486 628 FEDERAL REPORTER, 3d SERIESsblog.s3.amazonaws.com/wp-content/uploads/2011/07/... · government requires new trial if false testimony could in any reasonable likeli-hood have

486 628 FEDERAL REPORTER, 3d SERIES

agreed that ‘‘discourse’’ was probably atypo for ‘‘disclosure.’’ He explained thatwhat was meant was disclosure of Ek-lund’s charges outside the MunicipalCourt. Bonner observed that the letterhad been drafted years ago and he was‘‘thinking about something else entirely,’’but that he did regard Eklund’s work as‘‘internal only.’’ Bonner further testifiedthat he did not consider Eklund’s threat todisclose when he decided to fire him. Ek-lund’s counsel then asked if Bonner knewthat Eklund was accusing him of breakingthe law if he fired Eklund on account ofEklund’s accusations. ‘‘That’s not my un-derstanding,’’ Bonner replied. Counselnow phrased Eklund’s July 29 letter asaccusations against ‘‘you [Bonner] andyour staff’’ and asked Bonner if he did notknow that Eklund was accusing him ofbreaking the law. Bonner answered thathe had had no conversation with Eklund.Counsel then asked if Bonner did not con-sider that Eklund’s accusations created aconflict of interest for Bonner, disqualify-ing him to hear Eklund’s case. Bonnerreplied, ‘‘No, I did not.’’

This examination of Bonner establishedthat Bonner did not want Eklund’s accusa-tions to be disclosed outside the MunicipalCourt. Despite the phrasing of Eklund’scounsel, Eklund’s accusations were notagainst Bonner personally. The accusa-tions implicated the institution and specificstaff members. As the investigations bythe Mayor’s Office and the Ethics Com-mission established, Eklund’s accusationsdid not lead to any legal consequences foranyone in the Municipal Court. WhatBonner expressed concern about was notcriminal prosecution of himself but badpublicity for his court. His feelings wereinstitutional, not personal. He was notdisqualified as a decisionmaker at Eklund’shearing. His renewed motions for quali-fied immunity should have been granted.

Eklund’s appeal on the issue of economicdamages is necessarily foreclosed by thisopinion.

For the reasons stated, the judgment ofthe district court is REVERSED and thecase is REMANDED for entry of judg-ment in favor of Bonner.

CANBY, Circuit Judge:

I agree with the analysis set forth inJudge Noonan’s opinion, and I concur inthe judgment.

,

Bobby Joe MAXWELL, Petitioner–Appellant,

v.

Ernie ROE, Respondent–Appellee.

No. 06–56093.

United States Court of Appeals,Ninth Circuit.

Argued and Submitted Dec. 7, 2009.

Filed Nov. 30, 2010.

Background: Following affirmance of hisconviction in state court for first degreemurder and robbery, petitioner filed feder-al petition for writ of habeas corpus. TheDistrict Court for the Central District ofCalifornia, James V. Selna, J., denied peti-tion. Petitioner appealed.

Holdings: The Court of Appeals, Paez,Circuit Judge, held that:

(1) petitioner’s filing of state habeas peti-tion was timely, thus tolling one-yearstatute limitations period for filing fed-eral petition;

487MAXWELL v. ROECite as 628 F.3d 486 (9th Cir. 2010)

(2) state court’s finding that jailhouse in-formant testified truthfully at peti-tioner’s trial was unreasonable deter-mination of facts in light of evidencepresented;

(3) perjury by informant deprived peti-tioner of his right to trial by jury;

(4) details of informant’s deal were materi-al for Brady purposes;

(5) information regarding informant’s pri-or informant activities were materialfor Brady purposes; and

(6) state court’s determination that pros-ecution’s failure to disclose impeach-ment evidence did not undermineconfidence in petitioner’s trial was un-reasonable application of Brady.

Reversed and remanded.

1. Habeas Corpus O491

State court’s factual finding that jailhousing records were inconclusive was notunreasonable, as would support petition-er’s entitlement to federal habeas reliefbased on claim that jailhouse informantgave false testimony at trial, although rec-ords could be construed to support peti-tioner’s claim that he shared cell with jail-house informant for four hours, and notthree weeks, as informant testified at peti-tioner’s murder trial, since state submittedevidence that records were unreliably keptduring time frame at issue and sufferedfrom frequent technical glitches. 28U.S.C.A. § 2244(d).


Appellate court reviews de novo a dis-trict court’s denial of state prisoner’s habe-as petition. 28 U.S.C.A. § 2254(d).

3. Courts O97(1)

Habeas Corpus O450.1, 452

‘‘Clearly established’’ federal law forpurposes of Antiterrorism and Effective

Death Penalty Act (AEDPA) consists onlyof Supreme Court holdings; however, cir-cuit court precedent may be ‘‘persuasive’’in demonstrating what law is ‘‘clearly es-tablished’’ and whether state court appliedthat law unreasonably. 28 U.S.C.A.§ 2254(d)(1).

See publication Words and Phras-es for other judicial constructionsand definitions.


When a state court adjudication isbased on antecedent unreasonable deter-mination of fact, appellate court, on peti-tioner’s appeal from denial of habeas relief,proceeds to consider petitioner’s relatedclaim de novo. 28 U.S.C.A. § 2254(d).


Appellate court, in considering federalhabeas petitioner’s due process claim,would review Superior Court’s reasonedorder that followed completion of eviden-tiary hearing, since California SupremeCourt, to which petitioner appealed, neverissued reasoned decision on that claim.U.S.C.A. Const.Amend. 14; 28 U.S.C.A.§ 2254(d).


Appellate court, in considering federalhabeas petitioner’s appeal from districtcourt’s denial of relief on his Brady claim,would review factual record de novo todetermine whether California SupremeCourt’s denial of that claim constitutedunreasonable application of Brady, whereCalifornia Supreme Court summarily de-nied that claim. 28 U.S.C.A. § 2254(d).

7. Habeas Corpus O765.1

On a petitioner’s appeal from denial ofhabeas relief in district court, appellatecourt reviews state court’s last reasoneddecision. 28 U.S.C.A. § 2254(d).



In the usual case, application for statepostconviction review remains ‘‘pending,’’for purposes of tolling one-year limitationsperiod for filing federal habeas petition,after lower court denies prisoner’s petitionfor state post-conviction review and prison-er files notice of appeal, provided thatfiling of notice of appeal is timely understate law. 28 U.S.C.A. § 2244(d)(1)(A),(d)(2).


Under principals of ‘‘gap tolling’’ or‘‘interval tolling,’’ Antiterrorism and Effec-tive Death Penalty Act’s (AEDPA) one-year statute of limitations will be tolledwhile a California state prisoner, after de-nial of original habeas petition in lowercourt, files subsequent petition in higherstate court, pursuant to California’s specialsystem governing appeals of habeas peti-tions, only if prisoner timely filed his sub-sequent petition in higher state court. 28U.S.C.A. § 2244(d)(1)(A), (d)(2).


Under California law, a habeas peti-tion is timely if it is filed within ‘‘reason-able time.’’


Petitioner’s delay of 14 months in fil-ing his federal habeas petition with Cali-fornia Supreme Court, after lower statecourt denied original petition, was ‘‘reason-able’’ under California law, and thus time-ly, as required for tolling of one-year stat-ute of limitations for filing federal habeaspetition; Superior Court considered peti-tion on merits, and petitioner offered com-pelling justification for his delay in filingsecond state petition, namely, complexityof claims and voluminous record. 28U.S.C.A. § 2244(d)(1)(A), (d)(2).

12. Habeas Corpus O603.8Although a state court’s consideration

on merits of a petitioner’s habeas petitiondoes not ‘‘decide the question’’ of whetherthat petition was timely under state law, itis factor that federal habeas court consid-ers in deciding whether to toll one-yearstatute of limitations applicable to the peti-tioner’s filing of federal habeas petition.28 U.S.C.A. § 2244(d)(1)(A), (d)(2).

