonable determination of the facts in lig ht of the evidence p resented i n t h e State
court proceeding .” 28 U .S.C. § 2254(d). Th e d i strict court’s denial of the writ is reviewed de nov o

. Lambert v. Blodgett

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

B. Application of

AEDP A

There are three d i s t i nct elements of a Brady violation: F irst, “[ t] he evidence at i s s u e m u st be favorable to the accused, either because it is e x culpatory

, or becau s e it is impeaching .” Strickler v. Greene
, 5 27 U.S. 263, 281–82 (1999). Second, “that evidence must have been suppressed b y the State, either willfully or inadvertently .” Id. at 2 82. T h ird, “prejudice must have e nsued.” Id. 9 The d ecision of the California Superior Court was the la st reasoned state court decision in this case and is acco r d i ng ly the subject of our review. 1 0 I n that decision, t h e c ourt ruled only on the first

e l e ment of Shelton’s c laim—whether t h e s u p p r e s s e d e v i d e n c e was favorable to Shelton.

9 T h e term s “ p rej u d ice” an d “ m ateriality ” are u s ed in terch an g eab l y

. S ee, e.g

. , S ilva II

, 4 1 6 F.3 d at 9 8 5

.

1 0 W h ere a state co urt o f last reso rt issu es a p o stcard den ial o f a h ab eas p etitio n , th e f

ed eral co urt “ lo o k s th ro u g h ” t h e s u m m ary d en ial an d

co n sid ers th e last reaso n ed d ecisio n b y a state co urt. Ylst v. Nu n nema ker

, 5 0 1 U.S. 79 7
, 8 0 3

– 04 (1 9 9 1 ); s ee a lso Avila v. Ga la za , 2 9 7 F.3 d 9 1 1
, 9 1 8 (9 th Cir. 2 00 2 ).S H E L T O N V

. M A R S H A L L 17

The California Superior Court’s d enial of Sh e l t o n’s habeas c orpus petition on the g round that “it is di f f i c u lt to conclude that any

thing favorable to petitioner was suppressed” is contrary to clearly e stablished law

, a s determined b y the Supreme C o u rt

. Evidence that the
p r o s e c ution believed T h omas to be incompetent was po w e r f u l fod d e r for impeaching his testimony ag ainst Shelton. See S ilva II
, 416 F .3d at 9 87. The State does not disp u t e t h at impeachment evidence, like ex culpatory evidence, plainly constitute s evidence that is favorable to the accused under Brady ’s f

irst p ro n g

. See, e.g. , United States v. Bagley

, 473 U.S. 667, 676 (1985) (“I mpeachment evidence

. . . a s well as ex culpatory evidence, falls within th e Brady rule. Such evidence is ‘evidence favorable to an accused

. . . .’” (citations o mitted)). 1 1 W e h old that under clearly e stablished Supreme Court precedent, Shelt o n s atisfies the “evidence favorable to the accused” e lement of B rady error

. A s to the second element, the State concedes that it ma d e a deal with Thomas requiring that his c ompetency not be ex a mined prior
to h is testimony ag ainst Shelton, and that it failed to d isclose the deal to the defense.

No state court decision has addressed the third element o f Shelton’s Brady c laim—whether the suppression o f the impeachment evidence prejudiced h i m, i.e., was “material.” The district court applied AEDPA deference in its review of the materiality of the suppressed evidence because it believed

11 S ee a lso Ba n ks v. Dretke

, 5 4 0 U.S. 6 6 8
, 6 9 1 (2 0 0 4 ) (“ F arr’ s paid in f o rm an t statu s, q u alif

ies as ev id en ce ad v an tag eo u s to B an k s.”); S trickler

, 5 27 U.S. at 2 8 0 (“ W e h av e

. . . h eld th at th e du ty to d isclo s e

. . . en co m p asses im p each m en t ev id en ce as w ell as e x cu lp ato ry ev id en ce.” (citatio n o m itted )); Gig lio v. Un i ted Sta tes , 4 0 5 U.S. 1 5 0
, 1 5 4 (1 9 7 2) (h o ld i n g “ n o n d isclo su

re o f ev id en ce af

f ectin g cred ib ility f

alls w ith i n ” th e Bra d y ru le).S H E L T O N V

. M A R S H A L L 18

that the state court meant “material” when it said “favorable.” W e wil l n o t read the state court opinion as meaning something other than wh at it plainly said. W e according ly

ex a mine the materialit y q u e stion de n ovo. See Porter v

. McCollum

, 558 U .S. 30, 38–3 9 (2009); Rompilla v

. Beard

, 545 U.S. 374, 390 (2005); W iggins v. Smith

, 539 U .S. 510, 534 ( 2 003); s ee a l

s o A m a do v. Gonzalez

, 758 F .3d 1119, 1131, 1136–38 (9th Cir. 2014).

