United States v. 2006-05-08 | 05-99002 | MORRIS VYLST | precedential | opinion |

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 BRUCE WAYNE MORRIS,
Petitioner-Appellant, No. 05-99002
v. D.C. No.
CV-92-00483-  EDDIE YLST, Acting Warden for EJG/GGHthe California State Prison at San
Quentin, OPINION
Respondent-Appellee. 
Appeal from the United States District Court
for the Eastern District of California
Edward J. Garcia, District Judge, Presiding
Argued and Submitted
February 15, 2006—San Francisco, California
Filed May 9, 2006
Before: Warren J. Ferguson, Susan P. Graber, and
William A. Fletcher, Circuit Judges.
Opinion by Judge Graber;
Concurrence by Judge Ferguson
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COUNSEL
Marianne D. Bachers and Tony Tamburello, San Francisco,
California, for the petitioner-appellant.
Ward A. Campbell, Supervising Deputy Attorney General,
Sacramento, California, for the respondent-appellee.
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OPINION
GRABER, Circuit Judge:
A California jury found Petitioner Bruce Wayne Morris
guilty of first-degree murder and robbery, and he was sen-
tenced to death in 1987. We have considered his petition for
a writ of habeas corpus, and a related mandamus petition, on
three previous occasions and have already vacated Petition-
er’s death sentence and ordered a new penalty-phase trial.1 In
this fourth appeal, we consider the last two remaining guilt-
phase issues: alleged failure of the prosecution to turn over
material exculpatory evidence in violation of Brady v. Mary-
land, 373 U.S. 83 (1963), and alleged presentation of perjured
testimony in violation of Mooney v. Holohan, 294 U.S. 103
(1935) (per curiam), and Napue v. Illinois, 360 U.S. 264 (1959).2
For the reasons that we explain below, we affirm Petitioner’s
convictions. The case is remanded with instructions to grant
1The prior decisions are Morris v. Woodford, 229 F.3d 775 (9th Cir.
2000) (“Morris I”); Morris v. Woodford, 273 F.3d 826 (9th Cir. 2001)
(“Morris II”); and Morris v. U.S. Dist. Court (In re Morris), 363 F.3d 891
(9th Cir. 2004) (per curiam) (“Morris III”).
2In Morris I, we granted a certificate of appealability on three issues:
whether Petitioner received ineffective assistance of counsel, “whether
Petitioner was denied a fair trial by the state’s erroneous introduction of
excluded evidence,” and whether Petitioner was competent to assist in his
own defense. Morris I, 229 F.3d at 781. We remanded those issues to the
district court. Morris II, 273 F.3d at 828, 843. During the discovery pro-
cess leading up to the evidentiary hearing, Petitioner received documents
that, he contends, show a Brady violation and a Mooney-Napue violation.
See Morris III. The district court permitted amendment of the petition for
habeas corpus. When the district court conducted the hearing, Petitioner
presented evidence concerning, and argued, only those two new claims.
After rejecting the two new claims, the district court granted a certificate
of appealability on both. Petitioner presented no evidence on the three pre-
viously remanded claims, nor are they addressed in his brief to this court.
Therefore, those issues have been abandoned. See Harik v. Cal. Teachers
Ass’n, 326 F.3d 1042, 1052 (9th Cir. 2003) (holding that issues abandoned
in the district court will not be considered on appeal).
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the writ as to the penalty subject to the state’s retrying the
penalty phase within a reasonable time.
FACTUAL BACKGROUND
A. The Crimes and the Trial3
In 1985, Petitioner, his girlfriend Avette Barrett, and Bar-
rett’s sister Allison Eckstrom hitchhiked from Sacramento to
Lake Tahoe, California. The victim, Rickey Van Zandt,
picked them up in the Lake Tahoe area. They drove to a cam-
psite some miles north of Lake Tahoe. Petitioner, Barrett, and
Eckstrom discussed stealing Van Zandt’s van, and Barrett
apparently suggested that Petitioner kill him. The prosecu-
tion’s theory was that while Van Zandt was sleeping, Peti-
tioner hit him in the head with a rock approximately 13 times,
then took his body from the van and dumped it down an
embankment. Upon discovering that Van Zandt was still
alive, Petitioner beat him several times with a stick. Peti-
tioner, Barrett, and Eckstrom then cleaned the van and burned
some bloody clothing and blankets. They drove through sev-
eral states, making purchases with the victim’s credit cards. In
Nebraska, they picked up a hitchhiker named Tom Logan.
Petitioner confessed to Logan that he had killed Van Zandt.
Logan fled and called the police, who arrested Petitioner, Bar-
rett, and Eckstrom the next day. Among the items seized by
police after the arrest were Petitioner’s blood-spattered jeans.