13. Criminal Law O2037A new criminal trial is not automati-

cally required when false evidence is dis-covered; rather, constitutional error re-sulting from use of false evidence bygovernment requires new trial if falsetestimony could in any reasonable likeli-hood have affected judgment of jury.

14. Habeas Corpus O491State court’s finding that jailhouse in-

formant testified truthfully at petitioner’smurder trial was unreasonable determina-tion of facts in light of evidence presented,as supported grant of habeas relief onpetitioner’s claim that his due processrights were violated when he was convict-ed on informant’s false material testimony;informant perjured himself multiple timesat petitioner’s trial, employed a signaturemodus operandi as a jailhouse informant to‘‘book’’ fellow inmates, and had chronicpattern of dishonesty that both predatedand followed petitioner’s trial. U.S.C.A.Const.Amend. 14; 28 U.S.C.A.§ 2254(d)(2).

15. Habeas Corpus O767Where a petitioner challenges state

court’s findings based entirely on staterecord, federal habeas court must be par-ticularly deferential to its state court col-leagues and defer to state court’s factualfindings unless it is convinced that an ap-pellate panel, applying normal standards ofappellate review, could not reasonably con-clude that findings are supported by rec-


ord; this is daunting standard that will besatisfied in relatively few cases, however, itis not impossible to meet. 28 U.S.C.A.§ 2254(d)(2).

16. Habeas Corpus O767Despite deferential review given by

federal habeas court to state court’s factu-al determinations, deference does not byitself preclude relief. 28 U.S.C.A.§ 2254(d)(2).

17. Habeas Corpus O493(2), 722(1)A federal habeas court can disagree

with state court’s credibility determinationand, when guided by Antiterrorism andEffective Death Penalty Act (AEDPA),conclude decision was unreasonable or thatfactual premise was incorrect by clear andconvincing evidence. 28 U.S.C.A.§ 2254(d)(2).

18. Habeas Corpus O493(2), 767Antiterrorism and Effective Death

Penalty Act (AEDPA), although emphasiz-ing proper and due deference to statecourt’s findings, does not eliminate federalhabeas review; where there are real, credi-ble doubts about veracity of essential evi-dence and person who created it, AEDPAdoes not require federal habeas court toturn blind eye. 28 U.S.C.A. § 2254(d)(2).

19. Habeas Corpus O770Because state court’s decision with re-

gard to petitioner’s claims that his dueprocess rights were violated when he wasconvicted on informant’s false materialtestimony was based on unreasonable de-termination of facts, Antiterrorism and Ef-fective Death Penalty Act (AEDPA) defer-ence no longer applied on federal habeasreview, and habeas court would proceed toresolve those claims without deferenceAEDPA otherwise required; this madesense and was in accord with principles ofAEDPA because, in light of state court’sreliance on incorrect facts, habeas court

did not know what state court would havedecided, and there was no actual decisionto which it could defer. U.S.C.A. Const.Amend. 14; 28 U.S.C.A. § 2254(d)(2).

20. Constitutional Law O4632

Conviction based in part on false evi-dence, even false evidence presented ingood faith, hardly comports with funda-mental fairness, for due process purposes.U.S.C.A. Const.Amend. 14.


To permit conviction based on uncor-rected false material evidence to stand isviolation of a defendant’s due processrights under Fourteenth Amendment.U.S.C.A. Const.Amend. 14.

22. Criminal Law O2037

Constitutional error resulting fromprosecution’s failure to correct false testi-mony requires new trial only if there isany reasonable likelihood that false testi-mony could have affected judgment ofjury.


Criminal Law O2033

Perjury by jailhouse informant atmurder trial deprived petitioner of hisright to trial by jury, thus violating dueprocess; informant was ‘‘make-or-break’’witness for state, informant’s testimonywas centerpiece of prosecution’s case, andnearly all of the other evidence againstpetitioner was circumstantial. U.S.C.A.Const.Amend. 4; 28 U.S.C.A. § 2254(d).

24. Criminal Law O538(3)

A criminal defendant’s own confessionis probably the most probative and damag-ing evidence that can be admitted againsthim.

25. Criminal Law O1991

There are three components of Bradyclaim: (1) evidence at issue must be favor-


able to accused, either because it is excul-patory or because it is impeaching, (2)evidence must have been suppressed bystate, either willfully or inadvertently, and(3) prejudice must have ensued.

26. Constitutional Law O4594(1)Prosecution’s suppression of evidence

favorable to an accused violates due pro-cess where evidence is material, irrespec-tive of good faith or bad faith of prosecu-tion. U.S.C.A. Const.Amend. 14.

27. Criminal Law O1992Evidence is ‘‘material,’’ for purposes

of Brady, if there is reasonable probabilitythat, had evidence been disclosed to de-fense, result of proceeding would havebeen different.


28. Criminal Law O1992‘‘Reasonable probability’’ that had evi-

dence been disclosed to defense, result ofcriminal proceeding would have been dif-ferent, as would render that evidence ma-terial for Brady purposes, is one that issufficient to undermine confidence in out-come of trial.


29. Criminal Law O1992Whether suppressed evidence was

material for Brady purposes must be con-sidered collectively, not item by item.

30. Criminal Law O1999Fact that 16-month reduction in sen-

tence received by jailhouse informant inexchange for his testimony at defendant’smurder trial was not original deal offeredto informant, but rather a deal that infor-mant independently negotiated for himself,was material for Brady purposes; fact thatinformant pursued additional benefit to

himself, independent and subsequent toagreement worked out by his public de-fender, would have provided defendantwith impeaching evidence relevant to infor-mant’s motivation for testifying and of dif-ferent character than other impeachmentevidence that came to light.

31. Criminal Law O1999Brady generally requires prosecutors

to disclose any benefits that are given to agovernment informant, including any le-nient treatment for pending cases.

32. Criminal Law O1999Information regarding prior informant

activities of jailhouse informant who testi-fied for prosecution in defendant’s murdertrial was material for Brady purposes; inlight of import of informant’s testimony,evidence of informant’s prior dealings lawenforcement could have been used to dis-credit defendant had it been received attime of trial.

33. Habeas Corpus O480In determining whether suppression

of impeachment evidence is sufficientlyprejudicial to rise to level of Brady viola-tion, a federal habeas court must analyzetotality of the undisclosed evidence in con-text of entire record.

34. Constitutional Law O4594(1) Habeas Corpus O480

Cumulative effect of all undisclosedevidence in criminal prosecution may vio-late due process and warrant habeas reliefunder Antiterrorism and Effective DeathPenalty Act (AEDPA). U.S.C.A. Const.Amend. 14; 28 U.S.C.A. § 2254(d).

35. Habeas Corpus O480State court’s determination that pros-

ecution’s failure to disclose informationregarding deal negotiated by jailhouse in-formant in exchange for testifying at peti-tioner’s murder trial, as well as infor-


mant’s prior experience as informant, didnot undermine confidence in outcome ofdefendant’s trial was unreasonable appli-cation of Brady, and thus defendant wasentitled to federal habeas relief. 28U.S.C.A. § 2254(d).

Verna Wefald, Pasadena, CA, for plain-tiff-appellant Bobby Joe Maxwell.

Edmund G. Brown, Jr., Attorney Gener-al of the State of California, Dane R. Gil-lette, Chief Assistant Attorney General,Pamela C. Hamanaka, Senior Assistant At-torney General, and Jaime L. Fuster, Dep-uty Attorney General, Kenneth C. Byrne,Supervising Deputy Attorney General, LosAngeles, CA, for respondent-appellee Er-nie Roe, Warden.

Appeal from the United States DistrictCourt for the Central District of Califor-nia, James V. Selna, District Judge, Pre-siding. D.C. No. CV–02–09555–JVS(FMO).

