Jesse Gonzalez v. Robert Wong
Appeal Court of Appeals for the Ninth Circuit, Case No. 08-99025

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FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT JESSE GONZALEZ, 
Petitioner-Appellant,
No. 08-99025
v.
ROBERT WONG, Warden of  D.C. No.[End Page 2:95-CV-02345-JVS] California State Prison at San
OPINION
Quentin,
Respondent-Appellee.


Appeal from the United States District Court for the Central District of California
Lourdes G. Baird and James V. Selna,
District Judges, Presiding
Argued and Submitted
January 10, 2011""Pasadena, California
Filed December 7, 2011
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

[End Page 20683]
GONZALEZ v. WONG 20687

COUNSEL
Robert Berke, Santa Monica, California; Mark E. Overland (argued), Scheper Kim & Overland LLP, Los Angeles, Cali- fornia, for the petitioner-appellant. Joseph P. Lee, Deputy Attorney General, Los Angeles, Cali- fornia, for the respondent-appellee.
OPINION
CLIFTON, Circuit Judge:

Jesse Gonzales1 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- 1

It appears that Gonzales's name is spelled wrong in the case caption. This error dates back to his trial and is reflected in the caption of the Cali- fornia Supreme Court's decision as well. People v. Gonzalez, 800 P.2d 1159 (Cal. 1990). In order to avoid confusion we have retained the errone- ous spelling in the caption, but have correctly spelled Gonzales's name in the opinion. 20688 GONZALEZ v. WONG 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 pris- oner 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 prose- cutor 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 con- cerning 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 circum- stance 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 fed- eral habeas proceeding in district court, after the state court had rendered its decision. Those materials were not, therefore, part of the state court record.
GONZALEZ v. WONG 20689

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 case2 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 dis- trict court with instructions to stay proceedings to permit Gonzales to present the claim to the California Supreme Court. 2

In addition to the Brady claim, we also remand to the district court with similar instructions as to one of several ineffective assistance of counsel claims asserted by Gonzales, that being a claim that his counsel was inef- fective for not earlier obtaining the materials that arguably would have impeached Acker. As we explain below, at 20698 note 7, that particular ineffective assistance claim substantially overlaps with the Brady claim. For clarity, we will generally not discuss or refer to that ineffective assis- tance claim separately, but when we refer to our disposition of the Brady claim we include that ineffective assistance claim as well. 20690 GONZALEZ v. WONG 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 narcot- ics purchase made several days earlier from Gonzales's cou- sin at the residence. Four of the deputies approached the front door and one of them knocked and stated "Los Angeles Sher- iff'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 bifur- cated 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. Gon- zales's defense was that he had not heard the officers' announcements and instead believed the officers were mem- bers 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
GONZALEZ v. WONG 20691
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 typi- cal 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 mis- taken for gang warriors. Thus, the prosecution argued, Gon- zales 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, Gon- zales 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 testi- mony of two officers with whom he spoke shortly after the 20692 GONZALEZ v. WONG shooting. Both officers testified that Gonzales told them he had believed the officers were Bassetts.3 To explain why it was reasonable for Gonzales to believe that the Bassetts would storm his house to kill him, Gonzales sought to estab- lish 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. 3

Deputy Mace testified that while en route to the hospital, Gonzales said that he had believed that the men trying to enter his home were members of the Bassett gang and that he did not know they were police officers until he had been shot. The testimony of Sergeant Verdugo, who investi- gated the murder with his partner Sergeant Overlease, was somewhat less clear. Verdugo testified about what Gonzales said during an interview at the hospital early the following morning. Gonzales described the incident as a "freak accident." He initially stated that he was watering the lawn until he saw the "cops coming" and ran into the house. The record is unclear whether Gonzales recognized the men as "cops" when he saw them approaching the house, or whether his description of them as cops to Verdugo was based on his learning by the time of the interview that the men were police. The record is also unclear on what was said next. Verdugo testified at trial that Gonzales stated that he was confused. According to Verdugo's report of the conversation, Gonzales said that the officers were confused. It is undisputed that Gonzales then stated that he had been watering the lawn, but was inside with his infant son when he heard the cars arrive. He heard pounding and yelling at the door, but could not hear what was said. Gonzales reiterated to Verdugo that he believed the men were Bassett members.
GONZALEZ v. WONG 20693
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, tes- tified 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 over- heard 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 evi- dence 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 Cali- fornia. He insisted, though, that he was testifying because "it was a step in the right direction" and would help him get bal- ance in his life. Acker admitted that he could lie if he wanted to, but insisted that he was not lying about Gonzales's state- ments.

Gonzales was convicted of first degree murder and the spe- cial circumstance of killing a police officer engaged in the lawful pursuit of his duties. The case then moved to the pen- alty phase. The state sought the death penalty. The first pen- alty phase trial resulted in a hung jury. The penalty phase was retried before a different jury. 20694 GONZALEZ v. WONG

The state's penalty phase case was aimed at establishing aggravating factors that would outweigh any mitigating fac- tors offered by Gonzales.4 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 testi- mony 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 main- tain that Gonzales had believed the officers were gang mem- bers. 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 tes- tify 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 4

Under the 1978 California death penalty statute, in effect at the time of Gonzales's crime and applied at his trial, the guilt phase jury first had to find the defendant guilty of first degree murder and one of the enumer- ated special circumstances. If that requirement was met, the penalty phase jury was instructed to consider aggravating and mitigating circumstances and to impose the death penalty if it concluded that the aggravating cir- cumstances outweighed the mitigating circumstances. See Cal. Penal Code § 190.3 (1978).
GONZALEZ v. WONG 20695
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 pros- ecution 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 wit- nesses also described the tragic death of Gonzales's twin sis- ters 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 1988.5 An investigation into the use

5

Our court recently dealt with a case involving another informant from this period. See Maxwell v. Roe, 628 F.3d 486 (9th Cir. 2010). Our col- league, Judge Stephen Trott, who previously served as a Los Angeles Assistant District Attorney, has written and lectured extensively about the problems inherent in prosecutors' use of jailhouse informants. See Stephen S. Trott, Words of Warning for Prosecutors Using Criminals as Witnesses, 47 Hastings L.J. 1381, 1394 (1996). 20696 GONZALEZ v. WONG of jailhouse informants by prosecutors found significant prob- lems. While Acker was never officially identified as a jail- house informant during the investigation, the revelations of how jailhouse informants had fabricated confessions led Gon- zales'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 Gon- zales's habeas petition and direct appeal.

The California Supreme Court upheld Gonzales's convic- tion 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 govern- ment agent. This discovery did not unearth evidence that Acker was a government agent, but it did uncover impeach- ment 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
GONZALEZ v. WONG 20697
had repeatedly lied and faked attempting suicide in order to obtain transfers to other facilities.

Based on this new evidence Gonzales moved for reconsid- eration of the denial of an evidentiary hearing on his ineffec- tive 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. § 22536 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). 6

Gonzales failed to request a certificate of appealability on his claim of ineffective assistance of counsel based on the failure to investigate and present character evidence during the penalty phase. Gonzales claims to have inadvertently omitted this claim from his request and has asked this panel to grant one for it. Because the claim substantially overlaps with another claim which was certified, we conclude that the failure to request certification was an inadvertent mistake and grant the request for a certifi- cate of appealability on this claim. 20698 GONZALEZ v. WONG

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 meritori- ous. A. Brady Claim7

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 inac- curate 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 of 7

Gonzales has also raised an ineffective assistance of counsel claim based on his counsel's failure to discover the impeachment evidence. The analysis of materiality for ineffective assistance of counsel is the same as the analysis of prejudice for Brady, see United States v. Bagley, 473 U.S. 667, 682 (1985), so our Brady prejudice analysis applies directly to this ineffective assistance of counsel claim. The district court rejected this ineffective assistance claim on the same ground that it rejected the Brady claim: the additional evidence was not material under Brady or prejudicial under Strickland. It is not clear to us that this ineffective assistance claim adds anything to Gonzales's Brady claim, but out of caution we resolve this ineffective assistance claim in the same way as the Brady claim. It is remanded to the district court with the same instruction to stay and abey, in order to give the state court the first opportunity to resolve the claim in light of the late-disclosed materials. In order to avoid confusion with the other ineffective assistance claims asserted by Gonzales, as to which we affirm the district court's dismissal, we will not separately discuss this ineffective assistance claim in this decision and will treat it as included within our discussion of the Brady claim.

By this action, we do not suggest any determination by us with regard to whether counsel's performance was so unprofessional as to satisfy the other prong under Strickland. In order to give the state court a fair oppor- tunity to consider the issue, we will not take it up ourselves now.
GONZALEZ v. WONG 20699
parole. 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, Gon- zales 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 char- acter 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 sub- ject 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 addi- tional 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 ele- ments" of these claims, it did not establish materiality. The court based its conclusion on its belief that Acker was ade- quately 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 theo- ry." 20700 GONZALEZ v. WONG 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).8 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 respon- sibility 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

8

Recently we followed Pinholster in denying a habeas petitioner's request for an evidentiary hearing relating to an ineffective assistance of counsel claim involving new evidence not presented to the state court. See Stokley v. Ryan,
F.3d
, 2011 WL 4436268 (9th Cir. Sep. 26, 2011). We concluded that we did not have to determine whether Pinholster applied in that case, however, because the petitioner's claim failed either way. Id. at *4. The present case poses a different situation, however, as the only relief sought by the petitioner in Stokley was for an evidentiary hearing. Id. at *6. Further, we found that the petitioner in Stokley did not present a colorable ineffective assistance of counsel claim, id. at *6-11, whereas the new evidence of psychological reports presented by Gonzales could make a colorable Brady claim.
GONZALEZ v. WONG 20701
he was pursing his federal habeas petition in district court. A Brady claim was made before the state court, but it was nar- rower because Gonzales was not aware at the time of the psy- chological 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 ques- tioned 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 evi- dence. Pinholster, 131 S. Ct. at 1417-18 (Sotomayor, J., dis- senting). The majority opinion written by Justice Thomas responded to Justice Sotomayor's concern by noting that "Jus- tice 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 evi- dence 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- 20702 GONZALEZ v. WONG 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. Responsibil- ity 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 expecta- tion 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 evi- dence were considered, Gonzales could make a colorable or potentially meritorious Brady claim, meaning that a reason- able 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
GONZALEZ v. WONG 20703
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 Pin- holster, 131 S. Ct. at 1412 (Breyer, J., concurring).9

The stay and abey process is the same process that may be employed when a petitioner files a petition containing unex- hausted 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 dis- trict 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 liti- gation tactics, and, as is explained below, has a potentially meritorious claim.

This course provides the state court with the first opportu- nity 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, Gon- zales's "interest in obtaining federal review of his claims out- weighs 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 dis- cussion 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 9

The separate opinion of Judge O'Scannlain, dissenting in part, dis- agrees with this portion of our decision in this case. The majority's response to the partial dissent appears below, at 20734-36. 20704 GONZALEZ v. WONG violation. We do not decide whether there was a Brady viola- tion. 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 deci- sions, 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 convic- tion is wrong. Our system, therefore, places a "duty [on prose- cutors] 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 evi- dence 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 play- ing 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
GONZALEZ v. WONG 20705
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 evi- dence, 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 Gon- zales's defense in both phases. Gonzales can, therefore, make a colorable argument that the withheld evidence was favor- able to him.

b. Evidence was Suppressed

Gonzales can also make a colorable argument that the evi- dence 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 prose- cution 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 20706 GONZALEZ v. WONG F.3d 463, 479-80 (9th Cir. 1997) (en banc) (prosecutor vio- lated 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 dif- ferent 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 result- ing in a verdict worthy of confidence." Id. We conclude that a reasonable state court could conclude that there was a rea- sonable probability of a different result if the information con- tained 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 dur- ing 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.10 10

We recognize that it was probably true, as the district court suggested, that Acker's testimony held greater importance in the penalty phase than in the guilt phase. We need not decide here whether the evidence was actually material in one or both of the trials, as that conclusion should be made in the first instance by the state court.
GONZALEZ v. WONG 20707

i. Jurors' view of Acker

[6] Our inquiry into how the jurors viewed Acker is pri- marily focused on how the withheld evidence could have pro- vided 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, manipu- lative, 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 con- stantly testing me." The 1979 diagnostic study prepared for Acker's sentencing for his murder conviction concluded that 20708 GONZALEZ v. WONG 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 moti- vation 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.11 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 dis- trusted [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 testi- mony from witness receiving benefits from government "may raise serious questions of credibility").

[7] The reports also indicated that Acker had schizophre- 11

The reports would also have shown that Acker was in fact a career criminal who first interacted with the law at age 8, and since the age of 14 had spent all but fourteen months incarcerated.
GONZALEZ v. WONG 20709
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 truth- fully. 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 diag- nosed 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 repeat- edly 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 evalu- ation 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 evi- dence).

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 suffi- ciently impeached. Defense counsel did present some impeachment evidence, but courts have repeatedly held that 20710 GONZALEZ v. WONG withheld impeachment evidence does not become immaterial merely because there is some other impeachment of the wit- ness at trial. Where the withheld evidence opens up new ave- nues for impeachment, it can be argued that it is still material. See Banks, 540 U.S. at 702 (rejecting argument that since wit- ness was otherwise impeached withheld impeachment evi- dence 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 wit- ness was impeached on his forthrightness, the withheld evi- dence, 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 Car- riger, 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 immate- rial for Brady purposes because the jury was made aware of
GONZALEZ v. WONG 20711
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 can- not satisfy its Brady obligation to disclose exculpatory evi- dence 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 trans- ferred 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 wit- ness 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 opportuni- ties for impeachment. A reasonable state court could deter- mine that none of the impeachment at trial touched on Acker's competency to perceive and tell the truth, which rea- sonably 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 previ- ously expressed doubts about Acker's veracity and compe- tency.

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 20712 GONZALEZ v. WONG Acker was an important witness for the government, espe- cially during the penalty phase, and that "[i]n cases in which the witness is central to the prosecution's case, the defen- dant's conviction indicates that in all likelihood the impeach- ment 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.
GONZALEZ v. WONG 20713

[10] Acker's testimony amounted to a confession by Gon- zales 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 testi- mony 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 prosecu- tor'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 rea- sonable state court could view the prosecutor's arguments and memo as evidence that Acker was important to the prosecu- tion'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- 20714 GONZALEZ v. WONG 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. How- ever, 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 testi- mony, a reasonable state court could conclude that Acker's testimony "was the glue that held the prosecution's case together," Horton, 408 F.3d at 579, and that there is a reason- able probability that further impeachment of Acker could have resulted in a different outcome.