C. Materiality

“[ The] touchstone of materiality i s a ‘reasonable probability ’ of a different result

. . . . The question i s n ot whether t h e d efendant would more likely than not have received a different verdict with the e vidence, b ut w hether in i ts absence he r eceived a fair trial, understood as a t r i al resulting in a verdict w orthy of confidence.” Kyles v. W h itley

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

“ the g overnment’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 contex t of the e ntire record.” U n i t e d States v. Agurs
, 427 U.S. 97, 112 (1976). 1 2

Th o mas provided “ the g lue that h eld the prosecution’s

case [ for the first-deg ree murder of Thorpe] tog ether.” Horton

v. M ayle , 408 F .3d 570, 579 (9th Cir. 2 005). His “testimony

wa s t h e only direct evidence establishing that [ Shelton] h ad

a premeditat e d plan to kill” or that h e d eliberated—the key issue with r espect to whether he was g uilty of first

- d e gr e e, rather than second-degree, murder. Gonz a l ez v. W ong ,

12 O n ce p rej u d ice is sh o w n un d er t h is stan d ard

, f

u rth er h arm less- erro r

rev iew d o es n o t ap p ly

. S

ee Kyles , 5 14 U.S. at 4 3 5

.S H E L T O N V

. M A R S H A L L 19

667 F

. 3d 965, 986 (9 t h C i r. 2011). 1 3 The district court appreciated t h a t there ex ists a “reasonable probability o f a different result” wher e , had the suppressed evidence been disclosed, the defendant mig ht well have been c onvicted o f a different offense or a different d eg r ee of the crime. Kyles

, 514 U.S. at 434. That is, a prob ab i lity of a total acquittal is not required to establish prejudice.

W e conclude that had T h o m a s’s testimony ag ainst Shelton been ex cluded as a result of the prosecution’s secret efforts to preclude an inquiry into his competency , there is a reasonable probability that the j u r y would not have f ound Shelton g uilty of d eliberate and premeditated first-deg r ee murder—that the outcome of the proceeding would have been different. Certainly

, viewing the record as a whole we cannot be confident that the verdict would h ave b e e n the same. W e

13 T h e j ury w as in s tru cted th at fi r s t -d eg ree m u rd er w as eith er: (1 ) “ m urd er w h ich o ccu rs d urin g th e co m m issio n o r attem

p t t o co m m it th e crim e of ro b b ery ,” o r (2 ) “ m urd er w h ich is perp etrated b y an y k in d of

w illf u l

, d elib erate an d p rem ed itated k illin g .” T h e v erd ict ref lects th at th e j u ry co n v icted Sh elto n o f th e f irst- d eg ree m

urd er o f T h o rp e b ased o n th e latter th eo ry

an d rej ected th e f

o rm er.

A lth o u g h w e h o ld in a m em o ran d um d isp o sitio n f iled co n cu

rren tly

w ith t h i s o p in io n th at th e ev id en ce, ap art f ro m T h o m as’ s testim o n y reg ard in g Sh elto n ’ s in ten tio n al p articip atio n i n t h e k id n ap p in g o f T h o rp e

an d Craig

, p reclu d es a f

in d in g of a reaso n ab l e p ro b ab ility o f a d i ffe r e n t

o u tco m e o n th e k id n ap p in g co un ts, at th e tim e o f trial k id n ap p in g w as n o t

a p red icate o f

f en se f o r f irst- d eg ree f

elo n y m urd er. Rath er, m

u rd er

o ccu rrin g in th e co urse o f a k id n ap p in g w as p un ish ab l e as seco n d

