*2 TALLMAN, Circuit Judges.

PER Oрinion; Dissenting CURIAM Opinion by Judge TALLMAN. * Lay, The Honorable Donald sitting by designation. P. Senior United Circuit, Judge Eighth States Circuit for the rights, process Hall’s due evidence violated

PER CURIAM: required. and a new trial is Harold prisoner state California jury of convicted Coleman *3 Nola killing for the of murder degree I.

first al- was based The conviction Duncan.1 custody August on taken into Hall was confession, ob- entirely on most 17, 1985, unrelated to the robbery for a an custody in for Hall was tained while in an placed He was Duncan murder. however, confession, crime. unrelated “informant’s jail known as area of the subsequent po- as suspect, rather 5, 1985, based September row.” On that various as- revealed investigation lice informants, po- from information received untrue. clearly Unable of it were pects regarding possi- lice interviewed Hall Hall to connect any physical find in murder. Hаll Duncan’s ble involvement murder, upon relied to the visiting a that while told Detective Crocker jailhouse aby provided two documents Vermont, he observed and friend at 48th Lee, informant, to corroborate Cornelius alley. female in the body of a dead “jailhouse notes” These Hall’s confession. later, days while also stated that two Hall testimony at trial without (cid:127)were admitted Terry at Jerry Knox and Ross talking with authenticity. their as to by the informant salon, brag Knox beauty he heard to be series purported The notes dumped and her he had killed a woman Lee and answers between alley. body in an however, Hall; Lee confess- after or innocuous innocent ed he had submitted inter- Crocker September On then erased and Hall and questions to photo and showed him two viewed Hall Hall had written his after alterеd them of Knox and lineups containing pictures make them incrimina- answers order photos correctly Hall identified Ross. testimony confirmed ting.2 Expert interview, During Knox and Ross. the documents. made on erasures had been that Knox and Ross Hall told the detective the fal- testimony regarding hearing After stat- and stabbed Duncan. He raped had notes, sification of with Knox and that he was in the car ed originally tried the who had judge trial Duncan’s they transported Ross when trial was neces- that a new case concluded alley. body dumped re- Appeal Court of sary. The California Arneson subse- Detectives Crocker and versed, not proven that Hall had finding pris- Knox was in quently discovered that false, believing apparently the notes were Sep- on at the time of the murders. On falsity judge had not found state 11, 1985, Detectives Croсker and tember that the Today we hold California either. jail. again Hall at the Arneson interviewed an unrea- decision was Appeal’s Court of time, Hall police gave For the first light the facts in sonable determination They thereafter con- Miranda warnings. to the state of the evidence information, and told him with this of this material fronted The falsification court. example, changed Lee testified that he de- 2. For convicted of the second 1. Hall was also Rainey jury gree you're David and the question "Homeboy, you do think murder special case, of murder circumstances found the robbery going get any time on the rape multiple of a during the commission case,” "possi- responded had to which Hall special and the cir- This conviction murders. ble,” you guys gril killed the to read "After appeal latеr overturned on cumstances [sic], you V-Dog two did kill her brother People insufficiency evidence. [sic]?” 1994). (Cal.App. April B062985 they lying. you guys him knew he was This time when put alley, her who murder, implicated her[?]” himself seen stating beauty shop that he arrived at the A: “Everybody was their the whole early 47th and Vermont in the Street Neabior Hood people.” even old morning hours on June 1985. Duncan Q: you killing “Did gril on 49th being held there a back room and Vermout. why you And did tell men, Terry four one of whom was Ross. they the ploice you know did it[?]” raping Hall and the other men took turns “(That yes) A: because They said took Duncan. The other men turns stab- will if ly.” book me I Duncan. Hall Duncan twice bing stabbed (E.R. 252.) *4 in the arm. The men then Dun- placed trial, At the defense offered evidence body can’s in the trunk of a car and three that Hall’s two oral statements were con- them, Hall, including alley drove to the tradictory, and his written statement con- dumped and body gave there. Hall tained multiple facts that contradicted evi- position body of the description that dence from the crime According scene. to police matched the crime scene descrip- confession, Hall’s written Todd initi- Smith returning tion. The men then discussed to ated and directed rape Duncan’s and mur- kill Rainey, because he knew that his sis- der, and body her was transported ter, Duncan, Nola was with them. Hall Smith’s car from the beauty parlor to the the group point left at that and heard later alley. questioned by Smith was Detective Rainey that had been killed. Detective Hall, Arneson. knowing Smith admitted writing, Crocker reduced this statement to any but knowledge denied of or involve- signed and Hall it. ment the murders. Smith’s car was September On Arne- Dеtective by police; examined his tires did not Lee, given son was two an documents prints match the of those found in the Ange- inmate on “informant’s row” in Los alley, and a forensic examination of his car County les Jail. The two documents were any did not reveal linking it to passed notes which Lee indicated had been the crime or to Hall. Smith was never Hall, back and forth between himself and charged. arrested or with posing questions Lee and Hall an- confession, According to Hall’s the back notes, swering them. The contents of the beauty parlor room of the where Duncan errors, including spelling grammatical raped was and murdered at 47th was were as follows: Vermont. At the owners of the beau- Q: you guys gril, “After killed the did ty that salon at location testified that it you V-Dog kill her brother room, had no back and that there had two[?]” signs entry, never been of a forced “possible.”

