Barker v. Fleming, 04-35911.

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Citation423 F.3d 1085
Docket NumberNo. 04-35911.,04-35911.
PartiesAnton E. BARKER, Petitioner-Appellant, v. Gary FLEMING, Respondent-Appellee.
Decision Date08 September 2005

Professor Jacqueline McMurtrie, Lindsay L. Halm, Law Student, & Lesli S. Wood, Law Student, Innocence Project Northwest Clinic, University of Washington School of Law, Seattle, WA, for the appellant.

Gregory J. Rosen, Assistant Attorney General, Attorney General's Office, Criminal Justice Division, Olympia, WA, for the appellee.

Appeal from the United States District Court for the Eastern District of Washington; Edward F. Shea, District Judge, Presiding. D.C. No. CV-03-03134-EFS.

Before HUG, THOMPSON, and McKEOWN, Circuit Judges.

McKEOWN, Circuit Judge.

This petition for a writ of habeas corpus presents the question whether the prosecution in a robbery case suppressed evidence in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). In analyzing this issue, the Washington Supreme Court failed to consider the cumulative effect of the undisclosed evidence and thus its decision was contrary to clearly established Supreme Court precedent. 28 U.S.C. § 2254(d)(1)(permitting grants of habeas corpus where the state court issued a decision that was contrary to, or an unreasonable application of, clearly established federal law); Kyles v. Whitley, 514 U.S. 419, 436-37 & n. 10, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995) (holding that the State's disclosure obligation under Brady turns on the cumulative effect of the withheld evidence, not an item by item analysis). Even so, we conclude on de novo review that the witness who would have been impeached by the suppressed evidence was so severely discredited and not so critical to the prosecution's case that there is no reasonable probability that the withheld evidence would have affected the outcome. Accordingly, we affirm the district court's denial of the petition.1


Sheniece Brown was working as a clerk at Payless Shoe-Source when a man, who had a handkerchief covering his nose and mouth and appeared to be bleeding, entered the store. As Brown approached him, she realized that he was not injured but instead had red marks drawn with makeup on the backs of his hands and on the sides of his face. The man told Brown that it was a holdup and forced her to open the cash register and till by shoving a hard object into her back that felt like a gun. As the man took the cash from the till, she stood to his right side for a couple of minutes trying to memorize his profile. She testified, "I stood back on the right side of the register... about four feet away ... and I was trying to memorize his profile. And so he brought the handkerchief down from his face...." She saw that his face was covered with brown foundation and that there was a blue circle painted on one cheek along with some red marks on both sides of his face.

Brown initially provided a general description of the assailant, but without a name or identification of a specific individual, the police had no leads. The so-called "clown robber" became the subject of media headlines. A few days later, Brown talked about the robbery with two of her co-workers, Maria Diaz and Amber Trainer. Based on her description, Trainer and Diaz said they thought the robber was a man who frequently visited the store but never bought anything. Trainer told Brown what the suspicious customer looked like, noting that he had several tattoos. Trainer and Brown put their heads together and concluded that the robber's makeup probably was covering the tattoos.

After her discussion with her colleagues, Brown called the police and told a detective that the robber looked a lot like a man who often came to the store. Although Brown had never seen the suspicious customer before, she described him and emphasized that he had tattoos on his hands and neck that she thought were covered by the makeup. Upon hearing her description, the detective said, "I think I know who that is. This guy's been in jail before."

Based on the additional information about the suspicious customer, the police pursued the case. Brown identified Barker from a photo montage of six men. When she first saw Barker's picture, it "took [her] breath away because ... that's him." Brown was confident in her identification because of the suspect's "medium-sized nose, his cheekbones, and he had a moustache on the picture in this montage, even though he didn't that night, but I knew that was him." After she identified Barker, she was shown a booking photograph and a profile shot of Barker that made her even more certain that the identification was correct.

Barker was first tried in June 1999. Brown's identification was the centerpiece of the prosecution's case because the store security camera failed to produce a usable photograph of the robber, and the police failed to obtain fingerprints. Barker represented himself pro se and the trial ended in a hung jury.