Before: HARRY PREGERSON andRICHARD A. PAEZ, Circuit Judges, andJAMES C. MAHAN, District Judge.*

OPINION

PAEZ, Circuit Judge:

Bobby Joe Maxwell was arrested inApril 1979 and charged with murderingten men in downtown Los Angeles, Cali-fornia. The media dubbed the murdersfor which Maxwell was charged the ‘‘Skid

Row Stabber’’ killings. The prosecution’sbest physical evidence linking Maxwell toany of the crime scenes was a palm printon a public bench found near the body ofone of the victims. The bench, however,was located in an area Maxwell frequent-ed, and the prosecution was unable to iso-late the age of the print. Lacking solidphysical evidence, the prosecution restedits case on the testimony of jailhouse infor-mant Sidney Storch. Storch testified thatwhile he and Maxwell shared a cell, Max-well confessed. Maxwell maintained thathe was innocent and that Storch was lyingthroughout the nine month trial. The juryultimately convicted Maxwell of two of theten counts of first degree murder and onecount of robbery. Maxwell was sentencedto life in prison without the possibility ofparole. In exchange for his testimony atMaxwell’s trial, Storch was released fromcustody one year and eight months early.

Maxwell appeals the district court’s de-nial of his habeas petition. Maxwell’s ap-peal and petition are governed by theAnti–Terrorism and Effective Death Pen-alty Act (‘‘AEDPA’’). He raises two criti-cal issues on appeal. First, he alleges thathe was convicted on the basis of falsematerial testimony by the prosecution’skey informant witness, Sidney Storch, inviolation of his due process rights. Sec-ond, he contends that the prosecution with-held material information concerning thedeal that Storch received in exchange forhis testimony and Storch’s prior informanthistory in violation of Brady v. Maryland,373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d215 (1963).1 Pursuant to 28 U.S.C. § 1291,

* The Honorable James C. Mahan, United StatesDistrict Judge for the District of Nevada, sit-ting by designation.

1. Maxwell also claims: (1) that the trial courtviolated his confrontation clause and dueprocess rights by admitting the preliminaryhearing testimony of deceased witness Thom-

as Jones and excluding voiceprint analysisevidence relevant to Jones’s testimony; and(2) that the trial court violated his due pro-cess rights by excluding third-party culpabili-ty evidence suggesting that Gary Stinsoncommitted the murders. We have examinedMaxwell’s arguments and the record, and we


we have jurisdiction over this timely ap-peal. We reverse in part and affirm inpart.

I. Factual Background

David Martin Jones was fatally stabbedon November 9, 1978, as he bedded downat night at the Los Angeles downtownpublic library. Shortly before Jones wasstabbed, a man approached three homelessmen, all friends of Jones’s, who were alsospending the night outside the library.The prosecution contended that this manwas Jones’s killer. The three homelessmen would later testify that the allegedkiller was a large black man, who said in asoft, low voice that his name was Lutherand he was from Puerto Rico. One witnesssaid he had a Spanish or Caribbean accentand another said he did not. One of thewitnesses, Thomas Jones, later testifiedthat he looked at the killer’s face in thedarkness for about half a minute, and allthree described the killer’s gait as unusualand slow. After speaking with the threewitnesses, the man walked away from thethree homeless men toward where Joneslay. Shortly thereafter Jones shouted thathe had been stabbed. The three men ranto Jones, who was gasping and bloodsoaked. When Thomas Jones asked Joneswho stabbed him, Jones replied, ‘‘The guythat just left.’’

Frank Garcia’s body was discovered ona park bench at the Los Angeles City HallMall on Thanksgiving morning, November28, 1978. His empty wallet lay beside hisbody on the park bench. Garcia had beenstabbed 20 times. Roughly three monthslater, in early January 1979, graffiti wasfound on a restroom wall of the Greyhound

Bus Station which said: ‘‘My name is Lu-ther, I kill wino’s to put them out of theirmisery.’’

In April 1979, Maxwell was arrested. Aknife consistent in size with Jones’s stabwound and Garcia’s stab wounds was foundon Maxwell’s person as was a Bic cigarettelighter. Police seized a sweatshirt, a cap,tennis shoes, and a log book from Max-well’s sister’s home. On the log bookMaxwell had written ‘‘Satan, praise beunto you.’’

At a lineup where Maxwell was instruct-ed to say ‘‘my name is Luther,’’ none of thethree homeless men who saw Jones’s al-leged murderer identified Maxwell. Infact, one witness said, ‘‘you’ve got every-one up there that doesn’t look like him.’’At the preliminary hearing six months la-ter, however, Thomas Jones heard Max-well speak in court, and at that time heidentified Maxwell’s voice as that of thekiller.2 One of the other witnesses, uponseeing Maxwell at the preliminary hearing,wrote the prosecutor a letter in which hesaid, ‘‘I sure hope you have the right guy,because if you do, he sure did change a lotin the last six months.’’ As for the knife,Maxwell’s sister testified that Maxwell fre-quently carried a knife, and a friend ofMaxwell’s testified that he once saw Max-well with a knife but that ‘‘generally, peo-ple in that neighborhood always carryknives.’’

Muddy shoeprints were found near Gar-cia’s body, and the prosecution’s expertconcluded that the prints were consistentwith a pair of Maxwell’s shoes and withmeasurements made of his stride. A de-fense expert examined the muddy shoe-

conclude that the state appellate court nei-ther made an unreasonable determination ofthe facts nor misapplied clearly establishedfederal law in rejecting Maxwell’s challengesto these evidentiary rulings. We, therefore,

affirm the district court’s rulings on these is-sues.

2. Thomas Jones died before Maxwell’s trialbegan.


prints and concluded that the prints weretoo indistinct to show anything and it wasimpossible to make a gait comparison with-out knowing the speed of the person wholeft the prints. Garcia’s wife testified thatthe Bic lighter looked like one Garcia had,but she was not shown the lighter in alineup. Garcia’s stepson was unable toidentify the lighter in a lineup of similarlighters, and two police detectives saidthere was nothing unusual about the light-er to distinguish it from any other Biclighter. Blood samples and cigarette buttsfrom the Jones crime scene could not belinked to Maxwell.

II. Procedural History

[1] Maxwell’s trial began in January1984 and lasted nine months. At trial,Storch testified that he shared a cell withMaxwell in 1983 for about three weeks.3

According to Storch, one day while sittingtogether in their cell, Maxwell read anewspaper article about the Skid RowStabber case, which mentioned that a palmprint had been found on a public benchnear one of the crime scenes. Upon read-ing this article, Storch testified, Maxwellconfessed that he had made a ‘‘mistake’’ bynot wearing gloves. Specifically, Storchtestified on direct examination:

Earlier in the evening there was a news-paper article that had [Maxwell’s] namein it that was passed down from anothercellTTTT [Maxwell] pointed to one par-ticular description in the article TTT hetold me that in this particular instancethat the police had said they found a

palmprint of his in an area near one ofthe people he was accused of havingharmed. He felt that he wasn’t prone tothat kind of mistake[ ], that he didn’tmake that kind of mistake because hewore gloves with the fingers cut off so asto keep his hands warm and leave hisfingers freeTTTT

The prosecution argued during closing ar-guments that Storch’s testimony provedthat Maxwell had admitted responsibilityfor each of the ten murders and that hewas the Skid Row Stabber.

After the lengthy trial, the jury returneda verdict of guilty on two counts of murderand one count of robbery. Maxwell wasfound not guilty on three counts of murderand the jury was unable to reach a verdicton five counts of murder and three countsof robbery. The jury also found true twospecial circumstance allegations, namelymultiple murder and murder committedwhile engaged in a robbery of the victim.The trial court sentenced Maxwell to lifeimprisonment without the possibility of pa-role on both counts of conviction with thesentences to run concurrently.

Maxwell appealed his convictions andsentence to the California Court of Appeal.In March 1991, the California Court ofAppeal affirmed the trial court’s judgmentin full and shortly thereafter denied Max-well’s petition for rehearing. Maxwellthen filed a petition for review with theCalifornia Supreme Court, which the courtdenied in June 1991.

