Hayes v. Woodford ( 2005 )


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  •                     FOR PUBLICATION
    UNITED STATES COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    BLUFFORD HAYES, JR.,                      
    Petitioner-Appellant,             No. 99-99030
    v.                                D.C. No.
    JILL BROWN, Warden of the                       CV-92-00603-
    California State Prison at San                      GGH P
    Quentin,*                                         OPINION
    Respondent-Appellee.
    
    Appeal from the United States District Court
    for the Eastern District of California
    David F. Levi, District Judge, Presiding
    Argued June 6, 2002
    Submitted June 14, 2002
    Filed August 26, 2002
    Opinion Vacated and Rehearing En Banc Granted
    August 26, 2004
    Argued and Re-submitted En Banc
    October 12, 2004
    Filed March 7, 2005
    Before: Mary M. Schroeder, Chief Judge, and
    Andrew J. Kleinfeld, Sidney R. Thomas, Susan P. Graber,
    Kim McLane Wardlaw, William A. Fletcher,
    Raymond C. Fisher, Ronald M. Gould, Richard A. Paez,
    Richard C. Tallman, and Jay S. Bybee, Circuit Judges.
    *Pursuant to Fed. R. Civ. P. 43(c)(2), we sua sponte substitute Jill
    Brown for Jeanne Woodward as the respondent in this action.
    2753
    2754                 HAYES v. BROWN
    Opinion by Judge Thomas;
    Partial Concurrence and Partial Dissent by Judge Tallman
    HAYES v. BROWN                      2757
    COUNSEL
    David A. Senior, McBreen & Senior, Los Angeles, California,
    argued the cause for the petitioner-appellant; Kathleen T.
    Saenz, McBreen & Senior, Los Angeles, California, was on
    the briefs.
    Mathew Chan, Deputy Attorney General, Sacramento, Cali-
    fornia, argued the cause for the repondent-appellee; Bill
    Lockyer, Attorney General, Robert Anderson, Chief Assistant
    Attorney General, Jo Graves, Senior Assistant Attorney Gen-
    eral, Arnold O. Overoye, Senior Assistant Attorney General,
    Ward A. Campbell, Supervising Deputy Attorney General,
    and Carlos A. Martinez, Supervising Deputy Attorney Gen-
    eral, were on the brief.
    OPINION
    THOMAS, Circuit Judge:
    In this case, we consider whether a prosecutor’s knowing
    presentation of false evidence and failure to correct the record
    violate a criminal defendant’s due process rights. We con-
    clude that such actions violate due process, and we therefore
    reverse the district court’s denial of the petition for a writ of
    habeas corpus.
    I
    This case concerns the 1980 murder of Vinod “Pete” Patel
    by Blufford Hayes, Jr. Patel was the resident hotel manager
    of the Rice Motel in Stockton, California. Hayes was staying
    2758                   HAYES v. BROWN
    in Room 15 of the motel with his sister, Barbara Lord. Hayes
    once resided at the motel himself, but had been evicted when
    he stopped paying rent. Several days before Patel’s death,
    Patel had asked the police to arrest Hayes for trespassing
    because he had broken into his former room. Officers found
    Hayes in his former room with fresh needle marks on his arm;
    he admitted to breaking in, but said he intended to pay rent
    as soon as he could. The police arrested him for trespassing
    and for being under the influence of a controlled substance.
    Hayes returned to the Rice Motel on New Year’s Eve,
    December 31, 1979, to visit his sister in her room. Hayes tes-
    tified that, as of New Year’s Eve, he had been awake for three
    days, had injected heroin and Ritalin, and had consumed a
    large amount of brandy. On the morning of New Year’s Day,
    Lord left for work, leaving Hayes alone in the motel room. At
    trial, Lord testified that her bathroom sink had been leaking
    for some time. She had told Patel about the leak, but he had
    not fixed it. Lord testified that she saw Patel as she left for
    work on the morning of New Year’s Day, and that she may
    have mentioned the leak to him again.
    At around 9:30 a.m., Bearla Mae Wyatt, who lived next
    door to Lord in Room 16, went to the motel’s office to get
    some fresh towels. In the office, Wyatt encountered Hayes
    and Patel. Hayes was telling Patel that there was a problem
    with the bathroom sink in Room 15 and that he wanted Patel
    to come and fix it. Patel did not understand Hayes’s explana-
    tion and invited Hayes to demonstrate what he meant in
    Patel’s own living quarters, which adjoined the office.
    Because Patel was occupied, Wyatt left; when she returned 10
    to 15 minutes later, Hayes and Patel were coming out of
    Patel’s bathroom area. Wyatt heard Patel tell Hayes that he
    would “be down at the room later on.”
    Hayes testified that, after his discussion with Patel at the
    motel office, Hayes returned to Room 15, went to a store to
    buy a bottle of wine, returned to the motel room, drank some
    HAYES v. BROWN                      2759
    wine, and went to sleep. According to Hayes, the next thing
    he recalled was being awakened by someone slapping him
    and saying something that he could not understand. He
    claimed that he struck back and thereafter realized it was
    Patel. Hayes testified that, as he was getting off the bed, he
    noticed that Patel had a knife. Hayes said he struggled with
    Patel, forced Patel to drop the knife, and then picked the knife
    up himself.
    Hayes testified that he thereafter tried to stop the manager
    from grabbing a butcher knife that was on top of the dresser,
    and ended up stabbing Patel on the arm and chest. According
    to Hayes, Patel backed away into the bathroom and made a
    loud noise. Patel then walked out and collapsed on the floor.
    Hayes said he then picked up the butcher knife from the floor
    and put it in a dresser drawer to put it outside Patel’s reach.
    He also picked up a bottle of wine and placed it into the same
    drawer. Hayes righted a chair that had been knocked over and
    picked up a pouch and vest from the floor and put them on the
    bed. He then unwound two wire coat hangers and bound
    Patel’s hands and feet while Patel was still alive. Hayes
    explained that he did not want to have to hurt Patel anymore
    and was afraid of what Patel might do if he got up.
    A short time later, Hayes went to the motel room shared by
    Andrew “A.J.” James and his girlfriend, Michele Gebert.
    Hayes had known both James and Gebert for many years.
    Hayes told them he wanted James to give him a ride. Hayes
    testified that he told James that he had had to “down” some-
    one. James said that he did not believe Hayes, and left the
    room to see for himself. Gebert testified that she commented
    to Hayes about the possibility of Patel calling the police, and
    Hayes allegedly replied that “[Patel] would not say anything
    to anybody.” Hayes testified that he looked out the door of
    James and Gebert’s apartment and saw James, not in Hayes’s
    room, but at the motel office. According to his testimony,
    Hayes then went to the office, where he saw James taking car-
    tons of cigarettes. Hayes testified that, at James’s request, he
    2760                   HAYES v. BROWN
    also carried two boxes himself. Hayes and James left together
    in James’s car.
    Wyatt testified that, about thirty minutes after she saw
    Hayes and Patel in the motel office, by which time she had
    returned to her room, she looked out her window and saw
    Hayes carrying a box across the motel parking lot to a car.
    She noticed that James was standing at the side of the car. A
    few moments later, she looked out the window again and saw
    James carrying something out of his room. She could not
    recall what James was carrying, but it “seemed like he was
    moving out” because there was a lot of movement back and
    forth.
    According to James, when Hayes arrived at James’s room,
    James woke up, went to the bathroom, and left with Hayes.
    James testified that the two went to James’s car. There, James
    noticed that two boxes of cigarettes, each containing thirty
    cartons, were in the car. The location of the boxes is unclear.
    At one point, James testified that the boxes of cigarettes were
    in the trunk. At other times, James testified that the boxes
    were in the back seat. According to James, Hayes asked
    James if he knew where to get rid of the cigarettes, but James
    said he did not. James kept one carton for himself, however.
    James testified that Hayes told him in the car that Hayes
    had “offed” the motel manager. When James expressed his
    disbelief, Hayes explained that the manager had awakened
    him and had “swung on him” so Hayes “did the do with him.”
    James also testified that Hayes further advised James that he
    “tore” up the office looking for money. James drove Hayes to
    Hayes’s mother’s house, helped unload the cigarettes, and
    then drove straight back to the motel, where he noticed that
    the door of the motel’s office was open. He left in the car with
    Gebert, and they drove around for several hours discussing
    what to do. James was afraid to go to the police because he
    “had cases at the time.” Gebert eventually called the police,
    HAYES v. BROWN                      2761
    and Gebert and James later went to the police station to be
    interviewed.
    When Lord returned to Room 15 that afternoon, she found
    Patel’s dead body lying on the floor. His hands and feet were
    bound with coat hangers. Patel had suffered at least twenty-
    two cutting and stabbing wounds, including eight stab wounds
    to the front of his chest. Six stab wounds penetrated the chest
    cavity, any one of which could have been fatal. The wounds
    to Patel’s left hand and forearm were determined to be “de-
    fensive wounds,” which the coroner defined as “wounds
    incurred by the victim as he is trying to ward off the attacker.”
    At the crime scene, the police located a butcher’s knife
    inside a dresser drawer. Inside the bathroom, the police found
    “splattered” blood on “quite a few spots.” There were also
    signs of struggle inside the bathroom, as reflected by a top-
    pled plastic trash can and damage to the door frame of the
    shower. Outside the bathroom, the only blood observed was
    a pool under Patel’s body, and stains on some items on the
    bed. There was no overturned furniture in the room, according
    to a police officer who viewed the scene. The police also dis-
    covered a light blue, long-sleeved shirt and a dark blue vest,
    both stained with blood. Hayes and Patel had the same blood
    type, and the blood on the clothing was consistent with this
    type. The motel’s office and Patel’s adjoining living quarters
    appeared to have been ransacked. The office cash box, which
    generally held $40 to $50, was found empty.