Between the first and second trials, the prosecution obtained new evidence from a jailhouse snitch, Raul Abundiz. At the second trial, Abundiz testified that Barker confessed to committing the crime when the two of them were near a motel in early April, 1999. Abundiz also testified that he and Barker talked on June 14, 1999, around 10 a.m. when they were waiting for their respective court appearances in a holding cell.

Abundiz's testimony, though, was not without warts. He was impeached in all manner of ways, from admitting to lying, to confessing to prior convictions, to acknowledging that he was testifying only because he had received a deal from the State. The image of Abundiz presented to the jury was that of a chronic drug user willing to do anything to get out of jail and anxious to capitalize on his knowledge about Barker: The details of Abundiz's deal were fully disclosed and he admitted that he was testifying only because of the agreement. The jury also heard testimony that Barker had threatened to kill Abundiz and that Abundiz was looking for Barker "to do some harm to him" with a pistol.

The jury returned a conviction for second degree robbery, and Barker was sentenced to life without parole. He appealed to the Washington Court of Appeals, which affirmed his conviction. See State v. Barker, 103 Wash.App. 893, 14 P.3d 863 (2000). The Washington Supreme Court denied review.

After he exhausted his direct appeals, Barker pursued relief via a Personal Restraint Petition ("PRP"), Washington State's mechanism for collateral challenges. An independent investigation revealed several pieces of evidence that had not been disclosed to the defense before trial. This evidence forms the basis of Barker's Brady claim.

The first category of undisclosed evidence consists of four misdemeanor convictions of Abundiz that occurred within the year preceding the trial:

1) June 15, 1999—conviction for obstructing the duties of a police officer and trespassing based on an incident that involved Abundiz lying about his identity to the police.

2) March 30, 1999—shoplifting conviction based on an incident that also involved possession of drug paraphernalia.

3) March 19, 1999—shoplifting conviction.

4) August 18, 1998—false reporting conviction based on an incident that involved providing false information to the police.

All four of these crimes are considered crimes of dishonesty in Washington.2

The second group of undisclosed evidence revolves around a charge for residential burglary that Abundiz faced in June 1999, at the same time that Barker's first trial occurred. Barker identifies three pieces of evidence:

1) Documentation that a court found probable cause to believe that Abundiz committed residential burglary. Barker points to a June 14, 1999, Superior Court of Yakima County Order finding probable cause and setting bail at $20,000 and to a transcript of Abundiz's probable cause hearing.

2) A police report documenting a June 14, 1999, meeting between the same detective with whom Brown spoke and Abundiz during which they discussed the residential burglary charge. The report states that the prosecutor's office concluded there was not enough evidence to prove the case. The report does not mention Abundiz's robbery of a JC Penny store, which occurred a few days earlier, or his conversation with Barker, which allegedly occurred that morning. The report makes no mention that Abundiz had information about the robbery of Payless.

3) A June 16, 1999, order releasing Abundiz and stating that the State decided not to charge him with residential burglary. The order was signed by a deputy prosecutor "for Ken Ramm," who was the prosecutor in Barker's first trial.

Barker first raised his claim that the prosecution withheld the above evidence in the PRP he filed in the Washington Court of Appeals, which dismissed his petition. The Washington Supreme Court, through its Commissioner, denied discretionary review in a thorough opinion. The court itself adopted the Commissioner's decision by denying a motion to modify the ruling. The Washington Supreme Court held that Barker failed to show that suppression of the evidence caused him prejudice because Abundiz's credibility was so thoroughly destroyed that the withheld convictions would not have mattered. The court went on to note that the alleged residential burglary deal was speculative and that any evidence indicating a deal was cumulative because the jury already knew Abundiz received benefits for his testimony.

Barker filed a federal petition for a writ of habeas corpus in the district court, which reviewed the Washington Court of Appeals' decision and denied relief.


In a habeas corpus petition, two standards of review are at play. See, e.g., Lambert v. Blodgett, 393 F.3d 943, 964-65 (9th Cir.2004). The first standard is...

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