- d eg ree

m urd er o n l y

. S

ee Cal. P en al Co d e § 1 89 (W est 1 9 7 0 & S u p p

. 1 9 8 8 ). In 1 9 9 0
, P ro p o sitio n 1 1 5 am en d ed sectio n 1 8 9 to in clu d e k id n ap p i n g as a p red icate of

f en se f or f irst- d eg ree f

elo n y m urd er. S ee Cal. P en al Co d e § 1 8 9 (W est Su

p p

. 1 9 9 9 ) (“ Histo rical an d Statu to ry No tes”); Pe o p l e v

. Da vis
, 8 9 6 P .2 d 1 1 9
, 1 4 6 & n .1 1 (Cal. 1 9 9 5 ). T h e am en d m en t d id n o t ap p ly retro activ ely , h o w ev er. S ee id

.S H E L T O N V

. M A R S H A L L 20

d o not rely on the p ossibility that Thomas’s testimony wa s

ex c luda b le, however, as we also hold that there was a

r easonable probability o f a different outcome had T h oma s ’s testimony been admitted and then impeached by evidence o f the prosecution’s undisclosed deal with him.

W e cannot overemphasi z e the importance o f allowing a full and fair cr o ss-ex amination o f
g overnment witnesse s whose testimony is important to the outcome of the c ase. Had the full ex tent of the pr o s e c ution’s deal with Norman Thomas bee n disclosed to the defense, a full cross-ex ami n ation of this critical witness would have revealed that even the prosecu t ion viewed Thomas’s testimony with some doubt.

Silva I I
, 416 F .3d at 9 86–87 (internal citations and quotation marks omitted).

Shelton and Thoma s ga v e very different accounts o f Thorpe’s murder and Shelton’s role in it, with Shelton asserting that he was surprised and e ven endang ered b y Silva’s actions, while Thomas clai m ed t hat Shelton clearly knew what was a

b out to happ e n to Thorpe and indeed actively and eag erly p lay e d a part in it. According to Shelton, (1) he thoug ht that he was taking T horpe up the hill in order
to c onceal him and that Silva went to g et more chains; ( 2) he did not know that T h o r p e would be killed; (3) he was surprised when Silva opened f ire on Thorpe and had to jump
out of harm’s way himself; and (4) he shot at Thor p e only after Silva had already f

e l l e d h im 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 o rder. B yS H E L T O N V

. M A R S H A L L 21

c o n trast, Thomas testified that (1) Shelton g uarded Thorp e knowing that Silva was g oing to retrieve a machine g un; (2) Shelton returned from the hill in order to t u rn up the stereo—indicating that he k n ew in advance that Thorpe would be shot a

nd tried to c o n ceal the sound; ( 3) while waiting for Silva’s r eturn, Shelton told Thorpe to “look at the mountain, because it was the last thing he would see”; and (4) Shelton laug hed while recounting Thorpe’s murder. T h omas also described Shelton as taking the g u n from Silva in order
to shoot Thorpe, rather than b eing ordered to do so or risk being shot himself.

N o other evidence corroborated this account by Thomas of Shelton d e liberating and premeditating the k illing o f Thorpe—not Shelton’s statements to investig ators, his trial testimony

, the notes he passed t o Thomas in jail, or any phy sical o r forensic evidence. “[ I ] t was [ Thomas’s tainted testimony alone] that revealed that [ Shelton] confessed” to k n o w i ng in advance that Thorpe would b e killed and to participating willingly in his ex ecution, Horton , 408 F .3d at 579—by far the most damning evidence heard by the ju ry , see Arizona v. Fulminante , 499 U.S. 279, 296 (1991).

The materiality of evidence “is best u nderstood 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. I n his closing arg ument, DePasquale emphasiz ed the “look at t he mountain” statement, arg uing that it demonstrated that Thorpe n ever h ad a c h a n c e to survive. Moreover, in entering the judg ment, the trial judg e cited “the transactions

. . . of turning up the hi-fi or this loud spe ak e r ”

as the b asis of the first-deg r e e conviction because it de m o n s trated that “Shelton had a dvance knowledg e of the plan involving Thorpe” a nd that “the purpose of the missionS H E L T O N V

. M A R S H A L L 22

at the time [ was] the ex ecution of Thorpe.” This evidence that the p rosecutor and the district judg e found central to the firstdeg ree conviction c ame solely from T homas—a witness whose testimony even the p rosecution seriously doubted a nd whom it prec l u d ed from obtaining a competency

ex a mination.