    Hayes was arrested in Oregon, and tried before a San Joa-
    quin County, California, jury. The prosecution flew James,
    who had left California, back from Florida for the trial, with
    the promise that he could return to Florida after testifying.
    James had a criminal history, having been convicted of petty
    theft, grand theft, and receiving stolen property. At the time
    he testified, he also had pending in California three charges
    of felony theft with a prior conviction, and a charge of being
    under the influence of heroin. Before trial, the prosecutor had
    2762                   HAYES v. BROWN
    reached an agreement with James’s attorney to grant transac-
    tional immunity for the Patel killing and to dismiss the other
    pending unrelated felony charges against James. However, the
    State wished to keep the promise to dismiss the felony
    charges away from the trial judge and jury. Therefore, the
    prosecutor extracted a promise from James’s attorney that he
    would not tell James about the deal. The idea was that James
    would be able to testify that there was no deal in place, with-
    out perjuring himself, because James would not personally be
    informed of the arrangement.
    The jury convicted Hayes of first-degree murder (Cal.
    Penal Code § 187), burglary, and robbery, and it found true
    the two special circumstances of robbery-murder and
    burglary-murder. Cal. Penal Code § 190.2(a)(17)(A)&(G). On
    November 25, 1981, the same jury returned a verdict impos-
    ing a death sentence.
    After he testified, James returned to Florida with an air-
    plane ticket paid for by the prosecution, even though the Cali-
    fornia felony charges were still pending, and he had not been
    arraigned. Shortly thereafter, the State dismissed all felony
    charges against James.
    Hayes appealed from the conviction and sentence to the
    California Supreme Court, which reversed the conviction and
    sentence for robbery, and the robbery-murder special circum-
    stance, but otherwise affirmed the judgment, including the
    imposition of the death penalty. People v. Hayes, 
    802 P.2d 376
    (Cal. Sup. Ct. 1990).
    In June 1993, Hayes filed a federal petition for a writ of
    habeas corpus consisting of 61 claims. The district court dis-
    missed 38 unexhausted claims, without prejudice, and ordered
    Hayes to present the claims to the California Supreme Court.
    Hayes filed those claims, and five additional claims, in a sec-
    ond petition for writ of habeas corpus in the California
    Supreme Court. That court denied all relief.
    HAYES v. BROWN                        2763
    Hayes then filed a first amended petition in federal court on
    August 28, 1995, asserting 65 claims. The State of California
    moved to dismiss some of the claims on the ground that they
    were denied by the California Supreme Court on procedural
    grounds, thereby barring federal review. The motion was
    denied. A four-day evidentiary hearing was conducted on
    Hayes’s allegedly unconstitutional absence from the entire
    penalty phase of the trial, and a separate two-day evidentiary
    hearing was conducted regarding the alleged ineffective assis-
    tance of counsel regarding a plea-bargain offer.
    Both parties moved for summary judgment on the merits,
    and the magistrate judge recommended that the State’s motion
    for summary judgment be granted as to all claims and that the
    habeas petition be denied. After de novo review, the district
    court filed an order specifically addressing some of Hayes’s
    claims, adopting the magistrate judge’s findings and recom-
    mendations in full, and denying the petition. The district court
    granted Hayes a certificate of appealability for the arguments
    he makes on appeal. A divided panel of our Court issued an
    opinion affirming the district court’s grant of summary judg-
    ment. A majority of the non-recused, active judges of this
    Court voted to rehear the appeal en banc.
    Hayes filed his 28 U.S.C. § 2254 petition for a writ of
    habeas corpus before the enactment of the Antiterrorism and
    Effective Death Penalty Act of 1996 (“AEDPA”). Therefore,
    our review is governed by pre-AEDPA standards. See, e.g.,
    Lindh v. Murphy, 
    521 U.S. 320
    , 326 (1997); Karis v. Calde-
    ron, 
    283 F.3d 1117
    , 1126 n.1 (9th Cir. 2002).
    On habeas review, state court judgments of convic-
    tion and sentence carry a presumption of finality and
    legality and may be set aside only when a state pris-
    oner carries his burden of proving that [his] deten-
    tion violates the fundamental liberties of the person,
    safeguarded against state action by the Federal Con-
    stitution.
    2764                    HAYES v. BROWN
    McKenzie v. McCormick, 
    27 F.3d 1415
    , 1418 (9th Cir. 1994)
    (citation and quotation marks omitted).
    II
    The Supreme Court has long emphasized “the special role
    played by the American prosecutor in the search for truth in
    criminal trials.” Strickler v. Greene, 
    527 U.S. 263
    , 281
    (1999). As we observed in Commonwealth of The Northern
    Mariana Islands v. Mendiola, 
    976 F.2d 475
    , 486 (9th Cir.
    1992) (citations omitted), overruled on other grounds by
    George v. Camacho, 
    119 F.3d 1393
    (9th Cir. 1997) (en banc):
    The prosecuting attorney represents a sovereign
    whose obligation is to govern impartially and whose
    interest in a particular case is not necessarily to win,
    but to do justice. . . . It is the sworn duty of the pros-
    ecutor to assure that the defendant has a fair and
    impartial trial.
    [1] One of the bedrock principles of our democracy, “im-
    plicit in any concept of ordered liberty,” is that the State may
    not use false evidence to obtain a criminal conviction. Napue
    v. Illinois, 
    360 U.S. 264
    , 269 (1959) (internal citation omit-
    ted). Deliberate deception of a judge and jury is “inconsistent
    with the rudimentary demands of justice.” Mooney v. Holo-
    han, 
    294 U.S. 103
    , 112 (1935). Thus, “a conviction obtained
    through use of false evidence, known to be such by represen-
    tatives of the State, must fall under the Fourteenth Amend-
    ment.” 
    Napue, 360 U.S. at 269
    (citations omitted). “Indeed, if
    it is established that the government knowingly permitted the
    introduction of false testimony reversal is ‘virtually automat-
    ic.’ ” United States v. Wallach, 
    935 F.2d 445
    , 456 (2d Cir.
    1991) (quoting United States v. Stofsky, 
    527 F.2d 237
    , 243
    (2d Cir. 1975)).
    [2] In addition, the state violates a criminal defendant’s
    right to due process of law when, although not soliciting false
    HAYES v. BROWN                        2765
    evidence, it allows false evidence to go uncorrected when it
    appears. See Alcorta v. Texas, 
    355 U.S. 28
    (1957); Pyle v.
    Kansas, 
    317 U.S. 213
    (1942).
    A
    In this case, the State knowingly presented false evidence
    to the jury and made false representations to the trial judge as
    to whether the State had agreed not to prosecute James on his
    pending felony charges. James’s attorney testified in federal
    court that there had been a deal between himself and then-
    Deputy District Attorney Terrence Van Oss. The district court
    specifically found:
    The record amply supports the magistrate judge’s
    finding that Van Oss and James’ attorney reached an
    agreement addressing the felony charges prior to
    Hayes’ first preliminary hearing on February 7,
    1980.
    The district judge noted that, in a file entry dated February
    7, 1980, James’s attorney wrote:
    Van Oss s[ai]d [he] didn’t want to make [a] deal on
    this case on [the] record, but will guarantee that
    [James’] O.R. [own recognizance release] will be
    reinstated. He wants to keep case felony for now so
    if [James] splits they can extradite. After Hayes over,
    [James] can P[lead] G[uilty] to misd[emeanor] for
    straight prob[ation] — no jail.
    (Material in brackets supplied by district court.)
    The district court noted that “[s]ubsequent entries state that
    ‘the case will be disposed of after Hayes trial’ and ‘case to be
    dismissed on 12/15/81.’ ” The district court also found that,
    “[i]n an evidentiary hearing in another case, Van Oss testified
    2766                    HAYES v. BROWN
    that he had no basis for disputing these notes, conceding at
    one point that he ‘must have told him.’ ”
    In his Report and Recommendation, the magistrate judge
    stated:
    [T]he court finds that the prosecutor [ ] tacitly admit-
    ted in an evidentiary hearing in another case that he
    had made some type of agreement with James’ law-
    yer for the 1980 arrests at or about the time that
    James appeared at his arraignment.
    This finding is amply supported by the record. Although
    felony charges against James were pending, the State assisted
    him in moving to San Diego. James later moved to Florida.
    The government paid for his airplane transportation from
    Florida to California to testify in the Hayes trial. James freely
    traveled to California, apparently without fear that he would
    be placed in custody on the pending felony charges. The notes
    from James’s attorney indicate that a court appearance on his
    charges was scheduled for October 20, 1981, but was contin-
    ued until November 17, 1981. James testified at the Hayes
    trial on October 29, 1981. The jury returned a guilt-phase ver-
    dict on November 16, 1981. The next day, the chief prosecu-
    tor in the Hayes trial, Terrence Van Oss, appeared at the
    continued arraignment scheduled for James. The transcript of
    the hearing reflects there was a discussion off the record with
    the judge, after which the arraignment was continued until
    December 15, 1981. James’s counsel’s notes on November
    17, 1981, said that “case to be dism[issed] on 12/15/81. We
    need not appear.” The jury returned its verdict of punishment
    by death on November 25, 1981. On December 15, 1981, the
    charges against James were dismissed, and the State paid for
    James’s safe return to Florida by air.
    In addition to the fact of the deal, the record also supports
    the finding that a key part of the agreement was to keep James
    in the dark, so that he could testify that there was no deal
    HAYES v. BROWN                       2767
    without perjuring himself. James’s attorney wrote in his notes
    of the conversation about the deal:
    D.A. rec. O.R. [own recognizance] on this. Van Oss
    is guy to see. This guy is a witness against Blufford
    Hayes on the 187 p.c. at the Rice Motel on 1-1-80.
    THIS IS SECRET INFO!! Don’t tell the client, or let
    the word out, or this guy will be a goner!!