A: blood, any or evidence of bizarre occur- Q: “Okay, you guys befor killed her. rence. The owners that they testified you

Did she in joy makeing her by police. were not contacted Detective you make love you to how could Arneson testified that he did not search beauty tell[?]” salon because he never believed it was the scene of the crime. A: saying “Cause she was she did.” Q: “Hey, boy police you home want Hall’s Duncan confession stated that was

and V-Dog killing gril bad for that repeatedly raped prior to her murder. At on 49th Listing you trial, and Vemout. pathologist the forensic testified that going are to have to tell stop people opinion that Duncan had not was you gril. Okay killed that engaged activity sexual for at least two confession, discrepancies to According her and the death. prior hours stabbed, her in it. did contained Duncan was when off, proceedings brassiere was call Lee. Post-trial revealed open, her blouse was foren- to call naked. The chose not was otherwise and she this, prose- stating testify at the trial after he had told contradicted pathologist sic Dun- would what he surprised indicated that cutors be examination that his say. jury convicted had been moved or removed had to clothing can’s counts, in her brassiere both and he was sentenced life death. Cuts after her chest, parole. prison possibility her without the wounds on matched stab prob- she was pants on the indicated blood interview, Subsequently, in a post-trial her when she ably wearing pants deliberately having Lee admitted to fabri- stabbed. by changing *5 own, рromised manslaughter testi- Hall submitted and was a convic- murder on sug- mony pending from various individuals tion on his murder count. may killed for Duncan have been gested 1994, In a September Hall filed habeas PCP) (bad to a man selling water” “bad in the on the petition state trial court basis Powell, also Theadry who was named that his conviction a result of false as or Junior. known June jury. to the trial evidentiary hearing were admitted as held an on At Lee’s notes court the Following hearing, ‍‌‌‌‌‌​‌​​‌​‌‌‌‌‌‌​‌‌​‌​​​​‌‌‌‌‌‌‌​​​‌‌‌​​‌​​‌‌​​‍the defense coun- matter. the adoptive admissions over foundation, granted corpus of a objections sel’s lack writ of habeas and the notes as a hearsay, characterization of ordered new trial. admissions, prosecu- and relevance.3 hearing, At the Lee evidentiary testified Hall to the connecting tion’s evidence questions pencil, that when he wrote the statements, of crime consisted his two oral very he and applied pressure, little he statement, ob- and the notes his written questions positioned to leave blank no physical

tained from Lee. There was where he write in space could later new Hall to the connecting forensic evidence questions. Once he received the note back murder, Duncan’s or to the area where answer, with an from Hall he would erase body was found. original question in a and write differ- by prosecu- question