I n Silva II
, this Court ex plained why the very deal at issue in this case, had it not been illeg ally suppressed, would have severely u n d e rmined the State’s c ase and created “a reasonable probability

of a different result”:

Had the prosecution’s deal foreclosin g a psy chiatri c ex amination of Thomas been revealed, it could hav e had a profound effect

on the jury ’s assessment of Thomas’s testimony

. . . .The fact of the undisclosed deal bears critically and directl y on Thomas’s competence a

nd credibility

as a w itness. Had the de f e n se k nown that the prosecution h ad
requ ired, as a condition of Thomas’s plea barg a in, that he ag ree not to be psy chiatrically

e v a l u a t e d b e f o r e testifying

, competent defens e counsel would h ave ensured that the jury was made aware of the p otentially devastating fact that the state itself doubt ed Thomas’s mental competency

. . . . [ T ]he very fact t h a t t he
pr o s e c ution h ad soug ht to keep evidence o f Thomas’s mental capacity away from the jury mig ht h a ve diminished the State’s own credibility

as a presenter of evidence.

I n sum, the f

a c t of the prosecution’s undisclosed deal with T h o mas, had it beenS H E L T O N V

. M A R S H A L L 23

p r e sented to the jury

, w ould have put the testimony of this critical witnes s in a substantially diffe r e n t lig ht, both directly

, b y casting doubt on the accuracy o f Thomas’s
tes timony

, and indirectly

, b y inducing the defense to fo c u s the jury ’s attention on Thomas’s lapses and inc o n sistencies and b y calling into questi o n the prosecutor’s faith in the competence of his own witness.

Silva I I
, 416 F .3d at 987–88 (citations and internal quotation marks omitted).

T h e d i strict court n onetheless believed that the suppress e d evidence was not material because of Shelton’s statements “that he accompanied Silva in walki n g T h orpe up the hill,
g uarded Thorpe in Silva’s absence,

. . . jumped behind a tree to avoid being shot

. . . [, and] admitted that he shot Thorpe with Silva’s machine g un after Silva fired one and a half clips i n t o t h e v i c t i m.” W hile these statements p r o v i d e corroboration o f Shelton’s participa t i on in Thorpe’s murder such that even a jury informed o f the deal with Thomas mig ht well have found Shelton g uilty of s e c o n d -degree murder—that is, murder in the course of a kidnapping—they are fully consistent with and simply form a part of Shelton’s

ex p l a n a tion that he was not aware in advance of what was about to happen to Thorpe and thoug ht that he w a s h e l p ing

move him to a location out o f the public v iew. Thus, the
statements viewed in contex t provide little if any evidence a s to the premeditation or deliberation required for a first-deg r ee conviction. See supra note 1 3

. I ndeed, Shelton’s testimony that h e had to jump o ut of the line of fire, if credited, w o uld be evidence that he was surprised by Silva’s conduct, and the fact that Shelton told the investig ators that, in fear for his o wnS H E L T O N V

. M A R S H A L L 24

life, he fired at Thorpe after Silva had already shot him forty

five times d o e s not indicate premeditation and deliberation. Had defense counsel b een able to cross-ex amine T h omas thoroug hly about the deal’s requirement that he not receive a psy chiatric ex amination before testifying and ex plain to the jury that e v e n the prosecution w as concerned about his mental stability

, if not his sanity

, there is a rea s o nable probability that the jury w ould not have r e a c h e d the verdict it did. Certainly

, as Thomas’s e vidence was the primary evidence upon which the prosecution relied to establ i sh premeditation and d e l iberation, we cannot say with confide n c e t hat had his testimony been impeached o n the
g round of his potential mental incapacity or insanity

and the prosecution’s unlawful deal to keep that information from the jury

, the jury would h ave n evertheless returned a verdict o f first-deg ree rather than second-deg r ee murder.

True, Shelton’s admiss i o n s that he was present for Thorpe’s killing

, watched Thorpe while w aiting for Silva, a nd shot at his body after Silva a lready had fired f orty -five rounds into him, if taken in isolation, could c onstitute circumstantial evidence that he knew in adv an ce that Thorpe would be kil l e d

. Nevertheless, we have h eld that prejudice is established where the c oncealed evidence would impeach the only witness to provide direct ev i d e n ce of the defendant’s

mens rea

. See Hayes v. B rown , 399 F .3d 972, 9 85 (9th Cir. 2005) (en banc) (finding suppressed evidence material where tainted witness’s testimony “ was the centerpiece of the prosecution’ s case” and “[ n] e arly all of the other evidence
ag ainst Hay es was circumstantial.”); see also G onzalez

