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Jesse Gonzalez v. Robert Wong

December 7, 2011

JESSE GONZALEZ, PETITIONER-APPELLANT,
v.
ROBERT WONG, WARDEN OF
CALIFORNIA STATE PRISON AT SAN QUENTIN, RESPONDENT-APPELLEE.



D.C. No. 2:95-CV-02345-JVS Appeal from the United States District Court for the Central District of California Lourdes G. Baird and James V. Selna, District Judges, Presiding

The opinion of the court was delivered by: Clifton, Circuit Judge:

FOR PUBLICATION

OPINION

Argued and Submitted

January 10, 2011-Pasadena, California

Before: Diarmuid F. O'Scannlain, William A. Fletcher, and Richard R. Clifton, Circuit Judges.

Opinion by Judge Clifton;

Partial Concurrence and Partial Dissent by Judge W. Fletcher; Partial Dissent by Judge O'Scannlain

OPINION

Jesse Gonzales*fn1 was convicted in a California state court of first degree murder, with a finding of the special circumstance of killing a law enforcement officer engaged in the lawful pursuit of his duties, and was sentenced to death. The Califor-nia Supreme Court affirmed the conviction and sentence and denied Gonzales's petition for post-conviction relief. People v. Gonzalez, 800 P.2d 1159 (Cal. 1990). The district court denied his petition for habeas corpus under 28 U.S.C. § 2254, and he appeals that denial to us.

Gonzales's appeal requires us to consider and apply the decision of the United States Supreme Court earlier this year in Cullen v. Pinholster, ___ U.S. ___, 131 S. Ct. 1388 (2011). In that decision, the Court held that in reviewing the petition of a state prisoner for habeas relief under the Antiterrorism and Effective Death Penalty Act ("AEDPA") when the prisoner petitions for review of a claim adjudicated in the state courts on the merits under 28 U.S.C. § 2254(d)(1), a federal court may consider only the record that was before the state court when it adjudicated the claim.

One of the arguments made by Gonzales to the California Supreme Court and rejected by that court was that the prosecutor failed to turn over exculpatory material as required under Brady v. Maryland, 373 U.S. 83 (1963), and related cases. The argument specifically referred to information concerning one prosecution witness, a jailhouse informant named William Acker. Acker testified during the guilt and penalty phases of Gonzales's trial that Gonzales had admitted that he intentionally killed the deputy sheriff, in effect confessing to Acker that he was guilty of the crime and special circumstance alleged. Some material regarding Acker was turned over by the prosecutor to Gonzales's defense counsel prior to trial, but other material, concerning Acker's mental state and credibility, was not. Despite diligent effort by Gonzales, some of the documents that were not turned over did not become known to Gonzales until they were obtained during the federal habeas proceeding in district court, after the state court had rendered its decision. Those materials were not, therefore, part of the state court record.

Under Pinholster, we may not consider those later-discovered materials in reviewing Gonzales's federal habeas claim. Because it appears to us that those materials strengthen Gonzales's Brady claim to the point that his argument would be potentially meritorious - that is, that a reasonable state court might be persuaded to grant relief on that claim - it is not appropriate for us to ignore those materials. We remand that portion of the case*fn2 to district court with instructions to stay the proceeding in order to give Gonzales an opportunity to return to state court and present his claim with the benefit of the materials that were not available and not part of the record at the time of the California Supreme Court decision. By that process, we seek to satisfy the intent of AEDPA, as discussed in Pinholster, 131 S. Ct. at 1398, that habeas claims of state prisoners be channeled in the first instance to state court.

We are not persuaded by the other arguments presented by Gonzales. Thus, we affirm the judgment of the district court as to most issues, but vacate the part of the judgment that denied the Brady claim (and related ineffective assistance of counsel claim, see note 2) and remand that claim to the district court with instructions to stay proceedings to permit Gonzales to present the claim to the California Supreme Court.

I. Background

Eleven plain-clothed sheriff deputies arrived in three unmarked vehicles at the home of Gonzales's parents in La Puente to execute a search warrant on the evening of May 29, 1979. The search warrant was based on an undercover narcotics purchase made several days earlier from Gonzales's cousin at the residence. Four of the deputies approached the front door and one of them knocked and stated "Los Angeles Sheriff's Department. We have a search warrant. Open the door." Several seconds later the knock and announce was repeated.

The deputies heard what sounded like running and, fearing that narcotic evidence was being destroyed, they attempted to enter the house forcefully. Deputy Robert Esquivel eventually kicked in the door and his momentum carried him into the entryway. Esquivel saw Gonzales standing at the end of the hallway with a shotgun pointed at the front door. The shotgun blast missed Esquivel but hit Deputy Jack Williams who entered the house behind him. Williams died as a result of the shotgun wound. Gonzales was shot and apprehended by the deputies.