Petitioner confessed to police that he had murdered Van
Zandt. Later, while Petitioner was in custody, he sent a letter
to Barrett stating, “I’ve killed once for you, and if I have to
I’ll do it again!!! And you know that I can, and I don’t need
a rock to do it either.” Petitioner also confessed to fellow
inmates that he had murdered Van Zandt.
3For more detailed summaries of the facts, see the California Supreme
Court’s decision on direct appeal, People v. Morris, 807 P.2d 949 (Cal.
1991), and this court’s decisions in Morris I and Morris II.
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At his trial, Petitioner claimed innocence. He testified that
he did not see the killing; rather, he went fishing and returned
to the van to find Barrett and Eckstrom with blood on their
clothing. According to Petitioner’s testimony, Barrett told him
that Van Zandt had tried to rape her, and Eckstrom confessed
to having killed him. Petitioner said that he then went to the
van, found that Van Zandt was still alive, pulled him out, and
moved him to the embankment. Later, Eckstrom saw that Van
Zandt was moving and hit him with a stick. Petitioner testified
that he falsely confessed to the murder in order to protect Bar-
rett, who he believed was pregnant with his child, and Ecks-
trom.
Barrett and Eckstrom testified at trial that Petitioner had
killed Van Zandt. Both Barrett and Eckstrom were thoroughly
cross-examined about inconsistent statements to police and
prosecutors; both contradicted themselves on the stand; and
both admitted to having lied in the past.
Despite his testimony, the jury convicted Petitioner of first-
degree murder and robbery.
B. The Roberts Letter
Barrett sent a letter to her mother, Michele Roberts, on
November 1, 1985, which was well before Petitioner’s 1987
trial. On November 6, 1985, Roberts forwarded the letter to
Phil Lowe, the Sierra County District Attorney who was origi-
nally prosecuting the case against Petitioner. Her cover letter
to Lowe contained the following statement: “I suppose Pete
V. should see the letter also as I received a letter from him
(Pete) saying Avette was saying Allison was as guilty as she
and Bruce.”4 The letter from Barrett to Roberts was turned
over to the defense before trial and is not at issue in this
4“Pete V.” appears to refer to Pete Villareal, Barrett’s probation officer.
He was interviewed by Petitioner’s counsel after the Roberts letter was
discovered but had no recollection of the case.
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appeal, but the cover letter from Roberts to Lowe was not
turned over until 2004.
At the evidentiary hearing before the district court on fed-
eral habeas, Petitioner’s trial counsel, Tom Condit, testified
that he “didn’t think [Roberts’ trial testimony] was very effec-
tive for our side, because she asserted that the inconsistencies
that her daughter had made went to an issue that was not
important.” He explained that, if he had possessed the Roberts
letter, he would have “confronted her with this information
and I think possibly gotten her to admit that there was more.”
Overall, Condit opined that the letter “would have added sup-
port to our contention that Avette and Allison were the guilty
parties in the killing of Rickey Van Zandt,” and “it would
have altered the course of our investigation” in that the
defense would have interviewed Villareal. Condit further
asserted that the letter could have been used to impeach Bar-
rett because Barrett’s testimony indicated that she was pro-
tecting Eckstrom, while the letter said that Eckstrom was
guilty.
C. The Gumz Status Report
At some point after Barrett testified against Petitioner at his
trial, Diane Gumz, a legal assistant at the Attorney General’s
Office, prepared a routine status report on Barrett’s case. In
relevant part the report reads: “Defendant [Barrett] perjured
herself at trial. Prelim set for 6/24/87 was postponed until
court transcripts were received to determine exactly what
defendant said.” In the “future action” section of the report,
Gumz made a notation reading: “Pre-prelim 7/22/87 (for
determination of Barrett’s perjury).”5 This report was not
turned over to the defense until 2004.
5Barrett’s plea agreement provided that, in return for her complete and
truthful testimony in all proceedings, the prosecution would dismiss all
charges pending against her except “grand theft auto.” Originally, the
agreement also specified that Barrett’s representation that she had not per-
sonally inflicted any injuries on Van Zandt had to be truthful. This condi-
tion was deleted before Petitioner’s trial. The government honored its
agreement with Barrett.
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Who saw the Gumz report at the time, and what response
(if any) it prompted, is something of a mystery. The prosecu-
tion in Petitioner’s case was special prosecutor, Gary Rossi.