    (Emphasis in original.)
    After making this arrangement, the State misled the trial
    judge. In preliminary proceedings, defense counsel inquired
    “whether any negotiated settlement has been made in return
    for his [James’s] testimony.” To that, the prosecutor
    responded:
    There has been absolutely no negotiations whatso-
    ever in regard to his testimony. No promises, no dis-
    cussions about this other offense at all.
    Upon further inquiry by the trial judge about “whether there
    has been any negotiations,” the prosecutor replied:
    That was asked of Mr. James at the time of the pre-
    liminary examination and he testified that there had
    been absolutely no promises and no discussions in
    regard to any pending charges and that is the status
    of the case. There has been no discussions in regard
    to any pending charges.
    When James testified, the prosecutor elicited the following
    testimony:
    Q. All right. Other than these things that you have
    told us about, have you been made any promises?
    Have you been offered anything? Has any pressure
    2768                   HAYES v. BROWN
    been put on you? Has anything been done to make
    you testify here?
    A.   No.
    After defense counsel probed in cross-examination the lack
    of activity in prosecuting James, with James responding that
    the charges were still pending, the prosecutor elicited the fol-
    lowing testimony from James on redirect:
    Q. You and I have discussed the fact that you have
    other charges pending; isn’t that correct?
    A.   Right.
    Q. Okay. And you would tell the jury what if any-
    thing of any deals or any promises or anything else
    has been made in regards to this charge?
    A. No. There are still pending, you know . . . . You
    know, I didn’t get no — you know, like they try to
    make it sound like a deal or something. It wasn’t like
    that, man. I just don’t want no involvement, you
    know.
    In closing, the prosecutor emphasized the truthfulness of
    the State’s witnesses, stating:
    The implication is that somehow all the prosecu-
    tion’s witnesses are lying and the only person that is
    telling the truth in this case is the defendant. I ask
    you, is that reasonable? Is that the sort of reason the
    Court is asking you to use when it tells you that you
    must use the standard of reasonable doubt in this
    case? That somehow everybody is lying, but the
    defendant?
    That’s not the reason and that’s not the standard of
    proof in this case. Andrew James may be a very bad
    HAYES v. BROWN                       2769
    man, he may have a bad past, he is not a murderer
    as the defendant is in this case.
    [3] Thus, the record is clear that: (1) before the Hayes trial,
    the State had made a deal with James’s attorney for the dis-
    missal of pending felony charges after his testimony; (2) the
    State specifically represented to the trial judge that there was
    no such deal; (3) the State elicited sworn testimony from
    James at trial that there was no such deal, both on direct and
    re-direct examination; and (4) the State failed to correct the
    record at trial to reflect the truth.
    [4] The State’s actions violated Hayes’s constitutional
    rights first under Napue, by presenting false evidence to the
    jury and, second, under Alcorta and Pyle, by failing to correct
    the record following the presentation of false evidence.
    B
    The State contends that there was no Napue violation
    because James did not commit perjury. According to the
    State, Napue renders unconstitutional only acts of perjury.
    Therefore, the State reasons, because James was ignorant of
    the deal, he did not commit perjury and the State did not run
    afoul of Napue. In short, the State contends that it is constitu-
    tionally permissible for it knowingly to present false evidence
    to a jury in order to obtain a conviction, as long as the witness
    used to transmit the false information is kept unaware of the
    truth.
    [5] The State is wrong. Napue, by its terms, addresses the
    presentation of false evidence, not just subornation of perjury.
    As Chief Justice Warren wrote:
    [I]t is established that a conviction obtained through
    use of false evidence, known to be such by represen-
    tatives of the State, must fall under the Fourteenth
    Amendment.
    2770                        HAYES v. 
    BROWN 360 U.S. at 269
    (citations omitted). In describing the rule, the
    Court itself discussed the use of “false evidence, including
    false testimony. . . .” 
    Id. There is
    nothing in Napue, its pre-
    decessors, or its progeny, to suggest that the Constitution pro-
    tects defendants only against the knowing use of perjured
    testimony. Due process protects defendants against the know-
    ing use of any false evidence by the State, whether it be by
    document, testimony, or any other form of admissible evi-
    dence. See Phillips v. Woodford, 
    267 F.3d 966
    , 984-85 (9th
    Cir. 2001) (“It is well settled that the presentation of false evi-
    dence violates due process.”) (citing 
    Napue, 360 U.S. at 269
    ).
    Further, contrary to the State’s theory, that the witness was
    tricked into lying on the witness stand by the State does not,
    in any fashion, insulate the State from conforming its conduct
    to the requirements of due process. As our court noted in
    Northern Mariana Islands v. Bowie, 
    243 F.3d 1109
    , 1114 (9th
    Cir. 2001): “Few things are more repugnant to the constitu-
    tional expectations of our criminal system than covert perjury
    . . . .” It is reprehensible for the State to seek refuge in the
    claim that a witness did not commit perjury, when the witness
    unknowingly presents false testimony at the behest of the
    State. “This saves [the witness] from perjury, but it does not
    make his testimony truthful.” Willhoite v. Vasquez, 
    921 F.2d 247
    , 251 (9th Cir. 1990) (Trott, J., concurring). The fact that
    the witness is not complicit in the falsehood is what gives the
    false testimony the ring of truth, and makes it all the more
    likely to affect the judgment of the jury. That the witness is
    unaware of the falsehood of his testimony makes it more dan-
    gerous, not less so.1
    [6] There is nothing redemptive about the sovereign’s con-
    spiring to deceive a judge and jury to obtain a tainted convic-
    1
    We assume for purposes of our analysis that James was, in fact,
    unaware of the secret deal. But we note the distinct risk that, in preparing
    James for his testimony, James’s counsel — who did know about the deal
    — might have influenced the content of that testimony, deliberately or not.
    HAYES v. BROWN                           2771
    tion. This is, as Judge Trott put it, “a pernicious scheme
    without any redeeming features.” 
    Id. Napue forbids
    the know-
    ing presentation of false evidence by the State in a criminal
    trial, whether through direct presentation or through covert
    subornation of perjury.2
    [7] Further, the argument that the presentation of false testi-
    mony, carefully orchestrated to avoid perjury, does not offend
    the Constitution flies in the face of Alcorta and Pyle because
    those cases create an affirmative duty on the part of the prose-
    cution to correct false testimony at trial, even when the testi-
    mony is unsolicited. There is no exception under Alcorta and
    Pyle for solicited false testimony. The State’s knowing pre-
    sentation of false evidence and failure to correct the record at
    Hayes’s trial violated the Fourteenth Amendment.
    C
    [8] The State argues that the constitutional prohibition
    against the knowing presentation of false evidence, as distin-
    guished from the prohibition against suborning perjury, is a
    new rule of constitutional procedure that cannot be applied to
    this case under Teague v. Lane, 
    489 U.S. 288
    (1989). Subject
    to a few exceptions, Teague holds that, “[u]nless they fall
    within an exception to the general rule, new constitutional
    rules of criminal procedure will not be applicable to those
    cases which have become final before the new rules are
    announced.” 
    Id. at 310.
    The threshold question in a Teague analysis is whether the
    rule that the petitioner seeks to apply is a substantive rule or
    a procedural rule, because “Teague by its terms applies only
    to procedural rules.” Bousley v. United States, 
    523 U.S. 614
    ,
    620 (1998). If the rule is procedural, the court then conducts
    a three-step analysis to determine whether Teague bars its
    2
    To the extent that any of our prior case law, including Willhoite, sug-
    gests otherwise, those cases are overruled.
    2772                    HAYES v. BROWN
    application. See O’Dell v. Netherland, 
    521 U.S. 151
    , 156-57
    (1997). First, the reviewing court “must ascertain the date on
    which the defendant’s conviction and sentence became final
    for Teague purposes.” Caspari v. Bohlen, 
    510 U.S. 383
    , 390
    (1994). Second, the court must survey “the legal landscape as
    it then existed,” Graham v. Collins, 
    506 U.S. 461
    , 468 (1993),
    to determine whether existing precedent compelled a finding
    that the rule at issue “was required by the Constitution.” Lam-
    brix v. Singletary, 
    520 U.S. 518
    , 527 (1997) (internal quota-
    tion marks and citations omitted). If existing precedent
    already required application of the rules, the Teague bar does
    not apply. However, if the procedure at issue is considered a
    new rule for Teague purposes, the court must proceed to the
    third step and determine whether either of the two announced
    exceptions applies. 
    Teague, 489 U.S. at 307
    . The presumption
    against retroactivity is overcome only if the new rule prohibits
    “a certain category of punishment for a class of defendants
    because of their status or offense,” Penry v. Lynaugh, 
    492 U.S. 302
    , 330 (1989), abrogated on other grounds by Atkins
    v. Virginia, 
    536 U.S. 304
    (2002), or presents a new “water-
    shed rule[ ] of criminal procedure” that enhances accuracy
    and alters our understanding of bedrock procedural elements
    essential to the fairness of a particular conviction. 
    Teague, 489 U.S. at 311
    (citations omitted).
    [9] Thus, we must first ask whether the prohibition against
    the knowing presentation of false evidence is substantive or
    procedural law. For Teague purposes, a new rule is one of
    “procedure” if it affects the operation of the criminal trial pro-
    cess, and a new rule is one of “substance” if it alters the scope
    or modifies the applicability of a substantive criminal statute.
    