, 667 F .3d at 986; Horton
, 40 8 F

. 3d at 580; Benn v. Lambert

, 283 F .3d 1040, 1062 (9 t h C i r

. 2002). W e repeat: Thomas’s testimony supplied the on l y d i rect e v idence that Shelton deliberated and premeditated Thorpe’s murder, as opposed toS H E L T O N V

. M A R S H A L L 25

acting o n Silva’s command and in fear for his life. Moreover, this Court has previously h eld the suppression of the prosecution’s deal with Thomas to b e p rejudicial in Silva’s

ca s e , notwithstanding physical evidence of the crime corroborating Thomas’s story , f ing erprint analy sis pl a c i ng Silva at the scene, and Silva’s equivocating statements to the police post-arrest. S

ee S i l va II

, 416 F .3d at 984. See also Order D eny ing Claim D, S i l v a v. W oodford

, 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 thoroug hly impeached, notwithstanding the fact that Shelton admitted bei n g present for Thorpe’s murder after h aving initially denied as much. I n short, we reiterate, the suppression by the prosecution of its ag reement with T h omas that he not obtain a mental ex amination prior to his testimony undermines confidence in the verdict.

The State arg ues that a statement that Shelton made to an investig ator on F ebruary 1 d emonstrates the ver a city o f Thomas’s account of Thorpe’s murd er a n d rendered his testimony superfluous. Accor d ing to an investig ator’s
tes t i m ony , while Shelton was deny ing his presence at Thorpe’s murder in that interview, he claimed that he w as in the cabin at the time and that Thomas told h im to turn up the
stereo. A t t ri a l DePasquale arg ued that this made it “almost obvious that [ Shelton is] putting Thomas in his position and what he’s say ing there is in essence an admission that h e was try ing to lay at T homas’ feet an admission that h e went in there and he said turn up that stereo.”

This disputed statement about the stereo is not, however, sufficient to g ive u s confidence in the first-deg ree verdict. The case is r iddled with i n c onsistencies reg arding w ho didS H E L T O N V

. M A R S H A L L 26

what. I n d eed, at one p oint, Thomas told the prosecution “that he was with Silva when Thorpe was killed.” Silva I I
, 416 F .3d
at 988 (emphasis a dded). Moreover, the investig a tor w ho testified to Shelton’s statement about the stereo also testified tha t h e “[ didn’t] remember ex actly what [ Shelton] told [ him] .” 1 4

A comparison o f the evidence ag ainst Shelton with respect to Craig ’s murder strong ly supports our c o n c l u sion that he was prejudiced by the State’s Brady viol a t ion. The jury heard evidence of premeditation and delibe ra t i o n with respect to Craig ’s murder—Shelton’s ad m i ssion to the investig ator s t hat the men had d iscussed kidnapping a nd killing a g irl prior to the crimes—y et it returned a verdict o f

o nly second-degree murder with respect to Shelton’s ro l e i n he r k i l l ing

. The State concedes that this was because of the jury ’s “finding that there was i nsufficient evidence o f deliberation or premeditation in killing Crai g.” Meanwhile, the only di rect evidence that Shelton deliberated o r premeditated the killing of Thorpe came from a witness whose vulnerability to charg es of inc o mpetency or insanity the State felt compelled to conc ea l

. The other e vidence that pertained to premeditation a n d d eliberation applied equally

, if not more strong ly

, to the murde r of Craig as to that o f Thorpe. I t follow s t h at if the jury had known about the prosecution’s secret d e a l w i th Thomas, there is an even strong e r probability than in Craig ’ s case that it would have returned a verdict other than first-deg ree murd e r —that it

14 A t trial, Sh elto n m ain t a i n e d t h at th e co n v ersatio n ab o u t th e stereo

v o lu m e o ccu rred sev eral h o urs b ef o r e T h o rp e w as tak en u

p th e h ill an d

w as un co n n ected to th e k illin g , th at h e n ev er said o th erw ise, an d th at th e in v estig ato r eith er in ten tio n ally l ied ab ou t w h at Sh elto n s aid reg ard in g th e stereo in th e in terv iew o r m istak en ly reco u n t ed an in terv iew with Th o ma s

