COLIN RAKER DICKEY, Petitioner-Appellant, v. RONALD DAVIS, Warden, San Quentin State Prison, Respondent-Appellee.
No. 19-99009
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
May 31, 2023
D.C. No. 1:06-cv-00357-AWI-SAB. Argued and Submitted June 21, 2022. Pasadena, California. Before: Mary H. Murguia, Chief Judge, and William A. Fletcher and Morgan Christen, Circuit Judges. Opinion by Judge Christen.
OPINION
Appeal from the United States District Court for the Eastern District of California Anthony W. Ishii, District Judge, Presiding
Habeas Corpus / Death Penalty
On Colin Raker Dickey‘s appeal from the district court‘s denial of his
Dickey was sentenced to death in 1991 after a California state jury convicted him of robbery, burglary, and felony murder.
Dickey raised several certified claims, including claims that the prosecutor knowingly used false and misleading testimony in violation of Napue v. Illinois, 360 U.S. 264 (1959), and failed to disclose favorable material evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963).
The panel wrote that this is an exceptional case in which the prosecutor deliberately elicited, and then failed to correct, false and misleading testimony from the State‘s star witness, Gene Buchanan. The prosecutor went on to exploit Buchanan‘s false testimony in his closing argument. He also failed to produce evidence to the defense team that would have seriously impeached Buchanan‘s testimony. These
To obtain the death penalty, the State was required to prove special circumstances. The panel wrote that the record makes clear that the State‘s special-circumstances evidence depended on Buchanan‘s testimony. It also makes clear that the prosecutor recognized the jury would have ample reason to doubt Buchanan. To shore up Buchanan‘s testimony, the State asked the court to read aloud a California statute that put Buchanan on notice that he would subject himself to the death penalty if he lied under oath and Dickey was wrongfully convicted and executed. What the jury did not know—because the prosecutor did not correct the false testimony—is that Buchanan did lie to them under oath, even given the potential consequences for doing so in a capital case.
Reviewing under the deferential standard afforded to state-court decisions by the Antiterrorism and Effective Death Penalty Act (AEDPA),
The panel affirmed the denial of Dickey‘s certified guilt-phase claims related to his conviction for aiding and abetting the underlying robbery. First, the panel concluded the state court reasonably determined that the State‘s Napue and Brady violations were not material to the jury‘s guilt-phase verdict and that trial counsel‘s failure to investigate and impeach Buchanan was not prejudicial in the guilt phase. Separately, the panel separately concluded the California Supreme Court could have reasonably determined that Dickey failed to show guilt-phase prejudice stemming from counsel‘s strategy of seeking to select jurors who were predisposed to vote for the death penalty. Third, the panel concluded the California Supreme Court could have reasonably denied Dickey‘s claim that trial counsel should have withdrawn based on an irreconcilable conflict. The panel did not reach the merits of any of Dickey‘s uncertified guilt-phase claims.
COUNSEL
David Senior (argued), Matthew L. Weston, and Ann K. Tria, McBreen & Senior, Los Angeles, California, for Petitioner-Appellant.
Justain P. Riley (argued) and Kimberley A. Donohue, Deputy Attorneys General; Kenneth N. Sokoler, Supervising Deputy Attorney General; Michael P. Farrell and James
OPINION
CHRISTEN, Circuit Judge:
Colin Raker Dickey was sentenced to death in 1991 after a California state jury convicted him of robbery, burglary, and felony murder. He appeals the district court‘s denial of his federal habeas corpus petition filed pursuant to
This is an exceptional case in which the prosecutor deliberately elicited, and then failed to correct, false and misleading testimony from the State‘s star witness, Gene Buchanan. The prosecutor went on to exploit Buchanan‘s false testimony in his closing argument. He also failed to produce evidence to the defense team that would have seriously impeached Buchanan‘s testimony. These points are uncontested; the central issue in this appeal is the materiality of the State‘s Napue and Brady violations.
To obtain the death penalty, the State was required to prove special circumstances, and the record makes clear that the State‘s special-circumstances evidence depended on
Reviewing under the deferential standard afforded to state-court decisions by the Antiterrorism and Effective Death Penalty Act (AEDPA),
We therefore reverse and remand to the district court with instructions to grant a conditional writ of habeas corpus as to the jury‘s special-circumstances findings and imposition of the death penalty. We deny relief on Dickey‘s
I
A
Marie Caton and Louis Freiri were attacked at Caton‘s Fresno, California residence in November 1988. People v. Dickey, 111 P.3d 921, 928 (Cal. 2005). Caton‘s daughter, Lavelle Garratt, went to check on her mother on November 8 and discovered Caton unconscious in her bedroom. Id. Caton had been beaten and had multiple stab wounds. Id. She died of her injuries eleven days later. Id. Garratt found Freiri dead from stab wounds in the archway between the dining room and the living room. Id. When the police arrived, they discovered two suspicious knives in Caton‘s kitchen and a venetian blind cord wrapped around Freiri‘s neck. Id. The venetian blinds in Caton‘s house were all intact, and no usable fingerprints were found at the scene of the crime. Id. at 928 & n.2. Garratt told the police that she suspected her son, Richard Cullumber, had attacked Caton and Freiri. Id. at 928. Garratt explained that Cullumber was a drug addict who frequently asked Caton for money, and that Caton was known to hide large amounts of cash throughout her house. Id.