Lee’s notes were used ent above Hall’s answer closing incriminating.4 tion in to corroborate made the answer Hall argument its and notes, exhibits, admitting jailhouse questions 3. In the court a two total of four jury: four answers. instructed the (Tr. Tran.4637.) gentlemen, by way explana- Ladies and tion, dоcuments, people's exhibits these two evidentiary hearing May At an conducted 14, single both in this contained 1995, 16, question the first testified that by people are offered on the sheet here you originally "Homeboy, asked: do think questions theory represent case, asked you're going get any time on the Lee, caps, case,” in all Mr. Cornelius written robbery responded "pos- to which Hall defendant, given Mr. and answers (Evidentiary Hr'g May sible.” Tr. 1995 at Hall, 96.) caps, in not written all total two Lee testified that in the second something two answers on each of the he asked if Hall knew about presented testimony subsequently proven prosecution both to have been altered state, experts. from document review Hall’s ex- from their original as evidence in his al- pert types identified three different trial. It is the use of these twо exhibits as erasures, distur- terations on the exhibits: evidence at Hall’s trial that presents seri- fiber, overwriting. bance of First, ous concern. Hall claims that these exhibits constitute false and material evi- retrial, prior to the the Califor- upon based, dence which his conviction was Appeal, Appellate nia Second Dis- Court requiring a new trial. One, trict, Division reversed the trial court, holding prove by that Hall did not Illinois, In Napue v. 360 U.S. preponderance of the evidence that (1959), 3 L.Ed.2d 1217 Chief (In Hall, re *6 including constitutional issues the use of evidence; they the time were admitted into conviction, false evidence to obtain and however, Hall argue does that to allow his right the denial of his Sixth Amendment stand, conviction to present based on the against confront witnesses him. The dis- falsified, knowledge that the evidence was petitiоn. trict court denied Hall’s is a violation right process of his to due 10, 2002, Id.; under the April On Hall filed a Notice of Fourteenth Amendment. 97, 103, Agurs, court United States v. 427 Appeal. district construed the U.S. 2392, (1976); Appeal request Notice of a a as for Certifi- 96 S.Ct. 49 L.Ed.2d 342 Al 28, 31, Appealability granted Texas, cate of the re- corta v. 355 78 U.S. S.Ct. 23, (1957). 103, quest April 2002. 2 L.Ed.2d 9 In Brady Maryland, 373 U.S. II. 83, 1194, (1963), 83 S.Ct. 10 L.Ed.2d 215 A. Due Process Concerns Supreme prior reaffirmed Court its holdings suppression Hall’s basic claims5 relate to the of evidence fa admis- of, notes, a sion use vorable to the defense is denial of due (1) girlfriend Glynnis, Lee did with his who Hall 5. Hall also claims: he was denied the acquainted (Evidentiary Hr’g with. Tr. right self-representation, in violation of the 16, 101-03.) May replied, Amendment; 11, 1995 at (2) September that his Sixth saying "Cause she was she did.” Lee testified 1985, confession was coerced and involun- original question that in the third he asked (3) tаry; that he was denied his Miranda go "[D]id he to a certain individual's rights We have as to his first two statements. 'yes,' party, barbecue or and I think he said examined the record and find that these did, everybody something he was there or claims are without merit. (Evidentiary Hr'g May like that.” Tr. 97.) 1995 at 982 appear occurs his answers order to make them process denial of due and a

process, go false evidence to incriminating allows to Hall. Lee testified where state 1194(cit 87, 83 applied Id. at S.Ct. he questions, uncorrected. when he wrote Kansas, 317 U.S. 63 S.Ct. ing Pyle v. very light pressure. (1942); Napue, 360 U.S. L.Ed. 214 87 was under- judge The state habeas trial 1173). addition, at 79 S.Ct. story, and found standably leery of Lee’s “material” suppression held that Court liar,” also noted “plainly him to be but in a results coming that “we have more than Mr. violation, process regardless of wheth due have sсientific evidence into this case. We good part there is faith on the er letters, the corre- that establishes that Brady, 373 83 prosecution. U.S. him in- spondence between and Mr. Hall A if “the required new is S.Ct. indeed, cludes some erasures.” And any ... reason testimony false could testimony handwriting experts pro- of both judgment likelihood have affected the able support testimony. vided for Lee’s Both States, jury....” Giglio v. United era- experts testified that there had been 763, L.Ed.2d documents, on the and that sures (1972) Napue, (quoting 360 U.S. areas erasure due to might have missed 1173). 271, 79 S.Ct. many environmental factors that affect the The prosecution detection of alterations. Falsity B. opinion was consistent with Lee’s expert’s judge recog- As the state habeas trial for alter- testimony regarding his method nized, factual threshold expert stated thаt ing documents.