4. Remand to District Court

[12] Based on the above analysis, we conclude that Gon- zales could make a potentially meritorious or colorable Brady claim based on the psychological reports. In order to allow the state court to consider this Brady claim and to ensure Gon- zales can seek federal review of the claim if necessary, we remand the case as to this claim to the district court with instructions to stay and abey the case pending review of this claim by the California Supreme Court.12 12

While Gonzales's Brady argument before this court focuses mostly on the Acker psychological reports, he also argues that the California Supreme Court erred by denying relief based solely on the evidence that Gonzales knew about and cited in his argument to that court, such that it is appropriate for us to grant habeas relief to him at this time. We disagree. Applying the AEDPA standard, we conclude that the determination of the California Supreme Court that there was no prejudice, based on the mate- rial known to it at the time of its decision, was not unreasonable. Gon- zales's counsel was able to present evidence that Acker had committed murder and robbery in the past. The fact that he had committed several more robberies would not have painted a significantly different picture. Additionally, even though the criminal history printout indicated that Acker was not eligible for parole, Gonzales's counsel still questioned Acker on whether he hoped that his testimony would help him with the parole board. We do not resolve whether the cumulative effect of the materials alleged at the time of the state court decision to have been with- held and the later-disclosed materials was prejudicial. The California court may consider that question for itself.
GONZALEZ v. WONG 20715
B. Ineffective Assistance of Counsel: Character Evidence

[13] As stated above, we are not persuaded by any of the other arguments presented by Gonzales. We start with several claims seeking relief based on ineffective assistance of coun- sel.

Gonzales contends that he received ineffective assistance of counsel during both the guilt and penalty phase because his attorney failed to investigate or present any character evi- dence during either phase. In order to establish ineffective assistance of counsel, a petitioner must prove both deficient performance by his counsel and prejudice caused by the defi- ciency. To demonstrate deficient performance Gonzales must show that counsel's performance "fell below an objective standard of reasonableness" based on "the facts of the particu- lar case [and] viewed as of the time of counsel's conduct." Strickland v. Washington, 466 U.S. 668, 688-90 (1984). In order to establish prejudice Gonzales "must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to under- mine confidence in the outcome." Id. at 694. Because failure to meet either prong is fatal to Gonzales's claim, there is no requirement that we "address both components of the inquiry if the defendant makes an insufficient showing on one." Id. at 697.

The California Supreme Court rejected Gonzales's claims of ineffective assistance of counsel for failure to present char- acter evidence. See Gonzalez, 800 P.2d at 1198-99.13 Under 13

The California Supreme Court only expressly ruled on this claim in regards to the penalty phase. However, "[w]here a state court's decision is unaccompanied by an explanation, the habeas petitioner's burden still must be met by showing there was no reasonable basis for the state court to deny relief." Harrington v. Richter,
U.S.
, 131 S. Ct. 770, 784 (2011). 20716 GONZALEZ v. WONG AEDPA this conclusion is reviewed only to ensure it is not contrary to or an unreasonable application of federal law. In reviewing the California Supreme Court's ruling we are guided by the Supreme Court's instruction that when a peti- tioner raises a Strickland claim through a habeas petition gov- erned by the AEDPA, he must surmount two highly deferential standards. Harrington v. Richter,
U.S.
, 131 S. Ct. 770, 778 (2011) ("Federal habeas courts must guard against the danger of equating unreasonableness under Strickland with unreasonableness under § 2254(d)."). "[T]he question is not whether counsel's actions were reasonable. The question is whether there is any reasonable argument that counsel satisfied Strickland's deferential standard." Id.

1. Guilt Phase

To support his claim of ineffective assistance of counsel during the guilt phase Gonzales points to evidence presented during the referee hearing conducted at the request of the Cal- ifornia Supreme Court. At the hearing, witnesses testified that Gonzales was a loving father who cared about his children, was attentive to them, and was also caring towards other chil- dren. He argues that this evidence was relevant because the parties stipulated that Gonzales's infant son and another child were in the house when the shooting occurred. Gonzales argues that the character evidence would have strengthened his defense that he was not aware of the raid and was not planning to kill an officer, because if he had been, he would have made sure the children were out of the house.

[14] It was reasonable for the California Supreme Court to conclude that this claim was meritless because the failure to present this character evidence was not prejudicial. First, it is unlikely the witnesses Gonzales might have called would have been persuasive. Two of the witnesses, Dr. Furth and Mr. Clancy, had very limited contact with Gonzales. Dr. Furth admitted to basing her opinion on the few times that Gonzales had brought his children to her office for medical appoint-
GONZALEZ v. WONG 20717
ments. Mr. Clancy was Gonzales's middle school teacher and had seen him only a few times since then. The other wit- nesses, George Gonzales, Raymond de Jesus, Patricia Espinoza, and Maria Blanco, were either family or close friends, making their testimony suspect based on their close relationship with Gonzales and their admitted desire to help him avoid the death penalty.

Most importantly, none of these witnesses were aware of Gonzales's gang involvement. Gonzales's professed fear of a raid by the Bassetts necessarily highlighted his significant gang involvement, which would have cast doubt on how well the proposed witnesses knew him and on their ability to ade- quately judge his character. Furthermore, the fact that all of these witnesses would testify that they were unaware of Gon- zales's role as a gang leader could have undermined the defense argument that Gonzales feared attack by the Bassetts, giving defense counsel a strategic reason for not introducing this evidence.

Second, even if the jury were to afford some credibility to these witnesses, there was evidence which was inconsistent with these witnesses' descriptions of Gonzales. Gonzales had left an unsecured shotgun and shells in the same room as his infant son. Drug paraphernalia including syringes were also found lying around the house. The jury could have seen these facts and Gonzales's self-described gang history as inconsis- tent with someone who was purportedly so concerned for the welfare of the children.

Third, this character evidence would have provided limited support for the conclusion that Gonzales did not know about the raid in advance. According to Gonzales, this evidence demonstrated that if he knew about the raid in advance and was planning on killing a police officer, he would have ensured that the children were not in the home at all. But that assumed that Gonzales was aware of exactly when the police officers would arrive and knew when the children needed to 20718 GONZALEZ v. WONG be out of the house. The jury also could have thought that Gonzales merely did not think through his plan, or could have concluded that having the children in the house was part of Gonzales's plan to make the shooting look like an accident.

Finally, even if the jury did draw Gonzales's desired infer- ence from this evidence and concluded based on the presence of the children that Gonzales did not have advance notice of the raid, the guilt phase jury could have convicted him even if they believed he did not have advance notice. The jury could also have found Gonzales guilty of first degree murder if they did not believe that Gonzales had advance notice, but did believe that he knew at the time of the shooting that the men were officers. If the jury convicted on this basis, the chil- dren being in the home would have been irrelevant.

2. Penalty Phase

Gonzales raises a similar claim in the context of the penalty phase, arguing that the failure of his lawyer to investigate and present character and background evidence during the penalty phase constituted ineffective assistance of counsel. The Cali- fornia Supreme Court rejected the claim because it found there was a valid strategic reason for not presenting character evidence. Gonzalez, 800 P.2d at 1197-1201. Once again, Gon- zales must show that the California Supreme Court was unreasonable in reaching this conclusion. Gonzales cannot meet this requirement because he cannot show prejudice aris- ing from the failure to present this evidence. See Wong v. Bel- montes,
U.S.
, 130 S. Ct. 383, 386 (2009) (prejudice requires a showing of "a reasonable probability that a compe- tent attorney, aware of the available mitigating evidence, would have introduced it at sentencing, and that had the jury been confronted with this mitigating evidence, there is a rea- sonable probability that it would have returned with a differ- ent sentence.") (internal quotation marks and alterations omitted)).
GONZALEZ v. WONG 20719

Gonzales points to two types of character evidence that he claims his attorney should have discovered and presented. The first type, already discussed in the context of the guilt phase, consisted of testimony by family, friends, neighbors, and a former teacher, all of whom described Gonzales as a kind person who was respectful of adults and caring towards children. However, as discussed above, this testimony was suspect because none of these witnesses were aware of Gon- zales's drug and gang history. It is improbable that this evi- dence would have caused the jury to reach a different sentence.

More importantly, introduction of this evidence would have opened the door to evidence about allegations that Gonzales was involved in a gang rape in 1972. Gonzales had been accused of being involved in a gang rape but ultimately only pled guilty to a charge of misdemeanor battery on the victim's friend. Defense counsel was able to limit evidence of this incident during the penalty phase to a stipulation as to this conviction. Gonzales's attorney testified at the referee hearing that he did not develop or introduce character evidence because he was worried about the prosecution introducing additional details about the incident. The referee and the Cali- fornia Supreme Court found that had Gonzales raised the issue of his character, the prosecution would have been able to present the facts underlying the battery conviction.

While there was some evidence presented at the referee hearing that the rape victim would have denied that Gonzales had raped her, Gonzales still pled guilty to battery on the vic- tim's friend. Therefore, the best Gonzales could have hoped for was a showing that he was not one of the rapists but did batter the victim's friend, and at worst the jury could have believed that Gonzales was involved in or assisted in allowing the rape. Given how weak the mitigating character evidence was, it was not unreasonable for the California Supreme Court to conclude that Gonzales's counsel had a valid strategic rea- son for not introducing the character evidence so as to avoid 20720 GONZALEZ v. WONG the details of this incident. See Burger v. Kemp, 483 U.S. 776, 791 (1987) (concern about prior convictions was valid reason not to introduce character evidence); Siripongs v. Calderon, 133 F.3d 732, 736-37 (9th Cir. 1998) (same).

The second type of evidence was information about Gon- zales's life history. The bulk of this testimony portrayed Gon- zales's family as a stable lower-class family. The only potentially helpful information was that two of Gonzales's sisters died in a train accident when he was younger and that after this accident Gonzales's parents neglected the remaining children. This testimony came from Gonzales's aunt. Addi- tionally, the defendant's brother testified that there was a change in the family after the death of his sisters. While it is unclear what these witnesses meant, it is conceivable that this evidence could have been presented to the jury to induce sym- pathy for Gonzales, and its introduction would not have opened the door to the gang rape evidence.

While this evidence could have been introduced, it was not the kind of evidence that would have made a sentencer "con- clude[ ] that the balance of aggravating and mitigating cir- cumstances did not warrant death." Strickland, 466 U.S. at 695. Generally Gonzales appears to have come from a stable family. While Gonzales's aunt used the word "neglect," it does not appear that she means that the children were aban- doned or abused. Furthermore, Gonzales was already sixteen when the accident occurred so it is questionable how much any neglect would have affected him. Additionally, there was no evidence of the kinds of abuse which other courts have found sufficiently material to warrant relief. See, e.g., Wiggins v. Smith, 539 U.S. 510, 535 (2003) (evidence of abuse at hands of alcoholic absentee mother and "physical torment, sexual molestation, and repeated rape" while in foster care); Boyde v. Brown, 404 F.3d 1159, 1180 (9th Cir. 2005) (coun- sel was deficient for failing to investigate and present evi- dence of physical and sexual abuse by parents). While the death of his sisters was undoubtedly tragic and the shock may
GONZALEZ v. WONG 20721
have caused Gonzales's parents to be inattentive to him, this evidence was not sufficient to engender enough sympathy to overcome the aggravating circumstances of the murder.

[15] We conclude that the state court did not unreasonably determine that there was not a reasonable probability that had this evidence been presented to the jury the result would have been different. Since Gonzales failed to establish that the alleged deficiency by his counsel caused him prejudice, these ineffective assistance of counsel claims fail. C. Ineffective Assistance of Counsel: Mental Impairment

Evidence

Gonzales also alleges that his counsel was deficient because he failed to investigate and present evidence at the guilt and penalty phases that Gonzales had a mental impair- ment that would have affected his judgment at the time of the shooting. Gonzales points to a medical opinion by Dr. Stein, a doctor retained by Gonzales's habeas counsel, which stated that Gonzales has a mental impairment which "would make it extremely difficult for him to choose between alternatives within a short period or to size up options available to him." Dr. Stein also opined that "[e]ven if Gonzales had heard the police officers announce themselves, it is highly likely he would have still tended to distort or misperceive the events and have been unable to grasp the correct response." Id. Gon- zales asserts that this mental impairment evidence would have explained why, once he believed the men were Bassetts, he was unable to process the evidence that they were in fact offi- cers.

The California Supreme Court rejected this claim because Gonzales had not shown that his counsel was deficient. In doing so it first determined that federal law contained "no blanket obligation to investigate possible "˜mental' defenses." Gonzalez, 800 P.2d at 1195. Rather, an attorney only needs to investigate mental health defenses if there are "facts known to 20722 GONZALEZ v. WONG counsel from which he reasonably should have suspected that a meritorious defense was available." Id. It then made a fac- tual determination that counsel was not aware of any evidence that would have made "the possibility of convincing "˜mental' evidence . . . reasonably apparent to a competent attorney." Id. In reviewing this conclusion we once again ask only "whether there is any reasonable argument that counsel satis- fied Strickland's deferential standard." Richter, 131 S. Ct. at 778. Here, there are reasonable arguments that counsel was not deficient. Because Gonzales has failed to satisfy his bur- den under the deficiency prong, there is no need to address the prejudice prong.

First, the California Supreme Court's determination that there is "no blanket obligation to investigate possible "˜mental' defenses, even in a capital case" was not an unreasonable application of federal law. Strickland explicitly addresses counsel's duty to investigate, instructing that "counsel has a duty to make reasonable investigations or to make a reason- able decision that makes particular investigations unneces- sary." 466 U.S. at 691 (emphasis added); see also Wiggins, 539 U.S. at 527 ("[A] court must consider not only the quan- tum of evidence already known to counsel, but also whether the known evidence would lead a reasonable attorney to investigate further."); Douglas v. Woodford, 316 F.3d 1079, 1085 (9th Cir. 2003) ("Trial counsel has a duty to investigate a defendant's mental state if there is evidence to suggest that the defendant is impaired."). There is no clear Supreme Court case law always requiring a mental health investigation at the guilt or penalty phase. See Pinholster, 131 S. Ct. at 1406-07 ("Strickland itself rejected the notion that the same investiga- tion will be required in every case."). The Court has generally eschewed blanket rules in the context of ineffective counsel. Strickland, 466 U.S. at 696 ("Most important, in adjudicating a claim of actual ineffectiveness of counsel, a court should keep in mind that the principles we have stated do not estab- lish mechanical rules.").
GONZALEZ v. WONG 20723

Second, the California Supreme Court's determination that counsel would not have been aware that a mental health investigation would lead to "materially favorable evidence," Gonzalez, 800 P.2d at 1195, was a reasonable factual determi- nation. The only facts that Gonzales suggested should have put his counsel on notice was the fact that Gonzales was illit- erate and that he had been sick as a child. The California Supreme Court requested a response from defense counsel as to why he failed to conduct a mental health investigation, and he explained that Gonzales "seemed normal and alert, and he participated knowledgeably in strategy discussions." Id. at 1194. In regards to Gonzales's illiteracy, counsel stated "he attached little significance to defendant's illiteracy, because poor reading skills are common in low-income communities for reasons unrelated to mental ability." Id. The California Supreme Court found counsel's responses uncontroverted and dispositive.

