758 F.3d 1119 (9th Cir. 2014), 11-56420, Amado v. Gonzalez

Docket Nº:11-56420
Citation:758 F.3d 1119
Opinion Judge:HELLERSTEIN, Senior District Judge:
Party Name:RANDALL AMADO, Petitioner-Appellant, v. TERRI GONZALEZ, Warden, California Men's Colony, Respondent-Appellee
Attorney:John Lanahan (argued), San Diego, California, for Petitioner-Appellant. Kamala D. Harris, Dane R. Gillette, Lance E. Winters, Kenneth C. Byrne, and David A. Wildman (argued), Office of the Attorney General of California, Los Angeles, California, for Respondent-Appellee.
Judge Panel:Before: William A. Fletcher and Johnnie B. Rawlinson, Circuit Judges, and Alvin K. Hellerstein, Senior District Judge.[*] Opinion by Judge Hellerstein; Dissent by Judge Rawlinson. RAWLINSON, Circuit Judge, dissenting:
Case Date:July 11, 2014
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 1119

758 F.3d 1119 (9th Cir. 2014)

RANDALL AMADO, Petitioner-Appellant,

v.

TERRI GONZALEZ, Warden, California Men's Colony, Respondent-Appellee

No. 11-56420

United States Court of Appeals, Ninth Circuit

July 11, 2014

Argued and Submitted, Pasadena, California January 8, 2013.

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Appeal from the United States District Court for the Central District of California. D.C. No. 2:03-cv-00078-PA-E. Percy Anderson, District Judge, Presiding.

Habeas Corpus

The panel withdrew an Opinion and Dissent filed October 30, 2013, filed a superseding Opinion and Dissent, denied a petition for rehearing, and denied a petition for rehearing en banc on behalf of the court, in an appeal from the denial of a 28 U.S.C. § 2254 habeas corpus petition in which the petitioner, convicted of murder, argued that the prosecution violated his rights under Brady v. Maryland by failing to disclose material information that would have enabled defense counsel to impeach the credibility of a critical witness.

The panel gave AEDPA deference to rulings of the California Court of Appeal, as required by Harrington v. Richter and Johnson v. Williams, but did not give deference to the Superior Court's finding of immateriality.

The California Court of Appeal held under California Penal Code § 1181(8) that petitioner had not established (1) " the newly-discovered nature of the evidence," and (2) his counsel's " inability to discover and produce the evidence at trial, with the exercise of due diligence." The panel held that the Court of Appeal's decision that the petitioner had not established that the evidence was newly discovered was an unreasonable determination of the facts. The panel held that the Court of Appeal's requirement of due diligence was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States.

Because the Court of Appeal's decision did not survive AEDPA review, the panel reviewed the constitutionality of the petitioner's conviction and, specifically, his Brady claim. Reviewing de novo, the panel held that the prosecution had a Brady obligation to produce the witness' conviction and probation records and that the evidence was material, rendering the government's failure to disclose it prejudicial.

The panel remanded with instructions to grant the writ and to release the petitioner unless the district attorney, within 60 days, initiates proceedings for a new trial.

Judge Rawlinson dissented. She focused her analysis on whether the state court's denial of relief was objectively unreasonable, not whether the petitioner suffered prejudice in the first instance, and was unable to say that no fairminded jurist could disagree that the state court's decision applying Brady was unreasonable. She criticized the majority's conducting a de novo analysis of, rather than deferring to the state court's interpretation of, a state statute.

John Lanahan (argued), San Diego, California, for Petitioner-Appellant.

Kamala D. Harris, Dane R. Gillette, Lance E. Winters, Kenneth C. Byrne, and David A. Wildman (argued), Office of the Attorney General of California, Los Angeles, California, for Respondent-Appellee.

Before: William A. Fletcher and Johnnie B. Rawlinson, Circuit Judges, and Alvin K. Hellerstein, Senior District Judge.[*] Opinion by Judge Hellerstein; Dissent by Judge Rawlinson.

OPINION

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HELLERSTEIN, Senior District Judge:

Violence between street gangs is a scourge to communities. The prosecutors who prosecute crimes committed by these gangs perform a vital service. But prosecutors must be vigilant that excessive zeal does not violate a defendant's constitutional right to a fair trial. When that occurs, the courts must balance the needs of the community with a defendant's constitutional right to a fair trial.

Randall Amado was convicted in 1998 by a Los Angeles jury of aiding and abetting a senseless murder in a public bus. The prosecutor neglected, however, to discharge his obligation to disclose material information that would have enabled defense counsel to impeach the credibility of a critical witness against Amado. We hold in this opinion that the prosecution's failure, in violation of clearly established federal law as determined by the U.S. Supreme Court, requires that Amado be given a new trial.

