Michael Malone v. TOM FELKER, Acting Warden, HDSP and MATTHEW C. KRAMER, Warden

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
The Honorable Solomon Oliver, Jr., Chief District Judge for the U.S.**
District Court for Northern Ohio, Cleveland, sitting by designation.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MICHAEL MALONE,
Petitioner - Appellant,
v.
TOM FELKER, Acting Warden, HDSP
and MATTHEW C. KRAMER, Warden,
Respondents - Appellees.
No. 10-16612
D.C. No. 1:07-cv-00743-AWI-
SMS
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of California
Anthony W. Ishii, Chief District Judge, Presiding
Argued and Submitted September 14, 2011
San Francisco, California
Before: THOMAS and N.R. SMITH, Circuit Judges, and OLIVER, Chief District
Judge.**
FILED
OCT 13 2011
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

-- 1 of 3 --

2
Appellant appeals the district court’s denial of his 28 U.S.C. § 2254 habeas
corpus petition. Appellant argues that the prosecutor violated Brady v. Maryland,
373 U.S. 83 (1963), by not disclosing a telephone message he received, claiming
defense witness “Orbus Weathers was a bad guy and not to be trusted.” We review
the denial of the petition de novo. Lambert v. Blodgett, 393 F.3d 943, 964 (9th Cir.
2004). We affirm.
Here, the California Superior Court’s decision was not contrary to, or an
unreasonable application of, clearly established Supreme Court precedent. See 28
U.S.C. § 2254(d). “There are three components of a true Brady violation: The
evidence at issue must be favorable to the accused, either because it is exculpatory,
or because it is impeaching; that evidence must have been suppressed by the State,
either willfully or inadvertently; and prejudice must have ensued.” Strickler v.
Greene, 527 U.S. 263, 281–82 (1999). The state court’s holding that the telephone
message was not favorable to the accused was not unreasonable. See Brady, 373
U.S. at 87. Under Brady, the evidence may not be withheld if it “would tend to
exculpate [the defendant].” 373 U.S. at 87–88. No Supreme Court precedent
clearly establishes that possible impeachment evidence of a defense witness is
favorable to the accused, thereby mandating disclosure under Brady. United States
v. Bagley, 473 U.S. 667, 676–77 (1985), merely holds that impeachment evidence

-- 2 of 3 --

3
of Government witnesses must be disclosed. We therefore need not analyze the
other components of a Brady violation.
Appellant argues that the nondisclosure of information that leads to the
discovery of admissible evidence must be disclosed. However, assuming the
statement was favorable to the defendant, the nondisclosed evidence must be
material in order to be prejudicial (the third component of a violation). Strickler,
527 U.S. at 280. Here, the telephone message was not material under Brady. The
message did not adequately or reasonably suggest to the prosecutor that it was or
would lead to material, favorable evidence for the defense.
AFFIRMED.

-- 3 of 3 --