As Strickland requires, the California Supreme Court "evaluate[d] the conduct from the counsel's perspective at the time" and then "judge[d] the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct." 466 U.S. at 689-90. Given that "counsel is strongly presumed to have rendered adequate assistance," id. at 690, the California Supreme Court was not unreasonable in accepting counsel's statement that from his perspective there was nothing unusual about Gon- zales's illiteracy, in combination with other facts he knew about Gonzales, that would have required him to seek a men- tal health evaluation.

[16] Nor has Gonzales adequately explained why his illit- eracy would have necessarily put his counsel on notice that a mental impairment defense would be fruitful. The fact that Gonzales appeared normal and alert and was able to partici- pate in strategy discussions would have been much more rele- vant in considering whether to pursue a mental impairment investigation. We find nothing unreasonable with the state 20724 GONZALEZ v. WONG court's conclusion that defense counsel did not have reason to believe that a mental health investigation would have been fruit- ful.14 D. Ineffective Assistance of Counsel: Evidence that Acker

was a Government Agent

Gonzales also argues that his counsel was ineffective for failing to investigate and present evidence that William Acker was a government agent. Inherent in this claim is the assump- tion that Acker was a government agent. However, despite having pursued this claim for close to thirty years, Gonzales has never been able to provide evidence to support his asser- tion that Acker was acting as a government agent. As the Cal- ifornia Supreme Court correctly noted, "[a]bsent evidence of direct motivation by the police or a prior "˜working relation- ship' between Acker and the authorities," there is no basis for concluding Acker was a government agent. Gonzalez, 800 P.2d at 1193.

Even after the discovery authorized by the district court, nothing in the record suggested that Acker had an established 14

We also note that while Gonzales has presented this argument as one about a mental impairment investigation, it is actually an argument that counsel did not think of a potential avenue for supporting the defense's theory that Gonzales believed the officers were gang members. Just because counsel did not come up with all potential ways to prove the case does not make the counsel's performance ineffective. See Richter, 131 S. Ct. at 789 ("Counsel was entitled to formulate a strategy that was reason- able at the time and to balance limited resources in accord with effective trial tactics and strategies."); see also Strickland, 466 U.S. at 689 ("There are countless ways to provide effective assistance in any given case. Even the best criminal defense attorneys would not defend a particular client in the same way."); Chandler v. United States, 218 F.3d 1305, 1316 n. 16 (11th Cir. 2000) ("No lawyer can be expected to have considered all of the ways. If a defense lawyer pursued course A, it is immaterial that some other reasonable courses of defense (that the lawyer did not think of at all) existed and that the lawyer's pursuit of course A was not a deliberate choice between course A, course B, and so on.").
GONZALEZ v. WONG 20725
relationship with the police prior to his conversations with Gonzales. Gonzales points to the fact that Acker also testified about jailhouse confessions in other murder cases and argues that it cannot be mere coincidence that Acker was placed next to several murder suspects who all purportedly confessed to him. He also suggests that there was something unusual going on because Acker was referred for a probation evaluation even though he should not have been eligible for probation on his murder conviction.

[17] Conjecture and coincidences cannot stand in the stead of actual evidence that Acker was a government agent, how- ever, particularly given the high standard of deference given to the state court's conclusion. We agree with the district court that "petitioner has not presented, and cannot come up with, clear and convincing evidence to controvert, or rebut the presumption of correctness applicable to, the state court's finding that Acker did not act as law enforcement's agent in petitioner's case." Because there is no evidence that Acker was a government agent, there is no basis to find that the con- clusion reached by the California Supreme Court on this claim was factually or legally unreasonable. E. Ineffective Assistance of Counsel: Lingering Doubt

Gonzales next argues that his counsel provided ineffective assistance during the penalty phase because his counsel failed to understand and explain to the jury the one mitigating factor he presented to the jury, "lingering doubt."15 Lingering doubt 15

The California Supreme Court did not explicitly address this argument as an ineffective assistance of counsel argument. It did reject an argument that the jury was misled to ignore any lingering doubt in the penalty phase through either counsels' arguments or the jury instructions. This is, in essence, a conclusion that either counsel was not deficient or that any defi- ciency was immaterial. Gonzalez, 800 P.2d at 1189. It also rejected several unspecified ineffective assistance claims, which the court describes as including "incompetently fail[ing] to . . . present mitigating penalty evi- 20726 GONZALEZ v. WONG was a valid mitigating factor recognized by the California Supreme Court in People v. Terry, 390 P.2d 381, 387 (Cal. 1964). Lingering doubt is some doubt regarding the defen- dant's guilt for the crime of conviction, less than reasonable doubt but preventing absolute certainty, which mitigates against imposing the death penalty.

Defense counsel did try to create lingering doubt by pre- senting evidence during the penalty phase to support the the- ory that Gonzales had mistakenly believed the police were gang members. However, in his opening and closing state- ments, defense counsel made confusing statements that sug- gested that the jury could not consider whether they had doubt about Gonzales's guilt. While counsel's performance might have been less than stellar, his statements about lingering doubt did not have a material adverse effect on the penalty phase.

The prosecutor focused his case for aggravation almost exclusively on one aggravating factor, "the aggravated nature of the crime." The state sought to establish this factor by proving that Gonzales knew about the raid in advance and planned to use the raid as an opportunity to "bag a cop." In his opening statement during the penalty phase trial that pro- duced the death sentence verdict, the prosecutor told the jury that "the evidence will show that the defendant planned to kill a cop. Not that it was thought of lightly, that it was just a split-second situation, spontaneous, but he planned to kill a cop. Something to the effect he was going to bag a cop." Dur- dence" and making "tactical errors at the penalty phase affect[ing] the bal- ance of aggravation." Id. at 1202. Gonzales exhausted the issue because his petition before the California Supreme Court clearly raised this issue as one of ineffective assistance of counsel. California Amended Petition at 65-6. "Where a state court's decision is unaccompanied by an explana- tion, the habeas petitioner's burden still must be met by showing there was no reasonable basis for the state court to deny relief." Richter, 131 S. Ct. at 784.
GONZALEZ v. WONG 20727
ing his summation the prosecutor reiterated that the murder deserved the death penalty because Gonzales "planned to kill a cop during a raid," had "a detailed Bassett story to show how he was going to cover it up," and was "standing there with a shotgun, lying in wait." The prosecution's penalty phase case rested on proving the "bag a cop" theory.

[18] Having reached the conclusion that Gonzales's crime warranted the death penalty, the jury necessarily found that the aggravating circumstances outweighed the mitigating ones. Given the prosecutor's arguments, it is highly likely that they concluded there was a premeditated plan to "bag a cop." Having reached this conclusion, they also necessarily rejected the argument that would have created lingering doubt, that Gonzales mistakenly believed the officers were gang mem- bers. Therefore, it was not unreasonable for the California Supreme Court to conclude that any deficiency in defense counsel's lingering doubt argument was immaterial. F. Prosecutorial Misconduct: False Testimony by Acker

Gonzales also claims that the prosecution used false testi- mony by Acker. Gonzales alleges that Acker lied about his reasons for testifying against Gonzales. It is clearly estab- lished law that "a State may not knowingly use false evi- dence, including false testimony, to obtain a tainted conviction . . . ." Napue v. Illinois, 360 U.S. 264, 269 (1959). The California Supreme Court applied this law and rejected this claim. It concluded that while there may have been incon- sistencies in Acker's testimony, "one cannot state a prima facie case of perjury or concealment simply by showing inconsistencies in the witness's testimony." Gonzalez, 800 P.2d at 1194. The California Supreme Court also rejected Gonzales's contention that Acker perjured himself at the guilt trial by not mentioning that the state had paid for him to have one of his tattoos removed. The court noted that "any infer- ence that Acker had received benefits for his cooperation in this and other cases by the time of the second penalty trial 20728 GONZALEZ v. WONG does not establish that his contrary guilt phase testimony was false when given." Id. at 1174. Given the evidence before the court, this conclusion was reasonable.

The exact nature of Gonzales's claim before this court is not entirely clear, but it appears to be that the California Supreme Court denied this claim without allowing him the opportunity to engage in the discovery necessary to support it. However, Gonzales was given the opportunity to conduct dis- covery into this claim by the district court and failed to uncover any evidence demonstrating the prosecutors know- ingly allowed Acker to lie during his testimony. Once again, conjecture and coincidence cannot win the day, particularly given the deference due the state court's conclusions. Absent such evidence, there is no reason to question the California Supreme Court's conclusion that the claim is meritless. G. Hicks Claims

[19] Gonzales next claims that his federal due process rights were violated by statements made by the prosecutor during his closing argument for the penalty phase. Gonzales points to three types of statements: instructing the jurors that they should not consider sympathy, discussing the jury's dis- cretion to impose the death penalty if it found the aggravating circumstances outweighed the mitigating circumstances, and suggesting the absence of a mitigating circumstance be treated as an aggravating circumstance.

Gonzales is unable to point to any clearly established fed- eral law from the Supreme Court that establishes any of these statements as a deprivation of due process under federal law, as required by the AEDPA. Instead, Gonzales has argued that the prosecutor's statements were in violation of state law and that in making these statements the prosecutor violated his constitutional right to have the jury exercise its discretion in the manner authorized by state law. He derives this principle from Hicks v. Oklahoma, 447 U.S. 343 (1980), which held
GONZALEZ v. WONG 20729
that if a state guaranteed a defendant the right to have a jury decide his sentence, it was unconstitutional to deny him re- sentencing by a jury after the statute under which he was sen- tenced was deemed unconstitutional. The Court stated that:

Where, however, a State has provided for the impo-

sition of criminal punishment in the discretion of the

trial jury, it is not correct to say that the defendant's

interest in the exercise of that discretion is merely a

matter of state procedural law. The defendant in such

a case has a substantial and legitimate expectation

that he will be deprived of his liberty only to the

extent determined by the jury in the exercise of its

statutory discretion. Id at 346.

Gonzales reads Hicks too broadly. See Chambers v. Bower- sox, 157 F.3d 560, 565 (8th Cir. 1998) (distinguishing Hicks and "reject[ing] the notion that every trial error, even every trial error occurring during the sentencing phase of a capital case, gives rise to a claim under the Due Process Clause"). In Hicks the defendant was denied his state law right to have a jury decide his punishment, which implicated issues of funda- mental fairness. Hicks was not concerned with how a jury exercised its discretion. Here, regardless of the prosecutor's statements, the decision to impose death was still made, as required by state law, by a jury in the "exercise of its statutory discretion."

Moreover, Gonzales's argument also fails because it relies on the erroneous conclusion that he was denied a right guar- anteed to him by state law. See Ross v. Oklahoma, 487 U.S. 81, 91 (1988) (rejecting Hicks challenge because defendant "received all that was due under [state] law"). Gonzales raised each of these claims as independent state law claims before the California Supreme Court. That court found no violation of state law in any of the prosecutor's statements. See 20730 GONZALEZ v. WONG McSherry v. Block, 880 F.2d 1049, 1052 (9th Cir. 1989) ("We are bound by th[e] state court's construction of its own penal statute.").

Finally, even if there was error, it was not enough to estab- lish a denial of due process. That requires a showing of a denial of "that fundamental fairness essential to the very con- cept of justice." Lisenba v. California, 314 U.S. 219, 236 (1941). This is not a case where "the prosecutor["˜s] comments "˜so infected the trial with unfairness as to make the resulting conviction a denial of due process.' " Darden v. Wainwright, 477 U.S. 168, 181 (1986) (quoting Donnelly v. DeChristo- foro, 416 U.S. 637, 643 (1974)). H. Bouie Claim

[20] Gonzales next claims a violation of his due process rights under Bouie v. City of Columbia, 378 U.S. 347, 353 (1964). In Bouie the Court applied the underlying concept of the ex post facto clause of the Constitution, which on its face only applies to legislative acts, to the judiciary. It held that just as the ex post facto clause prohibits punishing an individ- ual under a law that was not in effect at the time of the per- son's actions, the due process clause protects against "unforeseeable judicial enlargement of a criminal statute." Id. In other words, a court cannot reinterpret a criminal statute in an unforeseeable manner so that it criminalizes additional conduct and then apply that novel interpretation retroactively. We have considered Gonzales's Bouie claim and conclude that there was no due process violation.

Gonzales's claim arises out of the manner in which the jury was instructed on the special circumstance of which he was convicted: killing a peace officer engaged in the lawful per- formance of his duties. The trial court modified the instruction on the special circumstance so that the jury was instructed that a police officer serving a search warrant was engaged in the
GONZALEZ v. WONG 20731
performance of his duties.16 Gonzales did not object to this instruction during trial, but in his direct appeal to the Califor- nia Supreme Court he argued that the modification violated established California law. He contended that under Califor- nia law an officer serving a facially valid, but actually invalid warrant was not engaged in the lawful performance of his duties and that the validity of the warrant was a question for the jury to decide. He argued the court erred by telling the jury that an officer serving a search warrant was automatically engaged in the performance of his duties, because in doing so it prevented the jury from making its own determination about the warrant's validity.

Gonzales's argument relied on the California Supreme Court's holding in People v. Curtis, 450 P.2d 33 (Cal. 1969), that in order to be convicted of a crime with an element involving physical force against an officer the jury had to find that the officer was lawfully engaged in his duties. A footnote in Curtis suggested that an officer serving an invalid warrant was not lawfully performing his duties. Id. at 37 n.4. How- ever, the court had never explicitly held that an officer was not engaged in the performance of his duties if he was serving a facial valid but actually invalid warrant.

The California Supreme Court rejected Gonzales's argu- ment, and held for the first time, over a dissent, that "if a war- rant is valid on its face, an officer carrying out its command to search or arrest is lawfully engaged in duty . . . even if the facts disclosed to the magistrate in support of the warrant were not legally sufficient to establish probable cause." Gon- zalez, 800 P.2d at 1177. Because federal courts will not con- sider issues of state law as part of habeas review, Gonzales 16

The instruction in question, with the modification in brackets, defined "performance of his duties" as "any lawful act of conduct while engaging in the maintenance of the peace and security of the community or in the investigation or prevention of a crime; [to wit, the serving of a search war- rant]." 20732 GONZALEZ v. WONG attempted to repackage this claim as a violation of federal due process. He argued that Curtis was the law at the time of his crime and that the California Supreme Court's decision in his appeal was an unforeseeable enlargement of a criminal statute that was retroactively applied to him in violation of due pro- cess as established in Bouie.