Gonzales was charged with first degree murder with the special circumstance of killing a peace officer who was engaged in the lawful pursuit of his duties. His trial was bifurcated into two phases, a guilt phase and a penalty phase. Each phase was tried before a different jury.

During the guilt phase, the facts of the shooting, as described above, were not disputed by the defense. Gonzales's defense was that he had not heard the officers' announcements and instead believed the officers were members of a rival gang, known as the Bassetts, coming to kill him and his cousin. The central question at trial was Gonzales's understanding and intent at the time of the shooting.

The prosecution presented significant evidence showing that Gonzales could not have believed that the officers were gang members. All of the surviving deputies who were by the front door testified as to the manner of the entry and the shooting. In particular, they testified that while they were dressed in casual clothing, all of them, including the officer who was killed, had their badges either affixed to their jackets or in their hands. They also testified that they twice announced that they were police before entering the home. Additionally, an officer with expertise in gang-related crime testified that La Puente was no longer an area of high gang activity. He testified that almost all gang violence consisted of drive-by shootings, conduct very different from the actions of the officers serving the warrant. He also described the typical gang warrior as a Latino teenager and gave reasons why the officers, all of whom were in their 30's and, with the exception of Esquivel, were white, could not have been mistaken for gang warriors. Thus, the prosecution argued, Gonzales must have known that he was shooting at law enforcement officers, not rival gang members.

In addition, the prosecution presented evidence to support the contention that Gonzales not only knew he was shooting at officers but that he knew in advance that the police were coming and planned on using the raid as an opportunity to kill a police officer. This theory was based almost entirely on the testimony of William Acker, another prisoner held in the same jail as Gonzales. Acker testified that while in jail, Gonzales admitted to knowing that the men were officers because he had received a phone call informing him of the raid, and further that he planned to "bag a cop" when the officers served the warrant. Acker also testified that Gonzales had planned in advance to say that he believed the officers were Bassett members.

Gonzales sought to counter the prosecution's evidence. He attempted to show that he reasonably could have believed the officers were gang members. He presented evidence of other gang-related violence in La Puente. He relied on the testimony of two officers with whom he spoke shortly after the shooting. Both officers testified that Gonzales told them he had believed the officers were Bassetts.*fn3 To explain why it was reasonable for Gonzales to believe that the Bassetts would storm his house to kill him, Gonzales sought to establish that he had been a former leader of the La Puente gang, rivals of the Bassetts.

Gonzales testified in his own defense. His testimony was that he was inside the house when he heard the cars pull into the driveway. He went to the window but did not recognize the men. He testified that he focused on a Latino male who he said was the front seat passenger in one of the cars. He stated that he believed that the men were Bassetts. He denied seeing badges or hearing the announcements.

While Gonzales denied knowingly killing a police officer, his testimony about the shooting was inconsistent with the facts as described by all of the officers who testified. Among the many inconsistencies was that he insisted that Esquivel, the only Latino officer, was sitting in the front passenger seat.

All of the officers stated that Esquivel was driving one of the cars. Gonzales also denied that the cars he saw were the ones the officers had identified as their vehicles.

The defense also sought to counter Acker's testimony. Gonzales testified that he had never admitted to Acker that he knew the men were police officers. James Nobel, a prisoner who was housed in the cell between Acker and Gonzales, testified that he never saw Gonzales speak with Acker. Nobel also testified that Gonzales had asked him to read aloud the police reports of the incidents because Gonzales was illiterate. Both Gonzales and Nobel said that Acker could have overheard Nobel reading the police reports, which the defense argued explained how Acker knew specific facts about the shooting.

The defense also sought to impeach Acker. During cross examination, Acker admitted that he had previously pled guilty to a charge of murder and that he had provided evidence against his own wife concerning that murder. He denied being a police informant or giving information in other cases. He testified that he hoped giving the information would help him get transferred to an out-of-state prison because he believed he would be killed by gangs if he remained in California. He insisted, though, that he was testifying because "it was a step in the right direction" and would help him get balance in his life. Acker admitted that he could lie if he wanted to, but insisted that he was not lying about Gonzales's statements.

Gonzales was convicted of first degree murder and the special circumstance of killing a police officer engaged in the lawful pursuit of his duties. The case then moved to the penalty phase. The state sought the death penalty. The first penalty phase trial resulted in a hung jury. The penalty phase was retried before a different jury.

The state's penalty phase case was aimed at establishing aggravating factors that would outweigh any mitigating factors offered by Gonzales.*fn4 The primary aggravating factor offered by the state was the aggravated nature of the killing, which the state sought to establish by proving that Gonzales was aware of the police raid and had planned out the killing of the officer, including his Bassett excuse. The focal point of the state's case during the penalty phase was Acker's testimony that Gonzales had confessed to Acker all the key facts that the state argued made Gonzales's crime worthy of the death penalty.