whether the notes were indeed false evi- if pressure soft lead was used and little dence. Pursuant to the Antiterrorism and he not be able detect applied, would Penalty Effective Death Act of 1996 the erasure.6 (“AEDPA”), may grant re- federal ‍‌‌‌‌‌​‌​​‌​‌‌‌‌‌‌​‌‌​‌​​​​‌‌‌‌‌‌‌​​​‌‌‌​​‌​​‌‌​​‍adjudication: testimony, supported by if Lee’s as lief the state court evidence, led the state trial court (2) scientific resulted in a decision that was based necessary. that a to conclude new trial was on an unreasonable determination of the *7 however, appeal, On the California Court presented in of the evidence light facts that the trial proceeding. Appeal apparently the State court of believed finding did not make a that the notes Packer, Early v. 123 S.Ct. false, were and thus did not accord the (2002); 154 L.Ed.2d 263 Williams v. findings “great weight” they to which 362, 412-13, Taylor, 529 U.S. (In Hall, are entitled. re No. B094232 at (2000); L.Ed.2d 389 28 U.S.C. 9.) However, trial, 2254(d)(2). in a granting new judge implicitly acknowledged trial a find- A critical of the evidence portion outset, ing of false evidence. At the presented to the state court was Lee’s judge falsity trial identified the of the testimony. up” that Lee testified he “set question: notes as the crucial provide allegedly self-inculpatory Hall to specific of falsifi- allegation [W]e have responses questions, purposes to his for cation And it would seem of evidence. securing a in his better deal for himself If to me that we should address that. own that Specifically, case. Lee testified necessary changed he Hall wrote additional evidence is to es- after accuracy judge 6. The dissent makes much of the trial conclusion that doubts about the having suggest rеliability thought Lee a liar. We this notes made a necessary. judge’s adds to new trial rather than detracts from that they a matter of law that that falseness termine as materiality once tablish not, I I I fear and find that have your with in connection has been shown grant moral but to require legal no choice might that desire for a new corpus writ of habeas you petition But I’d like additional evidence. here, Hall. which is order a new trial for Harold at issue on what’s focus 14 were not exhibits 13 and whether or granted That habeas court or fabricated falsely generated somehow in petition, light Hall’s the court’s state- trial. in with this connection throughout hearing regarding ments requirement prove that Hall -the exis- hearing have this is be- The reason we implicit indicates an tence of false evidence just which I have petitiоn cause of a finding by judge the trial necessary from, quoted which asserted had, indeed, falsely that the exhibits been notes, exhibit 13 and Cornelius acknowledged that judge altered. The with or fabri- tampered were somehow necessary prece- this false evidence was against to create false evidence cated materiality to find dent for the trial court I think proven, Mr. Hall. If that’s Thus, granted. in order for the writ to be the hear- mean that ends that moots—I granting petition, the trial court then the next ing. proven, If that implicitly, expressly, if not found the notes is, trial be or- should a new be false evidence.7 dered. there- Appeal, The California Court acknowledged judge expressly The trial fore, premise, from an incorrect proceeded materiality, applicable standard the trial court that “agreeing” with grant a new trial stating that order evidence, not false instead of notes were have to be found the false evidence would implicit trial acknowledging the court’s jury’s to material to the verdict: be an un- finding were. This was reasonable determination of the facts case. It was an unusu- I remember this light of the evidence many parts, and the evidence al case evidentiary hearing. The the state court quite strange parts some (defense) judge necessarily found state habeas And I think that different. false, finding was the notes to be and this point an accurate when counsel makes “great weight.” entitled to that these exhibits had to be urges he way material. There’s no Materiality C. have been can find them not to Court automatically A to these two new trial is not material. So it comes back think, Court, falsе evidence is discover required I has to when exhibits. This *8 Rather, materiality of finding of “[a] evidence ed. find that because the scientific Brady, ... required is under there were alterations the evidence establishes that required if ‘the false testi Mr. Lee’s new trial is point, [a] at some and because alterations, likeli mony any could ... in reasonable testimony to those for as have, judgment of the hood have affected may may value it or whatever at 92 jury....’” Giglio, 405 U.S. to the trier of fact to presented was not statements, Napue, U.S. at (quoting 360 in S.Ct. evaluating assist it these 1173). “The is not 79 S.Ct. these exhibits I think were and because likely decision, would more more whether the defendant jury’s material to the or verdict not have received a different certainly I cannot de- than precisely because (emphasis testimony judge evidence." 7. The also found that Lee's supported scientific added). was not "except that it is credible to the extent 984 evidence, crime,

with the but whether its ab- match the evidence of the and the trial, descriptions he received a fair understood position sence and location of resulting worthy body a a verdict public knowledge. as were Once Kyles Whitley, confidence.” U.S. Hall’s statements were shown to contain L.Ed.2d 490 multiple discrepancies, the notes (1995) (reversing remanding where importance. took on added state, evidence, undisclosed was this, Recognizing closing argument, “material,” meaning to be it found the prosecutor urged jury rely defendant, favorable to the and the was corroborating the notes as evidence of at trial absence of this evidence under- guilt. responding Hall’s to the defense mined confidence in the outcome of the confession, attacks on prosecu- trial). stated, “you tor have a handwritten note defendant, by the which the defense didn’t In addressing Hall’s claim of false try explain, where he also admits liabili- evidence, of Appeal the California Court ty.” used Lee’s notes to deciding that *9 bility jailhouse of the notes and the absence of AEDPA, although emphasizing proper and cognizant Lee as a fully witness. We are findings, due deference to the state court’s did power the limited review of the federal courts not eliminate federal habeas review. Where Supreme real, under AEDPA and the Court deci there are credible doubts about the ve- Packer, 3, Early sions of v. 537 U.S. 123 S.Ct. racity person of essential evidence and the 362, (2002), it, 154 L.Ed.2d 263 and require who created AEDPAdoes not us to Woodford Visciotti, 19, eye. 537 U.S. lying turn a blind Was Lee when he the ma- Conspicuous by its absence from material evidence false and Because the case is the evidence jority’s of his view of trial in violation at Hall’s admitted that: the rights, we REVERSE process due court with instruc- (cid:127) of the district