There are several problems with Gonzales's Bouie argu- ment. First, the California Supreme Court's decision in Gon- zalez was not unforeseeable. In fact, we think it unlikely that the court would have reached any other conclusion. To do so would have sanctioned violence against law enforcement offi- cers who believed they were lawfully performing their jobs. Curtis, which dealt with an officer making an unlawful arrest and using excessive force, was clearly directed at denying officers who were knowingly engaging in unlawful exercises of police power the extra protection of criminal statutes like the special circumstance at issue here. The dicta in the foot- note, while suggesting that a warrant must be actually valid, is a broad, general statement which was not controlling law.

Even if we thought the California Supreme Court's deci- sion was unforeseeable, we do not believe that Bouie is appli- cable here. Bouie dealt with the reinterpretation of a criminal statute such that conduct that at the time would not be crimi- nal was later held, after the fact, to be criminal under the stat- ute. In Bouie, the South Carolina Supreme Court reinterpreted a trespassing statute that had previously been interpreted to only criminalize unlawful entry to, in addition, also criminal- ize remaining on property after being asked to leave. It then retroactively applied that new interpretation to civil rights demonstrators who had been charged with trespassing because they had refused to leave a restaurant where they were holding a sit-in. The Supreme Court held this interpreta- tion to violate the due process clause because at the time the defendants acted their conduct was not criminal and they had no notice that their actions were illegal. Bouie, 378 U.S. at 362
GONZALEZ v. WONG 20733

Applying Bouie here would not further the principle under- lying that decision. The theory behind Bouie was that judicial enlargement of a criminal statute, like an ex post facto law, fails to give a defendant adequate notice that his conduct is criminal. Id. at 350 (discussing principle that "a criminal stat- ute must give fair warning of the conduct that it makes a crime"). Here the court's ruling had nothing to do with the defendant's actions, but instead had to do with the victim's status. An individual who sees an officer serving a warrant would not ordinarily know at the time that the warrant was not valid. There is no suggestion that Gonzales knew that the search warrant was invalid or was justified in resisting it on that basis by shooting the officer attempting to serve it. Prior to Gonzalez, someone who shot an officer in the process of serving a warrant had notice that he may be subject to the death penalty. Bouie's concern with fair notice to the defen- dant is inapplicable here.

Finally, even if we found Bouie applicable here, the alleged error was harmless. On habeas review the "substantial and injurious effect" standard applies to determine whether a con- stitutional error was harmless. Fry v. Pliler, 551 U.S. 112, 121 (2007). Gonzales challenged the validity of the warrant on appeal and the California Supreme Court held that "[b]y any applicable standard, the warrant was valid." Gonzalez, 800 P.2d at 1169. During the trial Gonzales never contended that the warrant was invalid and never introduced any evidence that would have cast doubt on its validity.17 Based on the evi- dence presented at trial, there was no basis for the jury to con- 17

Justice Mosk stated in his Gonzalez dissent that Gonzales presented evidence and argument that the police acted unlawfully when they broke into the residence to execute the warrant. Gonzalez, 800 P.2d at 1210 (Mosk, J., dissenting). However Justice Mosk was not discussing the validity of the search warrant, but rather the means of entry, which is not at issue in this appeal. Furthermore Justice Mosk appears to have been mistaken; we can find no evidence that during trial the defense argued the officers' entry into the house was unlawful. In fact defense counsel stated that he was not going to challenge that the officers knocked and announced themselves. Gonzales also evidently raised some arguments before the district court that the warrant was invalid, such "as differing heights and times between the warrant affidavit and the underlying arrest report." Assuming, arguendo, that these alleged deficiencies could make the warrant invalid, these arguments were not made at trial. 20734 GONZALEZ v. WONG clude the officers were not acting pursuant to their official duties. Therefore, there is no reason to believe the changed language affected the outcome of the trial. Since any error would have been harmless, Gonzales's Bouie argument would fail regardless of its legal merit. III. Response to Partial Dissent

The partial dissent disagrees with the portion of our deci- sion that remands the Brady claim based on the psychological reports to the district court with instructions to stay the habeas proceedings until Gonzales has had an opportunity to present this new evidence to the California Supreme Court. Disagree- ment is expressed on both factual and legal grounds.

Factually, the partial dissent disputes our assessment of the impact of the psychiatric reports withheld from defense coun- sel, concluding that "[a]t most, these reports suggest that Acker has an antisocial personality and that he tries to manip- ulate the prison system to obtain transfers to his preferred place of detention." Partial Dissent, at 20770. That character- ization appears to us to be a substantial understatement, as demonstrated by the description of those reports set out above, at 20706-09. We also disagree with the partial dis- sent's view that the withheld documents were not material because Acker had already been sufficiently impeached, as discussed at 20709-12. For the reasons discussed in more detail at 20712-14, we conclude there was a reasonable possi- bility that the verdict might have been different if the evi- dence had not been withheld.

The disagreement as to law is more significant. The partial dissent describes our decision as "an end run around Pinhol- ster's holding from (1) a hypothetical problem cited in its dis- sent, (2) a hypothetical solution posed in a concurrence, (3) a footnote in the majority opinion responding to both, and (4) an incredibly broad definition of the word "˜claim.' " Partial Dissent, at 20734.
GONZALEZ v. WONG 20735

The last comment is especially puzzling, because we do not adopt a "broad" definition of the word "claim." We conclude that Gonzales had not presented a new "claim" distinct from claim already presented and rejected by the California Supreme Court, see above at 20701-02, though at a time when that court was not aware of the psychiatric reports withheld from the defense. Judge Fletcher's separate concurring opin- ion raises the suggestion that this argument could be identi- fied as a "new claim," but that is not a conclusion of the majority opinion.

More broadly, the partial dissent reads Pinholster to say something which the majority of the Court explicitly declined to say. The discussion which the partial dissent describes as "hypothetical" appears to us to concern precisely the situation presented to us in this case: "new evidence of withheld excul- patory witness statements." Pinholster, 131 S. Ct. at 1401 n.10. If there were compelling evidence of that nature, the partial dissent would apparently have us disregard it, nonethe- less..

The partial dissent does not fault petitioner for failing to discover the withheld information or for failing to include it in his previous petition to the California Supreme Court, and properly so. Gonzales can't be blamed for not knowing or presenting to the state court what was withheld from him.

The only fault found by the partial dissent is that, in its view, by not immediately requesting a stay and seeking to return to state court after learning of the psychological reports in 2003, Gonzales "engaged in intentionally dilatory litigation tactics." Partial Dissent at 20776. But prior to the announce- ment of the Court's decision in Pinholster earlier this year, there did not appear to be any barrier to Gonzales pursuing his argument in federal court. Pinholster reversed a decision of this court, and the law in this circuit prior to that reversal did not require or even suggest that Gonzales should have done what the partial dissent castigates him for not doing. By the 20736 GONZALEZ v. WONG time of the Court's decision in Pinholster was announced, Gonzales's appeal had already been submitted to our panel for decision, so at that point there was nothing else for him to do.

Staying the proceeding in federal court to give Gonzales an opportunity to present the previously withheld material to the California Supreme Court is a sensible solution to the prob- lem posed by this case. Indeed, we note that even the State, in supplemental briefing after oral argument of this case, sug- gested that we should return the case to state court to let it decide on the significance of the withheld information. That suggestion appears reasonable to us.

We doubt that the stay and abey process will have to be employed very often, because Pinholster is now the recog- nized law, and because there should not be many such instances of withheld exculpatory witness statements not dis- covered until years later, after state court proceedings have concluded. But to disregard that evidence in the situation presented by this case would be to reward the prosecution for successfully withholding the evidence in the first place. We cannot accept such an unjust and illogical result, and we do not believe that is what the law requires. IV. Conclusion

We affirm all of the district court's rulings on all of the non-Brady claims. However, because we believe that with the new evidence of the psychological reports Gonzales could make a colorable Brady claim, we remand to the district court on this claim (along with the related ineffective assistance claim) with instructions to stay the habeas proceedings until Gonzales has had an opportunity to present this new evidence to the California Supreme Court.

AFFIRMED in PART; REVERSED and REMANDED in PART.
GONZALEZ v. WONG 20737
W. FLETCHER, Circuit Judge, concurring in part:

I concur fully in Judge Clifton's analysis of Gonzales's non-Brady claims.

I also concur in the decision to remand to the district court with directions to stay and abey Gonzales's federal habeas petition in order to allow him to present to the California state courts his claim under Brady v. Maryland, 373 U.S. 83 (1963), based on the evidence he has obtained during discov- ery in his federal habeas proceedings. However, I believe that we have the authority, in the circumstances of this case, con- sistent with the Supreme Court's decision in Cullen v. Pinhol- ster, 131 S. Ct. 1388 (2011), to decide petitioner's Brady claim now, without first seeking the view of the California courts. I would prefer to exercise that authority.
I. General Application of Pinholster

The Supreme Court held in Pinholster that in a habeas case governed by 28 U.S.C. § 2254(d)(1) we generally cannot con- sider evidence that was not before the state court. Pinholster, 131 S. Ct. at 1398. A question Pinholster does not answer is what federal courts should do when confronted with such evi- dence. I agree with Judge Clifton that we may treat such evi- dence in the same way we treat unexhausted claims.

In Rhines v. Weber, 544 U.S. 269 (2005), the Supreme Court held that when a habeas petitioner files a so-called "mixed" habeas petition "" a petition that includes both exhausted and unexhausted claims "" a district court abuses its discretion in certain circumstances when it decides not to stay and abey the petition to allow the petitioner to present the unexhausted claims in state court. Specifically, a district court should stay and abey such a mixed petition 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 20738 GONZALEZ v. WONG tactics." Id. at 278. The Court reasoned that if district courts did not stay and abey such mixed petitions, the one-year stat- ute of limitations in AEDPA would bar petitioners from obtaining federal review of the unexhausted claims. See id. at 275. Restricting the stay and abeyance procedure to situations where petitioners have good cause for failure to exhaust, have potentially meritorious claims, and have not engaged in dila- tory tactics, protects "AEDPA's objective of encouraging finality." Id. at 277.

The same reasoning applies here. If a habeas petitioner dis- covers new evidence supporting a claim of a constitutional violation after he has filed a federal habeas petition, and the district court adjudicates that claim without the benefit of the new evidence, then the ban on second or successive petitions in 28 U.S.C. § 2244 will usually bar the petitioner from ever having his full claim adjudicated in federal court. I agree with Judge Clifton that, so long as the petitioner had good cause for his failure to discover the evidence while before the state court, the claim based on the new evidence is potentially mer- itorious, and there is no indication that the petitioner engaged in intentionally dilatory litigation tactics, the district court should stay and abey the claim supported by the new evidence to allow the petitioner to present that evidence to the state court. I also agree with the application of Rhines to the facts of this case.

If this were an application of Pinholster to an ordinary case, I would simply agree with Judge Clifton's opinion and not write separately.

II. General Rule of Pinholster Does Not Apply

This, however, is not an ordinary case. The facts of this case are so extreme that the federal courts have the power, consistent with Pinholster, to consider the Brady material now, without first requiring Gonzales to seek the view of the state courts.
GONZALEZ v. WONG 20739

The prosecutors actively suppressed evidence concerning William Acker, the witness who gave the only evidence of the state's primary aggravating factor at Gonzales's capital trial. The California trial court on post-conviction review granted a discovery motion that would have revealed the suppressed evidence. But the California Supreme Court reversed the trial court's discovery order and refused to enter one of its own. The suppressed evidence shows not only that Acker was a jailhouse informant expecting to receive advantageous treat- ment in return for his testimony. Acker was also, unbe- knownst to Gonzales and his attorneys, a schizophrenic who had repeatedly faked suicide attempts to obtain desired prison transfers; had attempted to bribe a prison psychologist for a good report; had previously said that he was turning his life around in order to obtain release from prison, but had com- mitted thefts and a first-degree murder upon his release, before testifying at Gonzales's trial that he was testifying as part of an effort to turn his life around; and had earlier been described by state correctional officers as "considered capable of any measure of brutality in the service of achieving what he wants to do."

I explain below the procedural history of Gonzales's Brady claim, and why, given that history, Pinholster does not pre- vent us from deciding that claim now.
A. Acker's Role at Trial

Judge Clifton accurately describes the events of Gonzales's trial. I provide more detail to show fully Acker's importance to the state's case against Gonzales, and the extent to which Acker was "" or, more accurately, was not "" impeached at trial. [End Page 1. Acker's Substantive Testimony]

Gonzales's conviction was based on his murder of a police officer. The officer was part of a team conducting a drug raid 20740 GONZALEZ v. WONG of Gonzales's parents' home. When the police entered, Gon- zales was braced against a wall pointing a shotgun at the door. He fired and killed one of the officers. Gonzales's guilt-phase defense was that he thought the people entering his house were not police, but rather were members of the rival Bassett gang.

The prosecution's evidence supported two somewhat dif- ferent stories. The first was that Gonzales must have known, based on the facts on the day of the raid, that the people breaking open his parents' front door were police officers. As Judge Clifton describes, the police officers testified that they repeatedly announced they were police before entering and that they had entered the house with their badges visible. Another officer with expertise in gang activity testified that the area where Gonzales's parents lived did not have a high level of gang activity, that the gang activity that did take place consisted of drive-by shootings rather than home invasions, and that a typical member of the Bassett gang looked and dressed nothing like the plain-clothes officers who conducted the raid. This evidence suggested it was unlikely that Gon- zales mistook the plain-clothes officers for members of the Bassett gang.

The second story was that Gonzales had been told in advance that the police were coming to conduct the raid, and that he had formed, well in advance of the raid, an intent to kill a police officer. This story, obviously much more damn- ing to Gonzales, came entirely from the testimony of William Acker. Acker was a jailhouse informant. Acker's story was generally consistent through Gonzales's guilt trial, first penalty-phase trial, and second penalty-phase trial. Acker tes- tified that Gonzales had approached him while they were in prison cells in the same row shortly after Gonzales was arrested. Acker testified that in discussions during the next two weeks, Gonzales told him the details of his crime. According to Acker, Gonzales told him that he had been tipped off by a friend that the police were going to raid his
GONZALEZ v. WONG 20741
house. Gonzales thus knew the police were coming and was "on point" all day waiting, in Acker's words, to "bag a cop." According to Acker, Gonzales "knew it was a cop. He knew he was going to kill one. He aimed to kill." Acker testified that when he asked Gonzales why he was so determined to kill a police officer, Gonzales described to him "a real sick philosophy about how to protect the pad." Gonzales wanted to shoot a cop because "[t]hey got that coming." Acker also testified that Gonzales had told him that his defense strategy would be to claim that he thought the police officers were members of the Bassett gang. [End Page 2. Acker's Importance]

Acker's testimony was important in the guilt phase because, if believed, it demonstrated that Gonzales knew well in advance of the raid that the men conducting the raid were police officers. However, all the prosecution needed to show in the guilt phase was that Gonzales knew that the men were police officers at the time he fired. Acker's testimony was thus useful but not essential to the guilty verdict. In the pen- alty phase, however, Acker provided the crucial testimony. In arguing why Gonzales deserved the death penalty, the prose- cution's main theory of aggravation was that Gonzales had planned in advance to "bag a cop." In his opening statement in the second penalty-phase trial, Ronald Bowers, the prose- cutor, said that "the evidence will show that the defendant planned to kill a cop. Not that it was thought of lightly, that it was just a split-second situation, spontaneous, but he planned to kill a cop. Something to the effect he was going to bag a cop." The evidence that Gonzales had planned in advance to kill a police officer came only from Acker, and the expression "bag a cop" came only from Acker. In his closing statement, Bowers's chronology of when and how Gonzales formulated his plan to "bag a cop" came entirely from Acker's testimony.