Rossi died in 2002. Robert Marshall, who hired Rossi, testi-
fied on behalf of the state at the district court evidentiary
hearing. Marshall served as acting District Attorney of Sierra
County for approximately six months starting around Novem-
ber 1986, and then returned to the California Attorney Gener-
al’s office, which had supervisory authority over Barrett’s
case (because the new District Attorney was Barrett’s former
defense lawyer). Gumz testified that she got the information
for status reports from reading documents associated with the
case and talking to the attorney assigned to it. She named
Marshall as the assigned attorney in the Barrett case, but she
did not remember his ever having used the word “perjury” in
discussing the case.
Marshall testified that he recalled little about the Morris or
Barrett cases and that he did not recall having seen the Gumz
status report. He testified that he did not start an investigation
into alleged perjury by Barrett at Petitioner’s trial, nor did he
report it to his superiors. He did not inform Petitioner’s
defense lawyers about the Gumz status report.
According to Condit, nobody on the prosecution team ever
told him that they suspected Barrett had committed perjury.
If the Gumz status report, and its notation indicating that Bar-
rett had perjured herself, had been disclosed to him, Condit
said, he would have asked for a new trial.
DISCUSSION6
6We review de novo the district court’s denial of the petition for habeas
corpus. Beardslee v. Woodford, 358 F.3d 560, 568 (9th Cir. 2004).
Because this petition was filed before the effective date of the Antiterro-
rism and Effective Death Penalty Act of 1996 (“AEDPA”), pre-AEDPA
law applies. See Morris II, 273 F.3d at 830; Silva v. Brown, 416 F.3d 980,
985 (9th Cir. 2005). Thus, we may set aside the state court conviction only
if Petitioner proves that his “detention violates the fundamental liberties
of the person.” Hayes v. Brown, 399 F.3d 972, 978 (9th Cir. 2005) (en
banc) (internal quotation marks omitted).
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A. The Roberts Letter
[1] To establish a Brady violation, the defendant must show
that exculpatory or impeaching evidence was suppressed by
the state, either willfully or inadvertently, resulting in preju-
dice. Strickler v. Greene, 527 U.S. 263, 281-82 (1999). With
respect to the Roberts letter, we conclude that the govern-
ment’s failure to disclose it did not constitute a Brady viola-
tion. The letter is only marginally exculpatory or impeaching,
and Petitioner was not prejudiced by the government’s failure
to turn it over.
[2] The Roberts letter was, at best, minimally exculpatory.
It did not say that Petitioner was not guilty, or that he was any
less guilty than Barrett or Eckstrom. Instead, it suggested that
they were all equally guilty, although it failed to explain why
that might be so. The letter does not suggest that Barrett and
Eckstrom, but not Petitioner, struck Van Zandt.
[3] Moreover, the letter had limited impeachment value. It
is unlikely that defense counsel could have confronted Barrett
and Eckstrom with the letter because it contains triple hear-
say. Assuming that counsel could have overcome that hurdle,
the letter, at most, might have lessened the credibility of Bar-
rett’s and Eckstrom’s testimony, because they maintained that
Petitioner was entirely responsible for the killing.
[4] Even if the Roberts letter had some exculpatory value,
Petitioner suffered insufficient prejudice from the govern-
ment’s failure to produce it. In order to make out a Brady vio-
lation, the evidence must be material, which means there must
be “a reasonable probability that, had the evidence been dis-
closed to the defense, the result of the proceeding would have
been different. A ‘reasonable probability’ is a probability suf-
ficient to undermine confidence in the outcome.” United
States v. Bagley, 473 U.S. 667, 682 (1985), quoted in United
States v. Alvarez, 86 F.3d 901, 904 (9th Cir. 1996). The Rob-
erts letter fails to meet that standard for two reasons.
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[5] First, the defense already possessed, and presented at
trial, significant impeachment evidence against Barrett and
Eckstrom. Both admitted on the stand that they had lied to
police and prosecutors. Even the prosecutor conceded in his
closing argument that they were not reliable: “As to the testi-
mony of Miss Barrett and Miss Eckstrom, I think [it] was very
obvious that both girls were not totally honest . . . . I have
some problems with some of their testimony in this court-
room.” Thus, insofar as the Roberts letter would have shown
that Barrett had made a statement inconsistent with her testi-
mony at trial, it would have been cumulative. See United
States v. Marashi, 913 F.2d 724, 732 (9th Cir. 1990) (holding
that where disclosure of impeachment evidence would not
have enabled counsel to further discredit the witness, the evi-
dence was “merely cumulative” and did not give rise to a
Brady violation).
[6] Second, there was compelling evidence of Petitioner’s
guilt. He had admitted to several different people that he had
murdered Van Zandt. See Arizona v. Fulminante, 499 U.S.