judgment experts the testified that some While an it should issue unconditional tions that on the notes had been questions of the unless the state corpus (a writ of habeas altered to a small extent letter here a new trial within grants Hall there), experts the also testified and man- of this court’s days of the issuance that there were no alterations date.9 incriminating por- the most some of that questions

tions of the and none of questions the had been erased their TALLMAN, Judge, dissenting. Circuit claimed; entirety, as Lee and by the Despite repeated admonishment (cid:127) that he forced the vic- Hall confessed Court of this Supreme States United him, orally copulate tim to stabbed again once jurisprudence, habeas court’s arm, right the victim twice on the ignoring the my colleagues persist position knew the location and the the in order to AEDPA of review standard in, body was left and knew that the state court deter- invalidate a reasonable wounds on her victim suffered stab in a 1985 murder case. guilt mination of chest, all of which was corroborated court’s reading think after One would evidence from the crime by physical clearly that record established opinion results, and autopsy scene and could following two facts: only by have been known the victim’s (cid:127) testimony regarding expert murderers. notes at the state erasures on the suffiсiently facts Because these overlooked buttressed proceeding court collateral guilt Hall’s confession of corroborate changed claim that he had all Lee’s appellate court determi- render the state on the notes after reasonable, objectively respectful- I ‍‌‌‌‌‌​‌​​‌​‌‌‌‌‌‌​‌‌​‌​​​​‌‌‌‌‌‌‌​​​‌‌‌​​‌​​‌‌​​‍nation answers, Maj. atOp. see provided ly dissent. 982; 979-980, 980, I (cid:127) to homicide de- that Hall’s confession habeas relief grant at We cannot “suspect,” tectives was so id. the state court’s determination “curious case unless “contradictory,” id. uncorroborated,” an unreasonable determina id. at was “based on largely light of the evidence tion of the facts “multiple and full of inconsisten- inaccuracies,” id., proceeding.” in the State court that it was cies and 2254(d)(2). In Torres v. value and 28 U.S.C. prоbative of little or no (9th Cir.2000), 1103, 1108 Prunty, 223 F.3d have discredited should been governing the we found that the standards jury. who, present jurist being at Hall’s hearing virtue of preliminary testified unique position to understand were authentic or when he later swore was in a notes falsely absence. impact incriminate the notes and Lee’s were altered to miscarriage justice, To avoid a Hall? decision that a new 9. Because of our jury should make trial court concluded that question of necessary, we do not reach the determination in a new trial with subject the introduction to cross- whether present as a witness testimony also violated nothing without Lee's opinion *10 trial, determination” clause of state court collateral and that “unreasonable his 2254(d)(2) equivalent § to the stan testimony by was bolstered scientific evi- appli thе “unreasonable governing dards affirming dence that he had erased all the 2254(d)(1). §of At cation” clause incriminating questions. The record time, improperly case law instructed our paints picture. a different application” of that an “unreasonable Su Lee preliminary hearing testified at the meant that preme precedent Court before Hall’s criminal trial. Lee con- application clearly erro state court’s firmed that he had questions written the Tran v. Lindsey, F.3d neous. See Van the notes to Hall while were on (9th Cir.2000). 1143, 1153-54 “informant’s Angeles row” the Los subsequently That standard correct- County jail. Although the notes were ad- application” “unreasonable for- ed. Our mitted during not deferential enough mulation was decided not to call Lee as a witnesses. Instead, state courts under AEDPA. Then, at pro- the stаte court collateral Supreme Court told us “unreasonable ceedings, flipped. He there claimed just more than application” means “clear error,” questions he had erased all the after but instead means decision that is “objectively Lockyer unreasonable.” v. Hall had answered them. Lee asserted — Andrade, ——, -, preliminary that he had lied at the hearing (2003). L.Ed.2d 144 We because two homicide detectives threat- (even error clear “conflat[e] are not to ened to kill his mother. He also insisted error) unreasonableness,” with for the for- that at deputy attorneys least two district give proper mer “fails to deference to state had him instructed to lie. courts.” Id. hearing judge, understandably, Yet, in Torres the rule remains unblem- found Lee to be than less credible: governing ished: the standards unreаson- Cornelius Lee has testified this case. 2254(d)(2) § for are the same ableness If Cornelius Lee were to tell me what for standards unreasonableness under was, I time it would still want to look at 2254(d)(1). Thus, § the “objectively un- the clock. reasonable” standard reaffirmed Lock- I do not believe much of what he said. 2254(d)(1) yer applies § equal with He plainly a liar. I almost wanted to question presented today force to the have the bailiff 2254(d)(2). clean the witness stand governed by § after he left. Moreover, AEDPA, under state court (E.R.244-45.) Only one conclusion can factual be findings presumed are correct. 28 2254(e)(1). Only if a reached from this petitioner credibility U.S.C. assessment: presents “clear and convincing to, evidence” nothing Lee testified whether of an may erroneous factual determination preliminary hearing or at the сollateral we a state court finding. overrule factual proceedings, should be believed without Id. corroborating evidence. court, therefore, The state was left with