In October 1991, Maxwell filed a habeascorpus petition in Los Angeles Superior

3. Maxwell disputes this testimony. Maxwellalleges that the two shared a cell on Novem-ber 30, 1983, for four hours, not three weeks,and that the jail housing records confirm hisaccount of events. Although the housing rec-ords could be construed to support Maxwell’saccount of events, because the state submittedevidence that those records were unreliablykept in 1983 and suffered from frequent tech-

nical glitches, we cannot say that the superiorcourt made an unreasonable determination ofthe facts when it found the housing recordswere inconclusive. See Wood v. Allen, –––U.S. ––––, 130 S.Ct. 841, 848, 175 L.Ed.2d738 (2010) (‘‘[A] state-court factual determi-nation is not unreasonable merely because thefederal habeas court would have reached adifferent conclusion in the first instance.’’).


Court, which was subsequently denied inAugust 1993. In October 1995, Maxwellfiled a habeas corpus petition in the Cali-fornia Supreme Court. In May 1996, theCalifornia Supreme Court issued an orderto show cause, returnable to the Los Ange-les County Superior Court, on the issue ofwhether Maxwell was entitled to reliefbased on the allegation that jailhouse in-formant Sidney Storch gave false testimo-ny at trial.

The Los Angeles County Superior Courtheld an evidentiary hearing on the ques-tion of whether Storch gave false testimo-ny. That hearing extended over twoyears, from August 1997 to November1999. In February 2000, the SuperiorCourt issued a 34–page written ruling inwhich it concluded that while Storch mighthave proceeded to become an establishedliar and sophisticated jailhouse informant,Storch had not lied at Maxwell’s trial.

On April 20, 2001, Maxwell filed a sec-ond habeas corpus petition in the Califor-nia Supreme Court, which the court deniedon December 19, 2001. One Justice dis-sented from denial, writing that she was‘‘of the opinion an order to show causeshould issue.’’

On December 16, 2002, Maxwell filed apetition for writ of habeas corpus in feder-al district court. The district court con-cluded that Maxwell’s delay in filing hissecond habeas petition in the CaliforniaSupreme Court was reasonable. Thecourt, therefore, concluded that AEDPA’sone-year statute of limitations was tolledand Maxwell’s petition was timely. Ad-dressing the merits, the district court con-cluded that the state court had not violatedMaxwell’s confrontation clause and dueprocess rights by admitting the prelimi-nary hearing testimony of deceased wit-ness Thomas Jones and by excluding otherevidence relevant to Thomas Jones’s testi-mony; that the state court did not violate

Maxwell’s due process rights by excludingthird-party culpability evidence; and thatMaxwell’s due process rights were not vio-lated by the prosecution’s knowing use ofperjured testimony from Storch and otherjailhouse informants. With respect toStorch, the district court concluded thatthe state court’s finding that the housingrecords were ambiguous was not objective-ly unreasonable; that Storch’s lies aboutthe deal he received from the prosecutionand about his informant history did notprejudice Maxwell; and that the prosecu-tion did not violate Brady because anywithheld information was neither materialnor prejudicial. Accordingly, judgmentdenying the petition with prejudice wasentered in May 2006. Maxwell timely ap-pealed.

III. Standard of Review

[2–4] We review de novo the districtcourt’s denial of a state prisoner’s habeaspetition. Parle v. Runnels, 505 F.3d 922,926 (9th Cir.2007). Maxwell’s petition isgoverned by AEDPA. Under AEDPA, astate prisoner is entitled to relief if thestate court adjudication of a claim resultedin a decision that (1) ‘‘was contrary to, orinvolved an unreasonable application of,clearly established Federal law, as deter-mined by the Supreme Court of the UnitedStates,’’ or (2) ‘‘was based on an unreason-able determination of the facts in light ofthe evidence presented in the State courtproceedings.’’ 28 U.S.C. § 2254(d).‘‘Clearly established’’ federal law for pur-poses of AEDPA § 2254(d)(1) consists onlyof Supreme Court holdings; however, cir-cuit court precedent may be ‘‘persuasive’’in demonstrating what law is ‘‘clearly es-tablished’’ and whether a state court ap-plied that law unreasonably. Clark v.Murphy, 331 F.3d 1062, 1069 (9th Cir.2003). As we explain below, when a statecourt adjudication is based on an anteced-


ent unreasonable determination of fact, weproceed to consider the petitioner’s relatedclaim de novo. Detrich v. Ryan, 619 F.3d1038, 1059–1060 (9th Cir.2010).

[5–7] We review the state court’s lastreasoned decision. Barker v. Fleming, 423F.3d 1085, 1091–92 (9th Cir.2005) (citingYlst v. Nunnemaker, 501 U.S. 797, 803–04,111 S.Ct. 2590, 115 L.Ed.2d 706 (1991)).Here, the California Supreme Court de-nied direct review and denied the habeaspetition Maxwell filed after the evidentiaryhearing. In other words, the CaliforniaSupreme Court never issued a reasoneddecision on any of Maxwell’s federal con-stitutional claims. Therefore, we reviewthe Superior Court’s reasoned order thatfollows completion of the evidentiary hear-ing in considering Maxwell’s due processclaim and the California Court of Appeal’sopinion with respect to most other claims.See Ylst, 501 U.S. at 803, 111 S.Ct. 2590.No California court has offered a reasoneddecision for denial of Maxwell’s Bradyclaim; the California Supreme Court sum-marily denied it. In such a situation, wereview the factual record de novo to deter-mine whether the California SupremeCourt’s summary denial of the claim con-stituted an unreasonable application ofBrady. See Greene v. Lambert, 288 F.3d1081, 1088–89 (9th Cir.2002).

IV. Timeliness

[8] The state challenges Maxwell’s ha-beas petition as untimely. Under AED-PA, a state prisoner has one year from thedate when his conviction becomes final tofile a habeas corpus petition. 28 U.S.C.§ 2244(d)(1)(A). The limitations period istolled while ‘‘a properly filed applicationfor State post-conviction or other collateralreview TTT is pending.’’ Id. § 2244(d)(2).In the usual case, an application for statepostconviction review remains ‘‘pending’’after a lower court denies a prisoner’s

petition for state post-conviction reviewand the prisoner files a notice of appeal,provided that the filing of the notice ofappeal is timely under state law. See Car-ey v. Saffold, 536 U.S. 214, 219, 122 S.Ct.2134, 153 L.Ed.2d 260 (2002); see alsoBanjo v. Ayers, 614 F.3d 964, 968–969 (9thCir.2010).

California’s system of habeas review,however, is unusual in that there is no wayfor a prisoner seeking post-conviction re-lief to formally appeal a lower court’s deci-sion. See Carey, 536 U.S. at 221, 122 S.Ct.2134. Instead, each level of the Californiacourt system has original jurisdiction overhabeas petitions, and a petitioner, likeMaxwell, faced with an unfavorable resultin a lower court must file an original peti-tion with the higher state court. See Cal.Const., art. VI, § 10 (‘‘The Supreme Court,courts of appeal, superior courts, and theirjudges have original jurisdiction in habeascorpus proceedings.’’); see also Carey, 536U.S. at 224, 122 S.Ct. 2134 (explaining thatin California ‘‘the only avenue for a prison-er to challenge the denial of his applicationin the superior court is to file a ‘newpetition’ in the appellate court’’).

[9] The United States Supreme Courthas determined that California’s ‘‘specialsystem governing appeals’’ of habeas peti-tions is ‘‘sufficiently analogous to appellatereview systems in other States’’ that AED-PA’s statute of limitations is tolled duringthe time between the unfavorable decisionon an original petition in a lower court andthe filing of a subsequent petition. SeeEvans v. Chavis, 546 U.S. 189, 192–93, 126S.Ct. 846, 163 L.Ed.2d 684 (2006). This iscommonly referred to as ‘‘gap tolling’’ or‘‘interval tolling.’’ See Gaston v. Palmer,417 F.3d 1030, 1041 (9th Cir.2005) (citingCarey, 536 U.S. at 223, 122 S.Ct. 2134);Chaffer v. Prosper, 592 F.3d 1046, 1048(9th Cir.2010) (per curiam). AEDPA’sstatute of limitations will be tolled, howev-


er, only if the prisoner timely filed hissubsequent petition in a higher state court.