Cullumber lived in an apartment on Harvard Avenue in Fresno with Dickey and four other roommates, including Gail Goldman and Richard Buchanan. Id. Cullumber‘s roommates told the police that Cullumber had packed a bag and left the apartment on the night of the murders. Id. Five days later, Cullumber commandeered a car after the police tried to stop him, warning the driver: “I need the car; I‘ve already killed a woman.” Id. He was cornered after a high-
Several months after the murders, Buchanan saw a flyer at a convenience store announcing that Caton‘s relatives were offering a $5,000 reward for information leading to conviction of the perpetrator of the murders.1 Id. at 929 n.3, 930–31, 937. Buchanan left his name with the store clerk, and he was put in touch with Detective Doug Stokes. Id. at 930–31. Buchanan told Stokes that Dickey had been involved in the murders, and Stokes circled back to the Harvard Avenue apartment to continue his investigation. Stokes spoke to Goldman, who had initially denied knowing anything about the murders. Id. at 930. This time, she shared more information about events that night. Id. at 929–30.
Goldman died before the trial began, but her sworn testimony from Dickey‘s preliminary hearing was read into the record at trial.2 Id. at 929 n.4. In her preliminary hearing testimony, Goldman said that on the night of the murders she saw Cullumber take a venetian blind out of the hall closet in their apartment and go into the bedroom with it. Id. at 929. Later, she noticed the blind had been returned to the closet and a blind in the bedroom was missing a cord. Id. Goldman said that she saw Dickey walk into the kitchen that same night and open a drawer. Id. She initially testified that Dickey looked in a knife-and-silverware drawer, but she
Goldman also testified that she and Dickey were watching the news together shortly after the murders and saw a story reporting that Freiri was dead and Caton was still alive but near death. Id. Dickey became upset and told Goldman that he wanted to talk to her in the bedroom, and Buchanan followed them. Id. In the bedroom, Dickey told Goldman that he had accompanied Cullumber to Caton‘s house to “help [him] get the money,” but he had nothing to do with the two murders. Id. (alteration in original). Goldman recalled Dickey saying that Cullumber had assured him “nothing was going to happen,” and that at Caton‘s house, Dickey searched for money in Caton‘s bedroom with Caton present. Id. When Dickey stepped out of Caton‘s bedroom, he saw Freiri slumped over in a chair in the living room and “knew something had happened.” Id. Cullumber then “went beserk” and “came into the bedroom and started
Dickey was charged in Fresno County Superior Court with robbery, burglary, and aiding and abetting murder. Dickey v. Davis, 231 F. Supp. 3d 634, 653 (E.D. Cal. 2017). He pled not guilty to all the charges. Id. There was no physical evidence linking Dickey to the crime scene and no living witnesses to the crime. The State did not argue at trial that Dickey killed Caton or Freiri. It argued only that he was guilty under an aiding-and-abetting theory. Id. at 714–15. The State sought the death penalty and alleged a number of special circumstances that allowed imposition of the death penalty under California law. See
B
Goldman‘s preliminary hearing testimony was read to the jury, but her death left Buchanan as the State‘s primary living witness at trial.
Buchanan‘s trial testimony mirrored Goldman‘s preliminary hearing testimony in some respects. He too testified that Dickey and Cullumber left the apartment on the night of the murders, that they had no money when they left but had money when they returned, and that Dickey saw a news story about the crime a couple days later and admitted that he had been involved in the robbery. Dickey, 111 P.3d at 930.
But in key respects, Buchanan‘s testimony was much more incriminating than Goldman‘s. He testified that it was
Buchanan described following Goldman and Dickey into a bedroom at the Harvard Avenue apartment a couple days after the murders and hearing Dickey tell Goldman that:
him and [Cullumber] had been over to [Cullumber]‘s grandmother‘s house, and that they had entered the house -- how he had done it, how he had walked up to the door, knocked, faked like [Cullumber] was going to be in jail, needed to use the phone, and then [Cullumber] sneaked in, they were supposed to tie him them [sic] up, get this money and everything. And while [Dickey] is supposedly in the bedroom looking for the money he hears a commotion, looked out the bedroom door, sees an elderly man with his head slumped down, considers him dead, and that if you kill one you might as well kill them both.