II only the scientific A hearing. the collateral expert, The state’s Montilla, Manuel testified that: majority’s description of the state (1) he was “certain” that none of the proceeding implies collateral Lee, conscience, troubled on the notes had finally totally been came truthfully erased; clean and testified at the *11 (2) that because there place took were went on to find were erasures that the original the note letters, pages some alterations on not total phrases and around and because Lee testified at never lines; petition for a writ of habeas (3) found in the no erаsures were corpus should be granted. have to “Listing you going are phrase Appeal The State Court of California you gril”; that killed that stop people tell reversed, finding that the were not notes (4) question in the only the erasures that the lower explained false. The court in you guys put alley, her “Okay when found that the notes expressly court never and “u” in “y” seen her” was the who appellate The were “false.” court held “y” “alley”; and in “you” and the “a” that the scientific evidence established that (5) question in the only the erasures changed the notes not as substantial were you gril, killed the did you guys “After as Lee claimed. The court reasoned ly kill her two” were V-Dog and brother place that the that did take are erasures “V-Dog” in and “gril,” “g” the “1”in the struggling with with consistent someone “MU”; the “k” in erasing ques entire spelling, not someone (6) only phrase erasures the (Cal. No. B09432 tions. See In Re: you want and “Hey, boy police home 23, 1996). Ct.App. July “V-Dog”; and V-Dog” “g” was the issue with the state majority The takes (7) had kUling” “bad for phrase the notes appeUate court decision some erasures. majority The were not “false.” states Kuhn, that: Kurt testified expert, pro- ... Appeal the “California Court premise, ‘agree- ceeded from an incorrect (1) conclusively erasures were found no court that the notes ing’ with the trial guys Mlled you in the “After evidence, not instead of ac- false kill her gril, you V-Dog did and implicit the trial court’s find- knowledging two,” only possible and the even brother Maj. ing they Op. were.” “1”in “gril”; erasure was the majority playing games The semantic (2) ques- erasures were found no assumptions it over the gloss order gril on 49th you Mlling tion “Did by the record. unsupported makes that are Vermout, tell the why you and did that the trial court found It is true it”; you did ploice know part. equal- It is possibly *12 988 here, equated trial court say that But the trial court—if accepts