279, 296 (1991) (noting that a defendant’s confession may be
the most probative and damaging evidence); Morris II, 273
F.3d at 836-37 (holding that any possible error in admitting
Barrett’s and Eckstrom’s testimony was harmless because
Petitioner’s admissions were the “cornerstone” of the state’s
case). Additionally, physical evidence, including Petitioner’s
blood-spattered jeans, corroborated those confessions. In the
circumstances, there simply is no reasonable likelihood that,
had the defense known about the Roberts letter, the result of
the trial would have been different.
Petitioner counters that he was prejudiced by the govern-
ment’s failure to turn over the Roberts letter because it “re-
vealed the existence of a credible, independent witness.” In
other words, had Petitioner known about the letter, he argues,
he would have interviewed Pete Villareal. But Petitioner’s
lawyers and investigator already had an incentive to speak to
Villareal. Their theory was that Barrett and Eckstrom were the
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killers, so they had every reason to contact Barrett’s probation
officer, with whom she might have discussed the crime or
acted as if she had something to hide.
Petitioner’s lawyer also claims that the letter would have
induced him to contact anyone to whom Barrett had talked,
from the time of the crime through the time of the trial. But,
as we will discuss later in this opinion, the defense team did
interview several people to whom Barrett had talked in prison,
and the defense offered testimony from them at trial about
Barrett’s self-incriminating statements. Petitioner identifies no
additional individuals who would have been contacted had the
Roberts letter been disclosed.
[7] In summary, we hold that the government’s failure to
turn over the Roberts letter did not constitute a Brady viola-
tion.
B. The Gumz Status Report
1. Under Brady
Petitioner argues, first, that the government’s failure to turn
over the Gumz status report gave rise to a Brady violation. As
an initial matter, we consider whether the Gumz status report
could constitute Brady material.
[8] The Gumz status report contains a statement of the
prosecutor’s (or, more accurately, an agent of the prosecu-
tor’s) opinion about something that happened at Petitioner’s
trial. The Supreme Court has not decided whether the govern-
ment’s work product must be disclosed under Brady. See
Goldberg v. United States, 425 U.S. 94, 98 n.3 (1976) (reserv-
ing this question). Nor has this court squarely addressed the
issue. In Paradis v. Arave, 240 F.3d 1169, 1173 (9th Cir.
2001), the petitioner raised a Brady claim with respect to the
withholding of notes made by the prosecutor. The petitioner
conceded that some notes were “taken by [the prosecutor] at
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[the petitioner’s] own trial and, therefore, are not Brady mate-
rial.” We held that other notes—which recorded the opinion
of an expert witness—were Brady material, but those notes
contained underlying factual information. Id.
[9] The Eleventh Circuit has considered this question and
has concluded that Brady does not require a prosecutor to dis-
close to the defense most “opinion work product,” that is,
material encompassing only an attorney’s mental impressions
or legal theories. Williamson v. Moore, 221 F.3d 1177, 1182
(11th Cir. 2000); cf. Mincey v. Head, 206 F.3d 1106, 1133
n.63 (11th Cir. 2000) (citing district courts, a state court, and
a commentator that have addressed this question, and noting
that most have concluded that there is no automatic exemp-
tion from disclosure of work product under Brady). We agree
with the Eleventh Circuit’s approach, which is consistent both
with Paradis and with the purpose of Brady.
[10] The animating purpose of Brady is to preserve the fair-
ness of criminal trials. 373 U.S. at 87. However, fairness does
not encompass an obligation on the prosecutor’s part to reveal
his or her strategies, legal theories, or impressions of the evi-
dence. The Brady rule is not meant to “displace the adversary
system”; “the prosecutor is not required to deliver his entire
file to defense counsel, but only to disclose evidence favor-
able to the accused, that, if suppressed, would deprive the
defendant of a fair trial.” Bagley, 473 U.S. at 675 (emphasis
added; footnote omitted). Extending the Brady rule to opinion
work product would greatly impair the government’s ability
to prepare for trials. See Williamson, 221 F.3d at 1182 (noting
that if work product were accessible, “ ‘much of what is now
put down in writing would remain unwritten’ ” (quoting Hick-
man v. Taylor, 329 U.S. 495, 511 (1947)). Thus, in general,
a prosecutor’s opinions and mental impressions of the case
are not discoverable under Brady unless they contain underly-
ing exculpatory facts.
[11] The Gumz status report is best characterized as a state-
ment of the prosecutor’s opinion or a recording of his
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thoughts about whether Barrett testified truthfully enough to
receive the benefit of her plea bargain (given the inconsisten-
cies in her testimony, which were apparent to defense and
prosecution alike). So understood, it is not Brady material.
Even if the Gumz status report referred to exculpatory facts
unknown to the defense, and thus is Brady material, Petitioner
was not prejudiced by the government’s failure to turn the sta-
tus report over, for the reasons discussed in the next section.