During the penalty phase, the defense continued to maintain that Gonzales had believed the officers were gang members. However, faced with an existing guilty verdict on the charge of premeditated murder, the defense argued in the alternative that Gonzales did not know about the raid in advance and that therefore the crime was not so heinous and did not warrant the death penalty. For example, evidence was presented that Gonzales had gone to work that day and had not been waiting around for the officers. Gonzales did not testify again during the penalty phase, and no character evidence was presented on his behalf. The second penalty phase jury imposed the death penalty. The trial judge denied a motion for a retrial and a motion to modify the sentence.

Gonzales appealed his conviction and brought a petition for post-conviction relief to the California Supreme Court. The court considered both the appeal and the habeas petition at the same time. Gonzales's habeas petition claimed, among other things, ineffective assistance of counsel based on his trial counsel's failure to investigate and present positive character evidence. The California Supreme Court appointed a referee, a Superior Court judge, to review evidence and make factual findings as to what character evidence could have been uncovered by Gonzales's counsel and what evidence the prosecution may have presented in rebuttal.

At the referee hearing, Gonzales's trial counsel, Ralph Bencagey, testified about his investigation. He testified that he conducted it on his own and that he interviewed people from the neighborhood. He did not conduct an investigation into Gonzales's health or school records and did not have Gonzales tested for mental health impairments.

Gonzales also presented character witnesses at the referee hearing who testified that Gonzales was a kind individual who had a loving and caring relationship with his children as well as other children. Some also testified that he was a "slow" child and had never learned to read. However, several of these witnesses had limited interactions with Gonzales, and none were aware of his involvement with gangs. Two of the witnesses also described the tragic death of Gonzales's twin sisters in a train accident and the subsequent impact the tragedy had on Gonzales and his family. The referee made factual findings and filed a report with the California Supreme Court.

While Gonzales's case was pending before the California Supreme Court, a scandal erupted regarding false testimony by jailhouse informants in Los Angeles. Leslie White, a jail-house informant, revealed that he and other informants in the Los Angeles County jail had fabricated confessions during the period from 1979 through 1988.*fn5 An investigation into the use of jailhouse informants by prosecutors found significant problems. While Acker was never officially identified as a jail-house informant during the investigation, the revelations of how jailhouse informants had fabricated confessions led Gonzales's lawyers to seek additional discovery regarding Acker. Gonzales filed discovery motions which were heard by the judge who had presided over his trial. The trial court granted the request for further discovery, but the State sought a writ of mandamus from the California Supreme Court to overturn the discovery order. That issue was consolidated with Gonzales's habeas petition and direct appeal.

The California Supreme Court upheld Gonzales's conviction and death sentence and rejected his claims for habeas relief. Gonzalez, 800 P.2d 1159. On the discovery issue, the court held that the trial court could not authorize the discovery sought by Gonzales because it no longer had jurisdiction over the case. It also declined to grant the discovery requests under its direct appeal or habeas jurisdiction. Id. at 1256-61. The court stated, though, that "we expect and assume that if the People's lawyers have such information in this or any other case, they will disclose it promptly and fully." Id. at 1261. No such information was voluntarily disclosed to Gonzales.

Gonzales filed a petition for habeas corpus in federal court. The district court denied Gonzales's request for an evidentiary hearing on most of the claims, but it granted discovery on the claim that Gonzales's trial counsel failed to investigate and the state failed to disclose evidence that Acker was a government agent. This discovery did not unearth evidence that Acker was a government agent, but it did uncover impeachment evidence about Acker that had not been provided to the defense prior to the trial. Specifically, the state turned over six psychological reports prepared by prison psychologists on Acker while he had been incarcerated in California prisons between 1972 and 1979. These reports, discussed in more detail below, indicated that Acker had a severe personality disorder, was mentally unstable, possibly schizophrenic, and had repeatedly lied and faked attempting suicide in order to obtain transfers to other facilities.

Based on this new evidence Gonzales moved for reconsideration of the denial of an evidentiary hearing on his ineffective assistance of counsel and Brady claims. The district court denied the request, holding that while the newly discovered evidence "strengthened some of the elements" of these claims, it did not establish materiality. The court subsequently denied Gonzales's other claims.

Gonzales sought and received a certificate of appealability from the district court under 28 U.S.C. § 2253*fn6 and brought this appeal.

II. Discussion

The provisions of AEDPA apply to Gonzales's petition because it was filed on September 20, 1996, after AEDPA's effective date. Under AEDPA, a federal court may not grant the writ based on any claim that was adjudicated on the merits by a state court unless the state court decision "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 a petition for a writ of habeas corpus is reviewed de novo. Lambert v. Blodgett, 393 F.3d 943, 964 (9th Cir. 2004).