to one complete falsity. alterations with partial majority’s premise the evi- —found dence was false while finding also appellate accepted But the state court could not be believed and that the amount in part. that the notes were altered the fact significance of the erasures was reasonably appellate What the court took With dispute. these factual determina- implicit is the conclusion—if issue with established, appellate tions court sim- one at all—that this ren- indeed there was words, ply legal dered the notes “false.” other corrected the trial court’s error evidence, “unreasonable determination there was no and held that this under Califor- ” claims, majority as the but law, nia did not meet Hall’s burden to facts the significance instead a conclusion about falsity in justify establish order to habeas facts. agreed-upon relief. by And this conclusion the California reasonable, only This conclusion was not objectively Appeal was reasonable Court it was majority’s holding correct. The to- considers the when one standards it day ignores the proper appellate role the proceedings. must to state habeas apply played correcting court the trial court’s law, Hall had the Under California burden legal error. Even if one were to assume by that the notes were prove false that the trial court did find that the notes the evidence. preрonderance of See In re erased, completely based on the rec- Sassounian, 535, Cal.Rptr.2d 9 Cal.4th 37 appellate ord the rightly stepped court (1995). 527, P.2d 534 887 Based on and corrected the trial court’s erroneous proof, this burden of California courts re- factual determination. To believe that the ject “falsity” claims of when it is unclear notes are completely false is to believe whether evidence introduced at trial was Cornelius Lee and disbelieve the scientific See, completely e.g., false or not. In re evidence, something the record will not Roberts, 29 Cal.Rptr.2d Cal.4th 128 allow. The merely scientific evidence (2003) P.3d 174 (refusing erasures, shows minor and that none of the testimony label that was trial later recant- questions were entirety. erased their ed because it as “false” wаs not clear However one examines the California testimony, whether the or the recan- decision, Court Appeal’s it was well- tation, truth); actually was see also within the objective contours of reason- Croft, United 124 F.3d States (9th Cir.1997) ableness. To conclude say otherwise is to (holding testimony that trial simply really not “false” “unreasonable” because contradicts means “we dis- prior testimony). agree” proposition Supreme Court —a grant petition “So I because I think But whether Lee would or would not testi- [Hall] is innocent ... but because there fy, justice and whether that would serve in a this, player is a middle of all an obvi- trial, nothing new has to do with whether ously sleezy liar the name of [sic] Corneli- Thus, *13 quickly plowing after majority, exactly description tion. His matched how analysis, compounds “falsity” through body actually fоund. materiality by sub- discussing in its error appel- the state there inconsistencies Hall’s ver- judgment for Were stituting its court, impermissible.2 is also Yes. But does that make late which sion of events? Appeal of concluded: The California Court Hall’s confession worthless? Of course notes, not, event, pre- when one considers the independent especially any overwhelming evidence of Hall knew that someone there was cise details police He confessed to guilt. Hall’s in the murder could have participated who have inter- Duncan to that he forced majority’s gross generaliza- known. The arm, course, twice in the stabbed her of this information was tion that some her while others stabbed held her down simply is incorrect and “public knowledge” chest, body to the and drove her in the anywhere in the record. A unsupported He de- alley it was discovered. where body Duncan’s from the bystander seeing in which unique position scribed street could not have determined No more body was found. Duncan’s raped Duncan was or that she was stabbed his convic- support required twice the wrist. on ... tion. originally Hall’s criminal case Were majority 11. The holds In Re: in federal court and before us tried now. unreasonable. that this conclusion was review, question of whether the direct majority’s rhe- employing Instead of they were false—were assuming notes— Hall’s characterizing of strategy torical theory, be a close one. might, material adjectives and disparaging confession with unreasonable for the objectively But was it report what Hall simply I’ll generalities, of to conclude that Appeal California Court confessed to. not material when Hall the notes were states that Dun- signed confession physical evi- to the murder confessed orally copulate Hall. Lab can was forced to To dence corroborated confession? that Duncan’s mouth con- tests showed to answer it. ask the is tained semen. that he stabbed her twice Hall confessed Ill noted Investigators arm. right right on her often, Duncan had two stab wounds the letter in violation of both Too at trial indicates Evidence adduced wrist. AED- comity spirit AEDPA and the not have been able to see that one would embraces, mightily court strains PA this standing Duncan’s wrist unless cor- petitioner habeas grant a state court directly body. over Packer, See, Early v. 537 e.g., pus relief. L.Ed.2d 263 154 S.Ct. Duncan that he held

Hall confessed Visciotti, (2002); 537 U.S. chest was stabbed down while she Woodford (2002). 154 L.Ed.2d Duncan Investigators notеd by others. 2254(d), (1) § court subpart materiality majority assumes that 2. The 2254(d)(2). governed by objectively question of fact reasonable. decision is (2) subpart properly under Whether examined today we announce is a con- The decision improper operandi. modus

tinuation of not, public policy or

Be it sound through Congress. spoken

people have AEDPA, Congress severely has cir-

Under courts to power

cumscribed the federal

overturn state convictions. Under ‍‌‌‌‌‌​‌​​‌​‌‌‌‌‌‌​‌‌​‌​​​​‌‌‌‌‌‌‌​​​‌‌‌​​‌​​‌‌​​‍standards, we cannot substi-

these strict judgment

tute our for the state court’s Instead, like

judgment. case

challenging findings, state court factual passive a more and academic inqui-

ours is

ry: objec- is the state court determination case,

tively reasonable? This as the dis- found, surely

trict court falls within the

category that meet this standard. of cases majority’s contrary conclusion to to the nothing applica- short of a return pre-AEDPA

tion of standards —at best. longer respectfully

This is the law. I no

dissent. Joseph FORN,

Albert Petitioner-

Appellant, HORNUNG, Warden,

Thomas A.

Respondent-Appellee.

No. 02-55287. Appeals,

United States Court of

Ninth Circuit.

Argued March Submitted 2003. Sept.

Filed 2003.