Acker's importance in the penalty phase is also demon- strated by a memorandum Bowers wrote to his supervisor 20742 GONZALEZ v. WONG after Gonzales's first penalty-phase trial resulted in a mistrial. The jury, which consisted of six men and six women, had hung with nine in favor of death and three in favor of life without parole. Bowers wrote:

I talked to the jurors afterwards and most of them

found William Acker's testimony to be credible. It

was interesting that the women (especially the youn-

ger women) were totally convinced by Acker's state-

ments. Some of the men only partially believed what

he said. I hope to retry the penalty phase if down-

town approves the retrial and Bill Acker is available

and is willing to testify. This memorandum makes clear that Bowers was not willing to retry the penalty phase without Acker. It further suggests that women were more likely to believe Acker. The jury in the second penalty-phase trial had eleven women and one man. Gonzales's trial took place before the Supreme Court decided J.E.B. v. Alabama, 511 U.S. 127 (1994), and it was thus per- missible for the prosecutor to seek women on the jury.

Attacking Acker's truthfulness was crucial to the penalty- phase defense strategy. Ralph Bencangey, Gonzales's lawyer, decided not to attack the guilt-phase jury's conclusion that at the time he fired the gun Gonzales knew the men were police officers, but to rather attack Acker's testimony that Gonzales had planned in advance the murder of a police officer. Ben- cangey told the second penalty-phase jury that the guilt-phase jury "could well have thought that at the time it occurred and the way that it occurred, [Gonazales] should have known that they were police officers at that time rather than . . . a long period in advance." Bencangey told the jury in his opening statement that he would show that "if [Gonzales] is guilty, as the jury has previously stated, it would not be based on some advance plan that the prosecution is talking about, some spe- cial plan to kill a police officer." Bencangey made this same argument in his closing.
GONZALEZ v. WONG 20743

To succeed with this strategy, it was crucial to impeach Acker. In his opening statement Bencangey said that "the People are asking for a death penalty verdict, really based on the absolute truth of everything that Mr. Acker has said. It must be absolutely true." [End Page 3. Impeachment of Acker]

Over the course of one guilt-phase trial and two penalty- phase trials, the prosecution disclosed only two documents concerning Acker to the defense: Acker's rap sheet and a tran- script of Acker's initial statement to investigators. The rap sheet was incomplete and inaccurate. It included several prop- erty crimes and Acker's conviction for first-degree murder. But it failed to include several of Acker's convictions, and it incorrectly stated that Acker was sentenced to life without parole for the murder when he was actually sentenced to life with possibility of parole. Acker's initial statement to investi- gators provided no impeachment material because Acker told them basically the same story he later told at trial.

Bencangey was thus severely limited in his ability to impeach Acker. During cross-examination in the guilt-phase trial, Acker admitted he was hopeful that in exchange for his testimony he would be transferred to an out-of-state prison. He said he was interested in such a transfer because he hated gangs, and the gangs hated him in return. Acker also admitted that he had given information to the police about crimes on two prior occasions. First, he gave information about his wife's involvement in a murder that he and his wife had com- mitted in Hawaii. Second, he spoke with the police about a murder that had taken place on his row in jail. Everyone on his row, however, had been required to speak to the police about that murder.

By the time of the first penalty-phase trial, Acker had given information in several more cases. In addition to having given information about his wife and the jailhouse murder, Acker 20744 GONZALEZ v. WONG admitted giving information to the police in the cases of four other criminal defendants: Anthony Davis, Raymond LaScola, Edwin Guy Williams, and Johnny Torres. In violation of Brady, the prosecutor had not disclosed to Gonzales Acker's involvement in these cases. Bencangey had nonetheless learned of Acker's involvement when he discovered the tran- script of Acker's testimony in the preliminary hearing in the LaScola case. In all four of the cases, Acker claimed the defendant confessed to him. In some of them, Acker testified in court, and in some he only spoke to the police. Although Bencangey did not know it during trial, we now know that the LaScola case was dropped because then-Head Deputy District Attorney (now our colleague) Stephen Trott had concluded that Acker was an unreliable witness. Judge Trott's view, expressed in a deposition taken in connection with Gonzales's federal habeas petition, was that Acker's testimony was "cer- tainly nothing that a jury ever should rely on if that's all there was to convict Dr. La Scola." Judge Trott described Acker as a "classic psychopath" and "a truly evil guy who delighted in sticking guns in people's mouths to try to get them to, quote, "˜crap in their pants.' "

To justify his practice of informing, Acker testified that not only was he giving information in order to obtain a transfer to an out-of-state prison, but he was also seeking a new "moral balance." He testified that he wanted to "do something right for a change, to do something real." "I'm trying to bal- ance out the wrong that I've been through, you know, stop somebody else from going out and killing someone again."

In the second penalty-phase trial, Acker again discussed the information he had provided in the other cases, and he dis- cussed his involvement in yet another case. He again testified that his reason for providing this information was both his desire to transfer to an out-of-state prison and his desire to "start a different direction for myself." Before the second penalty-phase trial, Bencangey had discovered that the state had promised Acker that they would remove a tattoo from his
GONZALEZ v. WONG 20745
back that read "Paramount." When Bencangey attempted to question Acker about the tattoo, Bowers objected. In a confer- ence with the judge, Bowers said he wanted to prevent ques- tioning about Acker's tattoo because "we have tried to change the identity of this informant, for his own safety." Bencangey replied that "up until this hearing, until I found out, I'd asked that witness if anything else was offered to him in exchange for his testimony, and the district attorney's office has never been forthcoming in telling me that they had promised to change his identity and surgically remove tattoos off him and give him a different name. I've only found this out recently."

The trial judge allowed Bencangey to question Acker about the tattoo. Bencangey attempted to impeach Acker by sug- gesting that the tattoo was a symbol of Acker's gang member- ship, and that the tattoo removal and the identity change was another part of what the state had offered him in exchange for testifying. Acker denied that he was in a gang, claiming that he had the tattoo to represent that he was from the city of Par- amount.

The second penalty-phase jury, consisting of eleven women and one man, returned a unanimous verdict in favor of death. B. Report of the 1989-90 Los Angeles County Grand Jury

Gonzales was sentenced to death in May 1981. In October 1988, Los Angeles Sheriff's Department deputies learned that a jailhouse informant, Leslie White, was writing an article in which he planned to explain how informants were acquiring knowledge about defendants they had never met in order to fabricate those defendants' confessions. Report of the 1989- 90 Los Angeles County Grand Jury, June 26, 1990, at 69 [hereinafter "Grand Jury Report"]. White agreed to demon- strate the technique to the Sheriff's Department. The report of what White did is worth repeating in full. The report does not identify White by name, but refers to him as "the informant." 20746 GONZALEZ v. WONG

The sergeant gave the informant the name of an

inmate who was being held in the Hall of Justice Jail

on murder charges. The informant, representing him-

self to be an employee of a bail bond company, cal-

led the jail's Inmate Reception Center and was able

to obtain the inmate's booking number, date of birth,

color of eyes and hair, height, weight, race (Cauca-

sian), bail ($100,000), case number, date of arrest,

arresting agency (Sheriff's Special Enforcement

Bureau), next court date, and where the inmate was

housed in the jail.

The informant next called the records section of

the District Attorney's Office. He said he was a Dep-

uty District Attorney and asked for information on

the inmate's case. He was given the name of the

Deputy District Attorney prosecuting the case, the

Deputy District Attorney's telephone number, and

the name of a witness.

A few calls later, the informant called Sheriff's

Homicide and said he was "Sergeant Stevens" at the

Central Jail. He was able to obtain the name of the

murder victim, and the victim's age and race.

The informant then called the Deputy District

Attorney who was handling the case, initially identi-

fying himself as "Sergeant Williams" with the Los

Angeles Police Department. The Deputy District

Attorney responded to the informant's questions by

stating, "I'll tell you anything you want to know

about the case," and proceeded to provide details

about what the victim was wearing, where his body

was found, the fact that the coroner's report said that

death resulted from suffocation and/or drugs, that the

victim's blood contained a fatally high amount of

methamphetamine, that the defendant confessed to

stuffing the victim in a trunk, and the prosecutor's
GONZALEZ v. WONG 20747

personal opinion of the likely defense in the case.

Near the end of the conversation, the informant gave

his name as "Sergeant Johnson."

At this point, the informant said he had obtained

enough details about the case to enable him to fabri-

cate a jail house confession which would be accepted

by detectives. He then proceeded to demonstrate

how he could arrange for contact between himself

and the inmate to support the fabricated confession.

The informant called a department of the Superior

Court in Van Nuys, identifying himself as Deputy

District Attorney "Michaels" with the Organized

Crime Unit downtown. In response to the infor-

mant's request, the court bailiff ordered the infor-

mant and the inmate to be transported to Van Nuys

the following day. Id. at 69-71. White indicated that a fabricated confession based on this information would be sufficient to get him a "hell of a deal" with prosecutors. Id. at 71. His information was believable both because he knew many facts about the defendant that he apparently could only have obtained from the defendant, and because he had arranged to be in the same place as the defendant so that it was possible that the defen- dant could have confessed to him. White said that the "key" to the operation is that the District Attorneys

want to win. So if I come forward with the informa-

tion as detailed as that they're gonna use it. Because

the jury not knowing the system or how it works, is

going to believe when I get up there with all these

details and facts, that this guy sat in the jail cell, or

he sat on the bus, or he sat in the holding tank some-

where, or told me through a door or something,

they're gonna believe me. 20748 GONZALEZ v. WONG Id. at 72.

White's demonstration led to the empanelling of an investi- gatory Grand Jury to look into the improper use of informant testimony by the Los Angeles County District Attorney's Office. The Grand Jury's investigation took place between 1989 and 1990, and covered the period from 1979 through 1990. The grand jurors and their investigators spoke to twenty-five informants. The Grand Jury concluded that "the experiences and perceptions of these informants generally reflect those of the informant population at large." Id. at 8. The grand jurors also spoke to and heard testimony from a large number of people in the Los Angeles County Sheriff's Department (which administers the jails where the informants were housed), the Los Angeles District Attorney's Office, and the defense bar. The Grand Jury's 150-page report paints a harrowing picture of the role of jailhouse informants in the Los Angeles County criminal justice system during this period.

The report gave a detailed description of jailhouse infor- mants' "astonishing ability to discover information about crime in order to concoct a confession by another inmate." Id. at 31. Credibility of jailhouse informants is often based on the supposed fact that they could only have obtained certain information about a crime from the defendant himself. The report describes cases in which law enforcement officers either fed information about other inmates to informants, or left informants in a room with documents from other inmates' cases. Id. at 27-28. Sometimes law enforcement officials would signify to informants that a new inmate was "hot," thereby giving the informants an implicit instruction to pro- vide testimony inculpating the inmate. Informants would sometimes obtain information by getting friends who were not incarcerated to go to a defendant's preliminary hearing and get information, or would simply get unwitting defendants to describe crimes. In one case, a defendant described to an informant a crime he had witnessed, but not committed, and
GONZALEZ v. WONG 20749
the informant turned it into a confession. Id. at 30. Often informants would "offer to assist [a] defendant in his case and thereby elicit the defendant's knowledge of law enforce- ment's version of the crime." Id. at 31 n.16.

The Grand Jury found that the Sheriff's Department facili- tated informants' collection of information by placing infor- mants near defendants from whom it wanted a confession. According to the Grand Jury:

It has long been suspected that Sheriff's Department

deputies intentionally placed informants with

inmates "from whom law enforcement could use a

confession." The Sheriff's Department denies such a

practice has ever existed, however, the Grand Jury

received evidence which indicated the placing of

inmates for the purpose of gathering information has

occurred. Id. at 58 (quoting letter of Nov. 1, 1988, from a supervisory Deputy District Attorney to the District Attorney's Director of Bureau, Branch and Area Operations). The Grand Jury went on to describe numerous instances in which it concluded that informants had been placed near defendants from whom authorities wanted confessions. Id. at 60-68.

In addition to their ability to discover information about defendants, the informants had no scruples about perjuring themselves.

An appalling number of instances of perjury or other

falsifications to law enforcement during the past ten

years were described by informants. Undeniably, a

significant number of informants do not tend to feel

constrained by external or internal values to refrain

from lying, regardless of the consequences to other

inmates. 20750 GONZALEZ v. WONG Id. at 18-19. One informant confessed in the mid-1970s to a crime he had not committed. In 1979, a psychiatrist diagnosed this informant as a pathological liar. Prosecutors subsequently used this informant's testimony against defendants in either five or six cases. Id. at 16.

The number of informants was staggering. One defense attorney described a case in which, at the preliminary hearing, eight jailhouse informants claimed his client made incriminat- ing statements. Other informants called the attorney and offered to testify on his client's behalf. The attorney described the preliminary hearing as "a dream world where everybody was either lying or fabricating or then recanting a prior lie or then making something up. It got to be a nightmare where you couldn't believe one person or the other." Id. at 39.

High profile cases attracted the most informants. In some cases, up to twenty informants would come forward claiming to have heard a confession. Id. at 111. The Grand Jury found a general consensus among defense attorneys that "jail house informants seemed to invariably be available to testify in important cases." Id. at 37. Of all the death penalty cases tried in Los Angeles from 1978 through 1990, approximately one third involved a jailhouse informant testifying that the defen- dant had confessed to him. Id.