[10] Under California law, a habeaspetition is timely if it is filed within a‘‘reasonable time.’’ Evans, 546 U.S. at198, 126 S.Ct. 846; see also Waldrip v.Hall, 548 F.3d 729, 734 (9th Cir.2008).California has not, however, provided guid-ance as to what constitutes a ‘‘reasonabletime.’’ Evans, 546 U.S. at 198, 126 S.Ct.846. The State argues here that Max-well’s delay from the time that the Superi-or Court denied his petition, February 10,2000, until the date he next filed a petitionwith the California Supreme Court, April20, 2001, was not reasonable and, there-fore, AEDPA’s limitations period shouldnot be tolled.

[11] A federal habeas court must de-termine timeliness when there is no clearindication by the state court. Id. Accord-ingly, the district court considered thequestion and determined that Maxwell’sdelay in filing his petition with the Califor-nia Supreme Court was ‘‘reasonable’’ un-der California law and, therefore, timely.We agree.

[12] First, we note that it appears thatthe California Supreme Court consideredthe petition on the merits, which at leastsuggests it considered the petition timely.Although the California Supreme Courtdenied Maxwell’s petition, one justice dis-sented from the denial of rehearing andstated that she was ‘‘of the opinion anorder to show cause should issue.’’ TheCalifornia Supreme Court also did not citeto any case law in support of the dismissalof the petition, as it often does when re-jecting an untimely petition. See, e.g.,Cooper v. Brown, 510 F.3d 870 (9th Cir.2007) (explaining that in that case the Cali-fornia Supreme Court denied the petition-er’s claims as untimely and cited to In reClark, 5 Cal.4th 750, 21 Cal.Rptr.2d 509,

855 P.2d 729 (1993) and In re Robbins, 18Cal.4th 770, 77 Cal.Rptr.2d 153, 959 P.2d311 (1998)). Although this is not a disposi-tive statement of consideration on the mer-its, and consideration on the merits doesnot ‘‘decide the question’’ of whether thepetition was timely, it is a factor we con-sider. See Evans, 546 U.S. at 194, 126S.Ct. 846 (explaining that we may considerwhether the California Supreme Courtconsidered a matter on the merits, but nottake such consideration as ‘‘an absolutebellwether’’ on the timeliness question).

Second, Maxwell has offered a compel-ling justification for his delay in filing hissecond state petition. Under Californialaw, a petitioner must provide an explana-tion for any significant delay in applyingfor habeas relief. In re Clark, 21 Cal.Rptr.2d 509, 855 P.2d at 738; see alsoEvans, 546 U.S. at 201, 126 S.Ct. 846(holding that petitioner’s ‘‘unexplained,hence unjustified, delay of at least sixmonths’’ was not reasonable for purposesof California law); Chaffer, 592 F.3d at1048 (denying a petition that included a115–day gap between the filing of the firsttwo habeas petitions and 101–day gap be-tween the second and third habeas peti-tions in the California Supreme Courtwhere the petitioner ‘‘offered no justifica-tion for the delays as required under Cali-fornia law’’).

Here, Maxwell had good reason for hisdelay in filing. This was an unusual case.The original charge was for ten counts ofcapital murder, and the case moved at anuncommonly slow pace due to its sheermagnitude. Maxwell was arrested onApril 4, 1979, but his trial did not beginuntil four years later in January 1984.Maxwell’s jury trial lasted nine months.Maxwell’s direct appeal took another sevenyears. On direct appeal, the combinedReporter’s and Clerk’s Transcript, includ-ing arguments, filled nearly 20,000 pages.


Following his direct appeal, Maxwell fileda habeas corpus petition in the superiorcourt. That petition was accompanied by179 exhibits comprising more than 1700pages in eight volumes. That court issuedan order to show cause, but denied thepetition without holding an evidentiaryhearing. Thereafter, Maxwell filed a newhabeas corpus petition in the CaliforniaSupreme Court. It was not until twelveyears after the jury returned its guiltyverdict that the California Supreme Courton post-conviction review issued an orderto show cause on the issue of whetherjailhouse informant Sidney Storch gavefalse testimony. A year after that, theevidentiary hearing regarding Storch be-gan. The evidentiary hearing spannedover two years and during that time nu-merous pleadings were filed, more thanthirty witnesses testified, and over fiftyexhibits were admitted. The record fromthe two-year hearing filled ten volumesand thousands of pages. In short, theevidentiary hearing in this case was as-toundingly long, the record complex andvoluminous, and Maxwell’s claims weresubstantially affected by the Storch evi-dence that was discovered during thecourse of the hearing.

Furthermore, as Maxwell’s counsel ex-plained to the district court, the CaliforniaSupreme Court petition raised two claimsdirectly related to the original claims con-cerning the use of jailhouse informants,and these claims required her to conductsignificant legal research and to rewritethe petition to incorporate evidence thathad come to light during the evidentiaryhearing. In particular, because Maxwellchallenged the state court’s factual findingand did so on the basis of evidence pre-sented over a two-year span, defense coun-

sel—who was representing Maxwell probono at the time 4—had to review all thenew evidence in order to make the casethat the Superior Court had erred in re-jecting Maxwell’s claim based on Storch’stestimony. Aside from conducting new re-search and incorporating the new evidenceinto the habeas petition, defense counselexplained to the district court that shespent time determining which of the exhib-its and ‘‘dozens and dozens of pleadings’’should be submitted to the state supremecourt in support of the petition. The mag-nitude of the task is apparent in Maxwell’spetition to the California Supreme Court:the petition spans over 160 pages and citesto the evidentiary hearing record, the re-porter’s transcript, and exhibits from theevidentiary hearing over 500 times.

We have carefully considered Maxwell’sarguments, and we agree with the districtcourt that based on the need to review thevoluminous record, to conduct legal re-search of complex claims, to address theSuperior Court’s lengthy decision, to incor-porate the findings of the two-year eviden-tiary hearing, and to redraft the originalhabeas corpus petition, Maxwell’s delaywas reasonable in this case. Furthermore,one justice of the California SupremeCourt dissented from the denial of Max-well’s petition. For all these reasons, andbased on the particular circumstances inthis case, we agree with the district courtthat Maxwell’s delay in filing his habeaspetition with the California Supreme Courtwas reasonable and, therefore, that AED-PA’s statute of limitations was tolled dur-ing the time between the Superior Court’sdecision and his second petition to theCalifornia Supreme Court. Maxwell’s fed-eral habeas petition was therefore timely.

4. Maxwell was no longer entitled to a court-appointed attorney at this stage of the litiga-

tion.


V. Discussion

A. Background

Maxwell’s conviction was based in largemeasure on the testimony of the jailhouseinformant Sidney Storch. To put this casein context, we begin with a brief discussionof Storch and the use of jailhouse infor-mants in Los Angeles County in the 1980s.The facts about Storch are recounted fromthe state court’s evidentiary hearing.

1. Sidney Storch

Sidney Storch had a long and publichistory of dishonesty, starting with his dis-charge from the U.S. Army in 1964 forbeing ‘‘a habitual liar.’’ By the time ofMaxwell’s 1984 trial, Storch was 37 yearsold and a reported long-time heroin addict.He was a criminal recidivist, with fourfelonies and approximately 13 arrests un-der his belt. His crime of choice wasforgery, and he was well-known with theLos Angeles Police Department (‘‘LAPD’’)forgery division from both a defense andprosecution standpoint. In 1981 and 1982,Storch supplied information to the LAPDabout forgery rings. Subsequently, in1983, Storch was arrested by the Los An-geles Police Department for, among othercrimes, impersonating a Central Intelli-gence Agency (‘‘CIA’’) officer and HowardJohnson, the son of the well-known How-ard Johnson hotel chain. At the time hewas apprehended and placed in a cell withMaxwell, Storch was in possession of afalse California driver’s license, forgedchecks, and stolen credit cards. The de-

tective who arrested Storch characterizedhim as a ‘‘sophisticated forger’’ and testi-fied that he ‘‘would not trust anythingSidney Storch said unless you could cor-roborate the information with somesource.’’