As Sept. Amended cated the after written his an- attempted to show Hall had Hall also reason by someone else. swers. Lee he were committed testified murders Dun- from lied because the threatened to police information obtained Based on husband, lie, investigated her kill him and his if he did not who had mother can’s

Notes

false. No. Court, Justice Warren wrote for 1996)). (Cal.Ct.App. July B094232 “First, it is established that a conviction petition for review in the California through evidence, obtained use of false Supreme (People was denied. Court by representatives known to be such (Cal. 1996)). No. B094232 Nov. State, must fall under the Fourteenth Subsequently, Hall filed three state habeas Amendment, ... The same result obtains petitions, Supreme two in the California State, although when the not soliciting Court and one the California Court of evidence, false go allows uncorrected All Appeal. petitions three were denied. (internal appears.” when it Id. citations omitted). timely petition filed a for a writ of corpus habeas federal district court un- Hall does not claim that der 2254. He 28 U.S.C. raised several knew that the notes were false

assumed without confession, jury corroborate Hall’s but the material, and thus there was no clear never had the opportunity to hear Lee holding respect with to this claim. Later testify and to assess his demeanor and however, opinion, addressing when veracity. finding similar required claim which complete the notes defense of established a precisely why This is the state trial innocence, the court that there stated was (who judge presided had original over the “overwhelming guilt” of Hall’s in trial) concluded that the notes were mate- dependent of the To the extent notes. rial jury’s decision. There is a deference, finding is entitled to AEDPA it reasonable likelihood that the introduction was also an unreasonable determination in of the falsified notes jury’s affected the light of the evidenсe at Hall’s verdict in this Giglio, case. U.S. trial. 154, 92 S.Ct. We have no confidence in the verdict under these circumstances. absolutely physical There was no or fo- Kyles, 514 115 S.Ct. 1555. In connecting rensic evidence to the light of body already it scant alley which was found. evidence on based, which the guilt conviction was other evidence of Hall’s and the emphasis largely curious and uncorroborated the notes thus took on at the confession, trial, original which was shown to contain for unreasonable multiple inconsistencies and inaccuracies. California Court of Appeal to conclude oth- For the part, most the confession did not erwise.8 not, colleague (2002). 8. We do sug as our in dissent L.Ed.2d 279 For the reasons we have gests, judgment majority opinion, substitute our own for that of set forth in the we have analysis aрpellate judg- court. Critical to our concluded the state court’s judge through objectively the same ment to be who sat unreasonable. entire This synonym determination state is not a mere concluded that a new trial was clear error. necessary because of doubts about the credi

more examination. Our does Clause. judgment the Confrontation respect or less than

erased (3) “partial” erasures were found some never, implicitly trial court ly true that the “okay you guys phrases in the befor notes were explicitly, found that okay gril, and “Mlled that when Mlled” Indeed, testified. false in total as Lee you.” repudiated expert doing so would have testimony, superior with this Faced something credited testimony and Lee— have scientific judge concluded: “We refused to do: expressly the trial court letters, that the evidence that establishes testimony is finds that[Lee’s] “The Court correspondence [Lee] between that it is except credible extent erasures. What includes some [Hah] (Em- ‍‌‌‌‌‌​‌​​‌​‌‌‌‌‌‌​‌‌​‌​​​​‌‌‌‌‌‌‌​​​‌‌‌​​‌​​‌‌​​‍evidence.” supported by scientific erased, those replaced what those erasures added). on the trial court’s Based phasis erasures, how extensive the erasure were part, grant- notes in suspicion about the subject possible possi- evi- are all to debate conclusion petition. ed the (E.R.245.) this record is regarding falsity1 from judge ble dentiary conflict.” based ing relief for conviction possible, likely, conclu- state habeas and even 1. Another trial court Critical to the on false evidence. is that the trial court sion from record at trial: that Lee never testified govern- was the fact simply the standards misunderstood

were admitted were false. Lee, only way us and I think that the we can contrary majority's reasoning, to the it is not justice have here is for [Lee] all of his necessary to infer that the trial court found parade jury sleeze before a [sic] of our Instead, per- the notes to be false. another hap- fellow citizens and let them decide what fectly reasonable inference is that the trial pened here.... Since this new information simply erred as a matter of law in about material items evidence that could applying the standards for habeas relief and trial, well have affected the outcome of the subsequently corrected on review. and since was not called [Lee] either side as a witness the Court [criminal] (E.R.246.) grants the Petition....” repeated stab wounds on her Lockyer, suffered See condemned. expressly has — at-, at 1175. chest. body Hall confessed that Duncan’s B ground unique posi- on the in a positioned