Gonzales has raised numerous claims in his habeas petition, some of which relate to the guilt phase, some to the penalty phase, and some to both. We begin by addressing his Brady claim, which he asserts as to both phases. It is the only claim on which we remand this case to the district court. We then address his other claims, which we conclude are not meritorious.

A. Brady Claim*fn7

1. Procedural History

Gonzales's state habeas petition raised a Brady claim based on allegations that the state failed to turn over evidence about Acker's criminal history. His argument was based on an inaccurate criminal history printout given to Gonzales's counsel. It showed Acker was serving a sentence of life without parole, when in fact he was sentenced to life with the possibility ofparole. The criminal history also omitted several burglary convictions. Gonzales argued that the state's failure to correct these errors constituted a Brady violation. In addition, Gonzales argued that the state failed to inform him that Acker was providing information to the police in other criminal cases. The California Supreme Court rejected this claim, concluding that there was no prejudice because "these additional details do not paint a significantly different picture of Acker's character and motives than appears on the record." Gonzalez, 800 P.2d at 1193.

As noted above, Gonzales sought additional discovery about Acker from the state during the pendency of his state appeal. The state trial court granted Gonzales this discovery, but the California Supreme Court overturned the discovery order. This effectively ended Gonzales's ability to pursue additional Brady claims in state court.

Gonzales's initial federal habeas petition raised a Brady claim based on the same withheld evidence that was the subject of his state petition. The district court held that Gonzales suffered no prejudice from the withholding of the material and denied the request for an evidentiary hearing. When additional suppressed evidence was uncovered, Gonzales twice moved for re-consideration of his Brady claim. The district court twice denied the request, concluding that while the newly discovered evidence "strengthened some of the elements" of these claims, it did not establish materiality. The court based its conclusion on its belief that Acker was adequately impeached and his testimony was corroborated by other evidence. Notably, the district court concluded that "[a]t the guilt phase, and to a lesser degree at the penalty phase, this was not a case where it is likely the jury had to believe Acker's testimony in order to believe the prosecution's theory."

2. Cullen v. Pinholster

After we heard oral arguments in this case, the Supreme Court filed its decision in Cullen v. Pinholster, 131 S. Ct. 1388 (2011).*fn8 We ordered and received supplemental briefs from the parties regarding the impact of that decision. Two elements of Pinholster are of particular importance for the case before us.

[1] First, Pinholster specifically held that "review under § 2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on the merits." Pinholster, 131 S. Ct. at 1398.

[2] Second, in announcing that holding, Pinholster empha-sized that, under AEDPA, the state courts are to bear primary responsibility for adjudicating habeas claims brought by state prisoners. In the Court's words, AEDPA "demonstrate[d] Congress' intent to channel prisoners' claims first to the state courts. . . . 'The federal habeas scheme leaves primary responsibility with the state courts.' " Id. at 1398-99, (quoting Woodford v. Visciotti, 537 U.S. 19, 27 (2002) (per curiam)).

The Acker psychological reports were not part of the record when the California Supreme Court rendered its decision because they were not obtained by Gonzales until later, while he was pursing his federal habeas petition in district court. A Brady claim was made before the state court, but it was narrower because Gonzales was not aware at the time of the psychological reports that had been withheld. As we discuss in detail below, we have concluded that the Acker psychological reports might have been helpful to Gonzales's defense. Before discussing those reports, however, it is necessary to determine what consideration, if any, we can properly give to them in light of Pinholster.

Gonzales argues that Pinholster's limitation of our review to the record before the state court does not apply to his Brady claim based on the psychological reports because it is a "new claim," not decided on the merits by the California Supreme Court. In Pinholster the Court referenced but declined to draw the dividing line between a "new claim" and a claim decided on the merits by the state court and subject to review under § 2254(d). Justice Sotomayor's dissent in Pinholster questioned how the Court's holding would apply to a hypothetical situation somewhat similar to the one before us: a petitioner who diligently pursued a Brady claim in state court is denied relief on the grounds that the withheld evidence presented in the Brady claim was not material, but subsequently is able to force production of additional undisclosed exculpatory evidence. Pinholster, 131 S. Ct. at 1417-18 (Sotomayor, J., dissenting). The majority opinion written by Justice Thomas responded to Justice Sotomayor's concern by noting that "Justice Sotomayor's hypothetical involving new evidence of withheld exculpatory witness statements may well present a new claim," but stated that it did "not decide where to draw the line between new claims and claims adjudicated on the merits." Id. at 1401 n.10 (internal citation omitted).