    Bousley, 523 U.S. at 620
    . The prohibition on the use of false
    evidence by the State at trial is clearly a procedural rule; it
    affects the operation of the criminal trial process, but does not
    affect the scope of a substantive criminal statute.
    Because the rule is procedural, we proceed to the three-step
    analysis to determine whether the rule was “new.” We begin
    HAYES v. BROWN                      2773
    by ascertaining the date on which Hayes’s conviction became
    final. 
    Caspari, 510 U.S. at 390
    . In 1990, the California
    Supreme Court upheld Hayes’s conviction in relevant part.
    People v. Hayes, 
    802 P.2d 376
    (Cal. 1990). The United States
    Supreme Court denied Hayes’s petition for a writ of certiorari
    on November 12, 1991. Hayes v. California, 
    502 U.S. 958
    (1991). Thus, Hayes’s conviction became final on that date.
    See Griffith v. Kentucky, 
    479 U.S. 314
    , 321 n.6 (1987) (“By
    ‘final,’ we mean a case in which a judgment of conviction has
    been rendered, the availability of appeal exhausted, and the
    time for a petition for certiorari elapsed or a petition for cer-
    tiorari finally denied.”) (citations omitted).
    Next, we survey “the legal landscape as it then existed,”
    
    Graham, 506 U.S. at 468
    , to determine whether existing pre-
    cedent compelled a finding that the rule at issue “was required
    by the Constitution.” 
    Lambrix, 520 U.S. at 527
    . The sugges-
    tion by the State that, as of 1991, the Constitution did not pro-
    hibit the government from knowingly presenting false
    evidence to obtain a criminal conviction is somewhat star-
    tling. There is nothing new at all about this constitutional pro-
    tection. We have already noted that Napue, decided nearly a
    half century ago, specifically addressed “false evidence,” and
    was not limited to barring the subornation of perjury. Alcorta
    and Pyle, which require the State to correct false facts intro-
    duced as evidence at trial, were decided in 1957 and 1942,
    respectively. Indeed, as we stated in Bowie:
    Because of the gravity of depriving a person of lib-
    erty on the basis of false testimony, the Supreme
    Court and the United States Courts of Appeal have
    fashioned over the years a workable set of precise
    rules designed not only to remedy egregious wrongs
    that have already occurred, but also prophylactically
    to prevent damaging false testimony from happening
    in the first 
    place. 236 F.3d at 1087
    .
    2774                   HAYES v. BROWN
    The rule originated with Mooney in 1935, which held that
    a criminal defendant is denied due process when the “state has
    contrived a conviction through the pretense of a trial which in
    truth is but used as a means of depriving a defendant of liberty
    through a deliberate deception of court and jury by the presen-
    tation of testimony known to be 
    perjured.” 294 U.S. at 112
    .
    Seven years later, in Pyle, the Supreme Court expanded this
    rule to encompass not only “perjured testimony, knowingly
    used by the State,” but also “the deliberate suppression by
    those same authorities of evidence favorable to [the criminal
    