When asked to clarify what he meant by the last statement, Buchanan said, “[Dickey] said that he -- only what he thought, he didn‘t say what he did. He said that, ‘If you kill
The jury heard testimony explaining that Buchanan did not come forward until he saw a flyer announcing the reward, several months after he heard Dickey‘s conversation with Goldman. Id. Buchanan testified that he came forward because of his Christian upbringing, not because of the reward money. Id. at 931. However, in her preliminary hearing testimony, Goldman said that Buchanan told her he intended to turn in Dickey so that he could collect the reward. Id. at 930. The jury also heard testimony from Dickey, Goldman, and the defense investigator that Dickey and Buchanan strongly disliked each other. Id. at 931. The defense investigator testified that Buchanan mentioned his dislike for Dickey every time they met, and Dickey and Buchanan both testified that Buchanan was particularly angry with Dickey because Dickey had torn up the only photo Buchanan had of his youngest daughter. Id. Adding to his credibility problems, Buchanan admitted at trial that he frequently used heroin and cocaine, that he had used drugs an hour or two before he heard Dickey admit his involvement in the robbery, and that he had continued using drugs as recently as the day before his trial testimony.
C
The prosecutor, Ken Hahus, labored throughout the trial to mitigate Buchanan‘s credibility issues. To buttress Buchanan‘s credibility, Hahus asked Buchanan to confirm
Immediately after the trial court read
Q. At anytime have you spoken with anybody who‘s told you they were from my office, from the D.A.‘s Office?
A. No, sir, only when they‘ve come to pick me up for court.
Q. You‘ve talked to me a couple of times; is that right?
A. Yes, sir.
Q. At anytime have the folks who‘ve come to pick you up from my office or me, have we bought you anything?
A. Not a single thing, sir.
Hahus and Buchanan both knew this testimony was false, but Hahus made no move to correct it. Instead, in his
Hahus also acknowledged in his closing argument that there were multiple reasons to doubt Buchanan‘s word. But he gave the jury his own opinion of Buchanan‘s truthfulness: “Do you think Gene Buchanan would lie for $5,000? Maybe. Do you think Gene Buchanan would lie to send a man to prison? I don‘t think so.” Dickey‘s lawyer objected, and the judge duly instructed the jury to ignore Hahus‘s statement.
Hahus then emphasized to the jury that Buchanan knew that under
He‘s still a street person, he‘s still a con, he didn‘t change just because he heard a man admit to burglary, robbery and murder; he‘s still the same man. But that doesn‘t mean that the truth cannot come out of the mouth of a drug addict. It can come out of the mouth of a drug addict just as well as it can come out of the mouth of a priest.
***
Do you think Gene Buchanan would lie to send a man to prison? Perhaps. Do you think Gene Buchanan would lie to send a man to prison that he doesn‘t like? Even more perhaps. Do you think Gene Buchanan would lie to send a man to prison behind a murder charge where Gene Buchanan himself could face a capital case for it?
There‘s honor among thieves. There‘s also something else; some things are more important than others, and even though he might be a sleazy hype, do you really think he made all this up for 5,000 bucks when it‘s this serious?
The jury convicted Dickey of two counts of robbery, one count of burglary, and two counts of felony murder. It also found true several special circumstances: (1) felony-murder robbery; (2) felony-murder burglary; and (3) multiple murder. Dickey, 231 F. Supp. 3d at 653. At the penalty phase, defense counsel presented no mitigation evidence but argued that Dickey did not deserve the death penalty because the State‘s theory of the case was limited to Dickey acting as an aider and abettor. The jury imposed the death penalty.
II
After Dickey was sentenced, the trial court appointed substitute counsel to represent him. Id. His new counsel filed motions for a new trial and to modify the verdict. Id. The motions argued that Buchanan‘s testimony concerning whether the prosecution provided him favors had been false and misleading.
The defense team also learned from Hahus that he had met with Buchanan “probably a dozen times before the trial,” not “a couple of times” as Hahus had posited in the leading question he had posed to Buchanan.
Hahus further disclosed at the post-trial hearing that Buchanan had lied to him about a consequential matter during their very first phone call. Hahus testified that Buchanan called him approximately a year and a half before trial and said that he had failed to appear at a hearing on felony drug charges. Buchanan wanted to know if a warrant had issued for his arrest and, if so, whether Hahus could get it withdrawn. Hahus recalled Buchanan telling him that he and his lawyer had met with Barbara Dotta, the prosecutor handling Buchanan‘s felony drug case, that Dotta had agreed to dismiss the charges against Buchanan because he was “a prime witness in the Dickey case,” and that Dotta purposefully kept this agreement off the record so Dickey‘s counsel would not know about it.