Following Storch’s 1983 arrest, Storch’spublic defender negotiated a guilty pleadeal whereby Storch’s five pending caseswould be consolidated for sentencing andthe court would impose a total combinedsentence of 36 months in prison. Storch,however, independently negotiated a six-teen-month prison term, almost two yearsless than the deal his public defender hadbeen able to secure for him. In exchangefor his reduced prison term, Storch agreedto testify for the prosecution at Maxwell’strial.

Storch testified at Maxwell’s trial in1984. Thereafter, Storch testified for theLos Angeles County District Attorney’sOffice in no less than six cases, several ofthem high-profile.5 By 1985 or 1986,Storch was classified as an informant or‘‘K–9’’ and was housed in the K–9 module,otherwise known as ‘‘informant’s row.’’See Hall v. Dir. of Corrs., 343 F.3d 976,978 (9th Cir.2003) (per curiam) (explainingthat the jailhouse informant who fabricat-ed material evidence in that case washoused on ‘‘informant’s row’’). By 1988,however, Storch’s informant days wereover. Storch was caught fabricating liesas he testified for the prosecution in theunrelated case People v. Sheldon Sanders,

5. One 1989 Los Angeles Times article report-ed:

According to Storch’s testimony and state-ments to police, defendants who made in-criminating statements to him include:Bobby Joe Maxwell, convicted in 1984 oftwo of the ‘‘Skid Row Stabber’’ killings;Tracey Carter, accused of the 1987 robberyand murder of a minister who had stoppedto use a pay telephone in South–Central Los

Angeles, and Stewart Woodman, chargedwith engineering the ‘‘Ninja’’-style killing ofWoodman’s parents in the garage of theirfashionable Brentwood condominium.Said inmate Daniel Roach: ‘‘It seems thathalf the world just confesses to SidneyStorch.’’

Ted Rohrlich & Robert W. Stewart, JailhouseSnitches: Trading Lies for Freedom, L.A.Times, Apr. 16, 1989, at 1.


No. A039120 (L.A.Super.Ct. April 25,1988); as a result, he was marked by theLos Angeles County District Attorney’soffice as unreliable and unusable and waslater indicted for perjury.6

B. Due Process Concerns

Maxwell argues that his due processrights under the Fourteenth Amendmentwere violated when he was convicted onthe false material testimony of jailhouseinformant Sidney Storch. In particular,Maxwell alleges that the Superior Court’sfactual determination that Storch testifiedcredibly at Maxwell’s trial was an unrea-sonable determination of the facts and thatadmission of Storch’s false testimony prej-udiced his case.

In Napue v. Illinois, 360 U.S. 264, 269,79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959), theSupreme Court explained that ‘‘it is estab-lished that a conviction obtained throughuse of false evidence, known to be such byrepresentatives of the State, must fall un-

der the Fourteenth Amendment,’’ and‘‘[t]he same result obtains when the State,although not soliciting false evidence, al-lows it to go uncorrected when it appears.’’See also United States v. Agurs, 427 U.S.97, 103, 96 S.Ct. 2392, 49 L.Ed.2d 342(1976) (stating that ‘‘the Court has consis-tently held that a conviction obtained bythe knowing use of perjured testimony isfundamentally unfair’’). We have also con-cluded that a defendant’s due processrights were violated, and accordinglygranted habeas relief, when it was re-vealed that false evidence brought about adefendant’s conviction. See, e.g., Killian v.Poole, 282 F.3d 1204 (9th Cir.2002); Hall,343 F.3d at 978.

[13] A new trial is not automaticallyrequired when false evidence is discovered.Rather, a constitutional error resultingfrom the use of false evidence by the gov-ernment requires a new trial, ‘‘if the falsetestimony could TTT in any reasonable like-

6. The audacious perjury of jailhouse infor-mants like Storch motivated a Los AngelesCounty grand jury investigation into the in-volvement of jailhouse informants in the crim-inal justice system in Los Angeles County. Asreported to the grand jury, Leslie VernonWhite, a jailed informant, demonstrated forthe Los Angeles County Sheriff’s Departmentin 1988 the ease with which he and otherswere able to obtain confidential informationand then fabricate confessions of fellow pris-oners. Report of the 1989–90 Los AngelesCounty Grand Jury (hereinafter ‘‘Grand JuryReport’’), June 26, 1990, at 16. FollowingLeslie Vernon White’s confirmation of theease with which informants could fabricateconfessions, the California Attorney Generalappointed a special counsel and began whatwas then the most comprehensive inquiry intothe use of jailhouse informants in Los Ange-les. See Stephen S. Trott, Words of Warningfor Prosecutors Using Criminals as Witnesses,47 Hastings L.J. 1381, 1394 (1996) (explain-ing that as a result of Leslie Vernon White’sdemonstration, ‘‘[d]efense lawyers have com-piled a list of 225 people convicted of murderand other felonies, some sentenced to death,

in cases in which Mr. White and other jail-house informers testified over the last 10years in Los Angeles County’’ (citation omit-ted)). During the course of the grand juryinvestigation, over one hundred and twentywitnesses, including six self-professed jail-house informants, testified; Sidney Storchwas one of the six informants who testified.See United States v. Bernal–Obeso, 989 F.2d331, 334 (9th Cir.1993) (quoting the GrandJury Report and explaining that ‘‘[c]riminalscaught in our system understand they canmitigate their own problems with the law bybecoming a witness against someone else’’).

After testifying before the grand jury,Storch was listed on the 1988 grand jury’sinvestigating informant abuse list and he wasamong the individuals that the grand juryrecommended that the District Attorney con-sider prosecuting for informant abuses. As aresult, Storch was the first informant to beindicted for perjury following the 1988 grandjury investigation. Storch, however, neverconfronted those charges because he died in aNew York jail before he could be extradited toCalifornia.


lihood have affected the judgment of thejury.’’ Giglio v. United States, 405 U.S.150, 154, 92 S.Ct. 763, 31 L.Ed.2d 104(1972) (quoting Napue, 360 U.S. at 271, 79S.Ct. 1173). We first consider whether theSuperior Court’s finding that Storch testi-fied truthfully at Maxwell’s trial was anunreasonable determination of the facts inlight of the evidence presented in the statecourt proceedings. 28 U.S.C. § 2254(d)(2).Concluding that it was, we proceed to con-sider whether Storch’s false testimony wasmaterial. Because we conclude that thefalse testimony was material and its inclu-sion undermines confidence in the judg-ment of the jury, we reverse the districtcourt’s judgment on this claim. See Kylesv. Whitley, 514 U.S. 419, 434, 115 S.Ct.1555, 131 L.Ed.2d 490 (1995).

1. Falsity

The State maintains that the Los Ange-les County Superior Court’s conclusion,following the hearing conducted on Max-well’s state habeas petition, that Storchgave truthful testimony at Maxwell’s trialwas an objectively reasonable determina-tion of the facts. We disagree.

Our review of a state court’s factualdetermination is controlled by 28 U.S.C.§ 2254(d)(2).7 AEDPA § 2254(d)(2) au-thorizes federal habeas relief in thosecases where the state-court decision ‘‘wasbased on an unreasonable determination ofthe facts in light of the evidence presentedin the State court proceeding.’’ See Mil-ler–El v. Cockrell, 537 U.S. 322, 324, 123S.Ct. 1029, 154 L.Ed.2d 931 (2003).

[14, 15] Where a petitioner challengesthe state court’s findings based entirely onthe state record, ‘‘we must be particularly

deferential to our state-court colleagues,’’and defer to their factual findings unlesswe are ‘‘convinced that an appellate panel,applying the normal standards of appellatereview, could not reasonably conclude thatthe finding is supported by the record.’’Taylor, 366 F.3d at 999–1000. ‘‘This is adaunting standard—one that will be satis-fied in relatively few cases.’’ Id. However,‘‘the standard is not impossible to meet.’’Id. After careful consideration of the evi-dence before the state court, including thatwhich came to light during the evidentiaryhearing, we conclude that Maxwell has metthat standard here.