    defendant].” 317 U.S. at 216
    .
    Alcorta, decided in 1957, involved a case quite similar to
    the one at bar. In that case, the Court was confronted with a
    prosecutor who, on direct examination, knowingly allowed a
    witness to create a false 
    impression. 355 U.S. at 29-30
    . The
    prosecutor had instructed the witness not to volunteer what
    the prosecutor thought might be damaging information and
    then sat mute while the witness committed perjury. 
    Id. at 31.
    In granting Alcorta’s petition for a writ of habeas corpus, the
    Court held that the false impression given to the jury by the
    prosecutor and the State violated Alcorta’s right to due pro-
    cess. 
    Id. Napue, which
    we have discussed, was decided two years
    later. Napue quoted with approval a decision from the New
    York Court of Appeals involving false testimony from a wit-
    ness who had been given substantial consideration for his tes-
    timony, in which that court stated: “ ‘A lie is a lie, no matter
    what its subject, and, if it is in any way relevant to the case,
    the district attorney has the responsibility and duty to correct
    what he knows to be false and elicit the truth.’ ” 
    360 U.S. 264
    ,
    269-70 (1959) (quoting People v. Savvides, 
    136 N.E.2d 853
    ,
    854-55 (N.Y. Ct. App. 1956)).
    In United States v. Bagley, 
    473 U.S. 667
    , 678 (1985), the
    Supreme Court noted the “well-established rule that ‘a con-
    viction obtained by the knowing use of perjured testimony is
    HAYES v. BROWN                      2775
    fundamentally unfair, and must be set aside if there is any rea-
    sonable likelihood that the false testimony could have affected
    the judgment of the jury.’ ” (Citation omitted).
    [10] Thus, the rule has been clear for decades: a criminal
    defendant is denied due process of law when a prosecutor
    either knowingly presents false evidence or fails to correct the
    record to reflect the true facts when unsolicited false evidence
    is introduced at trial. We need not proceed to the remainder
    of the Teague analysis. There being nothing new about this
    rule, it does not implicate Teague.
    III
    A
    [11] That constitutional error occurred does not end our
    analysis. Neither Napue nor Acorta creates a per se rule of
    reversal. Because the error was not structural, we must assess
    whether the constitutional violation was material. See United
    States v. Zuno-Arce, 
    339 F.3d 886
    , 889 (9th Cir. 2003) (“To
    prevail on a claim based on Mooney-Napue, the petitioner
    must show that (1) the testimony (or evidence) was actually
    false, (2) the prosecution knew or should have known that the
    testimony was actually false, and (3) . . . the false testimony
    was material.”) (citations omitted).
    In assessing materiality under Napue, we determine
    whether there is “ ‘any reasonable likelihood that the false tes-
    timony could have affected the judgment of the jury;’ ” if so,
    then “the conviction must be set aside.” Belmontes v. Wood-
    ford, 
    350 F.3d 861
    , 881 (9th Cir. 2003) (quoting United States
    v. Agurs, 
    427 U.S. 97
    , 103 (1976)). Under this materiality
    standard, “ ‘[t]he question is not whether the defendant would
    more likely than not have received a different verdict with the
    evidence, but whether in its absence he received a fair trial,
    understood as a trial resulting in a verdict worthy of confi-
    dence.’ ” Hall v. Director of Corrections, 
    343 F.3d 976
    , 983-
    2776                    HAYES v. BROWN
    84 (9th Cir. 2003) (per curiam) (quoting Kyles v. Whitley, 
    514 U.S. 419
    , 434 (1995)).
    Even though this case comes to us on habeas review, we do
    not conduct an additional harmless error analysis under
    Brecht v. Abrahamson, 
    507 U.S. 619
    (1993), which asks
    whether the error “ ‘had substantial and injurious effect or
    influence in determining the jury’s verdict.’ ” 
    Id. at 623
    (cita-
    tion omitted). When the Supreme Court has declared a materi-
    ality standard, as it has for this type of constitutional error,
    there is no need to conduct a separate harmless error analysis.
    As the Supreme Court explained in Kyles, when considering
    a similar question about applying the Bagley disclosure
    requirements, the required finding of materiality necessarily
    compels the conclusion that the error was not 
    harmless. 514 U.S. at 435
    .
    Application of the Agurs “any reasonable likelihood” stan-
    dard necessarily forecloses a Brecht harmless error analysis.
    The Supreme Court noted in Kyles that, in Agurs, the Court
    had expressly considered and rejected the harmless error stan-
    dard established in Kotteakos v. United States, 
    328 U.S. 750
    ,
    776 (1946), which formed the basis for the standard enunci-
    ated in Brecht. Therefore, the Court reasoned in Kyles, for all
    errors that derived from the Agurs materiality standard, there
    was no need to conduct a separate Brecht analysis. 
    Kyles, 514 U.S. at 436
    . Thus, for example, because the prejudice analysis
    in Strickland v. Washington, 
    466 U.S. 668
    (1984), derived
    from the Agurs materiality standard, federal courts do not
    conduct a separate Brecht analysis in ineffective assistance of
    counsel claims. 
    Kyles, 514 U.S. at 436
    ; see also Pirtle v. Mor-
    gan, 
    313 F.3d 1160
    , 1169 (9th Cir. 2002); Avila v. Galaza,
    