2. Under Mooney-Napue7
Petitioner’s final argument is that the Gumz status report
establishes that the government knowingly presented perjured
testimony and failed to disclose or correct it.8 The prosecution
was obliged to, but did not, investigate the possibility that a
government witness had perjured herself. We conclude, how-
ever, that Petitioner suffered no prejudice, because the wit-
ness’ testimony was thoroughly discredited at trial and there
was independent, compelling evidence of Petitioner’s guilt.
7Mooney originated the rule that a conviction obtained through the use
of perjured testimony violates due process. Mooney, 294 U.S. at 112;
Hayes, 399 F.3d at 983. Napue expanded Mooney to encompass false testi-
mony bearing only on the credibility of a witness. Napue, 360 U.S. at 269;
Hayes, 399 F.3d at 983-84. For convenience, we refer to Petitioner’s argu-
ment as a “Mooney-Napue claim.” See United States v. Zuno-Arce, 339
F.3d 886, 889 (9th Cir. 2003) (discussing elements of a “Mooney-Napue
claim”).
8Although the Supreme Court has suggested that the presentation of per-
jured testimony gives rise to a type of Brady claim, see United States v.
Agurs, 427 U.S. 97, 103 (1976) (noting that the Brady rule applies in three
different situations, one of which is “typified by Mooney”), we view this
Mooney-Napue claim as analytically distinct from the Brady claim. We
deal not with whether the Gumz status report itself ought to have been
turned over to the defense, but with whether there was perjured testimony
by Barrett that ought to have been investigated and disclosed by the prose-
cution. See Banks v. Dretke, 540 U.S. 668, 690 n.11 (2004) (declining to
decide whether a Napue claim must be pleaded separately from a Brady
claim).
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[12] Under the Mooney-Napue line of cases, a conviction
will be reversed if two conditions are met: first, the prosecu-
tion knowingly presented false evidence or testimony at trial;
and, second, it was material, that is, there is a reasonable like-
lihood that the false evidence or testimony could have
affected the judgment of the jury. United States v. Agurs, 427
U.S. 97, 103 (1976); Hayes v. Brown, 399 F.3d 972, 984 (9th
Cir. 2005) (en banc). Further, a prosecutor must correct false
evidence whenever it appears. Napue, 360 U.S. at 269.
Gumz testified at the evidentiary hearing that she wrote the
status report in June or July of 1987. The jury in Petitioner’s
trial reached a guilt-phase verdict on June 22, 1987, and Peti-
tioner was sentenced to death on July 17, 1987. It is unclear
whether the Gumz status report was written while Petitioner’s
trial was still ongoing. The Gumz status report does not sup-
port an inference that the prosecutor knew ahead of time that
Barrett would lie, but only an inference that the prosecutor
concluded after the fact that she had.
[13] In this respect, Petitioner presents an atypical Mooney-
Napue claim. Often it is clear that false evidence has been
presented. See, e.g., Giglio v. United States, 405 U.S. 150,
152-53 (1972); Hayes, 399 F.3d at 980. Here, however, there
is only an allegation or suspicion that a witness lied, but no
follow-up investigation or explanation by the state. As a
result, we must decide whether the prosecution had a duty to
investigate an allegation or suspicion of perjury, separate
from its duty to disclose perjury that has definitely taken
place.
[14] When a prosecutor suspects perjury, the prosecutor
must at least investigate. The duty to act “is not discharged by
attempting to finesse the problem by pressing ahead without
a diligent and good faith attempt to resolve it. A prosecutor
cannot avoid this obligation by refusing to search for the truth
and remaining willfully ignorant of the facts.” Northern Mari-
ana Islands v. Bowie, 243 F.3d 1109, 1118 (9th Cir. 2001).
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This principle is supported by Mooney, Napue, and their prog-
eny. In Mooney, the Supreme Court held that a conviction
obtained through “deliberate deception of court and jury . . .
is . . . inconsistent with the rudimentary demands of justice.”
294 U.S. at 112. In Napue, the Court elaborated on the prose-
cutor’s role, noting that “ ‘the district attorney has the respon-
sibility and duty to correct what he knows to be false and
elicit the truth.’ ” 360 U.S. at 270 (quoting People v. Savvides,
136 N.E.2d 853, 854 (N.Y. Ct. App. 1956)). The Court has
emphasized that the presentation of false evidence involves “a
corruption of the truth-seeking function of the trial process.”