Hahus testified that he “came unglued” after receiving this call from Buchanan and “began yelling at [Buchanan] that that was a load of BS,” that no deal had been made, and that any deals made with witnesses in the Dickey trial would
Based on this newly discovered evidence and information, Dickey argued that the prosecutor had knowingly solicited and used false testimony in violation of Napue, 360 U.S. 264, and also failed to disclose favorable material evidence in violation of Brady, 373 U.S. 83. The trial court denied the motion for a new trial without addressing whether the State‘s knowing use of false testimony might have affected the jury‘s decision. Dickey, 111 P.3d at 944. Instead, the court focused on whether Buchanan had created a false impression in the minds of the jury about whether the State bought him anything. The trial court reasoned that the State “only acted as a conduit” and had not been involved in providing the benefit Buchanan received from the boarding house arrangement. Dickey, 231 F. Supp. 3d at 750. The court did not discuss Buchanan‘s false testimony that he had met with Hahus only a couple of times. Dickey‘s post-trial motions were denied, and he was sentenced to death in 1992. See id. at 653–54.
In 2005, the California Supreme Court considered Dickey‘s direct appeal, which included his Napue and Brady claims. Dickey, 111 P.3d 921. It affirmed his conviction and sentence. Id. Dickey also raised these claims in his first state habeas petition, which the California Supreme Court denied. The court denied the claims on the merits and also stated that
Dickey filed his federal habeas petition in 2007. The district court denied relief on his guilt-phase claims in 2017, Dickey, 231 F. Supp. 3d 634, and denied relief on his penalty-phase claims in 2019, Dickey v. Davis, No. 1:06-cv-00357-AWI-SAB, 2019 WL 4393156 (E.D. Cal. Sept. 13, 2019). The court granted a certificate of appealability (COA) as to whether the prosecution knowingly used false evidence in violation of Napue and failed to disclose favorable impeachment evidence in violation of Brady (Claim XIII).4 Id. at *153. Dickey timely appealed the district court‘s rulings. We have jurisdiction pursuant to
III
We review de novo a district court‘s denial of habeas relief. Avena v. Chappell, 932 F.3d 1237, 1247 (9th Cir. 2019). Because Dickey filed his federal habeas petition after
“In determining whether a state court decision is contrary to federal law, we look to the state‘s last reasoned decision . . . as the basis for its judgment.” Avila v. Galaza, 297 F.3d 911, 918 (9th Cir. 2002). When there is no reasoned state-court decision addressing a habeas claim, there is a rebuttable presumption that the state court adjudicated the claim on the merits. See Harrington, 562 U.S. at 99–100. In that circumstance, federal courts must consider what arguments could have supported the state court‘s decision and then ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with a prior Supreme Court holding. See id. at 102.
A state court‘s decision is contrary to clearly established federal law if it “‘applies a rule that contradicts the governing law set forth in [Supreme Court] cases’ or if it ‘confronts a set of facts that are materially indistinguishable from a decision of [the Supreme] Court and nevertheless arrives at a result different from [this] precedent.‘” Cook v. Kernan, 948 F.3d 952, 965 (9th Cir. 2020) (alterations in original) (quoting Williams v. Taylor, 529 U.S. 362, 405–06 (2000)). “Clearly established federal law” refers to the Supreme Court‘s holdings “as of the time of the relevant state-court decision.” Avena, 932 F.3d at 1247 (alterations
IV
Before the California Supreme Court, Dickey argued that the State violated Napue by presenting and failing to correct false or misleading testimony. Specifically, Dickey argued that the prosecutor elicited false testimony from Buchanan that: (1) the State had not provided any favors to Buchanan; and (2) Buchanan met with Hahus only “a couple of times” prior to trial. The California Supreme Court agreed that Buchanan‘s testimony created the false impression that the prosecution had not provided him any favors, but it did not address Buchanan‘s testimony concerning the number of pretrial meetings he had with Hahus. Dickey, 111 P.3d at 937–38. The court decided the State‘s Napue violation regarding favors was not material, reasoning that the prosecutor‘s failure to correct Buchanan‘s testimony could not have made a difference at trial. Id. at 938.