In May 1996, the California SupremeCourt issued an order to show cause onthe single issue of whether Sidney Storchgave false testimony at Maxwell’s trial,transferring the matter to the SuperiorCourt. The Superior Court conducted anevidentiary hearing spanning two years toresolve the question. More than thirtywitnesses testified and fifty exhibits wereentered into evidence. In February 2000,the Superior Court denied relief in a 34–page written opinion. The court acknowl-edged that Maxwell had established thatby 1988 Storch was untrustworthy and asophisticated ‘‘booker’’ of defendants or a‘‘jailhouse snitch.’’ The Superior Court,however, concluded that ‘‘whatever so-phistication Storch possessed at these latertimes, he developed after his testimonyagainst petitioner,’’ when he was just a‘‘neophyte jailhouse informant.’’ The find-ing that Storch became a sophisticated‘‘booker’’ of prisoners only after Maxwell’strial, given the evidence that was present-ed at trial and at the evidentiary hearing,was arbitrary, and for the reasons set

7. We apply § 2254(d)(2) to situations, such asthat here, where a ‘‘petitioner challenges thestate court’s findings based entirely on thestate record.’’ Taylor v. Maddox, 366 F.3d992, 999–1000 (9th Cir.2004). By contrast,

we do not apply 28 U.S.C. § 2254(e)(1),which applies to challenges based on extrinsicevidence or ‘‘evidence presented for the firsttime in federal court,’’ and requires proof byclear and convincing evidence. Id. at 1000.


forth below, we conclude that it was objec-tively unreasonable to find that Storch tes-tified truthfully.

First, it is undisputed that Storch toldnumerous lies at Maxwell’s trial. At aminimum, Storch lied about his motivationfor coming forward, his prior record, theamount of money he had stolen, the levelof education he attained, and the fact thathe had previously worked out a 36–monthprison term in exchange for his guilty pleabefore the sixteen-month deal he ultimate-ly received in exchange for his cooperationand testimony in Maxwell’s trial. Specifi-cally, Storch testified at Maxwell’s trialthat he was not seeking leniency in ex-change for his testimony. Rather, Storchstated, he had sought guidance from theprison rabbi about whether to testify andhad concluded thereafter that he should.This was a lie. The prison rabbi testifiedthat Storch had never discussed Maxwell’scase with him nor sought his guidance.Storch testified that there were no dealsbetween him and the prosecution prior tothe sixteen-month deal he received. Thiswas a lie. Storch’s public defender hadpreviously worked out a 36–month deal.Storch testified that he had only two priorfelony convictions when in fact he hadmore. Storch stated that his five pendingcases involved ‘‘almost $13,000’’ of forgedfunds, but the amount was closer to$44,000. Finally, Storch said he had com-pleted two and a half years of college inbusiness administration when, in truth, hehad never gone to college.

The fact that Storch told several liesunder oath contemporaneous with his tes-timony regarding Maxwell’s alleged con-fession does not alone establish that Storchlied about the confession itself. Storch’sperjury, however, indicates a willingness tolie under oath and lends credence to Max-well’s arguments that Storch lied when hetestified about the alleged confession and

that the prosecution knew or should haveknown that Storch gave false testimony.

Storch also misrepresented his sophisti-cation and experience as a jailhouse infor-mant at Maxwell’s trial. In particular,Storch testified at trial that he had nevertestified for the district attorney’s officebefore. Maxwell, however, submitted evi-dence at the Superior Court hearing thatcontradicted this characterization of Storchas new to the informant world and new tocooperating with the district attorney’s of-fice.

For example, Gregory Schwien—a de-tective with the LAPD Bunco Forgery di-vision—testified that in the early 1980s,Storch ‘‘supplied information to us [thepolice] regarding forgery ringsTTTT’’Schwien recounted an incident from 1981or 1982 where Storch wanted to entrapsomeone, ‘‘more or less set that individualup,’’ by planting bad checks on him. Afterthat, despite having worked with Storchfor about a year, Schwien testified at theevidentiary hearing that he ‘‘stopped allcontact with [Storch]’’ because he foundStorch to be unreliable. Patrick Riley,who worked for the LAPD for 23 years,testified that Storch worked as an infor-mant for him around 1983, a year beforeMaxwell’s trial. Riley testified at the evi-dentiary hearing that Storch ‘‘was a per-son that committed forgery on an ongoingbasis,’’ a heroin addict, and an informant.Gary Ingemunson, who worked in theLAPD forgery division, testified that heinterviewed Storch in 1983 while Storchwas in custody. Ingemunson testified thatStorch was ‘‘acting as an informant,’’ ‘‘giv-ing me information,’’ and ‘‘providing infor-mation about other criminals in the LosAngeles area in the forgery field.’’Storch’s informant activities with Schwien,Riley, and Ingemunson all predated Max-well’s trial. Finally, Samuel George Port-er, a sergeant in the Sheriff’s Department


in the inmate reception center, testifiedthat when he came into contact withStorch in 1985 or 1986, Storch was official-ly classified as an informant or ‘‘K–9.’’

The testimony of Schwien, Ingemunson,and Riley established that Storch misrep-resented his informant past at trial andthat Storch did indeed have a history ofworking as an informant and ‘‘booking’’other criminals. It is undisputed that in atleast one such instance, Storch went so faras to suggest that fake checks be plantedon an individual in order to ‘‘book’’ him.This testimony directly contradicts the dis-trict court’s characterization of Storch as a‘‘neophyte’’ informant in 1984. Finally,Porter’s testimony that Storch was official-ly classified as a ‘‘K–9’’ by 1985 or 1986, aclassification reserved for seasoned officialinformants, reasonably suggests that by1984 Storch was well on his way to becom-ing, if not already, a professional infor-mant.

Storch not only had an established histo-ry of working as an informant by the timeof Maxwell’s trial, but he also had a signa-ture modus operandi for ‘‘booking’’ fellowinmates. That method—for which Storchbecame famous—was precisely the onethat Maxwell alleges Storch employed inthis case. Storch’s method to ‘‘book’’ aninmate was to gain physical proximity to ahigh-profile defendant, get informationabout the case from the media, usually anewspaper, and then call the District At-torney or law enforcement and offer totestify. Several examples of Storch’s useof this ‘‘booking’’ method came to lightduring the evidentiary hearing. SergeantPorter testified that Storch once requestedthat a high-profile defendant, who had

been in the news, be transferred to hisrow. Porter testified that he did not movethe defendant because he believed thatStorch planned to use a newspaper articleto fabricate testimony against him.8 Ac-cording to Porter, his suspicion was basedon knowing Storch for five years and con-cluding that he ‘‘was not credible.’’

John Kryniak, a former Pasadena policeofficer and Los Angeles District Attorney,testified that in 1986 Storch came forwardand offered to testify for the governmentin the high-profile ‘‘Ninja murders’’ case.Kryniak explained that he decided not touse Storch when he learned that Storchhad been placed in the defendant’s cellafter the time Storch claimed he was there.Kryniak further testified that he chose notto use Storch’s testimony because he didnot believe Storch was telling the truthand because Storch had a very checkeredhistory as an informant.

Joseph Markus testified that he was as-signed to prosecute a high-profile case in1988. Storch testified at the preliminaryhearing for that case. Markus testifiedthat he found Storch’s testimony suspi-ciously similar to newspaper stories aboutthe case, and thus concluded that, ‘‘as aresult of the similarities between his testi-mony and these newspaper stories, I feltthat Storch could make up the informationand did not believe his testimony.’’ Mar-kus also testified that he found Storch tobe very manipulative and was surprised byhis frequent access to the jailhouse phone.