Agurs, 427 U.S. at 103. This truth-seeking function cannot be
fulfilled when the state, knowing that a witness may have per-
jured herself, proceeds without conducting an investigation to
ensure that a new trial is not warranted. The duty to investi-
gate flows from the “constitutional obligation of the State and
its representatives to collect potentially exculpatory evidence,
to prevent fraud upon the court, and to elicit the truth.” Bowie,
243 F.3d at 1117.
Ward Campbell, who argued the case on behalf of the State
of California, stated at oral argument that he discovered the
Gumz status report in 1996 but did not conduct an investiga-
tion and did not disclose the status report to Petitioner’s coun-
sel until 2004, during discovery in advance of the evidentiary
hearing.
[15] The prosecutor’s failure to act in a timely manner
means that Rossi, who could have explained what the Gumz
status report really meant, rather than leaving the parties (and
us) to speculate, was unavailable by the time of the evidenti-
ary hearing. He died in 2002, and the status report was not
disclosed to Petitioner until two years later. Marshall, the only
other government lawyer who could have recounted what
Gumz was told that led her to write that Barrett committed
perjury, testified that he had no relevant recollection of the
case. In these circumstances, we must conclude that Barrett’s
testimony at trial was false in some respect. But the nature
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and extent of the perjury is unknown and, at this point,
unknowable.
If the Gumz status report referred simply to the fact that
Barrett changed her story on the stand, as the state contends,
then the defense knew it already. Barrett’s inconsistent stories
provided fertile ground for cross-examination at trial. If the
state had conducted an investigation and formed a good-faith
belief that the Gumz status report was referring only to the
already-known inconsistencies in Barrett’s testimony that
were aired at trial, there would have been nothing for the
prosecution to disclose and no duty under Mooney and Napue.
Had an investigation revealed that Barrett’s perjury went
beyond that, however, then the state would have been bound
to correct the falsehood. Even if the Gumz status report
referred to something more, though, there is no evidence to
suggest that Barrett—if completely truthful—would have cor-
roborated Petitioner’s version of events, that is, would have
said that Petitioner did not participate actively in killing Van
Zandt.
There was some evidence presented at trial supporting Peti-
tioner’s story. One of Barrett’s fellow inmates, Crane, testi-
fied that Barrett told her that Petitioner was a “stupid son of
a bitch” for taking a murder rap for her. According to Crane,
Barrett said that she had hit the victim with a stick. Another
jailhouse acquaintance of Barrett, named Baker, testified that
Barrett had bragged about Petitioner’s taking the fall for her.
But Baker also testified that Barrett told her that Petitioner
had done the actual killing. A final jailhouse witness, Cicero,
testified that Barrett told her that she had hit the victim with
a stick.
[16] That evidence, although favorable to Petitioner, does
not corroborate his testimony. Rather, it conflicts with his the-
ory that he was absent from the scene and that it was Ecks-
trom who said that she had beaten and killed Van Zandt. Also,
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nothing in Barrett’s statements suggests that anyone except
Petitioner hit the victim with a rock. Barrett has never testi-
fied that Petitioner is innocent of the murder, despite several
opportunities to do so; Petitioner did not call her as a witness
at the evidentiary hearing. There is no evidence that Barrett
ever confessed to any law enforcement officer or prosecutor
that she had inflicted any injury on Van Zandt. We cannot
speculate, contrary to anything in the record, that Barrett
would have testified that Petitioner did not kill Van Zandt had
the perjury been revealed in a timely fashion and had he
received a new trial.
[17] Thus, with respect to the first part of the Mooney-
Napue analysis, we hold that false testimony was presented at
Petitioner’s trial, but that there is insufficient evidence to per-
mit a conclusion that correcting the falsehood (whatever it
may have been) would have provided support for his claim of
actual innocence. The second part of the Mooney-Napue anal-
ysis requires us to consider whether the prosecutor’s failure to
investigate and disclose Barrett’s perjury resulted in preju-
dice. If not, we will not reverse the conviction. United States
v. Zuno-Arce, 339 F.3d 886, 889 (9th Cir. 2003). The test for
prejudice for a Mooney-Napue claim is the same as that for
materiality in a Brady claim. Silva v. Brown, 416 F.3d 980,
986 n.1 (9th Cir. 2005). That is, we must decide whether,
despite the use of perjured testimony, Petitioner received a
“ ‘trial resulting in a verdict worthy of confidence.’ ” Hall v.
Dir. of Corr., 343 F.3d 976, 984 (9th Cir. 2003) (per curiam)
(quoting Kyles v. Whitley, 514 U.S. 419, 434 (1995)).
Petitioner argues for a different standard of review. He
urges that when perjured testimony has been presented, “ ‘re-
versal is virtually automatic.’ ” Bowie, 243 F.3d at 1114
(quoting United States v. Wallach, 935 F.2d 445, 456 (2d Cir.
1991)). Petitioner takes that phrase out of context; the Bowie
court did state and apply the prejudice/materiality standard.
Id. at 1116, 1122-23. There is no rule of automatic reversal.