For nearly ninety years, it has been established Supreme Court precedent that a conviction violates due process if it is obtained through knowing presentation of perjured testimony. See Mooney v. Holohan, 294 U.S. 103, 112–13 (1935) (per curiam). In 1957, the Supreme Court held that a prosecutor‘s failure to correct a material false impression
To prevail on his Napue claim, Dickey bore the burden of showing that: “(1) 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.” Hayes v. Brown, 399 F.3d 972, 984 (9th Cir. 2005) (en banc) (alteration in original) (quoting United States v. Zuno-Arce, 339 F.3d 886, 889 (9th Cir. 2003)); see Napue, 360 U.S. at 269-71. The Supreme Court has repeatedly acknowledged that the introduction of false testimony is corrosive to the “truth-seeking function” of our adversarial system. United States v. Agurs, 427 U.S. 97, 103-04, 103 n.8 (1976) (collecting cases). The Court has thus explained that the materiality analysis for a Napue violation requires that a conviction “must be set aside if there is any reasonable likelihood that the false testimony could have affected the judgment of the jury.” Id. at 103-04 (emphasis added); see also Giglio v. United States, 405 U.S. 150, 154 (1972).
A
Dickey argues that the California Supreme Court recited the correct legal standard for his Napue claim, but based its decision on an incomplete assessment of Buchanan‘s false testimony, a misapplication of the Napue materiality standard, and an unreasonable determination of the facts.5
Q. At anytime have you spoken with anybody who‘s told you they were from my office, from the D.A.‘s Office?
A. No, sir, only when they‘ve come to pick me up for court.
Q. You‘ve talked to me a couple of times; is that right?
A. Yes, sir.
Q. At anytime have the folks who‘ve come to pick you up from my office or me, have we bought you anything?
A. Not a single thing, sir.
B
The last reasoned state-court decision addressing Dickey‘s Napue claim is the California Supreme Court‘s decision denying his direct appeal. Dickey, 111 P.3d at 936-38. The court rejected Dickey‘s Napue claim based on Buchanan‘s false and misleading testimony that personnel from the prosecutor‘s office had not bought him “a single thing.” Id. at 937-38. Focusing on the trial colloquy in which Hahus elicited responses to contrast the favors Buchanan received from the defense (beer on three occasions, lunch, and a pair of shoes) with the benefits provided to Buchanan by the prosecution, the court agreed that the prosecutor had knowingly created the false impression “that unlike the defense, the prosecution had done nothing for Buchanan that might reflect on his credibility.” Id. The California Supreme Court observed that the prosecutor “sought to exploit the false impression he had created” in his closing argument, but concluded that Dickey had not met his burden of showing the false testimony was material. Id. at 937-38. The court reasoned, “in light of other information the jury had about Buchanan‘s arrangement with the proprietor of the boarding house, as well as other indications of his interest in obtaining the reward, the prosecutor‘s action was harmless beyond a reasonable doubt.” Id. at 937; see also Bagley, 473 U.S. at 679-80, 679 n.9 (opinion of Blackmun, J.). The court did not mention Buchanan‘s false testimony that he had met with Hahus only “a couple of times.”
In a separate section of its decision discussing Dickey‘s challenge to the sufficiency of the evidence supporting the
Under the evidence, the jury was entitled to reach the following conclusions: The cord found around Mr. Freiri‘s neck came from the venetian blind in defendants [sic] apartment, and defendant was responsible for bringing it to Mrs. Caton‘s house. Defendant was also responsible for bringing the knife used to stab Mrs. Caton and Mr. Freiri. Defendant knew his intended victims were elderly and that Mr. Freiri was partially paralyzed, and so he could not have believed he and Cullumber, both younger men, needed the knife to commit the robberies. Therefore, defendant intended to kill, and not just rob, Mrs. Caton and Mr. Freiri. Moreover, defendant knew he could not escape justice if Mr. Freiri were left alive. Defendant had gained entry by saying he needed to use the phone because Cullumber was going to jail. Even if Mr. Freiri did not recognize defendant, he must have known Cullumber, who was an almost daily visitor to his grandmother‘s home. Mr. Freiri would have led the police to Cullumber, and Cullumber would have led them to defendant.
Two backdrops inform our analysis of Dickey‘s penalty-phase Napue claims. The first is the egregious lie Buchanan told Hahus, months before trial, that another prosecutor in Hahus‘s office had agreed to drop felony charges against him and keep that deal off the record so Dickey‘s counsel would not learn of it. The prosecutor‘s failure to produce his notes of their conversation is the basis of one of Dickey‘s Brady claims. The episode is a critical backdrop to the Napue claim because it put Hahus on notice that Buchanan was willing to lie if doing so served his own interests, even if the lie concerned a matter of considerable importance and even if the lie would inevitably be discovered.