    297 F.3d 911
    , 918 n.7 (9th Cir. 2002); Jackson v. Calderon,
    
    211 F.3d 1148
    , 1154 n.2 (9th Cir. 2000).
    Applying the same logic, we concluded in Belmontes that
    the Agurs standard applies to Napue 
    claims. 350 F.3d at 881
    .
    Thus, once we have determined whether the Napue error was
    HAYES v. BROWN                             2777
    material under the Agurs standard, we do not conduct a sepa-
    rate Brecht examination. The materiality analysis is complete
    in itself; there is no need for a separate harmless error review.
    B
    The remaining question in this case is whether there is “any
    reasonable likelihood that the false testimony could have
    affected the judgment of the jury.” 
    Belmontes, 350 F.3d at 881-82
    . The jury convicted Hayes of the charge of first-
    degree murder under a felony murder theory, finding Hayes
    “guilty of a violation of Section 187 of the Penal Code of the
    State of California, to-wit: murder, in the first degree, com-
    mitted while the defendant was engaged in the commission of
    . . . a burglary.”3 The jury found true the special circumstance
    that Hayes committed a murder while “engaged in the com-
    mission of, or the immediate flight after committing burglary,
    a felony.”4
    [12] To convict Hayes of felony murder, the jury had to
    decide whether Hayes murdered Patel “as a result of the com-
    mission of” a burglary. Thus, a pivotal question before the
    jury was whether Hayes had formed the intent to burglarize
    the office before killing Patel. The State’s theory was that
    Hayes had lured Patel into the motel room for the purpose of
    murdering him so that Hayes could burglarize the motel’s
    3
    The jury received two first degree murder instructions. The jury was
    first instructed that “[a]ll murder which is perpetrated by any kind of will-
    ful, deliberate and premeditated killing with express malice aforethought
    is murder of the first degree.” The jury was also instructed as to felony
    murder, as follows: “The unlawful killing of a human being, whether
    intentional, unintentional or accidental, which occurs as a result of the
    commission of the crimes of robbery and/or burglary and where there was
    in the mind of the perpetrator the specific intent to commit such crime, is
    murder of the first degree.”
    4
    The jury also found that Hayes committed murder during the commis-
    sion of a robbery. However, the California Supreme Court overturned the
    robbery-murder conviction and the robbery special circumstance.
    2778                    HAYES v. BROWN
    office. Hayes’s theory was that a spontaneous fight occurred
    when Patel arrived at the motel room. Hayes contended that
    James was the one who initiated the office burglary after
    Hayes had come over to James’s room to get a ride away from
    the motel after the killing.
    [13] Thus, by any measure, James was a key witness.
    Indeed, there is little doubt that James’s testimony was the
    centerpiece of the prosecution’s case. Nearly all of the other
    evidence against Hayes was circumstantial. James was the
    only witness who testified that Hayes confessed to the murder
    and the burglary. The importance of this testimony cannot be
    understated. As the Supreme Court has observed: “A confes-
    sion is like no other evidence. Indeed, ‘the defendant’s own
    confession is probably the most probative and damaging evi-
    dence that can be admitted against him.’ ” Arizona v. Fulmi-
    nante, 
    499 U.S. 279
    , 296 (1991) (quoting Bruton v. United
    States, 
    391 U.S. 123
    , 139-40 (1968) (White, J., dissenting)).
    [14] Most importantly, James’s testimony was critical to
    the State’s burglary case, which was essential to both the first-
    degree murder conviction and the sentence. James testified
    that he went directly to his car without going to the office,
    that he did not participate in the burglary, and that the stolen
    property had already been placed in the car by Hayes. Hayes
    testified that he told James that he had killed Patel, that James
    went to investigate, and that Hayes next saw James burglariz-
    ing the office. Hayes’s version of events was partially corrob-
    orated by another occupant of the motel, Bearla May Wyatt,
    who testified that she saw James carrying things to Hayes’s
    car, “like he was moving out of an apartment.” The only wit-
    ness other than James who testified that Hayes had spoken
    about a burglary was James’s girlfriend, Michele Gebert.
    However, she provided contradictory and confusing testi-
    mony, first denying on direct examination that Hayes had said
    anything about burglarizing the office, then testifying on redi-
    rect that he had. Most of Gebert’s information came from
    James, and she provided her version of events only after she
    HAYES v. BROWN                      2779
    and James had discussed it for many hours, deciding what to
    do.
    The importance of James’s testimony was underscored by
    the prosecution in its closing argument, as it was in the
    defense closing. As defense counsel put it: “In this case, you
    can only conclude that Blufford committed a robbery or a bur-
    glary if you believe Andrew James beyond a reasonable
    doubt.”
    In sum, James’s testimony and credibility were crucial to
    the State’s case. Without it, there was only circumstantial evi-
    dence of the burglary, and only inference as to whether Hayes
    killed Patel “as a result of the commission of” a burglary.
    That, coupled with the testimony about James’s moving items
    to the car, easily “could have affected the judgment of the
    jury.” 
    Belmontes, 350 F.3d at 881
    (citation and internal quota-
    tion marks omitted). Thus, under Napue and Alcorta, the false
    evidence presented was material to both the murder convic-
    tion and the imposition of the death penalty, and the habeas
    petition must be granted.
    That the false evidence presented by the State dealt only
    with credibility does not change the materiality calculus. Not-
    ing that “[i]t is of no consequence that the falsehood bore
    upon the witness’ credibility rather than directly upon defen-
    dant’s 
    guilt,” 360 U.S. at 269
    (internal quotation marks omit-
    ted), the Supreme Court stated in Napue:
    The principle that a State may not knowingly use
    false evidence, including false testimony, to obtain a
    tainted conviction, implicit in any concept of ordered
    liberty, does not cease to apply merely because the
    false testimony goes only to the credibility of the
    witness. The jury’s estimate of the truthfulness and
    reliability of a given witness may well be determina-
    tive of guilt or innocence, and it is upon such subtle
    factors as the possible interest of the witness in testi-
    2780                    HAYES v. BROWN
    fying falsely that a defendant’s life or liberty may
    depend.
    
    Id. In Giglio
    v. United States, 
    405 U.S. 150
    (1972), the
    Supreme Court reversed a conviction for Mooney-Napue error
    because the State had failed to disclose a promise made to its
    key witness that he would not be prosecuted if he testified for
    the government. 
    Id. at 154-55.
    It also does not matter that James was subject to impeach-
    ment on the basis of his transactional immunity, drug addic-
    tion, and criminal record. As the Supreme Court noted in
    Napue:
    [W]e do not believe that the fact that the jury was
    apprised of other grounds for believing that the wit-
    ness . . . may have had an interest in testifying
    against petitioner turned what was otherwise a
    tainted trial into a fair 
    one. 360 U.S. at 270
    . For the jury’s determination of James’s cred-
    ibility, James’s past criminal record and drug history were of
    little import, given that Gebert, Hayes, and James were all
    drug users with clouded histories. James’s credibility was
    measured in comparison to his peers. James’s transactional
    immunity was of no value because there was never any dan-
    ger or suggestion that James would be charged in connection
    with this case. Unbeknownst to the jury, what was critical to
    James was immunity from prosecution for the pending felony
    charges. That was the factor that had made James reluctant to
    talk to the police in the first instance. Although James was not
    expressly told of the deal, it is quite evident that James should
    have known that something was afoot, because it was other-
    wise not logical for him to agree to be flown from Florida vol-
    untarily into a jurisdiction in which he was facing outstanding
    charges. Yet, thanks to the careful machinations of the prose-
    cution, James could deny the existence of any deal.
    HAYES v. BROWN                      2781
    The disclosure of an additional, secret deal would not have
    been merely cumulative impeachment. It would have demon-
    strated that the State was going to great lengths to give James
    a powerful incentive to testify favorably, to the point of let-
    ting him go free on unrelated felony charges. Presumably, the
    importance to the State’s case of James’s testimony is what
    initially led the prosecution to make the secret deal; likewise,
    the importance to James’s credibility of his false testimony
    regarding the absence of a deal is what led the prosecution to
    endeavor to keep that deal secret. Thus, the State achieved the
    desired effect of artificially bolstering James’s credibility
    without taking the more overtly unconstitutional step: having
    James testify affirmatively, but falsely, that there was no deal
    protecting him from prosecution of other crimes.
    If the jury had been informed of the critical deal, James’s
    credibility would have been affected. The jury was not per-
    mitted to assess whether James had an expectation of favor-
    able treatment that could have affected his testimony because
    the State affirmatively placed false evidence before the jury
    that there was no deal. See Campbell v. Reed, 
    594 F.2d 4
    , 7
    (4th Cir. 1979) (noting that the fact that the defendant “was
    not aware of the exact terms of the plea agreement only
    increases the significance, for purposes of assessing credibil-
    ity, of his expectation of favorable treatment”).
    [15] James would not have testified without the secret deal
    in place, because he was out of subpoena range and would not
    have been available for trial but for his agreement to be flown
    in for trial by the prosecution. Without the testimony of
    James, an entirely different trial would have occurred. If
    James had known of the secret deal and had testified about it,
    he would have been subject to impeachment — not only on
    the existence of the favorable deal, but also on the State’s
    attempts to keep the deal from the jury. The State could not
    have falsely buttressed his credibility before the jury. Thus,
    the violation of Napue was material.
    2782                   HAYES v. BROWN
    The violation of the State’s independent duty under Alcorta
    and Pyle was also material, perhaps even more so. To avoid
    violating Hayes’s due process rights by allowing false evi-
    dence to go uncorrected, the State would have been forced to
    disclose to the jury after James testified that James’s testi-
    mony concerning the lack of a deal was false; that a secret
    deal was in place concerning prosecution for the other crimes;
    and that the State had solicited James’s testimony to the con-
    trary knowing that he would be providing false evidence.
    Such a disclosure would have had a devastating effect on the
    credibility of the entire prosecution case. It would have
    affected not only the special circumstance verdict, but also the
    jury’s ultimate decision to impose the penalty of death. See,
    e.g., Silva v. Woodford, 
    279 F.3d 825
    , 855 n.25 (9th Cir.
    2002) (noting in a capital case that “whatever doubts the jury
    may have entertained about [the defendant’s] culpability as a
    result of the undermining of [the key witness’s] credibility
    may also have affected their assessment of the appropriate
    penalty to impose”).
    [16] Thus, Hayes has satisfied the Napue/Alcorta/Agurs
    materiality standard, namely, whether there was any reason-
    able likelihood that the presentation of the false testimony or
    failure to correct the record once the false evidence was pres-
    ented “could have affected the judgment of the jury.” Bel-
    