[3] Under the circumstances, we conclude that Pinholster applies here and prevents us from considering the new evidence in reviewing Gonzales's Brady claim under § 2254(d). Gonzales raised and the state court explicitly rejected a Brady claim regarding information about Acker. Moreover, the sug- gestion that Gonzales has presented a "new claim" inherently invites questions regarding exhaustion. In light of Pinholster's emphasis on the primary responsibility of the state court, we conclude that the new evidence needs to be presented to the state court before it can be considered by us on habeas review of the state court's decision.

That does not mean that we can or should disregard the new evidence, however. We cannot fault Gonzales for a lack of diligence with respect to the withheld reports. Responsibility for the late appearance of those documents lies with the state. Despite discovery requests by Gonzales's trial counsel and the inherent obligation of the prosecutor to turn over exculpatory material, these reports were withheld. Gonzales made further discovery requests while pursuing post-conviction relief in state court, but the California Supreme Court granted the State's request to set aside the trial court's order permitting the discovery. That court did so while expressing its expectation that prosecutors would voluntarily and promptly turn over any such evidence, but that expectation was not fulfilled. For us simply to ignore the materials that did not emerge until the federal habeas proceedings would be to reward the prosecutor for withholding them.

[4] As discussed below, we conclude that if the new evidence were considered, Gonzales could make a colorable or potentially meritorious Brady claim, meaning that a reasonable state court could conclude that the withholding of the psychological reports constituted a Brady violation at the guilt phase, the penalty phase, or both. Because the claim is not clearly meritless, we do not believe dismissal of Gonzales's Brady claim is the appropriate result.

[5] We conclude that the appropriate course for us at this point is to remand to the district court with instructions that it stay and abey the habeas proceedings to allow Gonzales to present to state court his Brady claim including the subsequently-disclosed materials. In effect, we follow the suggestion offered by Justice Breyer in his concurring opinion in Pinholster that a petitioner "can always return to state court presenting new evidence not previously presented. If the state court again denies relief, he might be able to return to federal court to make claims related to the latest rejection." See Pinholster, 131 S. Ct. at 1412 (Breyer, J., concurring).*fn9

The stay and abey process is the same process that may be employed when a petitioner files a petition containing unexhausted claims. In Rhines v. Weber, 544 U.S. 269, 278 (2005), the Court instructed that "if the petitioner had good cause for his failure to exhaust, his unexhausted claims are potentially meritorious, and there is no indication that the petitioner engaged in intentionally dilatory litigation tactics . . . the district court should stay, rather than dismiss" the petition. Here, Gonzales had good cause for not presenting the new evidence to the state court, has not engaged in intentional dilatory litigation tactics, and, as is explained below, has a potentially meritorious claim.

This course provides the state court with the first opportunity to resolve this claim. It also protects Gonzales's interest in obtaining federal review of his claim. As in the case of unexhausted claims that meet the Rhines requirements, Gonzales's "interest in obtaining federal review of his claims outweighs the competing interests in finality and speedy resolution of federal petitions." Id. Once the state court has spoken on this claim, Gonzales may, if necessary, return to district court and reactivate the federal proceedings.

We now turn to a discussion of the new materials. Our discussion below is only to demonstrate why we conclude that Gonzales has a colorable or potentially meritorious Brady claim such that a reasonable state court could find a Brady violation. We do not decide whether there was a Brady violation. That determination is for the California Supreme Court to make in the first instance.

3. A Potentially Meritorious Brady Claim

"The prosecution's affirmative duty to disclose evidence favorable to a defendant can trace its origins to early 20th-century strictures against misrepresentation" by prosecutors. Kyles v. Whitley, 514 U.S. 419, 432 (1995). As the Supreme Court recognized in 1935, a prosecutor is "the representative not of an ordinary party to a controversy, but of a sovereignty . . . whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done." Berger v. United States, 295 U.S. 78, 88 (1935). In subsequent decisions, most notably Brady, the Court has consistently "under-scored the 'special role played by the American prosecutor in the search for truth in criminal trials.' " Banks v. Dretke, 540 U.S. 668, 696 (2004) (quoting Strickler v. Greene, 527 U.S. 263, 281 (1999)).

The Supreme Court has also repeatedly reaffirmed that Brady is one of the central bulwarks against injustice in our criminal justice system. The Court has stressed the central premise of Brady; even though an individual prosecutor may win a conviction, society as a whole loses when that conviction is wrong. Our system, therefore, places a "duty [on prosecutors] to refrain from improper methods calculated to produce a wrongful conviction." Cone v. Bell, ___ U.S. ___, 129 S. Ct. 1769, 1782 (2009) (quoting Berger, 295 U.S. at 88). Principal among a prosecutor's duties is to provide a defendant with all material exculpatory and impeachment evidence prior to trial. This obligation recognizes the significant advantage the state has over an individual defendant in regards to gathering information and seeks to level the playing field. We expect our government to fight fair and not deny a defendant evidence that could exculpate him or ameliorate the penalty he faces. Only by giving a defendant this evidence can the government ensure that "justice is done its citizens in the courts." Brady, 373 U.S. at 87.