The Grand Jury found that informants were given numer- ous benefits. Examples include being transferred to a cell with a TV, coffeepot, and other amenities, being taken outside the jail for lunch, having witness protection money paid to an informant's wife, and having a girlfriend being held on a one million dollar bail released on her own recognizance. Id. at 13-15. At least two informants testified to instances where they or an informant they knew were transferred to a jail per- ceived to be more desirable. Id. at 14. The Grand Jury also found many examples of prosecutors dropping charges, writ- ing letters on informants' behalf to the parole board, or asking a court to impose a lower sentence. Id. at 13.
GONZALEZ v. WONG 20751

Benefits to informants were not generally disclosed to the defense. The prosecutors' rationale for failing to disclose the benefits was that there was only an implicit understanding that the authorities would help the informant in exchange for his testimony. The Grand Jury explained:

The entire circumstances regarding benefits and the

expectations of benefits, in many cases, are not ade-

quately presented to the judge or jury for them to

have the necessary factual basis to evaluate the testi-

mony of the informant. This is particularly so when

an agreement on the extent of benefits is not made

with the informant until after the testimony. Id. at 76. Later, along similar lines, the Grand Jury found:

The practice of waiting until after the testimony is

provided, before the informant's pending case is

dealt with, may lend itself to some troubling results.

This may provide the informant with a basis for

assuming that his sentence will be measured by the

assistance he provides the prosecution by his testi-

mony. In view of the benefits that he may be seeking

by his testimony, the potential for perjury or shading

of testimony for the prosecution must be recognized. Id. at 95 (emphasis omitted). One defense attorney, in testi- mony to the Grand Jury, described the system as being like

a "˜secret society' where even though nothing is said,

the prosecutors and the informants know that some

benefit will flow to the informant for his testimony.

The defense attorney explained it was extremely dif-

ficult to try to impeach jail house informants when

there was nothing in the record relating to benefits

they were to receive from their testimony. Id. at 39. 20752 GONZALEZ v. WONG

The Grand Jury concluded that the Los Angeles District Attorney's office was aware of abuses concerning jailhouse informants well before Leslie White's 1988 revelations. Evi- dence supporting this conclusion went back to the late 1970s. Id. at 97. The Grand Jury was particularly critical of the Dis- trict Attorney's office's failure to keep any database of jail- house informants. Id. at 105-117. It noted that in the high profile cases in which twenty informants would claim to have heard a confession, the informants "were narrowed to a very few, sometimes to only one or two witnesses. No record was kept of those who were rejected and the reasons for that deter- mination. If the informants were again to offer testimony in other cases, there existed no systematic means to review the knowledge obtained by the earlier prosecutor." Id. at 111.

The Grand Jury report discussed a proposal to create a repository of very basic information about jailhouse infor- mants. The District Attorney's office rejected this proposal. "The reason consistently offered by officials for deciding against the informant system was that defendants might dis- cover information contained in the index." Id. at 115. The report found that "[n]either a defendant's rights to know about information affecting the credibility of an informant, nor a prosecutor's obligation to disclose such information to a defendant, was ever mentioned during the discussion of the pros and cons of an informant index, according to all sources of evidence presented to the Grand Jury." Id. at 117.

The Grand Jury reached two overarching conclusions:

A. The Los Angeles County District Attorney's

Office failed to fulfill the ethical responsibilities

required of a public prosecutor by its deliberate

and informed declination to take the action nec-

essary to curtail the misuse of jail house infor-

mant testimony.

B. The Los Angeles County Sheriff's Department

failed to establish adequate procedures to con-
GONZALEZ v. WONG 20753
trol improper placement of inmates with the
foreseeable result that false claims of confes-
sions or admissions would be made.
Id. at 6.

The Grand Jury discussed potential relief for defendants, like Gonzales, who had been convicted based on informants' potentially false testimony during the period covered by the report. "Because the judgments are final, the review must be sought by Petition for Writ of Habeas Corpus. In filing such petitions, certain factual allegations must be made which are legally sufficient to support the relief sought. It is difficult and in some cases likely not possible to allege sufficient facts without discovery." Id. at 152. The Grand Jury noted that the question of whether defendants could get such post-judgment discovery was currently before the California Supreme Court. Id. The Grand Jury was almost certainly referring to Gon- zales's case which was then pending in that Court. The Grand Jury noted that the District Attorney's office had been cooper- ative during the investigation. It expressed the hope that "[i]n the event post-conviction discovery is denied by the [Califor- nia] Supreme Court . . . the District Attorney will be equally cooperative in considering the needs of affected parties for the information necessary to pursue their remedies." Id. at 153. C. State Court Proceedings After the Grand Jury Report

The Grand Jury's hope went unfulfilled. As I describe below, the District Attorney's office did not remain "equally cooperative" in Gonzales's case, and the California Supreme Court denied post-conviction discovery.

Gonzales was sentenced to death on May 7, 1981. Shortly thereafter, Gonzales filed a habeas petition in the California Supreme Court. He filed an amended habeas petition on June 10, 1986. Between the time of his death sentence and his habeas filings, Gonzales had been able to obtain almost no 20754 GONZALEZ v. WONG additional information concerning Acker. He raised a Brady claim in his state habeas petition, but his discussion of the claim was brief, occupying only six of seventy-seven pages. In this initial habeas petition, Gonzales claimed that the prose- cutor had not disclosed the extent of Acker's cooperation with the police in other cases. Gonzales argued that this violated Brady because such information would have allowed him to argue that Acker's testimony violated the Sixth Amendment based on Massiah v. United States, 377 U.S. 201 (1964), and United States v. Henry, 447 U.S. 264 (1980). See People v. Gonzalez, 800 P.2d 1159, 1192 (Cal. 1990).

In October 1988, after Gonzales filed his amended state habeas petition, Leslie White triggered the informant scandal and subsequent Grand Jury investigation. The information that came out during the investigation suggests strongly that Acker was involved in the schemes described in the Grand Jury report. First, Acker's informing fit the time frame of the report. The report covered 1979 through 1990. Gonzales's case, in 1979, was the first case in which Acker gave informa- tion concerning an alleged confession. Acker then gave infor- mation about five more alleged confessions over the next two years. Second, Acker was placed near Gonzales for two weeks shortly after Gonzales was arrested. Gonzales was arrested on May 29, 1979. He had been shot and taken from the scene in an ambulance, then later taken to the jail. His conversations with Acker took place in early July 1979. This sequence of events is consistent with the Grand Jury's finding that the Sheriff's Department placed informants near inmates from whom they wanted a confession. Third, the Sheriff's Department would have been particularly interested in a con- fession from Gonzales because he had shot a Sheriff's Depart- ment deputy. Fourth, the Grand Jury found that jailhouse informants were more likely to have allegedly heard confes- sions in death penalty cases. Finally, Acker claimed to have been helping Gonzales check the accuracy of his attorneys' work when Gonzales allegedly confessed to him. The Grand Jury found that informants would offer to assist inmates,
GONZALEZ v. WONG 20755
based on their purported legal experience, in order to obtain information about the inmates' crimes. Grand Jury Report at 31.

Starting in November 1988, while the Grand Jury investi- gation was still ongoing, the District Attorney's office began to address its use of perjured testimony by jailhouse infor- mants. In various memoranda, the office indicated that any problems with the reliability of past jailhouse informants would be revealed to the state courts. On November 17, 1988, Chief Deputy District Attorney Gregory Thompson sent a memorandum to the Deputy District Attorneys, alerting them to the pending review of the office's use of jailhouse infor- mants. With respect to informants who had been used in the past, Thompson wrote that "the most objective way to do this is on a case by case basis before the court. This will insure an independent review on the merits of each case." On Novem- ber 30, 1988, in a letter to various defense attorneys, includ- ing Gonzales's attorney, Thompson again emphasized his intention to make information obtained available through court proceedings:

[W]e planned from the outset to make the informa-

tion we obtained [through internal investigations]

available to defense counsel on individual cases and

anticipated that, in appropriate cases, that informa-

tion would be thoroughly aired in open court. . . .

The best forum for an objective, thorough examina-

tion of the issues is in open court. . . . Further, the

court is the only forum where any wrongs can be

righted, where any breach in procedure can be

assessed, where any prejudice can be weighed,

where any injustice can be addressed. It is our aim

that every pertinent, relevant issue on each contested

case receive the careful and thorough attention of the

court.

Thompson also sent letters specifically addressed to attor- neys representing clients in whose trials jailhouse informants 20756 GONZALEZ v. WONG had testified. The letter to Gonzales's attorney informed him of the investigation into the use of informants. The letter con- cluded, "[S]ince the courtroom is the appropriate forum in which to fully explore this issue, our office will join with you in expediting the hearing of any appropriate motion you may wish to bring." Based in part on this letter, on March 29, 1989, Gonzales's attorneys filed a 77-point discovery motion with the state court judge who had presided over Gonzales's trial. The motion sought discovery of information that would reveal whether the prosecution had violated its obligations under Brady to disclose information concerning Acker. Among the information requested was, "Any and all Califor- nia Department of Corrections Health and Welfare Agency records pertaining to WILLIAM GERALD ACKER." The primary basis for the motion was the information that had come to light during the Grand Jury investigation of the infor- mant scandal.

The state court trial judge held an initial hearing on Gon- zales's discovery motion in June 1989. Despite the Los Ange- les County District Attorney's repeated prior statements that it wanted to air in open court whatever information it pos- sessed concerning jailhouse informants, it now argued that because there was no proceeding currently before the trial court, that court had no jurisdiction over the case. In response, the judge noted the "very unique factual situation that's involved in this case." He said that "if all of the information is true with respect to the allegations that have been made by [Gonzales's attorneys], I think it puts this case in an entirely different posture." He stated that "fundamental fair play in this case would indicate that [Gonzales] ought to get that information." In a second hearing in August, the trial judge granted the discovery motion. He made clear his belief that "the District Attorney's Office has got to accept much of the responsibility for what occurred, in the sense that . . . at no time did your office ever maintain any coordinated effort . . . so that the problems which arose could have been prevented."
GONZALEZ v. WONG 20757

The state filed a writ of mandate with the California Supreme Court, seeking to reverse the trial judge's discovery order. The state argued not only that the judge had no jurisdic- tion to issue the discovery order, but also that "Gonzalez did not make the showing necessary for a grant of discovery." The California Supreme Court consolidated the writ of man- date appealing the trial judge's discovery order with Gon- zales's habeas petition then pending in the Supreme Court.

Gonzales offered to drop his discovery motion if a repre- sentative of the District Attorney's office would swear under penalty of perjury that the state's files contained no material evidence relating to Acker's testimony. The District Attor- ney's office did not accept the offer. Gonzalez, 800 P.2d at 1219 n.8 (Broussard, J., dissenting). Gonzales's habeas attor- ney wrote in one of her filings to the California Supreme Court, referring to Thompson's November 30, 1988, letter, "For close to one year, Counsel in this case as well as other cases, all of which are in differing procedural postures, have attempted to ascertain the name of the mysterious but "˜appro- priate motion' that the District Attorney would join in. These efforts have met with overwhelming silence."

The California Supreme Court granted the state's writ of mandate, reversing the trial judge's discovery order. It con- cluded that "the trial court lacked jurisdiction to order "˜free- floating' post-judgment discovery when no criminal proceed- ing was then pending before it." Gonzalez, 800 P.2d at 1203. The Supreme Court also refused to grant discovery in the pending state habeas petition Gonzales had filed directly in the Supreme Court. Id. at 1205. The Court wrote that a habeas corpus proceeding does not "trigger a right to unlimited dis- covery." Id. A habeas petition "must set forth specific facts which, if true, would require issuance of the writ. Any peti- tion that does not meet these standards must be summarily denied, and it creates no cause or proceeding which would confer discovery jurisdiction." Id. Even treating the discovery request and grand jury report as an amendment to the habeas 20758 GONZALEZ v. WONG petition, the Court concluded that Gonzales had failed to set forth facts requiring the issuance of the writ. It wrote:

At most, there are new indications that during the

period 1979-1988, various residents of the Los

Angeles County jail developed successful schemes

for fabricating jailhouse confessions by other

inmates, and that these practices were ignored or

even encouraged by the authorities. However, noth-

ing in the materials before us identifies Acker as a

participant in the schemes alleged. Nor is there any

specific indication that the prosecution's files would

yield information that substantially undermines

Acker's testimony. . . . [T]here is no postconviction

right to "fish" through official files for belated

grounds of attack on the judgment, or to confirm

mere speculation or hope that a basis for collateral

relief may exist. Id. (footnotes omitted).

The California Supreme Court thus concluded that despite the revelations of the District Attorney's massive use of per- jured testimony of jailhouse informants; despite the District Attorney's failure to establish any database system concern- ing jailhouse informants for fear that such a system would undermine the effectiveness of their testimony at trial; despite the similarities between Acker's story and the schemes detailed in the Grand Jury report; and despite the state's assur- ance in its letters to defense attorneys that it wanted any prob- lems concerning jailhouse informants to be aired in court, Gonzales's attempt to discover potential Brady material con- cerning the jailhouse informant's testimony in his case was a fishing expedition. The Court ended its opinion: "We expect and assume that if the People's lawyers have [Brady] infor- mation in this or any other case, they will disclose it promptly and fully." Id. at 1206.
GONZALEZ v. WONG 20759
D. Psychiatric Reports

The Court's stated expectation and assumption were wrong. The state disclosed nothing to Gonzales voluntarily. Gonzales finally obtained a discovery order in his habeas proceeding in federal court. Under compulsion of the federal court order, the state finally revealed previously undisclosed information about Acker. The most damning information was contained in six psychiatric reports prepared while Acker was incarcerated in California prisons. If the California Supreme Court had allowed the discovery that Gonzales had sought "" and indeed had been granted by the trial court "" these reports would have been in the state court record on state habeas.

These psychiatric reports could have been used to impeach Acker in three ways. First, they demonstrate that Acker was willing to lie and manipulate prison medical staff in order to get what he wanted. Psychiatric evaluations reveal that Acker admitted attempting or faking suicide on three occasions in order to obtain prison transfers. A 1972 Psychiatric Evalua- tion 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, this time in the California Men's Colony ("CMC") East Facility. The Evaluation noted that Acker "stated that that was only a gesture designed to prevent his egress from CMC East." Finally, a 1974 report describes another suicide attempt in April or May of that year at K-Wing of the Duel Vocational Institution ("D.V.I."). Acker stated "that he made a suicidal gesture in order to get out of K-Wing at D.V.I." He claimed that "his suicidal gesture was the only way that he could get out of D.V.I.'s K-Wing. Claims that if he ever goes back [to] that madness again at D.V.I. he will attempt the same thing again; namely, a suicidal gesture."