    montes, 350 F.3d at 881
    (citation and internal quotation marks
    omitted). The due process violations have undermined our
    confidence in the verdict. Because the constitutional error was
    material, we must reverse the district court and direct the
    court to grant Hayes’s petition for a writ of habeas corpus.
    IV
    In closing, we must observe that this case is not merely
    about a peculiar circumstance. As we have noted, this is not
    the first time we have been confronted in recent years with
    schemes to place false or distorted evidence before a jury. Our
    criminal justice system depends on the integrity of the attor-
    HAYES v. BROWN                       2783
    neys who present their cases to the jury. When even a single
    conviction is obtained through perjurious or deceptive means,
    the entire foundation of our system of justice is weakened.
    As we stated in Bowie:
    The authentic majesty in our Constitution derives in
    large measure from the rule of law — principle and
    process instead of person. Conceived in the shadow
    of an abusive and unanswerable tyrant who rejected
    all authority save his own, our ancestors wisely
    birthed a government not of leaders, but of servants
    of the law. Nowhere in the Constitution or in the
    Declaration of Independence, nor for that matter in
    the Federalist or in any other writing of the Founding
    Fathers, can one find a single utterance that could
    justify a decision by any oath-beholden servant of
    the law to look the other way when confronted by
    the real possibility of being complicit in the wrong-
    ful use of false evidence to secure a conviction in
    
    court. 236 F.3d at 1096
    .
    We reverse the judgment of the district court, and remand
    with instructions to grant the petition for a writ of habeas cor-
    pus.
    REVERSED AND REMANDED.
    TALLMAN, Circuit Judge, with whom KLEINFELD,
    GOULD, and BYBEE, Circuit Judges, join, concurring in part
    and dissenting in part:
    I concur in Parts I, II-A, II-B, and III-A of Judge Thomas’s
    opinion for the court. There are few things more repugnant to
    2784                       HAYES v. BROWN
    the fundamental notions of fairness embodied in due process
    than a prosecutor allowing false evidence to go uncorrected
    when it appears. Napue v. Illinois, 
    360 U.S. 264
    , 269 (1959).
    In their solemn constitutional obligation “as [ ] representa-
    tive[s] of the government to protect the integrity of the court
    and the criminal justice system,” Northern Mariana Islands v.
    Bowie, 
    243 F.3d 1109
    , 1122 (9th Cir. 2001), prosecutors have
    a “special duty commensurate with [their] unique power, to
    assure that defendants receive fair trials.” United States v.
    LaPage, 
    231 F.3d 488
    , 492 (9th Cir. 2000). The majority
    appropriately rejects the State’s argument that Napue and its
    progeny prohibit only perjury. The prosecutor’s failure to cor-
    rect the misimpression left on the jury and the court as to the
    full scope of the deal offered to secure the testimony of
    Andrew James, even though the witness himself was ignorant
    of all benefits he would realize from his cooperation, is as
    objectionable to due process as perjury.
    However, in considering all of the evidence presented to
    this jury in determining Hayes’s guilt, I respectfully disagree
    with the court’s conclusion that there was a reasonable likeli-
    hood that the information the prosecutor withheld from James
    and the court could have affected the jury’s verdict. In con-
    cluding otherwise, the majority misapplies the test for materi-
    ality and ignores the substantial evidence introduced at trial
    otherwise impeaching James’s credibility. I fear that by
    reducing the threshold of what is reasonably likely to affect
    a juror’s judgment the majority has effectively endorsed a per
    se reversal rule. Therefore, I dissent from Part III-B.1
    1
    I express no opinion as to the majority’s opinion in Part II-C. Because
    I would hold that there was no reasonable likelihood that knowledge of a
    more favorable deal for James could have affected the jury’s judgment,
    there is no need to consider whether this is a new rule of constitutional
    procedure that cannot be applied under Teague v. Lane, 
    489 U.S. 288
    (1989).
    HAYES v. BROWN                       2785
    I.
    Despite the majority’s unqualified claim that “if it is estab-
    lished that the government knowingly permitted the introduc-
    tion of false testimony reversal is ‘virtually automatic,’ ” Maj.
    Op. at 2764 (citing United States v. Wallach, 
    935 F.2d 445
    ,
    456 (2d Cir. 1991)), the Supreme Court has expressly directed
    otherwise:
    We do not [ ] automatically require a new trial when-
    ever “a combing of the prosecutors’ files after the
    trial has disclosed evidence possibly useful to the
    defense but not likely to have changed the verdict[.]”
    . . . A new trial is required if “the false testimony
    could . . . in any reasonable likelihood have affected
    the judgment of the jury[.]”
    Giglio v. United States, 
    405 U.S. 150
    , 154 (1972) (citing
    
    Napue, 360 U.S. at 271
    ). Thus, it is not enough to simply find
    constitutional error. Instead, contrary to the evidence before
    us in this record, even where testimony is demonstrably false,
    we are required to determine the materiality of the false evi-
    dence at issue by considering all of the evidence and deter-
    mining whether there was a reasonable likelihood that the
    false testimony could have affected the jury’s judgment.
    
    Giglio, 405 U.S. at 154
    ; 
    LaPage, 231 F.3d at 491
    .
    I disagree with the majority’s characterization of the mate-
    riality standard as an inquiry requiring the court to consider,
    not whether the verdict would have been different, but
    whether the trial was fair and the verdict worthy of confi-
    dence. The majority’s citation to Hall v. Director of Correc-
    tions, 
    343 F.3d 976
    , 983-84 (9th Cir. 2003) (Tallman, J.
    dissenting) is unavailing. In explaining the materiality stan-
    dard in a case involving false evidence, the Hall majority
    improperly plucked the materiality standard from Kyles v.
    Whitley, 
    514 U.S. 419
    , 434 (1995), an appeal involving a
    prosecutor’s alleged failure to disclose potentially exculpatory
    2786                    HAYES v. BROWN
    evidence. The standards, though similar, are not the same.
    See, e.g., United States v. Agurs, 
    427 U.S. 97
    , 103 (1976)
    (distinguishing the tests for materiality in cases alleging con-
    stitutional violation for the use of false evidence and cases
    involving the failure to disclose exculpatory evidence).
    The proper standard, and the one set forth by the Supreme
    Court, requires us to determine whether, in the context of all
    the evidence, there was a reasonable likelihood that the false
    testimony could have affected the jury’s judgment. 
    Giglio, 405 U.S. at 154
    ; see also 
    LaPage, 231 F.3d at 491
    . Employ-
    ing that standard, we must use caution in trying to peer inside
    the minds of jurors who had the distinct benefit of hearing all
    the testimony and seeing the evidence first-hand.
    II.
    To label the testimony of James “false” is a misnomer on
    these facts. Because James was never told of the secret side
    deal, James did not testify falsely when he declared that his
    prior felony charges were still pending and he truthfully testi-
    fied that he was unaware of any deals or promises made in
    exchange for his testimony. What offends due process is not
    James’s testimony, but the prosecution’s failure to correct that
    which the prosecutor knew to be false: James’s unwittingly
    untrue statement that he had no deal regarding his pending
    felony charges. 
    Napue, 360 U.S. at 269
    . The majority reasons
    that the prosecutor’s failure to correct James’s testimony kept
    from the jury impeachment evidence that it might have con-
    sidered in weighing James’s credibility. But, there is no link
    here between the prosecutor’s misconduct and its effect on
    what James knew at the time he testified about the murder and
    theft by Hayes. To claim, as the majority does, that there is
    a reasonable likelihood that James’s testimony, in which he
    truthfully swore he was unaware of any deal, affected the
    jury’s judgment also ignores the substantial amount of
    impeachment evidence adeptly employed by the defense at
    trial to impugn James’s credibility. It also ignores the fact that
    HAYES v. BROWN                      2787
    the witness himself was unaware of a benefit the law cautions
    us to suspect might lead a potentially biased witness to testify
    untruthfully.
    Critically, James testified that the State had given him
    immunity from all crimes related to Patel’s murder — a fact
    the majority completely discounts. There is no question the
    jury heard that James was testifying as part of a deal with the
    prosecution. That the deal also included future dismissal of
    different conduct is immaterial. The prosecution’s undis-
    closed agreement to provide James additional immunity is, at
    best, merely cumulative of evidence suggesting that James
    already had ample motive to color his testimony against
    Hayes. Cf. United States v. Cooper, 
    173 F.3d 1192
    , 1203 (9th
    Cir. 1999) (additional item of impeachment evidence could
    not have damaged witness much more and there was ample
    evidence of defendant’s guilt without the witness’s testi-
    mony); United States v. Marashi, 
    913 F.2d 724
    , 732-33 (9th
    Cir. 1990) (notes containing cumulative impeachment evi-
    dence were not material).
    Evidence that James had any kind of deal is relevant only
    to demonstrate that he had a motivation for testifying
    adversely against Hayes. However, any motivation James
    may have had to testify differently for the prosecution
    because the pending felony charges against him would later
    be dismissed was nullified because he did not know of that
    term of the deal. The testimony James offered simply could
    not have been influenced by a deal he knew nothing about.
    Thus, the wafer-thin likelihood that the jury would have been
    affected by James’s uncorrected statement vanishes alto-
    gether. Instead, the majority punishes the State for the due
    process violation without any regard to its lack of effect on
    the credibility of James’s actual testimony.
    The majority reasons that “the fact that the jury was
    apprised of other grounds for believing that the witness [ ]
    may have had an interest in testifying against petitioner [does
    2788                       HAYES v. BROWN
    not turn] what was otherwise a tainted trial into a fair one.”
    