The elements of a claim for a Brady violation are that "[t]he evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued." Strickler, 527 U.S. at 281-82. The state does not appear to contest the first two elements, so we discuss these only briefly before turning to the issue of materiality, which the state does contest.

a. Favorable to the Accused

In United States v. Bagley, the Supreme Court recognized that "[i]mpeachment evidence . . . as well as exculpatory evidence, falls within the Brady rule," because it is "favorable to an accused." 473 U.S. 667, 676 (1985). There is a colorable argument that the psychological reports could have been used to impeach Acker. Impeaching Acker was important for Gonzales's defense in both phases. Gonzales can, therefore, make a colorable argument that the withheld evidence was favorable to him.

b. Evidence was Suppressed

Gonzales can also make a colorable argument that the evidence was suppressed. Brady does not require a showing that the state willfully or intentionally suppressed the evidence; even inadvertent suppression will satisfy this prong of the test. See Brady, 373 U.S. at 87 (suppression of evidence by prosecution violates due process "irrespective of the good faith or bad faith of the prosecution"). The psychological reports were in the possession of the prosecutor's office prior to the trial. Even if they had not been, a prosecutor has a duty under Brady to "learn of any exculpatory evidence known to others acting on the government's behalf." Carriger v. Stewart, 132 F.3d 463, 479-80 (9th Cir. 1997) (en banc) (prosecutor violated Brady when he did not turn over witness's prison records); see also Strickler, 527 U.S. at 275 n.12.

c. Materiality

Suppressed evidence is material if "the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict." Kyles, 514 U.S. at 435. In other words, the petitioner does not need to prove that a different result would have occurred, just that there is "a reasonable probability of a different result." Id. at 434 (internal quotation marks omitted). "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." Id. We conclude that a reasonable state court could conclude that there was a reasonable probability of a different result if the information contained in the psychological reports had been available to the defense and presented to the juries.

We reach this conclusion by undertaking a two-step inquiry. First, we ask whether a reasonable state court could conclude that there was a reasonable probability that the new evidence would have changed the way in which the jurors viewed Acker's testimony. We determine that a state court could so conclude. We then ask whether a reasonable state court could conclude that there was a reasonable probability that this change would have resulted in a different verdict during either or both phases. We conclude that given Acker's role in both phases, there is a potentially meritorious claim that there was a reasonable probability of a different verdict at one or both phases.*fn10

i. Jurors' view of Acker

[6] Our inquiry into how the jurors viewed Acker is primarily focused on how the withheld evidence could have provided additional or alternative means of impeachment. There is a colorable argument that a factfinder would have found the information about Acker contained in these reports disturbing, and that it would have been difficult for anyone, let alone a reasonable factfinder, to trust the witness described in these reports. The reports were prepared by psychologists employed by the State. They characterized Acker as predatory, manipulative, and unscrupulous, and they detailed his past lies and manipulations. See Benn v. Lambert, 283 F.3d 1040, 1055 (9th Cir. 2002) (evidence that witness "had regularly lied" and "was untrustworthy and deceptive" would have "severely undermined his credibility.").

Perhaps the most severe examples of Acker's manipulative and deceptive behavior were the three occasions when he faked committing suicide in order to obtain prison transfers or otherwise influence his placement within the prison system. A 1972 Psychiatric Evaluation reported that Acker admitted that he had faked suicide at the Norwalk Receiving Center in order to be placed in the hospital, from which it would be easier to escape. A 1973 Psychiatric Evaluation reported an attempted hanging, which Acker stated "was only a gesture designed to prevent his egress from CMC East," the hospital in which he had been placed. Finally, a 1974 report described another fake suicide attempt in April or May of 1974, which Acker said he faked because "he wanted out" of the facility.

Beyond the fake suicide attempts, the reports specifically described Acker's other manipulative behavior. One of the psychiatrists reported that Acker asked, "how much money would it take to give me a good report.' " Another psychiatrist described Acker as "the type of an individual who was constantly testing me." The 1979 diagnostic study prepared for Acker's sentencing for his murder conviction concluded that he was "intelligent, manipulative, unscrupulous" and "capable of any measure of brutality in the service of achieving what he wants to do."

In addition to showing Acker to have a history of lying and manipulative behavior, the reports could be viewed to cast significant doubt on what Acker stated was his primary motivation for testifying against Gonzales. Acker repeatedly said that he was testifying because of a desire to turn his life around and do the right thing. The psychological reports showed that Acker had previously lied about reforming his life. The psychological report from 1972 stated that Acker told the psychologist he had turned his life around because he had "undergone a religious experience." After making these statements and being released from prison, he committed first degree murder and numerous robberies.*fn11 A subsequent social evaluation of Acker noted that he had been "offered therapy in the past and has used it as a tool to get out of prison early and has not attempted to use it as a tool to change his own behavior."

