Lawrence Denard v. J. Robertson ( 2023 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS AUG 8 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
LAWRENCE DENARD, No. 21-15610
Petitioner-Appellant, D.C. No. 3:19-cv-05474-WHA
v.
MEMORANDUM*
J. ROBERTSON,
Respondent-Appellee.
Appeal from the United States District Court
for the Northern District of California
William Alsup, District Judge, Presiding
Argued and Submitted July 19, 2023
San Francisco, California
Before: SILER,** WARDLAW, and M. SMITH, Circuit Judges.
Lawrence Denard appeals the district court’s dismissal of his pro se petition
for a writ of habeas corpus challenging his state conviction for first-degree murder,
attempted murder, shooting from a motor vehicle, and possession of a firearm by a
felon. The only issue on appeal is whether the prosecution violated Brady v.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Eugene E. Siler, United States Circuit Judge for the
U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
Maryland, 373 U.S. 83 (1963), by failing to disclose information about racist text
messages sent by its gang expert Lieutenant Tony Jones.
Because the parties are familiar with the facts of this case, we do not recount
them here. We review a district court’s denial of a petition for a writ of habeas
corpus de novo, and its findings of fact for clear error. Stanley v. Schriro, 598 F.3d
612, 617 (9th Cir. 2010). Exercising jurisdiction under 28 U.S.C. § 2253, we
affirm.
The district court did not err in holding that the California Court of Appeal
reasonably rejected Denard’s Brady claim. Federal review of habeas claims made
under 28 U.S.C. § 2254(d) is generally limited to the state court record. See Shoop
v. Twyford, 142 S. Ct. 2037, 2043–44 (2022). In the evidence Denard presented to
the state court, the only time stamp on the text messages was July 11, 2014,
suggesting that Lt. Jones sent the messages after the jury rendered its verdict in
Denard’s trial. Letters and declarations from the Alameda County District
Attorney’s Office the parties submitted during the proceedings state that the
District Attorney did not possess, or have any independent knowledge of, any
discoverable information related to the text messages. In addition, Sergeant
Michael Gantt did not complain about the racist text messages until August 2014,
two weeks after Denard’s sentencing, indicating that the prosecution was not aware
of the text messages until at least that time. Because “[t]he government has no
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obligation to produce information which it does not possess or of which it is
unaware,” Sanchez v. United States, 50 F.3d 1448, 1453 (9th Cir. 1995), it was not
“unreasonable” for the California Court of Appeal to conclude the prosecution did
not suppress evidence related to the text messages, Harrington v. Richter, 562 U.S.
86, 97–98 (2011).
Denard argues that the California Supreme Court and the district court erred
in ignoring that Lt. Jones sent the first racist text message on May 25, 2014, before
the conclusion of Denard’s trial, because the date of the text message was publicly
available at the time the courts reviewed his petition. But neither court can be
faulted for failing to consider evidence that was not presented to it. See Pizzuto v.
Yordy, 947 F.3d 510, 531 (9th Cir. 2019) (“[W]e cannot say that [a court] ignored
this evidence . . . when it was [the petitioner] himself that failed to bring the
evidence to the court’s attention.”).1
Denard also contends that Supreme Court precedent does not preclude Brady
from applying after trial but before sentencing. However, we have held that “the
1
Denard requests that we take judicial notice of documents from other litigation
that recognized the May 25, 2014, time stamp. However, we “may not take
judicial notice of proceedings or records in another cause [of action] so as to
supply, without formal introduction of evidence, facts essential to support a
contention in [the] cause [] before [us].” M/V Am. Queen v. San Diego Marine
Const. Corp., 708 F.2d 1483, 1491 (9th Cir. 1983). For this reason, and because
federal review of habeas relief under § 2254(d) is limited to the state record,
Shoop, 142 S. Ct. at 2043–44, Denard’s motion for judicial notice, Dkt. 11, is
DENIED.
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prosecution does not have an obligation under Brady to disclose exculpatory
evidence it discovers after trial.” Martinez v. Ryan, 926 F.3d 1215, 1228 (9th Cir.
2019) (collecting cases); see also District Attorney’s Office for Third Judicial Dist.
v. Osborne, 557 U.S. 52, 69 (2009) (explaining that “Brady is the wrong
framework” for postconviction relief). Moreover, even if such an obligation
existed, Denard provides no evidence that the prosecution was aware of the racist
text messages at the time they were sent.
Denard requests remand to the district court for further discovery and an
evidentiary hearing on whether the District Attorney was aware of the racist text
messages at the time of trial. However, as a threshold matter, “a federal habeas
petitioner seeking discovery or an evidentiary hearing must first overcome the
relitigation bar of § 2254(d)(1) and (d)(2) based solely on the record that was
before the state post-conviction court.” Jurado v. Davis, 12 F.4th 1084, 1101–02
(9th Cir. 2021). For the reasons stated, Denard failed to demonstrate that the
California Court of Appeal acted unreasonably in violation of § 2254(d). And,
unlike in Gonzalez v. Wong, 667 F.3d 965 (9th Cir. 2011), Denard offers no
indication that the prosecution possessed any documents that should have been
produced. See id. at 972. As a result, an evidentiary hearing is not warranted.
AFFIRMED.
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