    Napue, 360 U.S. at 270
    . This, however, is not a case of “other
    grounds.” It is simply invalidating an otherwise credible ver-
    dict based on prosecutorial misconduct alone. The jury knew
    that James had accepted a generous deal from prosecutors
    giving him transactional immunity for the Patel murder and
    burglary in return for his testimony. James’s deal for immu-
    nity from prosecution for his other pending felonies is not
    “other grounds,” but the very same grounds for questioning
    his motive to color the truth when he agreed to testify against
    Hayes: a substantial prosecutorial concession to secure
    James’s testimony. Not only is this duplicative of grounds
    already used to call James’s credibility into question, and thus
    not “other grounds” within the meaning of Napue, but it
    added nothing to the jury’s assessment of James’s credibility
    since he himself was unaware of it.
    James’s testimony, moreover, was far from pristine for rea-
    sons unrelated to further prosecutorial immunity. Specifically,
    James testified that he had received money, airline tickets,
    and other aid from the State in exchange for his testimony. He
    also admitted that he was still facing unresolved criminal
    charges that had been pending against him for the previous
    two years, and that he had also been convicted of petty theft,
    grand theft, and receiving stolen property. Yet, with all this
    evidence unquestionably undermining James’s credibility, the
    majority insists that had jurors heard that James also would
    later receive a dismissal of the pending felony charges — in
    addition to his truthful testimony that he received immunity
    for all crimes related to Patel’s murder — there is a reason-
    able likelihood that their judgment could have been affected.
    I cannot agree with the court’s conclusion that this redundant
    evidence of his motive to testify against Hayes was the straw
    which broke an already crippled camel’s back.2
    2
    The majority’s assertion that James’s credibility was measured against
    the credibility of his peers is unsupported by any of the evidence. Addi-
    HAYES v. BROWN                             2789
    The majority’s conclusion characterizes James as a “key
    witness,” without whom Hayes could not have been con-
    victed. That conclusion, however, ignores Michelle Gebert’s
    testimony, corroborating James’s story, that Hayes told her
    that he had robbed Patel, and that Hayes assured her that Patel
    would not say anything to the police. It also ignores identical
    modus operandi evidence from James Cross, who testified
    that Hayes had previously beaten him, demanded money, and
    tied his hands and feet with coat hangers — just as Hayes had
    done to Patel. It ignores the fact that after binding Cross,
    Hayes took additional money from Cross’s pockets and then
    sent his girlfriend to Cross’s room to look for more money.
    The court also departs from and misapplies the materiality
    inquiry required by Giglio. The court’s analysis goes critically
    astray by considering the effect on the jury, not of James’s
    actual testimony, but of excluding his entire testimony.
    Instead of considering what effect James’s truthful testimony
    could have had on the jury, the majority concludes that with-
    out James’s testimony and credibility, it is reasonably likely
    that the remaining circumstantial evidence, resulting in a
    weaker inference of burglary-murder, could have affected the
    jury’s judgment. See, e.g., Maj. Op. at 2781 (“Without the tes-
    timony of James, an entirely different trial would have
    occurred.”); see 
    id. at 2779
    (“Without [James’s testimony and
    credibility], there was only circumstantial evidence of the bur-
    glary[.]”).
    That is simply not the test for materiality. 
    Giglio, 405 U.S. at 154
    (“A new trial is required if ‘the false testimony could
    tionally, there is absolutely no evidence in the record that James’s transac-
    tional immunity was valueless in impugning his credibility. In making
    these inferential leaps that purport to delve into the minds of jurors sitting
    in the courtroom over twenty years ago, the majority does here that which
    it should not — substitute its own judgments for that of the jury by mak-
    ing express but unsubstantiated assumptions about the jury’s consideration
    of the evidence.
    2790                   HAYES v. BROWN
    . . . in any reasonable likelihood have affected the judgment
    of the jury[.]’ ”) (quoting 
    Napue, 360 U.S. at 271
    ). We must
    only consider the marginal effect that the testimony would
    have had on the jury’s verdict, if given fully and completely;
    not, as the majority proposes, consider the effect that exclu-
    sion of James’s entire testimony would have had on the jury.
    Id.; see also 
    LaPage, 231 F.3d at 491
    . No rational juror, con-
    sidering the baggage James carried to the witness stand,
    would have based his or her verdict entirely on what James
    said. There was ample other evidence to permit the jury to
    convict Hayes of the heinous crime for which he faces death.
    Considered in total, the case against Hayes is far stronger than
    the majority is willing to admit.
    Curiously, the court also postures its analysis as if James’s
    testimony would have suddenly become completely incredible
    if he had testified that he also had a leniency deal for his
    pending felony charges. Even without revelation of the secret
    deal, James’s credibility had already been called into substan-
    tial question in several ways. Yet, we cannot now say whether
    jurors disregarded James’s testimony and relied on Gebert’s
    testimony that Hayes told her he had robbed Patel, or whether
    they believed James’s story because it was corroborated by
    Gebert, the autopsy, and the physical evidence at the crime
    scene. An appellate judge’s place is not in the jury box, post
    hoc. We must only consider whether it is reasonably likely
    that this marginal addition to the evidence could have affected
    the judgment of the jury. I am satisfied on this record it could
    not.
    Though the prosecutor violated Hayes’s due process rights
    by failing to correct the misimpression left by the unwitting,
    but truthful testimony of Andrew James, because the majority
    ignores all of the evidence considered by the jury and misap-
    plies the test for materiality, I respectfully dissent from the
    court’s conclusion that Hayes is automatically entitled to a
    new trial for a crime he committed more than 20 years ago.
    

Document Info

Docket Number: 99-99030

Filed Date: 3/7/2005

Precedential Status: Precedential

Modified Date: 10/13/2015

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