A reasonable state court could conclude that these prior statements would have enabled Gonzales to show that Acker's professed reason for testifying was false. A court could also conclude that Gonzales would have then been able to focus the jurors on Acker's "continuing interest in obtaining [the state's] favor" and that as a result "they might well have distrusted [Acker's] testimony, and insofar as it was uncorrobo-rated, disregarded it." Banks, 540 U.S. at 701; see also On Lee v. United States, 343 U.S. 747, 757 (1952) (noting that testimony from witness receiving benefits from government "may raise serious questions of credibility").

[7] The reports also indicated that Acker had schizophre- nia, which a reasonable state court could determine would have raised serious questions in the factfinder's mind about Acker's competency to perceive accurately and testify truthfully. As early as 1974, Acker was diagnosed with "[s]chizophrenia, chronic, undifferentiated type." In 1975, he was diagnosed with "[s]chizophrenia, residual type." A 1977 report noted that Acker was "mentally unstable" and had "a severe personality disorder, and he has previously been diagnosed as schizophrenic." Courts have long recognized the impeachment value of evidence that a government witness has a "severe illness, such as schizophrenia, that dramatically impaired [his] ability to perceive and tell the truth." United States v. Butt, 955 F.2d 77, 82-83 (1st Cir. 1992) ("For over forty years, federal courts have permitted the impeachment of government witnesses based on their mental condition at the time of the events testified to."). A reasonable state court could conclude that an assessment that Acker had not only lied in the past but had a mental condition that made him prone to lying could have affected the jury's evaluation of his credibility.

Finally, a state court could conclude that the psychiatric reports would have provided an opportunity to impeach Acker by showing that the state's own expert employees had repeatedly expressed doubts about Acker's credibility, truthfulness, and competency. See Silva v. Brown, 416 F.3d 980, 988 (9th Cir. 2005) (requirement witness not have psychological evaluation was evidence of "potentially devastating fact that the state itself doubted [the witness's] mental competency"); Benn, 283 F.3d at 1055 (evidence that police doubted veracity of informant because of past lies was material Brady evidence).

The state argues, and the district court concluded, that regardless of the impeachment value of this evidence, it was nevertheless not material because Acker was already sufficiently impeached. Defense counsel did present some impeachment evidence, but courts have repeatedly held that withheld impeachment evidence does not become immaterial merely because there is some other impeachment of the witness at trial. Where the withheld evidence opens up new avenues for impeachment, it can be argued that it is still material. See Banks, 540 U.S. at 702 (rejecting argument that since witness was otherwise impeached withheld impeachment evidence was immaterial); United States v. Kohring, 637 F.3d 895, 905-06 (9th Cir. 2011) (even though witness was impeached on memory problems, evidence of alleged sexual misconduct and suborning perjury was not cumulative because it "would have added an entirely new dimension to the jury's assessment of [the witness]" such that " 'there is a reasonable probability that the withheld evidence would have altered at least one juror's assessment [of the evidence]' " (quoting United States v. Price, 566 F.3d 900, 914 (9th Cir. 2009))); Horton v. Mayle, 408 F.3d 570, 580 (9th Cir. 2005) ("[T]hat the jury had other reasons to disbelieve [the witness] does not render the suppressed [impeachment evidence] immaterial."); Benn, 283 F.3d at 1055 ("The mere fact that a prosecution witness has a prior record, even when combined with other impeachment evidence that a defendant introduces, does not render otherwise critical impeachment evidence cumulative.").

While cumulative impeachment evidence might have been immaterial, a reasonable state court could determine that the psychology reports " 'provided the defense with a new and different ground of impeachment' " and as such were not cumulative. Silva, 416 F.3d at 989 (quoting Benn, 283 F.3d at 1056.) In Silva, the court recognized that even though the witness was impeached on his forthrightness, the withheld evidence, in that case a plea deal which prohibited the witness from undergoing a psychiatric evaluation prior to trial, was not cumulative because it related to his reliability. In Carriger, the district court had ruled that an informant's prison records, which described him as repeatedly lying, having a sociopathic personality, and being manipulative were immaterial for Brady purposes because the jury was made aware of his burglary conviction and plea deal. 132 F.3d at 480-82. Recognizing that the withheld evidence opened a new avenue of impeachment, we reversed because "the government cannot satisfy its Brady obligation to disclose exculpatory evidence by making some evidence available and claiming the rest would be cumulative." Id. at 481

During both phases defense counsel did attempt to impeach Acker by his conviction for murder, his desire to be transferred to an out-of-state prison, previous cases where Acker had testified about jailhouse confessions, and his statement that he could lie when he wanted to, although he denied doing so in this case. None of the evidence presented at trial actually demonstrated Acker had lied in the past or that he was known to be manipulative and deceptive. See Benn, 283 F.3d at 1055 (evidence that informant had lied in the past was non-cumulative impeachment evidence). It is one thing for a witness to admit that he could lie; everyone can lie. Evidence of Acker's past lies, deception, and manipulation would have provided hard evidence, different from that already presented, to support Gonzales's argument that Acker was lying.

