Ricky Cooper v. Jo Gentry , 671 F. App'x 498 ( 2016 )

FILED
NOT FOR PUBLICATION
DEC 02 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
RICKEY DENNIS COOPER, No. 15-15755
Petitioner-Appellant, D.C. No.
3:97-cv-00222-JCM-WGC
v.
JO GENTRY, Warden, MEMORANDUM*
Respondent-Appellee.
Appeal from the United States District Court
for the District of Nevada
James C. Mahan, District Judge, Presiding
Argued and Submitted November 17, 2016
San Francisco, California
Before: MELLOY,** CLIFTON, and WATFORD, Circuit Judges.
The Nevada Supreme Court adjudicated Rickey Cooper’s claims under
Brady v. Maryland, 373 U.S. 83 (1963), and Napue v. Illinois, 360 U.S. 264
(1959), on the merits. See Cooper v. Neven, 641 F.3d 322, 333 (9th Cir. 2011). As
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Michael J. Melloy, United States Circuit Judge for the
U.S. Court of Appeals for the Eighth Circuit, sitting by designation.
Page 2 of 3
a result, we must review the Nevada Supreme Court’s ruling under the deferential
standard prescribed by 28 U.S.C. § 2254(d).
The Nevada Supreme Court determined that there was no “reasonable
possibility” that Donnell Wells’ recanted testimony or the prosecution’s failure to
disclose the payment of money to Wells affected the outcome of the trial. The
court based its conclusion on the fact that other evidence at trial established
Cooper’s guilt. For example, other eyewitnesses testified that Cooper was in the
front passenger seat of the car from which gun shots were fired; that Cooper
extended a gun out of the front passenger window; that Cooper fired the gun; and
that victim Ricky Williams ran away from the car, clutching his chest, as the gun
was drawn back into the car. In light of this evidence, the Nevada Supreme
Court’s decision was not contrary to, or an unreasonable application of, clearly
established federal law as determined by the Supreme Court of the United States.
Nor was it based on an unreasonable determination of the facts.
The Nevada Supreme Court’s application of the reasonable possibility
standard amounts to a ruling that Cooper failed to satisfy the materiality standard
necessary to prevail on either a Brady or a Napue claim. The reasonable
possibility standard is equivalent to the materiality standard for Napue claims. See
United States v. Bagley, 473 U.S. 667, 679–80 & n.9 (1985). And, because the
Page 3 of 3
materiality standard for Brady claims is more demanding than the reasonable
possibility standard, Strickler v. Greene, 527 U.S. 263, 291 (1999), failure to
satisfy the reasonable possibility standard necessarily forecloses relief under
Brady.
AFFIRMED.