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See Hall, 343 F.3d at 983 (“A new trial is not automatically
required when false evidence is discovered.”).
The state argues that the reference to Barrett’s perjury in
the Gumz status report was an “unremarkable” reference to
the well-aired contradictions and lies that were exposed by
cross-examination at trial and, accordingly, that Barrett’s per-
jury was not material. But, as we have explained, the absence
of a contemporaneous and full investigation by the state
requires us to assume that the “perjury” referred to something
more.
[18] We are persuaded that Petitioner suffered insufficient
prejudice from Barrett’s perjury, for much the same reasons
that we conclude he suffered insufficient prejudice from the
failure to turn over the Roberts letter.9 First, the jury already
was shown that Barrett was completely inconsistent and dis-
honest, that is, that she was a liar in at least some respects.
Second, even if the jury had been informed that Barrett’s tes-
timony was perjured and should be disregarded entirely, or
even if there had been a new trial at which Barrett did not tes-
tify, we are persuaded beyond any doubt that the outcome of
the trial would have been the same. Petitioner testified in his
own defense and implicated Barrett and Eckstrom in the
crime, but the jury disbelieved him despite being told, by both
defense counsel and the prosecutor, that Eckstrom and Barrett
were unreliable. The physical evidence and Petitioner’s own,
multiple confessions pointed to his guilt. Therefore, we reject
Petitioner’s Mooney-Napue claim.
9Petitioner argues that the length of the jury’s deliberation shows that
the case was close and that the outcome might have been different had the
jury known that Barrett had perjured herself in some way beyond what the
jury knew already. See Jennings v. Woodford, 290 F.3d 1006, 1019 (9th
Cir. 2002). We disagree. It is true that the jury deliberated for approxi-
mately a day and a half, but that does not mandate a finding of prejudice.
See United States v. Velarde-Gomez, 269 F.3d 1023, 1036 (9th Cir. 2001)
(en banc) (suggesting that length of deliberations is but one factor among
many in the prejudice analysis).
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[19] Convictions AFFIRMED; case REMANDED with
instructions to grant the writ with respect to the penalty sub-
ject to the state’s retrying the penalty phase within a reason-
able time.
FERGUSON, Circuit Judge, concurring:
The Roberts letter at issue in this appeal is the latest piece
of evidence that calls into question the administration of the
death penalty in this case. I write separately to underscore the
prosecutor’s abuse of his discretion in singling out the Peti-
tioner for the death penalty, when it is the state’s position that
the three defendants are equally guilty of the felony murder
of Van Zandt. As long as a prosecutor’s discretion in seeking
the ultimate penalty — death — remains thus unbridled, the
administration of the death penalty in the United States will
violate the guarantees of due process and freedom from cruel
and unusual punishment enshrined in the Constitution.
I.
In 2004, the government informed this Court of its position
that the three defendants in this case, Morris, Barrett, and
Eckstrom, are equally guilty of the felony murder of Van
Zandt. Morris v. U.S. Dist. Court (In re Morris), 363 F.3d
891, 895 n.1 (9th Cir. 2004) (per curiam) (Ferguson, J., con-
curring specially). The Roberts letter at issue in this appeal
provides further evidence that Eckstrom is as guilty of Van
Zandt’s murder as are Morris and Barrett. The Roberts letter
is thus material to Morris’s penalty phase and should have
been disclosed to the defense. Instead, the prosecution sup-
pressed the letter and dropped all charges against Eckstrom,
a minor, in return for her testimony against Morris. The prose-
cution also agreed to charge Barrett only for grand theft auto
in exchange for her testimony against Morris. Of the three co-
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conspirators, Morris alone was prosecuted for murder, and he
alone was singled out for the death penalty.
Barrett was ultimately sentenced to three years’ imprison-
ment for violating California Vehicle Code § 10851. Ecks-
trom was never prosecuted. Morris was sentenced to death.
II.
Over thirty years ago, the Supreme Court declared that
death is different. The death penalty must be imposed fairly,
without prejudice or whim, or it may not be imposed at all.
Furman v. Georgia, 408 U.S. 238 (1972); see Gregg v. Geor-
gia, 428 U.S. 153, 188 (1976) (interpreting Furman). In the
years since Furman, legislatures and courts have struggled to
meet this daunting challenge, yet “the death penalty remains
fraught with arbitrariness, discrimination, caprice, and mis-
take.” Callins v. Collins, 510 U.S. 1141, 1144 (1994) (Black-
mun, J., dissenting from denial of writ of certiorari). The
problems today are not identical to those of thirty years ago.