In addition, Gonzales has a colorable argument that the new evidence would have opened up other unexplored opportunities for impeachment. A reasonable state court could determine that none of the impeachment at trial touched on Acker's competency to perceive and tell the truth, which reasonably could have been put at issue by evidence that Acker was schizophrenic. Similarly, there is a colorable argument that none of the impeachment evidence available to Gonzales at trial allowed him to cast doubt on Acker's purported desire to turn his life around or demonstrate that the state had previously expressed doubts about Acker's veracity and competency.

Finally, Gonzales has a colorable argument that the jury believed Acker despite the impeachment evidence presented to them. This argument could rest in part on the fact that Acker was an important witness for the government, especially during the penalty phase, and that "[i]n cases in which the witness is central to the prosecution's case, the defendant's conviction indicates that in all likelihood the impeachment evidence introduced at trial was insufficient to persuade a jury that the witness lacked credibility." Benn, 283 F.3d at 1055.

There is also documentary evidence that a reasonable state court could conclude supports the argument that the jury believed Acker. In a memo written after the first penalty phase trial resulted in a hung jury, the prosecutor stated that he spoke with the first penalty phase jurors and that most of them, including all of the women, found Acker's testimony convincing. Acker's testimony and defense counsel's cross examination were essentially the same in all three trials. Given that the cited jurors in the first penalty trial found Acker credible, this memo could be viewed to provide some evidence that the jurors in the other trials did as well.

[8] In light of the manner in which Acker was described in these reports and the potential new avenues of impeachment opened by these descriptions, we conclude that a reasonable state court could determine that a jury would have doubted Acker's veracity, motive for testifying, and competency if presented with the evidence in the psychological reports.

ii. A Different Outcome

[9] We next consider whether there is a colorable argument that there is a reasonable probability that the additional impeachment of Acker through the psychological reports would have led to a different outcome at either the guilt or penalty phase. We conclude that a reasonable state court could decide that Acker's importance to the prosecution's cases was significant enough that additional impeachment of him reasonably could have changed the outcome.

[10] Acker's testimony amounted to a confession by Gonzales to first degree premeditated murder of a police officer, both the crime he was charged with and the facts the state argued warranted sentencing him to death. As the Supreme Court has noted "[a] confession is like no other evidence. Indeed, 'the defendant's own confession is probably the most probative and damaging evidence that can be admitted against him.' " Arizona v. Fulminante, 499 U.S. 279, 296 (1991) (quoting Bruton v. United States, 391 U.S. 123, 139-40 (1968) (White, J., dissenting)); see also Maxwell, 628 F.3d at 507-08 (informant was "the 'make-or-break witness' " and his testimony about defendant's jailhouse confession was the "center-piece of the prosecution's case"). While there was other circumstantial evidence, Acker's testimony was the only direct evidence establishing that Gonzales had a premeditated plan to kill a police officer.

In addition, a state court could conclude that the damage the suppressed impeachment evidence could cause was "best understood by taking the word of the prosecutor." Kyles, 514 U.S. at 444. The prosecutor spent time during his summations discussing Acker's testimony and countering the attempted impeachment of him, and a court could view this as further support for the proposition that Acker was central to the pros-ecution's cases. See Horton, 408 F.3d at 580 ("The prosecutor's emphasis on the importance of [the witness's] testimony bolsters the conclusion that disclosure of the [impeachment evidence] may have significantly damaged the prosecution's case."). There is also the memo written by the prosecutor after the hung jury in the first penalty trial, in which the prosecutor stated that his ability to retry the penalty phase depended on whether "Acker is available and is willing to testify." A reasonable state court could view the prosecutor's arguments and memo as evidence that Acker was important to the prosecution's case, especially in the context of the penalty phase.

[11] We do not decide here that the new evidence would have resulted in a different outcome in either phase. It is pos- sible that even without this new evidence the jury did not believe Acker. It is also conceivable that, based on the other evidence presented to it, the jury could have concluded that Gonzales was guilty and deserved the death penalty. However, in order to establish a Brady violation, Gonzales would only have to show a "reasonable probability" that the outcome would have been different. Given the nature of Acker's testimony, a reasonable state court could conclude that Acker's testimony "was the glue that held the ...


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