I. The Facts of Record and the Prior Proceedings

A. The Shooting

In 1996 and 1997, the Bounty Hunter Bloods and 118 East Coast Crips were rival street gangs in southern Los Angeles. Some members of the Bounty Hunter Bloods gang attended Centennial High School, and traveled to and from school on public bus No. 53 through neighborhoods claimed by the 118 East Coast Crips. The gang members identified themselves by the colors of their clothing: red for the Bloods, and blue for the Crips. As bus No. 53 passed through the Crips' neighborhoods, members of the Bloods gang on board frequently taunted, flashed gang signs at, spit at, and threw objects at Crips gang members standing at the bus stops.

On January 15, 1997, two members of the 118 East Coast Crips, Robert Johnson and Wilbert Pugh, decided to retaliate. Their friend, Nicholas Briggs, overheard the two propose that a large group of Crips board bus No. 53 and attack Bloods members inside. Briggs testified that Johnson carried a gun at that meeting, but that there was no discussion of shooting anyone. Johnson and Pugh decided that the attack would occur the next day, but Briggs had a court appearance to attend and declined to join them.

The following afternoon, Johnson, Pugh, and a group of their friends met near the intersection of Imperial Highway and Avalon Boulevard. When a No. 53 bus approached, at about 3:20 pm, Pugh yelled " Y'all ready?" and the group moved toward the bus as it pulled into a bus stop. Pugh and at least one other unidentified gang member boarded the bus, and Pugh cursed the Bounty Hunter Bloods members in the back. One of the Crips, possibly Pugh, shouted " Shoot this m __ f __ bus up," and the Crips exited. Johnson, behind the bus, poked a gun through the rear window, aimed at a passenger dressed in red, and fired, hitting two others. Corrie Williams, a student at Centennial High School, was shot in the neck and killed. Tammy Freeman, her friend, was shot in the arm. The bus driver sped off, stopping a few blocks away when he felt it was safe.

B. The Arrest and Prosecution

Amado was arrested with Briggs the next night. At the time, Amado and

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Briggs were drinking and smoking marijuana in a backyard near the location of the shooting, and across the street from Amado's home. Johnson and Pugh fled to Milwaukee, Wisconsin. Johnson was arrested in Milwaukee approximately a week after the murder, and he confessed to the shooting. Pugh was also arrested in Milwaukee, although not until a year after the bus attack occurred.

Amado was indicted in Los Angeles County Superior Court on charges of first degree murder, premeditated attempted murder, assault with a firearm, and shooting at an occupied motor vehicle. The prosecution accused Amado of aiding and abetting the shooting by running with Crips gang members to ambush and surround the bus, and by carrying a gun to the scene.

The court and prosecution were concerned about intimidation of witnesses, and retaliation against those who testified. This fear was driven in part by the fact that Pugh was still at large at the time the proceedings began. Based on interviews of witnesses in camera, the Superior Court ordered that the addresses and phone numbers of witnesses be withheld from the defense, and that the prosecution make witnesses available for interviews by the defense at the courthouse. Warren Hardy was one of those witnesses, but Amado's trial counsel, Richard Lapan, did not interview him.

Pugh, Johnson, and Amado were tried together before two juries, one for Johnson, the alleged shooter, and the second, for Pugh and Amado, the alleged aiders and abettors. While many witnesses testified as to Pugh's and Johnson's roles in the shooting, the evidence against Amado was more limited. Two witnesses testified that Amado was part of the group that gathered at the bus stop. John Grisson, a high school classmate of Amado, testified on direct that he was at the intersection of Imperial Highway and Avalon Boulevard, and saw Amado, with others, running toward the bus. However, when pressed on cross, Grisson testified that when he had seen Amado with the group it had been a few minutes before the shooting, and that he did not see Amado run toward the bus prior to the shooting, or away from the bus after the shooting. The second of the two witnesses, Natasha Barner, Pugh's girlfriend at the time of the shooting, testified that she saw Amado, along with a crowd, " coming across the street" toward the bus stop prior to the shooting.1 Barner said that she did not see Amado with a gun. Barner, corroborated by another witness, testified that she knew only that Johnson and Pugh were members of the 118 East Coast Crips, and no witness testified that Amado was a member of the gang. Amado, however, did have the nickname " Bang," which some viewed as a gang moniker.

Warren Hardy, who originally identified himself to the police as Warren Collins, was the key witness against Amado. Hardy lived less than a block from the intersection of Imperial Highway and Avalon Boulevard. Hardy testified that, from his balcony, minutes before the shooting and from a distance of approximately 35 feet...

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