Rather, those problems that were originally “pursued down
one hole with procedural rules and verbal formulas have come
to the surface somewhere else, just as virulent and pernicious
as they were in their original form.” Id. Even as the courts
have tried to limit the jury’s discretion to impose the death
penalty, “discrimination and arbitrariness at an earlier point in
the selection process nullify the value of later controls on the
jury.” DeGarmo v. Texas, 474 U.S. 973, 975 (1985) (Brennan,
J., dissenting from denial of writ of certiorari).
Here, the prosecutor’s unbridled discretion to single out
Morris for prosecution under the death penalty, when the guilt
is equally spread among his co-defendants, is a rank example
of “arbitrariness at an earlier point in the selection process.”
Id. This sort of gross disparity in the treatment of equally
guilty defendants “highlights the utter failure of the elaborate
sentencing schemes approved by the [Supreme] Court in
Gregg and its companion cases to meaningfully limit the arbi-
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trary infliction of death by the States.” Id. at 974-75. Such
arbitrariness in the administration of the death penalty violates
the Eighth Amendment and the Due Process Clause. See
Gregg, 428 U.S. at 188-89 (arbitrary infliction of the death
penalty violates the Eighth Amendment); United States v.
Redondo-Lemos, 955 F.2d 1296, 1298-99 (9th Cir. 1992),
overruled on other grounds by United States v. Armstrong, 48
F.3d 1508 (9th Cir. 1995), rev’d 517 U.S. 456 (1996) (arbi-
trary charging decisions violate due process).
As a remedy to the constitutional violations in this case, I
reiterate my position in In re Morris, 363 F.3d at 896 (Fergu-
son, J., concurring specially): Morris’s sentencing jury must
be instructed that it may consider, as a mitigating factor, the
fact that the prosecution pursued substantially more lenient
punishment against Morris’s equally guilty co-defendants.
Such instructions provide a mechanism for directing and lim-
iting the prosecutor’s unbridled discretion to seek the death
penalty. Through its regular functioning, the capital jury can
account for and remedy an unconstitutionally arbitrary inflic-
tion of the death penalty — by removing the threat of that
ultimate penalty. See United States v. Bin Laden, 156 F. Supp.
2d 359, 369 (S.D.N.Y. 2001) (finding that in enacting the stat-
ute under which the defendant was prosecuted, Congress
intended for juries to consider, as a mitigating factor, that “an-
other defendant or defendants, equally culpable in the crime,
will not be punished by death” so as to “provide[ ] jurors with
a means of improving the likelihood that the death penalty
would not be administered in an arbitrary or random man-
ner”); see also 18 U.S.C. § 3592(a)(4).
Cabining prosecutorial discretion by permitting capital
juries to consider all manners of information in the form of
mitigation evidence accords with Supreme Court precedent
regarding the process that must be afforded capital defendants
during their penalty phase. The Supreme Court has held that
the Eighth and Fourteenth Amendments require that capital
juries be permitted to consider, as mitigating factors, any
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aspects of a defendant’s character or of “the circumstances of
the offense that the defendant proffers as a basis for a sen-
tence less than death.” Lockett v. Ohio, 438 U.S. 586, 604
(1978). In keeping with Lockett, the sentencing jury in this
case must be permitted to consider the prosecutor’s grossly
disparate treatment of Morris’s equally guilty co-defendants
as a circumstance of the offense justifying a sentence less than
death.
As the reasoning in my earlier concurrence makes clear, see
In re Morris, 363 F.3d at 896 (Ferguson, J., concurring spe-
cially), providing additional mitigation instructions to the cap-
ital jury as a means of cabining prosecutorial discretion also
avoids a separation-of-powers issue. This Court in Redondo-
Lemos determined that although an arbitrary exercise of pro-
secutorial discretion violates the Due Process Clause, there is
no judicial remedy available because courts generally may not
inquire into prosecutors’ decision-making processes. 955 F.2d
at 1299. The Redondo-Lemos majority concluded that permit-
ting courts to make such an inquiry would impermissibly
entangle the judicial branch “in the core decisions of another
branch of government.” Id. at 1300. In this case, introducing
evidence of the sentences received by Morris’s co-defendants
would not require the courts to investigate the internal charg-
ing decisions of the prosecutor. Instead, it would compel the
prosecution to live with the charging decisions it made: if the
jury found that the exercise of discretion in seeking the death
penalty against Morris was arbitrary, it would be free to use
that fact as a mitigating factor.
This Court has ordered a new penalty phase in this case.
Morris v. Woodford, 273 F.3d 826, 843 (9th Cir. 2001). Dur-
ing this second penalty phase, the jury must be permitted to
consider, as a mitigating factor in its determination of whether
to impose the death penalty, the government’s admission that
it singled out Morris for capital punishment among three
equally guilty perpetrators.
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