The second backdrop for Dickey‘s Napue claims is the undeniable centrality of Buchanan‘s testimony to the State‘s special-circumstances case. The State‘s case for imposition of the death penalty depended on showing that Dickey harbored an intent to kill, and by Hahus‘s admission, “[t]he special circumstance finding came from the testimony of Buchanan.” Dickey points to the State‘s thin circumstantial evidence of his role, and argues that the entire basis for the State‘s argument that he harbored an intent to kill was Buchanan‘s testimony attributing to Dickey the thought: “if you kill one you might as well kill them both.” Buchanan was clear that this was something Dickey thought, not something he said when the crimes were committed, but the meaning and circumstances under which Dickey allegedly had this thought were never explained. Importantly, Goldman‘s account of the conversation she had with Dickey in the bedroom of the Harvard Avenue apartment made no mention of Dickey expressing this thought.
There is no question the State‘s case that Dickey acted with intent to kill was weak and circumstantial. There was no direct testimony or physical evidence of Dickey‘s involvement in the killing of either Caton or Freiri. The State identified Dickey‘s thumbprint on a blind collected from the Harvard Avenue apartment, but it is neither surprising nor incriminating that Dickey‘s thumbprint would be found on a blind taken from the home where he lived,9 and the State‘s expert was unable to conclude a cord sample
The circumstantial evidence that Dickey took a weapon to Caton‘s house was scant and contradicted. Detective Stokes testified that Goldman told him she saw Dickey remove a knife from the silverware drawer on the night of the murders, but the jury heard Goldman‘s testimony that she saw Dickey look in a drawer, that she was not sure which drawer, and that there was nothing unusual about Dickey‘s behavior. Goldman did not testify that she saw Dickey take a knife—or anything else—from the kitchen drawer on the night of the murders. Buchanan testified that the knife found at Caton‘s house looked similar to one Goldman owned and that he had last seen that knife lying on a bed at the Harvard Avenue apartment. This certainly implied that the knife used in the murders may have come from the Harvard Avenue apartment, but Buchanan‘s statement about the knife does not account for Goldman‘s sworn testimony that she told Stokes that: “[My knife] is in storage with all my stuff that I have in storage.”10
Worse for the State, Detective Stokes testified that Goldman told him Dickey retrieved a blind from the hall closet on the night of the murders, but the jury heard Goldman‘s recorded pretrial testimony that she saw Cullumber, not Dickey, get a blind out of the hall closet and take it into the bedroom. Detective Stokes‘s testimony also conflicted with Goldman‘s concerning the origin of the missing cord; he testified that Goldman told him the blind from the hall closet was missing a cord, but Goldman
The record provides little support for the State‘s argument that Goldman‘s testimony provided evidence that Dickey acted with intent to kill. Much of Goldman‘s actual testimony was not favorable to the prosecution, and the State relied heavily on Detective Stokes‘s account of what Goldman told him about the night of the murders. See Dickey, 111 P.3d at 929. Stokes‘s testimony was problematic for the State, not only because it was contradicted in several key respects by Goldman‘s pretrial testimony, but also because Stokes was forced to retract some of it. Most notably, the jury heard Stokes testify in some detail that Goldman told him she overheard Cullumber and Dickey talking about an “easy ripoff” and “money being hid” while getting dressed to go out together on the night of the murders. But Stokes acknowledged on cross-examination that Goldman had never said these things and abruptly recanted this part of his testimony:
Q. And yesterday you testified that she -- that she said she heard them talk about an easy ripoff?
A. Yes.
Q. That‘s not in your report, is it?
A. Not in this area, no.
Q. Is it -- attributed as a statement from Gail [Goldman], is that in your report anywhere? A. No.
Q. Gail [Goldman] didn‘t say that, did she?
A. No.
Q. Gail [Goldman] didn‘t say she saw anybody getting dressed to go out, did she?
A. Getting dressed to go out?
Q. Yeah, putting on hats and gloves and stuff like that?
A. No.
Q. That was your testimony yesterday, wasn‘t it?
A. Yes.
Q. That was wrong, wasn‘t it?
A. Yes.
In short, this is not a case in which the State‘s star witness had credibility problems that were rendered harmless by physical evidence or the testimony of other witnesses. Buchanan‘s ambiguous statement that Dickey thought to himself—at some point, before or after the murders—“if you kill one you might as well kill them both” was the State‘s best evidence that Dickey acted with intent to kill, and Buchanan‘s testimony on this point was unsupported by other evidence. As Hahus testified at the hearing on Dickey‘s motion for a new trial, “[t]he special circumstance finding came from the testimony of Buchanan.” Because Buchanan was the only one who testified that Dickey
On multiple occasions, the Supreme Court has found perjured testimony material under Napue when it bore on the credibility of a witness upon whom “the Government‘s case depended almost entirely.” Giglio, 405 U.S. at 154. In Napue itself, for example, the Court concluded the perjured testimony was material because it concerned the credibility of the State‘s “principal witness,” whose testimony “was extremely important because the passage of time and the dim light [at the scene of the crime] made eyewitness identification very difficult and uncertain, and because some pertinent witnesses had left the state.” Napue, 360 U.S. at 265-66; see also Giglio, 405 U.S. at 154-55 (finding Napue‘s materiality standard satisfied when a prosecutor falsely stated the State‘s star witness had not been promised immunity because this evidence “would be relevant to [the witness‘s] credibility and the jury was entitled to know of it“); Alcorta, 355 U.S. at 29-32 (finding Napue violation material because correcting false testimony from the only eyewitness to a murder would have impeached his credibility and corroborated the defendant‘s “sudden passion” defense).
Here, the California Supreme Court concluded the State‘s failure to correct Buchanan‘s false and misleading testimony about his housing-on-credit arrangement was immaterial because the jury already knew of the arrangement and Buchanan‘s desire to obtain the $5,000 reward. Dickey, 111 P.3d at 937-38. The court also noted that the jury heard evidence of Buchanan‘s drug addiction and that Buchanan and Dickey intensely disliked each other. Id. at 931, 937-38. The State argues on appeal that the California Supreme Court‘s materiality finding was reasonable because “there was already ample impeachment of Buchanan‘s credibility
We disagree. Our starting point is recognition of Buchanan‘s role as the State‘s star witness. In Napue, the Supreme Court held that false and misleading testimony from the State‘s star witness was not rendered cumulative or insignificant merely because the jury already had other reasons to distrust the witness. See Napue, 360 U.S. at 270. The prosecutor in Napue failed to correct the State‘s primary witness‘s false testimony that the State‘s Attorney had not promised him consideration in exchange for his testimony. Id. at 266-67. The Illinois Supreme Court had ruled that the prosecutor‘s misconduct was immaterial because “the jury had already been apprised that someone whom [the witness] had tentatively identified as being a public defender ‘was going to do what he could’ to help the witness, and ‘was trying to get something [done]’ for him.” Id. at 268. The Supreme Court reversed. The Court explained, “[W]e do not believe 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 turned what was otherwise a tainted trial into a fair one.” Id. at 270.
In the case before us, to conclude Buchanan‘s false and misleading testimony was harmless, it was necessary for the state court to decide there was no reasonable likelihood that his testimony could have made a difference to the jury‘s imposition of the death penalty. The California Supreme Court did not expressly acknowledge Buchanan‘s pivotal role at trial, but we must assume this was factored into its
The state-court decision analyzed Buchanan‘s false and misleading testimony only as cumulative evidence that Buchanan was biased against Dickey and motivated to ensure his conviction. Evidence that Buchanan had actually lied on the witness stand was an entirely new category of impeachment evidence that could have gutted the State‘s use of
The Court has explained that, when considering materiality under the more demanding Brady standard, “if the verdict is already of questionable validity, additional evidence of relatively minor importance might be sufficient to create a reasonable doubt.” Id. The other inconsistencies and evidence of Buchanan‘s bias therefore reinforce the conclusion that, if the jury had known that at least some of Buchanan‘s testimony had in fact been false, it could have easily made a difference to the outcome. Even “subtle factors” may be enough to find Napue materiality when “[t]he jury‘s estimate of the truthfulness and reliability of a given witness may well be determinative of guilt or innocence.” Napue, 360 U.S. at 269. Here, the jury‘s special-circumstances finding certainly turned on its assessment of Buchanan‘s veracity.
In light of Buchanan‘s pivotal role at trial and the weak evidence that Dickey acted with intent to kill, we are persuaded that this is the rare case in which
D
On de novo review of Dickey‘s Napue claim, we reach the same result. See Panetti, 551 U.S. at 953; Jones, 52 F.4th at 1115. The prosecution‘s failure to correct Buchanan‘s false and misleading testimony was material because Buchanan‘s testimony was the centerpiece of the State‘s case in support of the special-circumstances finding. We can see no room to doubt that, if the jury had known Buchanan testified falsely, there was a reasonable likelihood that this could have affected its decision to impose a capital sentence. See Agurs, 427 U.S. at 103; Bagley, 473 U.S. at 678 (opinion of Blackmun, J.). This conclusion accords with our circuit precedent holding that “[t]here is a substantial difference between ‘general evidence of untrustworthiness and specific evidence that a witness has lied.‘” Sivak, 658 F.3d at 916 (quoting Benn v. Lambert, 283 F.3d 1040, 1056-57 (9th Cir. 2002)); see also Jackson v. Brown, 513 F.3d 1057, 1077 (9th Cir. 2008) (finding Napue materiality because revealing a key witness‘s “obvious willingness to lie under oath” would have “cast doubt on his entire testimony“). As we explained in Sivak, correcting a witness‘s false sworn testimony can make a powerful difference in the jury‘s assessment of the witness‘s trustworthiness:
[I]f a witness‘s false testimony is corrected by the prosecution, his “willingness to lie under oath” is exposed and his credibility is
irreparably damaged. There is a substantial difference between “general evidence of untrustworthiness and specific evidence that a witness has lied.” “All the other evidence used by the defense to punch holes in the informant‘s credibility amount[s] only to circumstantial reasons why the informant might alter the truth to continue to feather his own nest. A lie would be direct proof of this concern, eliminating the need for inferences.”
