601 F.3d 897 (9th Cir. 2010), 07-56277, Hein v. Sullivan

Docket Nº:07-56277, 07-56288, 07-56365, 07-56367.
Citation:601 F.3d 897
Opinion Judge:TRAGER, District Judge:
Party Name:Brandon Wade HEIN, Petitioner-Appellant, v. William Joseph SULLIVAN, Warden of California Correctional Institution, at Tehachapi, California, Substituted for Michael G. Yarborough, Respondent-Appellee. Tony Miliotti, Petitioner-Appellant, v. Jim Hall, Respondent-Appellee. Jason Skip Holland, Petitioner-Appellant, v. Al Scribner, Substituted for Geo
Attorney:William J. Genego, Santa Monica, CA, for petitioner-appellant Brandon Hein. Tracy Dressner, La Crescenta, CA, for petitioner-appellant Tony Miliotti. Manny A. Abascal, Daniel R. Seltzer and Scott P. Lawrence for petitioner-appellant Micah Holland. Erwin Chemerinsky, Durham, North Carolina, for pe...
Judge Panel:Before ANDREW J. KLEINFELD and RICHARD C. TALLMAN, Circuit Judges, and DAVID G. TRAGER,[*] District Judge.
Case Date:April 12, 2010
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 897

601 F.3d 897 (9th Cir. 2010)

Brandon Wade HEIN, Petitioner-Appellant,

v.

William Joseph SULLIVAN, Warden of California Correctional Institution, at Tehachapi, California, Substituted for Michael G. Yarborough, Respondent-Appellee.

Tony Miliotti, Petitioner-Appellant,

v.

Jim Hall, Respondent-Appellee.

Jason Skip Holland, Petitioner-Appellant,

v.

Al Scribner, Substituted for George A. Ortiz, Respondent-Appellee.

Micah Holland, Petitioner-Appellant,

v.

Derral G. Adams, Respondent-Appellee.

Nos. 07-56277, 07-56288, 07-56365, 07-56367.

United States Court of Appeals, Ninth Circuit.

April 12, 2010

Argued and Submitted Oct. 7, 2009.

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William J. Genego, Santa Monica, CA, for petitioner-appellant Brandon Hein.

Tracy Dressner, La Crescenta, CA, for petitioner-appellant Tony Miliotti.

Manny A. Abascal, Daniel R. Seltzer and Scott P. Lawrence for petitioner-appellant Micah Holland.

Erwin Chemerinsky, Durham, North Carolina, for petitioner-appellant Jason Holland.

Victoria B. Wilson, Supervising Deputy Attorney General, Office of the California Attorney General, Los Angeles, CA, for the respondents-appellees.

Appeal from the United States District Court for the Central District of California, S. James Otero, District Judge, Presiding. D.C. Nos. CV-04-03502-SJO, CV-04-03491-SJO, CV-04-03416-SJO, CV-04-03407-SJO(MLG).

Before ANDREW J. KLEINFELD and RICHARD C. TALLMAN, Circuit Judges, and DAVID G. TRAGER,[*] District Judge.

TRAGER, District Judge:

In 1996, Brandon Hein, Micah Holland, Jason Holland 1 and Tony Miliotti, were convicted, after being tried together in California state court, of crimes relating to the 1995 attempted robbery of Michael McLoren, a small-time marijuana dealer, and the stabbing death of McLoren's friend, James Farris. All the participants were teenagers at the time of the stabbing, and Miliotti and Micah, who were juveniles at the time of trial, were tried as adults. The jury had been instructed on felony murder and found all four petitioners guilty of that crime. Jason, who admitted at trial that he stabbed Farris, was also convicted of assault with a deadly weapon. After bringing unsuccessful appeals and

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habeas corpus petitions in state court, petitioners filed habeas petitions in federal court, which were denied.

Before trial, the prosecution had given the lawyer for McLoren, its only eyewitness to the stabbing and a surviving victim, a letter in which it promised not to use against him anything he told the State about his marijuana dealing. Petitioners' principal challenges-suppression in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), presentation of false testimony and prosecutorial misconduct-stem from the prosecution's alleged non-disclosure of that letter to certain defense counsel. Because, in light of the record from the two-month-long jury trial, the letter was not the decisively impeaching evidence petitioners make it out to be and attempted robbery was the only plausible theory for the instigation of the fight that culminated in Farris's death as well as McLoren's stabbing, petitioners fail to establish the prejudice required to overturn their convictions. Accordingly, to the extent the letter was not disclosed, we are satisfied its disclosure would have had little impact on the outcome of the trial. Likewise, any improper argument made by the prosecution in summation did not prejudice petitioners. Finally, petitioners' claim that McLoren testified falsely finds no basis in the record. Therefore, we affirm the district court's judgment denying habeas relief.