Many of the psychiatric evaluations specifically noted Acker's manipulative behavior. One psychiatrist reported that 20760 GONZALEZ v. WONG Acker asked, "and it was my distinct impression that this was made in all seriousness, as to "˜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 test- ing me." In a diagnostic study prepared for Acker's sentenc- ing for his murder conviction, Dr. Flanagan, who examined Acker, recommended that Acker be "considered capable of any measure of brutality in the service of achieving what he wants to do." He further described him as "intelligent, manip- ulative, [and] unscrupulous." The Social Evaluation included in the diagnostic study noted that Acker 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." This evidence of Acker's lying and manipula- tion would have been extremely valuable to Gonzales, as Ben- cangey had no examples during trial of Acker either lying or manipulating to his own advantage. The evidence shows the extent to which Acker was willing to go to obtain prison transfers, the precise reason he testified he was informing against Gonzales. Jurors could easily have concluded that if Acker was willing to repeatedly fake suicide to obtain a prison transfer, he would be willing to fabricate a confession to obtain such a transfer.

Second, these reports could have been used to impeach Acker on his claim that he had started testifying because he wanted to achieve a new "moral balance." As I describe above, Acker had testified that one of his primary motivations for giving information to the authorities in Gonzales's case was to turn his life around and to do the right thing. In 1972, Acker had told Dr. Land that he was now on the right path because he had "undergone a religious experience" and he "believes he has found the true religion." After this claimed conversion, Acker was released from prison. Acker then com- mitted first-degree murder and numerous robberies. That Acker had previously lied about turning his life around in order to obtain his release from prison, and that in fact he had not turned his life around, would have substantially under-
GONZALEZ v. WONG 20761
mined his claim at Gonzales's trial that he was testifying because he wanted to achieve a new "moral balance."

Third, these reports could have been used as evidence of Acker's mental illness. Acker was diagnosed with "schizo- phrenia, chronic, undifferentiated type" as early as 1974. In 1975, he was diagnosed with "[s]chizophrenia, residual type." A 1977 report noted that Acker "has a severe personality dis- order, and he has previously been diagnosed as schizophre- nic." It further described him as "mentally unstable." We have repeatedly recognized the impeachment power of mental ill- ness. See, e.g., Silva v. Brown, 416 F.3d 980 (9th Cir. 2005).

During discovery for his federal habeas claim, Gonzales was allowed to take Acker's deposition. Acker's response to being confronted with these reports in his deposition suggests how he would have responded on the witness stand during trial. First, Acker repeatedly denied making suicidal gestures to obtain transfers and denied bribing prison psychiatrists. When confronted with the report from Dr. Land that he had admitted to having faked suicide in order to be placed in the hospital, Acker responded, "I don't even know this dude," and denied that this had occurred. When confronted with another report about the same incident, Acker described the report as "a totally bogus statement right there." When confronted with the report in which he had admitted that his suicidal gesture was the only way to get out of D.V.I.'s K-Wing, Acker denied making the statement, saying, "That never happened, man." When confronted with another report about the K-Wing inci- dent, Acker said, "I don't think I ever said that. And if I did, I lied." Finally, in responding to Dr. Malloy's report, which recounted Acker's attempt to bribe him, Acker denied the incident, describing the report as "full of shit, man." Second, Acker attacked the psychiatrists who evaluated him. When asked whether Dr. Flanagan was lying when he stated that Acker would do anything to get what he wanted, Acker responded, "Dr. Flanagan is full of crap." He further stated, while Gonzales's federal habeas attorney was preparing a 20762 GONZALEZ v. WONG question, "If they're psychiatrist things, don't go there, man, because they're all mostly bogus."

Acker's psychiatric reports, combined with his response to those reports, would have severely undermined Acker's credi- bility at trial. The reports would have revealed that obtaining a prison transfer was so important to Acker that he was will- ing to fake suicide, manipulate medical professionals, and bribe a prison psychiatrist. Acker's responses to these reports on the stand would have revealed Acker as a liar, consistently denying events reported by prison psychiatrists.

Gonzales, however, did not have these reports during trial, for the state had successfully concealed them. Gonzales also did not have these reports during his state habeas proceeding, for the state, assisted by the ruling of the California Supreme Court, had again successfully concealed them.
E. Pinholster

I believe we can consider the six psychiatric reports consis- tent with the Supreme Court's decision in Pinholster. I would hold that when a petitioner's inability to present Brady evi- dence to the state courts is due to the refusal of the state court to allow appropriate discovery, Pinholster does not bar fed- eral courts from considering that evidence in the first instance.

Pinholster does not answer the question whether federal courts can consider evidence that a petitioner tried to discover in state court, but was prevented from discovering by the state court. Justice Sotomayor stated in her dissent in Pinholster, "I assume that the majority does not intend to suggest that review is limited to the state-court record when a petitioner's inability to develop the facts supporting his claim was the fault of the state court itself." 131 S. Ct. at 1417 n.5. Justice Sotomayor cited the oral argument transcript in Bell v. Kelly, a case in which this question was presented, but in which the Supreme Court dismissed certiorari as improvidently granted.
GONZALEZ v. WONG 20763
Bell v. Kelly, 553 U.S. 1031, 1031 (2008) (granting certiorari on question of whether § 2254(d) applies to a claim predi- cated on evidence the state court refused to consider and that was properly received for the first time in an evidentiary hear- ing on federal habeas); Bell v. Kelly, 555 U.S. 55, 55 (2008) (dismissing certiorari as improvidently granted). The majority in Pinholster never contradicted Justice Sotomayor's assump- tion.

The state-court procedural history in Pinholster bears no resemblance to this case. Pinholster made an ineffective assis- tance of counsel claim in his state habeas petition. Pinholster, 131 S. Ct. at 1396. He relied primarily on the medical diagno- sis of a single psychiatrist. Id. On federal habeas, Pinholster presented evidence from two new medical experts who diag- nosed him with organic personality syndrome and partial epi- lepsy and brain injury. Id. at 1397. Pinholster could have presented the opinions of these experts to the state court. Indeed, the question presented in Pinholster was "[w]hether a federal court may reject a state-court adjudication of a peti- tioner's claim as "˜unreasonable' . . . based on a factual predi- cate for the claim that the petitioner could have presented to the state court but did not." Pet. for Writ of Cert., Pinholster, 131 S. Ct. 1388 (No. 09-1088). The focus of the oral argu- ment in Pinholster was on evidence that could have been presented in state court. See, e.g., Transcript of Oral Argu- ment at 29, Pinholster, 131 S. Ct. 1388 (No. 09-1088) (Justice Kennedy: "Was it the court relied on different evidence, evi- dence that was not in the State hearing? And that's the ques- tion, whether or not they can do that, if this evidence could have been presented. And certainly it could have been pre- sented."); id. at 38 (Justice Alito: "The factual predicate of the claim is the new evidence that's brought forward in . . . the Federal proceeding, and unless there is a good reason why that wasn't brought forward in the State proceeding, it shouldn't be considered.").

Based on the revelations of the Los Angeles District Attor- ney's use of perjured testimony, Gonzales knew during his 20764 GONZALEZ v. WONG state habeas proceedings that there was a strong probability that there was undisclosed Brady material about Acker. Gon- zales also had letters from the state effectively inviting him to file a discovery motion seeking such material. The state trial judge who had presided over Gonzales's trial granted his post-trial discovery motion. But Gonzales was opposed on all fronts by the state, and rejected on all fronts by the California Supreme Court. Unlike Pinholster, who could have put the relevant evidence before the state court but failed to do so, Gonzales tried every means possible for putting the evidence before the state court, but was prevented from doing so by the combined actions of the prosecutor and the state Supreme Court.

As Judge Clifton's opinion in this case notes, some of the language in Pinholster could be read to cover this case. How- ever, given that the language in Pinholster goes beyond the question before the Court, and given the dramatic differences between Pinholster and this case, I would not read the lan- guage broadly to cover the case before us. "It is a maxim not to be disregarded, that general expressions, in every opinion, are to be taken in connection with the case in which those expressions are used. If they go beyond the case, they may be respected, but ought not to control the judgment in a subse- quent suit when the very point is presented for decision." Cent. Va. Cmty. College v. Katz, 546 U.S. 356, 363 (2006) (quoting Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 399-400 (1821)). I therefore read Pinholster as leaving open the ques- tion whether federal courts can consider new evidence in a § 2254(d)(1) case when the petitioner's failure to introduce the evidence in state court was, as here, the "fault of the state court itself."

I would hold that we can consider such evidence. A long- standing rationale for excluding new evidence is that federal courts should not reward petitioners whose failure to intro- duce evidence in state court was due to their lack of diligence. This diligence requirement is codified in 28 U.S.C.
GONZALEZ v. WONG 20765
§ 2254(e)(2), which generally bars the introduction of evi- dence on federal habeas if the petitioner "has failed to develop the factual basis of a claim in State court proceedings." The Supreme Court has held that a petitioner has not "failed to develop" the factual basis of a claim when the petitioner was "not at fault" for the failure. See Holland v. Jackson, 542 U.S. 649, 652-53 (2004) (citing Williams v. Taylor, 529 U.S. 420, 431-37 (2000)). Before Pinholster, courts of appeal inter- preted the diligence requirement in § 2254(e)(2) as the only limitation on the introduction of new evidence in federal court. See Pinholster, 131 S. Ct. at 1417 (Sotomayor, J., dis- senting) ("The majority charts a . . . novel course that, so far as I am aware, no court of appeals has adopted."). So long as the petitioner had satisfied the requirements of § 2254(e)(2), courts of appeal had held that federal courts could consider new evidence even for a claim governed by § 2254(d)(1).

In Pinholster, the Court emphasized a different rationale than lack of diligence by the petitioner for refusing to con- sider evidence presented for the first time to a federal court. The Court held that for a federal court to conclude that a state court "unreasonabl[y] appli[ed]" federal law based on evi- dence that was not before it is to bypass the state court's decision-making process. The Court's holding was "com- pelled by the broader context of the statute as a whole, which demonstrates Congress' intent to channel prisoners' claims first to the state courts." Pinholster, 131 S. Ct. at 1398-99 (internal quotation marks and citations omitted). It was based on prior cases holding that "review under § 2254(d)(1) focuses on what a state court knew and did." Id. at 1399.

The Court's interpretation of the "unreasonable applica- tion" language as barring the introduction of new evidence in federal court makes sense when the petitioner's failure to introduce the evidence in federal court was unrelated to any defect in the state court process. However, when a petitioner's failure to introduce evidence before the state court is due to the state court's unwarranted refusal to allow the petitioner to 20766 GONZALEZ v. WONG discover the evidence, consideration of the new evidence by the federal court is appropriate. The state court had the oppor- tunity to obtain and consider the evidence, but chose not to do so.

In this case, the state court was presented with the same well-founded discovery request that, in federal court, revealed the undisclosed Brady material. In ruling on Gonzales's dis- covery request, the state Supreme Court knew that the Los Angeles District Attorney's office had been regularly using the testimony of jailhouse informants who were unreliable and had given perjured testimony. It knew that Acker was a jailhouse informant whose story was very similar to the sto- ries of many of the perjuring informants discussed in the Grand Jury report. It knew that the District Attorney's office had told Gonzales's counsel, as well as the counsel for other defendants, that "the courtroom is the appropriate forum in which to fully explore" issues relating to jailhouse informants, but that the office had then opposed all discovery requests. And it knew that the judge who had presided over Gonzales's trial, and who knew the case intimately, had been persuaded to grant discovery.

The California Supreme Court nevertheless blocked Gon- zales's attempts to obtain discovery to investigate Acker's reliability. As Justice Broussard noted in his dissent to the Supreme Court's decision, "whatever defendant tries, the majority find a technical barrier." Gonzalez, 800 P.2d at 1219 (Broussard, J., dissenting).

Specifically, the majority conclude that (a) defendant

cannot get discovery in connection with his auto-

matic appeal because the appeal is limited to the

appellate record; (b) he cannot get discovery in an

independent trial court action because discovery

must be ancillary to a pending proceeding; (c) he

cannot get discovery in connection with his pending

habeas corpus petition because the issue of Acker's
GONZALEZ v. WONG 20767

perjury is not within the scope of the order to show

cause; and, (d) even taking into account new allega-

tions of Acker's perjury and new evidence which

gives plausibility to those allegations, he cannot

obtain discovery by filing a new habeas corpus pro-

ceeding alleging Acker's perjury because, without

discovery, he cannot allege sufficient facts proving

Acker's perjury to state a prima facie case. In short,

the majority pose a perfect "Catch""22" logical

conundrum, under which defendant cannot obtain

discovery of the law enforcement records because

without the information contained in those records

he cannot file an action that would support discov-

ery. Id. In this circumstance, when the state court was faced with the same well-founded discovery request later presented to the federal court, it does not serve AEDPA's goals to send the dil- igent petitioner back to the very state court that blocked his attempt to discover the evidence in the first place.

Reading Pinholster to apply to a case where petitioner's failure to introduce the relevant evidence in state court is the fault of that court is inconsistent with one of the traditional purposes of federal habeas relief, which is to remedy inade- quate state court factfinding. In Townsend v. Sain, the Supreme Court held that a federal district court must grant an evidentiary hearing to a habeas applicant if "the fact-finding procedure employed by the state court was not adequate to afford a full and fair hearing." 372 U.S. 293, 313 (1963), overruled on other grounds by Keeney v. Tamayo-Reyes, 504 U.S. 1, 5-6 (1992). The "adequacy of a state-court procedure under Townsend is largely a function of the circumstances and the interests at stake. In capital proceedings generally, this Court has demanded that factfinding procedures aspire to a heightened standard of reliability." Ford v. Wainwright, 477 U.S. 399, 411 (1986). To hold that an improper state court denial of discovery necessary to develop a federal constitu- 20768 GONZALEZ v. WONG tional claim prevents a federal court from considering in the first instance evidence discovered during federal habeas unnecessarily binds the federal court to the inadequate fact- finding of the state court.

I would therefore hold that Pinholster does not bar our con- sideration of the evidence discovered by Gonzales. I would not reach the question of whether the Brady claim Gonzales raised in federal court is sufficiently distinct from the claim he raised in state court to constitute a "new claim." See Pin- holster, 131 S. Ct. at 1401 n.10; id. at 1417-19 (Sotomayor, J., dissenting).
Conclusion

I fully concur in the general application of Rhines to cases in which new evidence is introduced on federal habeas. How- ever, for the reasons I have just given, I believe that in this case we have the authority, consistent with Pinholster, to decide Gonzales's Brady claim now. I would prefer to exer- cise that authority.

O'SCANNLAIN, Circuit Judge, dissenting in part:

I concur in most of the court's lead opinion today. With respect, however, I must dissent from its reversal and remand of Gonzales's claims pertaining to the alleged suppression of impeachment evidence. The test the lead opinion crafts directly conflicts with the Supreme Court's recent holding that "evidence introduced in federal court has no bearing" on claims that have been adjudicated on the merits before a state court. Cullen v. Pinholster, 131 S. Ct. 1388, 1400 (2011).
I

As the lead opinion and the concurrence thoroughly dis- cuss, Jesse Gonzales stands convicted of the intentional mur-
GONZALEZ v. WONG 20769
der of Los Angeles County Sheriff's Deputy Jack Williams. Gonzales has never denied that he killed his victim or that he intended to do so. Therefore, the only issue at his trial was whether he knew that Deputy Williams was a peace officer in the pursuit of his duties.