.S H E L T O N V

. M A R S H A L L 27

would have found ins u fficient evidence to conclude bey ond

a reasonable doubt that Shelton p remeditated a nd deliberated as to Thorpe’s killing

. 1 5

W e reject the State’s contention t h a t evidence of the prosecution’s secret deal with Thomas would have been cumulative to the impeachment evidenc e presented to the jury

. Thomas’s accident and the fact that the prosecution h ad dropped murder charg es ag ainst h i m in ex chang e for his cooperation w ere m entioned briefly during the trial. However, “the undisclosed evid e n c e w as not duplicative o f the impeachment evidence actually p resented, but rather was of a different kind. I t ‘would have provided the defense with

a new and di f

f e r e n t g round of impeachment.’” Silva II
, 416 F .3d at 989 (quoting Benn
, 283 F .3d at 1056). Evidence that murder c harg es had been dropped “could cast doubt only

on Thomas’s forthrig htness, not his competence t o testify

, ” id

. at 9 89, and the defense’s arg ument that Thomas “does not have a g ood m e m ory ” was far less compelling than the suppressed evidence that the prosecution doubted his mental stabili t y t o the deg ree that it stopped him from being
psy chiatrically

ex amined.

F inally

, “[ t ] h e prosecutor’s own conduct in keeping the deal secret underscores the deal’s importance.” Silva II
, 416 F. 3 d a t 990. His “actions

. . . speak as loud as his

w o rds.

. . . T he State’s deliberate and strateg ic decision t o

1 5 Mo reo v er, if th e im

p lau sib ility o f S h elto n ’ s claim s th at Craig w a s th ere v o l u n t a rily

, ev en af ter h er b oy f

rien d h ad b een k illed

, d id n o t p ersu ad e th e j ury to f

in d h im u n w orth y o f belief an d to rej ect h i s acco u n t

o f b ein g su

rp rised b y h er m

urd er, th ere is n o reaso n to th in k t h a t t h e in co n sisten cies i n h is statem en ts w o u l d h av e cau sed it to reach a v erd i ct

o f f irst- d eg ree m

urd er w ith

resp ect to T h o rp e, eith er.S H E L T O N V

. M A R S H A L L 28

make the deal a

nd not to disclose it sug g ests the weakness o f its post h oc claims that the evidence was irrelevan t

. ” I d

. I f Thomas’s testimony was unnecessary to Shelton’s conviction

as the State now c laims, the n t h ere was no reason for it to take furtive actions to ensure t h a t the jury never heard that b o t h it a nd Thomas’s lawy er believed that he mig ht w e l l b e incompetent or insane. I ndeed, the de al was p remised on DePasquale’s a g reement with Gay that credible testimony b y Thomas w as necessary to obtaini n g a conviction of both Shelton and Silva.

III. Conclusion

I n sum, the p rosecution committed Brady error b y conceal i n g from the defense and the jury its deal precluding

an ex amination of the mental competency of its star witness. W e find this error prejudicial with respect to Shelton’s firstdeg ree murder conviction in part beca u s e T h omas was the only witness who provided direct e vidence that S h e lton deliberated a

nd p remeditated the murder of Thorpe, and in
p a r t b ecause it is the prosecution’s suppression of t h e p o w e r f u l i m p e a c h m e n t ev i d e n c e t h a t “ ‘ u n d er m i n e s confidence in the o utcome o f t he trial.’” Kyles

, 514 U.S. at 434 (quoting B a g l e

y , 4 73 U.S. at 678). Althoug h we have serious doubts about the go o d-faith of the prosecution as a whole and find DePasquale’s misconduct inex cusable, the

ex tremely strong evidence in the record, aside from Thomas’s
te stimony

, reg arding Shelton’s commission o f the other crimes precludes us from g ranting relief with respect to those convictions. 1 6 W e leave those charg es, which we ad d r e s s in the memorandum disposition filed c oncurrently w ith this opinion, undisturbed. The district c ourt is directed to issue the

16 Sh elto n d o es n o t ch allen g e h is co n v ictio n s f o r w eap o n s o f

f en ses.S H E L T O N V

. M A R S H A L L 29

w rit ordering the State to retry Shelton for the murder o f Thorpe within a reasonable time o r to resentence h im bas ed on the remaining convictions.

REVERSED IN P ART, AF F IRMED IN P ART, AND REMANDED F OR ISSUANCE OF A WRIT.