BACKGROUND

After a joint trial, a jury found petitioners guilty of attempted robbery, burglary and felony-murder. The prosecution's theory was that a fight between petitioners on one side and McLoren and Farris on the other had ensued after petitioners entered McLoren's grandparents' property and attempted to rob him of marijuana he kept for sale. Petitioners contended that they were on the property to buy marijuana from McLoren and that a fight had spontaneously erupted. Thus, petitioners' felony-murder convictions hinged on whether the jury believed the prosecution's theory that petitioners entered the property in order to rob McLoren of his marijuana stash rather than petitioners' theory that the encounter was an attempted drug buy that went sour.

The Attempted Robbery

(1)

Petitioners' convictions were attributable, in large part, to the trial testimony of McLoren. McLoren, who was sixteen at the time of the stabbing, testified that he maintained a make-shift shed, which he referred to as " the fort," in the backyard of his grandparents' house in Los Angeles County. The fort was furnished with a couch, a bed and a desk. McLoren kept marijuana for sale in a drawer of his desk, which he kept locked. He also kept a television, VCR and two video game consoles in the fort, all powered by an extension cord that ran to the house. The fort was used as a place to smoke marijuana and watch movies. McLoren also sold marijuana from the fort.

McLoren testified that he spent much of the afternoon of May 22, 1995, at the fort watching movies and smoking marijuana with his girlfriend and Farris, who was fifteen at the time. McLoren's girlfriend left sometime between five and seven o'clock.

At around 7:15 p.m., McLoren and Farris were hitting a punching bag outside the fort when McLoren saw petitioners, Hein, seventeen years-old, Micah, fifteen, Jason, eighteen, and Miliotti, seventeen, jump over his grandparents' fence and into the backyard. McLoren knew petitioners from prior encounters and said to Farris: " Looks like trouble." He then called out to Micah: " What's up, Micah?"

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According to McLoren, petitioners, with Micah in the lead, approached the fort without saying a word. Micah walked past McLoren, entered the fort, started pulling on the locked desk drawer and demanded the key. He was quickly followed into the fort by McLoren, who, in turn, was followed by Jason and Hein. (The time between McLoren's entrance and Jason and Hein's entrance was estimated variously on direct to be three, five and ten seconds.) Micah then shouted at McLoren: " Give me the keys, ese. You want shit with the Gumbys, ese?" McLoren understood " Gumbys" to be the name of a gang and " ese" to be a Mexican slang term " used before a fight ensues."

Micah, Jason and Hein then began punching McLoren. McLoren put his head down, and Micah, Jason and Hein punched him about ten times. Farris then entered. McLoren managed to place Micah into a headlock. McLoren proceeded to elbow Micah in the neck and back of the head. Seeing his brother being elbowed, Jason ran at McLoren, who kicked Jason in the nose. Someone then placed McLoren into a headlock and he felt himself being stabbed. He was stabbed three more times and thrown against the wall of the fort. McLoren, lying prone on the ground, looked up and saw Hein punching Farris, who was sitting on the couch.

McLoren then got up and ran to his grandparents' house. He was followed by Farris who reached the house immediately after. McLoren's mother was inside and asked what happened. McLoren told her: " They were trying to steal my stuff, and they stabbed us."

Farris collapsed on a table. He was still breathing when the paramedics arrived. After the paramedics attempted to revive Farris, McLoren heard one of them say: " He stopped breathing." Farris was pronounced dead at McLoren's house. He died of a stab wound to the main chamber of the heart. Los Angeles County Sheriff's deputies also responded and commenced the homicide investigation. All four members of the Holland group were ultimately charged.

(2)

Jason Holland testified in the defense's case-in-chief and admitted stabbing both Farris and McLoren. On May 22, Jason, after drinking alcohol and smoking marijuana for several hours, drove with petitioners and his friend Chris Velardo in Velardo's truck to McLoren's house. When they arrived, petitioners exited the truck while Velardo remained in the driver's seat. Jason asked Velardo why they were there, to which Velardo replied: " We're going to get some weed." Jason took that to mean that they were going to buy some marijuana. Resolution of the true purpose of seeing McLoren was the key issue the jury had to resolve.

When Jason jumped the fence, Micah was already in the yard about twenty feet ahead of him. As Micah approached the fort, Jason heard McLoren say: " What's up Micah?" Micah said nothing and waved. Micah and McLoren then entered the fort and Farris stood in the doorway facing out.

Jason could see inside the fort and observed Micah and McLoren facing each other about a foot apart. Micah and McLoren then dropped their heads and started fighting. Jason and Hein entered the fort and joined the fight.

Jason testified that he stabbed Farris twice after Farris spun him around. He also testified that the other petitioners did not believe that he had stabbed McLoren and Farris until he showed them the bloody knife as they fled the crime scene.

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(3)

Petitioners point to a number of occasions where McLoren provided inconsistent information to the police about the object of the alleged attempted robbery. For instance, before McLoren was taken to the hospital on the night of the stabbing, he was questioned briefly by the police and told them that petitioners had come for his electronic equipment.

Then, four days after the stabbing, in a recorded interview, McLoren was questioned at the hospital by Sheriff's...

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