A primary issue throughout Gonzales's quest for post- conviction relief has been whether he had sufficient opportu- nity to impeach William Acker, a fellow inmate who testified that Gonzales confessed to wanting to "bag a cop." See Peo- ple v. Gonzalez, 800 P.2d 1159, 1166 (Cal. 1990). As a result, the issue in this appeal is whether the California courts have already adjudicated this claim on the merits.

Acker told largely the same story regarding Gonzales's confession at the guilt phase trial and at both penalty phase trials in the state court. See id. at 1166-68. With every recounting, defense counsel more aggressively and exten- sively attacked the story's credibility. By the time the second penalty jury handed down its verdict, Acker had admitted that he testified in order to motivate authorities to transfer him to an out-of-state facility, that he was capable of lying to achieve his purposes, and that he had given information in more than half a dozen other cases, both before and after Gonzales's trial. Id. at 1168.

Nonetheless, in state post-conviction proceedings, Gon- zales argued that by failing to disclose a complete picture of Acker's interactions with the police, prosecutors deprived him of a fair opportunity to cross-examine Acker in violation of Brady v. Maryland, 373 U.S. 83 (1963). He also argued that his attorney provided constitutionally deficient counsel under Strickland v. Washington, 466 U.S. 668 (1984) by failing to discover this impeachment evidence.

The California Supreme Court soundly rejected these argu- ments, noting that at all stages of the trial, "cross-examination . . . [had] exposed evasiveness and inconsistencies in Acker's 20770 GONZALEZ v. WONG claims about the exact nature of his relationship with the authorities." Gonzalez, 800 P.2d at 1193. It found that the "additional details [discovered by Gonzales during state pro- ceedings did] not paint a significantly different picture of Acker's character and motives than appears on the record." Id. And it held that "[e]ven if this information was overlooked by trial counsel or should have been proffered by the prosecu- tion, its omission was harmless beyond a reasonable doubt and does not undermine confidence in the guilt or penalty ver- dicts." Id.

In September 1996, Gonzalez petitioned for a federal writ of habeas corpus. Discovery in the federal proceeding revealed a total of six newly-obtained psychological reports, each of which drew a different conclusion about Acker's mental health. Memorandum and Order Denying Petitioner's Second Motion for Reconsideration, No 2:95-cv-02345-JVS, (C.D. Cal. 2008) (hereinafter "Second Reconsideration Order"). Acker's first examination in August 1972 revealed "no evidence of psychosis." Id. at 33. In 1973, doctors noted that Acker was "depressive" and that he had "an extremely poor image of himself." Id. at 30 (internal quotation marks omitted). It was not until June 1974 that anyone suggested that Acker had schizophrenia. Id. at 31. A second opinion given only a month later found no "overt psychiatric condi- tion." Id. at 33. In 1975, a staff psychologist once again men- tioned schizophrenia. Id. at 32. But in his most recent evaluation, Chief Psychiatrist R.L. Flanagan refused as unnec- essary Acker's requested psychiatric medication. Id. 28-30.

At most, these reports suggest that Acker has an antisocial personality and that he tries to manipulate the prison system to obtain transfers to his preferred place of detention. The dis- trict court concluded that while "the investigation "˜increased the quantity and the quality of possible impeachment matter against Acker,' " the withheld information was not material because Acker was already extensively impeached and was not the only evidence relating to the special circumstance.
GONZALEZ v. WONG 20771
Second Reconsideration Order at 40 (quoting Order on Respondent's (sic) [First] Motion for Reconsideration, No 2:95-cv-02345-JVS, (C.D. Cal. 2003)). As such, the court denied him habeas relief. Id. at 52, 77.
II

Because Gonzalez filed his habeas petition after April 24, 1996, our authority to grant him relief is limited by the Antiterrorism and Effective Death Penalty Act ("AEDPA"). See Lindh v. Murphy, 521 U.S. 320, 326 (1997). As the Supreme Court has repeatedly reminded us, we may not grant relief in an AEDPA case just because we would have come to a different conclusion regarding a particular prisoner's claim. See Harrington v. Richter, 131 S. Ct. 770, 786 (2011). Instead "[a] state court's determination that a claim lacks merit precludes federal habeas relief so long as "˜fairminded jurists could disagree' on the correctness of the state court's decision." Id. (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)).

Applying this standard, the lead opinion properly deter- mines that the California Supreme Court's finding of "no prejudice [from any failure to provide Brady information], based on the material known to it at the time of its decision, was not unreasonable." Slip op. at 20706 n.10.

Rather than consigning this conclusion to a footnote, we should have made it the end of our review. Just last Term, the Court unequivocally held that "[i]f a claim has been adjudi- cated on the merits by a state court, a federal habeas petitioner must overcome the limitation of § 2254(d)(1) on the record that was before that state court." Pinholster, 131 S. Ct. at 1400. Because "evidence introduced in federal court has no bearing on § 2254(d)(1) review," a state court's decision on 20772 GONZALEZ v. WONG the merits simply may not be impugned on the basis of such evidence.1
III

Apparently displeased that we may not grant Gonzales habeas relief based upon information introduced in federal court, the lead opinion today patches together an end run around Pinholster's holding from (1) a hypothetical problem cited in its dissent, (2) a hypothetical solution posed in a con- currence, (3) a footnote in the majority opinion responding to both, and (4) an incredibly broad definition of the word "claim."2

Writing in dissent in Pinholster, Justice Sotomayor rumi- nated about the plight of a defendant who discovers additional evidence of prosecutorial misconduct after he exhausts all possible methods of relief. In her hypothetical, the defen- dant's initial habeas petition brings an unsuccessful Brady claim. Id. at 1418. The defendant then discovers additional

1

Given the Court's deliberate use of the term "hold" and the centrality of the question to the case, I am perplexed by the concurrence's attempt to dismiss this language as dicta. There simply is no open question of "what federal courts should do when confronted with . . . evidence" not yet presented to the state court. Slip op. at 20737. If "evidence introduced in federal court has no bearing on § 2254(d)(1) review," Pinholster, 131 S. Ct. at 1400, it has no influence in federal habeas petitions.

2

Responding to Part III of the lead opinion, I respectfully must insist that it creates an unacceptably broad definition of what constitutes a new claim. Otherwise, it is unclear on what basis it may grant any relief. For if""as the lead opinion's response seems to concede""Gonzales's claim is not new, AEDPA's "backward-looking language requires an examination of the state-court decision at the time it was made." Pinholster, 131 S. Ct. at 1400 (emphasis added). Developments in the record or in the law between the last state decision on the merits and our review on habeas are simply irrelevant. Id.; see also Greene v. Fisher, No. 10-637, 2011 WL 5335411 (U.S. Nov. 8, 2011). As is whether we think that "focus[ing] on what a state court knew and did," Pinholster, 131 S. Ct. at 1399, creates "an unjust and illogical result," slip op. at 2-736. Because that is precisely what Congress has said, Pinholster, 131 S. Ct. at 1399, it is precisely what "the law requires." Slip op. at 20736.
GONZALEZ v. WONG 20773
exculpatory statements that were suppressed by the prosecu- tion, but "state law would not permit the petitioner to present the new evidence in a successive petition." Id. (citing Virginia state law). In a footnote, the Court majority suggested that in such circumstances, the defendant "may well present a new claim." Id. at 1401 n.10; see also id. at 1412 (Breyer, J. con- curring). It refused, however, to adopt Justice Sotomayor's view. Id. at 1401 n.10.

Ignoring the fact that unlike Justice Sotomayor's hypotheti- cal prisoner Gonzales could, and should, have sought to file a new state petition,3 the court today snatches that suggestion and treats it as the law. Then, without analysis, the court con- cludes that rather than entering "new evidence [which] merely bolsters [his old] Brady claim," id. at 1418, Gonzales has presented an entirely new claim. Slip op. at 20701. Slip op. at 20737 (Fletcher, W., concurring) ("I agree with Judge Clif- ton, that we may treat [evidence that was not before the state court] in the same way we treat unexhausted claims."). The lead opinion places no limits on this conclusion other than that the state court could reasonably find in Gonzales's favor.

I cannot ascribe to this view. Not only does it virtually ignore Pinholster, it is inconsistent with prior Supreme Court case law that has carefully distinguished between "the presen- tation of additional facts to the district court" and "the sub- stance of [a petitioner's] claim." Vasquez v. Hillery, 474 U.S. 254, 258 (1986). Until today, we have never treated new evi- dence to be an entirely new claim unless it "place[d] the case in a significantly different . . . evidentiary posture." Aiken v. Spalding, 841 F.2d 881, 883 (9th Cir. 1988) (internal quota- tion marks omitted); see also id. at 884 (Poole, J., dissenting) (requiring that the new evidence "fundamentally alter[ ] the nature of [the] claim" for relief). 3

California has a general "policy . . . to deny a new application unless there has been a change in the facts or law," but its Supreme Court has long held that "this policy is discretionary." In re Bevill, 442 P.2d 679, 684 n.9 (Cal. 1968). 20774 GONZALEZ v. WONG

Furthermore, the lead opinion's conclusion severely under- mines "AEDPA's goal of promoting . . . finality," Pinholster, 131 S. Ct. at 1401 (internal quotation marks omitted) and of " "˜reduc[ing] delays in the execution of state and federal crim- inal sentences, particularly in capital cases.' " Rhines v. Weber, 544 U.S. 269, 276 (2005) (quoting Woodford v. Gar- ceau, 538 U.S. 202, 206 (2003)).

While the lead opinion appeals to comity and federalism as alternative purposes of AEDPA, its opinion does little, if any- thing to serve these important considerations. Its rule as to what constitutes a "new claim" arguably entitles state court prisoners to the opportunity to re-litigate any claim so long as they introduce some modicum of new evidence that, when aggregated with the existing evidence, would allow a reason- able state court to find in the petitioner's favor. It is difficult to see how federalism and comity are served by requiring the state courts to reconsider so many "new claims" while a fed- eral habeas court looms in the background.
IV

Gonzales's Brady and Strickland claims are not new. As in the state court, he alleges that the prosecutors violated their Brady obligation by failing to disclose impeachment evidence pertaining to Acker. While the specific items about which he complains are different, the claim relates to the same duty by the same prosecutor as it pertained to the same witness. Noth- ing in the new evidence "place[s] the case in a significantly different evidentiary posture" when compared to the appropri- ate standard. Aiken, 841 F.2d at 883-84 (internal quotation marks omitted).

Because this is an AEDPA case, we may grant habeas relief only if "the state court confronts a set of facts materially indistinguishable from those at issue in a decision of the Supreme Court and, nevertheless, arrives at a result different from its precedent." Lambert v. Blodgett, 393 F.3d 943, 974
GONZALEZ v. WONG 20775
(9th Cir. 2004) (citing inter alia Lockyer v. Andrade, 538 U.S. 63, 73(2003)). The lead opinion cites no such case. The Supreme Court case on which its analysis depends, Banks v. Dretke, 540 U.S. 668 (2004), is easily distinguishable from Gonzales's situation. There, the prosecutor concealed that the witness at the heart of his case was a paid informant. Id. at 702. As a result, the defense was able to impeach this witness using only two other witnesses who were themselves impeached and evidence of drug use that the prosecutor was able to turn to his advantage. Id. Under such circumstances, the Court concluded that the concealed evidence was not cumulative. Id.

By contrast, as the district court found here, Acker was "ex- tensively impeached" based on his own admissions of his willingness and motivation to lie. Second Reconsideration Order at 63. And such secondary evidence of his propensity to lie was, in fact, cumulative. His testimony was also "less central than the petitioner [and now the lead opinion and the concurrence] would have [us] believe." Id. As the lead opin- ion notes, to have the necessary special circumstance, Gon- zales need only have known that Williams was a peace officer in the performance of his duties when he pulled the trigger. Slip op. at 20730-31 & n.16. The testimony of several police officers regarding the implausibility of Gonzales's story also went to that point. As such, the state court could reasonably deny Gonzales relief without violating Banks, and Gonzales is not in a fundamentally different evidentiary position.4

That this newly discovered evidence does not present a new claim is even more apparent with Gonzales's arguments based 4

In an AEDPA case, our prior case law may serve only as persuasive authority, Mejia v. Garcia, 534 F.3d 1036, 1042 (9th Cir. 2008). And sim- ilar considerations make the lead opinion's analogy to cases such as Silva v. Brown unpersuasive. 416 F.3d 980, 984, 989 (9th Cir. 2005) (conclud- ing that impeachment evidence regarding a witnesses whose testimony "the district attorney . . . agreed. . . would be necessary to convict" the defendant was material). 20776 GONZALEZ v. WONG on Strickland. If Gonzales's attorney did not violate profes- sional standards by not discovering Acker's other criminal convictions, which were matters of public record, see Gon- zales, 800 P.3d at 1193 (declining to fault Gonzales's attorney for failing to discover additional evidence to impeach Acker), he could not have committed such a violation by failing to discover the contents of Acker's psychological reports, which were not similarly available. Second Reconsideration Order at 49-50 (discussing this Strickland claim).
V

Even if the lead opinion and the concurrence were correct and the psychological reports fundamentally altered the nature of Gonzales's claims, it still errs by ordering the district court to retain jurisdiction while Gonzales exhausts these claims. In Rhines, the Court concluded that a district court may in its discretion stay and abate a federal habeas petition, but "only in limited circumstances." 544 U.S. at 277. The Court warned that "[s]tay and abeyance, if employed too frequently, has the potential to undermine the[ ] . . . purposes" of AEDPA. Id. In particular, the Court instructed that the petition "should not be stayed indefinitely. . . . And if a petitioner engages in abusive litigation tactics or intentional delay, the district court should not grant him a stay at all." Id. at 277-78.

Contrary to the lead opinion's assertion, Gonzales has engaged in intentionally dilatory litigation tactics. He learned of the psychological reports in 2003. Second Reconsideration Order at 28. But, rather than requesting a stay so that he could present the supposedly new claims in the State courts, Gonza- lez pressed ahead with not one, but two motions for reconsid- eration. As a result, the State has been arguing lack of exhaustion for the better part of a decade, id. at 41 (discussing the State's opposition to the First Motion for Reconsidera- tion), yet Gonzales never sought to stay the federal proceed- ings to go back to the state court.
GONZALEZ v. WONG 20777

For the forgoing reasons, while I join most of the court's lead opinion, I respectfully dissent from its decision to remand Gonzales's claims.

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