Id. at 916 (second alteration in original) (citations omitted) (first quoting Jackson, 513 F.3d at 1077; then quoting Benn, 283 F.3d at 1056-57; and then quoting id. at 1057). Here, if Hahus had corrected Buchanan‘s testimony, there is clearly a “reasonable likelihood that the false testimony could have affected the judgment of the jury.” Agurs, 427 U.S. at 103.
We are particularly troubled that Hahus used leading questions to elicit Buchanan‘s false testimony. Unlike Napue violations in cases where witnesses have unexpectedly blurted out a misstatement or surprised a prosecutor with an embellished or volunteered response, Buchanan‘s false and misleading testimony came in the form of affirmative answers to Hahus‘s prompts—hence, the California Supreme Court‘s apt description that the prosecutor‘s closing argument “sought to exploit the false impression he had created.” Dickey, 111 P.3d at 938 (emphasis added). Given the weight the prosecutor put on Buchanan‘s credibility in his closing argument, imploring the jury that Buchanan deserved for them to believe him, and the prosecutor‘s frank assessment at the post-trial hearing that Buchanan‘s testimony comprised nearly the entirety of
V
We affirm the denial of Dickey‘s certified guilt-phase claims related to his conviction for aiding and abetting the
We first conclude the state court reasonably determined that the State‘s Napue and Brady violations were not material to the jury‘s guilt-phase verdict and that Schultz‘s failure to investigate and impeach Buchanan was not prejudicial in the guilt phase. Unlike the special-circumstances finding, Buchanan did not provide the only key evidence of Dickey‘s participation in the robbery and burglary. Goldman‘s statements corroborated some of
Because Buchanan was not the sole witness who provided critical evidence that Dickey confessed to Goldman that he aided and abetted the robbery and burglary, the California Supreme Court did not unreasonably determine that there was no reasonable likelihood the prosecution‘s Napue and Brady violations could have changed the jury‘s guilty verdicts. For the same reason, the California Supreme Court reasonably concluded that Schultz‘s failure to investigate and impeach Buchanan and his failure to call Strickland as a witness regarding the housing arrangement did not result in guilt-phase prejudice. See Richter, 562 U.S. at 105; Strickland v. Washington, 466 U.S. 668, 694 (1984).
Separately, we conclude the California Supreme Court could have reasonably determined that Dickey failed to show guilt-phase prejudice stemming from Schultz‘s strategy of seeking to select jurors who were predisposed to vote for the death penalty. Schultz explained that he pursued this strategy because he felt that jurors who “tend to be more pro death once they f[ind] guilt” also “demand[] they be absolutely positively convinced of the defendant‘s guilt” and
Dickey argues that Schultz‘s strategy was prejudicial because studies have found that pro-death-penalty jurors are also more prone to vote for conviction.13 Without more, this speculative argument is insufficient. Establishing prejudice “in the context of juror selection” requires a “showing that, as a result of trial counsel‘s failure to exercise peremptory challenges, the jury panel contained at least one juror who
Third, we conclude the California Supreme Court could have reasonably denied Dickey‘s claim that Schultz should have withdrawn based on an irreconcilable conflict. The
VI
We reverse and remand to the district court with instructions to grant a conditional writ of habeas corpus as to the special-circumstances findings and the imposition of the death penalty. The State may either grant Dickey a new trial on the special-circumstances allegations within ninety days or agree that he may be sentenced to a penalty other than death in conformance with state law. See Phillips v. Ornoski, 673 F.3d 1168, 1197 (9th Cir. 2012). We affirm the district court‘s holding as to Dickey‘s certified guilt-phase claims, but do not reach the merits of any of Dickey‘s uncertified guilt-phase claims or his non-Napue penalty-phase claims.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.15