According to evidence gleaned duringthe state court evidentiary hearing, Storchlied under oath about more than fellow

8. Porter’s testimony that he could freelytransfer inmates among cells was corroborat-ed by the testimony of Phillip Sowers andWilliam Patterson. Sowers was an investiga-tor for the City of Los Angeles from 1971–92.He testified that detectives could easily get

inmates moved within the jail. Similarly,Patterson, a former Los Angeles County Sher-iff’s Department employee, testified that inlate 1982 and early 1983, he was able to moveinmates in order to use them as informants.


inmates’ confessions. In April 1985,Storch testified for the prosecution in Peo-ple v. Stephen Naquin, No. A809434(L.A.Super.Ct. Oct. 7, 1985). At that trial,a mere nine months after Maxwell’s trial,Storch lied about the benefit he receivedfor testifying in Maxwell’s trial and abouthis motivations for testifying in the Na-quin trial itself, among other fabrications.In November 1985, Storch falsely testifiedfor the prosecution in another case, Peoplev. Carl Jones, No. A809938 (L.A.Super.Ct.Nov. 18, 1985). In that case, Storch false-ly testified that he did not expect anybenefit for his testimony and that he hadno charges pending against him, amongother lies.

In April 1988, at the trial of People v.Sheldon Sanders, No. A039120 (L.A.Su-per.Ct. Apr. 25, 1988), Storch lied whileunder oath when he denied getting a dealin exchange for his testimony in Maxwell’strial. This lie ultimately resulted inStorch’s indictment for perjury. In seek-ing the indictment, the Deputy AttorneyGeneral told the grand jury that:

First of all, Mr. Storch TTT was a Peo-ple’s witness in People v. Sanders. Hewas testifying in a murder case, and hetestified that the defendant indirectlyadmitted to the crime. Clearly that’s amaterial matter. What he did was, aftersaying that the defendant admitted tothe crime, he lied about his qualificationsas a witness. He denied having receivedbenefits. [Storch] knew he received thebenefits, and he flat out denied itTTTT

Storch was trying to present himself inthat case as someone who was lily-white.He was an experienced witness, he wasprecise in his answers, and he joustedwith the defense attorney during thecourse of his examination.

The Attorney General went on to testify:‘‘We expect that persons are going to comein and tell the truthTTTT That just plain

didn’t happen in the Sanders case. Mr.Storch was a person who lied about hiscredibility, and it was a serious risk to thejudicial system.’’

In sum, Storch perjured himself multipletimes at Maxwell’s trial and employed asignature method to ‘‘book’’ fellow inmates.Furthermore, Storch had a chronic patternof dishonesty that both predated and fol-lowed Maxwell’s trial. The evidence ofStorch’s later lies under oath does notestablish the nature of his testimony atMaxwell’s trial, but it remains relevant. Itdemonstrates a willingness to commit per-jury and corroborates Maxwell’s argumentthat Storch had a signature modus operan-di that he employed as a witness for theprosecution at Maxwell’s trial.

The preliminary inquiry, then, remainswhether it was objectively unreasonable—in light of the evidence revealed over thecourse of the evidentiary hearing—for theSuperior Court to find that Storch testifiedtruthfully at the 1984 trial when he statedthat Maxwell had confessed. The difficul-ty here is not whether Storch became aprofessional ‘‘snitch’’ who frequently com-mitted perjury. That much is clear.Rather, the question is whether, as thestate court concluded, in 1984 Storch re-mained an unsophisticated informant whowas not yet employing the practices forwhich he would later be indicted. Thisrequires us to determine whether the statecourt’s factual determination was objec-tively unreasonable, a standard which, aswe noted above, affords the state courtdetermination the utmost deference.

[16, 17] Despite this deferential review,‘‘deference does not by definition precluderelief. A federal court can disagree with astate court’s credibility determination and,when guided by AEDPA, conclude the de-cision was unreasonable or that the factualpremise was incorrect by clear and con-vincing evidence.’’ Cockrell, 537 U.S. at


340, 123 S.Ct. 1029. We have, on occasion,concluded that a state court’s factual de-termination was unreasonable. See, e.g.,Cooke v. Solis, 606 F.3d 1206, 1216 (9thCir.2010) (holding that the state court’sdecision to uphold the Parole Board’s deni-al of parole was an unreasonable determi-nation of the facts in light of the evidence);Taylor, 366 F.3d at 1000 (holding that thestate court’s finding that petitioner’s con-fession was voluntarily obtained was objec-tively unreasonable); Hall, 343 F.3d at 984(holding that the state appellate courtmade an unreasonable determination ofthe facts in light of the evidence presentedby finding that the falsity of the jailhouseinformant’s notes had not been proven at ahearing); Nunes v. Mueller, 350 F.3d1045, 1057 (9th Cir.2003) (holding that thestate court’s rejection of the petitioner’sineffective assistance of counsel claim wasan unreasonable determination of the factsin light of the evidence before the statecourt); Bradley v. Duncan, 315 F.3d 1091,1094 (9th Cir.2002) (affirming the districtcourt’s holding that the state’s finding thatthe petitioner did not present sufficientevidence to deserve an instruction on en-trapment was an unreasonable determina-tion of the facts).

Furthermore, we have recognized theunreliability of jailhouse informants—whoare themselves incarcerated criminals withsignificant motivation to garner favor—andon occasion have granted habeas or otherrelief where a defendant was convicted asa result of fabricated or potentially fabri-cated testimony. See, e.g., Hall, 343 F.3dat 985 (reversing the district court’s denialof habeas relief where a 1985 Californiajailhouse informant later confessed to per-jury and the alteration of evidence); Jack-

son v. Brown, 513 F.3d 1057, 1060–61 (9thCir.2008) (affirming the district court’spartial grant of habeas relief where a1980s California jailhouse informant hadnot disclosed the full benefit he received inexchange for his testimony); Goldstein v.City of Long Beach, 481 F.3d 1170, 1171(9th Cir.2007), reversed on other groundsby Van de Kamp v. Goldstein, ––– U.S.––––, 129 S.Ct. 855, 172 L.Ed.2d 706 (2009)(noting that Goldstein was granted habeasrelief when it was revealed that a 1980sCalifornia jailhouse informant had not dis-closed that his sentence was reduced inreturn for testimony) 9; Reynoso v. Giur-bino, 462 F.3d 1099, 1102 (9th Cir.2006)(granting habeas relief where counsel wasineffective in failing to cross-examine the1990 California jailhouse informant abouthis motivation for testifying and the infor-mant’s testimony was suspiciously similarto a recent television broadcast about thecase); Bernal–Obeso, 989 F.2d at 333 (va-cating a defendant’s conviction on directreview and remanding the case back to thedistrict court for an evidentiary hearing todetermine whether the government infor-mant had lied about prior convictions); butsee Hovey v. Ayers, 458 F.3d 892, 898 (9thCir.2006) (denying habeas relief where fail-ure to impeach a 1980 California jailhouseinformant was not ineffective assistance ofcounsel); Morales v. Ornoski, 439 F.3d529, 534 (9th Cir.2006) (denying habeasrelief where petitioner’s claim that prose-cution knowingly presented a 1980s Cali-fornia jailhouse informant’s false testimonywas harmless).

Based on our review of the state courtrecords, and in particular the evidence thatwas presented at the Superior Court’s evi-dentiary hearing, we conclude that the

9. See also Goldstein v. Harris, 82 Fed.Appx.592 (9th Cir.2003) (affirming the grant ofhabeas relief); Goldstein v. City of LongBeach, 603 F.Supp.2d 1242 (C.D.Cal.2009)

(noting that the informant in Goldstein waslikened to ‘‘another notorious informant, Sid-ney StorchTTTT’’).


state court’s conclusion that Storch testi-fied truthfully was an unreasonable deter-mination of the facts. There is simply toomuch evidence of Storch’s pattern of per-jury to conclude otherwise. At the time ofMaxwell’s trial, Storch was already em-ploying the ‘‘booking’’ formula that hewould later teach others and for which hewould become famous; the housing rec-ords show that Storch had physical prox-imity to Maxwell; Storch openly admittedthat he was in possession of a newspaperarticle about the murders; the newspaperarticle itself mentioned all of the specificfacts to which Storch testified—namely,that the police had found Maxwell’s palmprint on a nearby park bench; and, finally,Storch contacted Deputy District AttorneySterling Norris with the news of his cell-mate’s spontaneous confession and negoti-ated his own deal in exchange for histestimony.10

The Superior Court arbitrarily cabinedStorch’s perjury methods to a time periodstarting after 1984, and, in spite of thenumerous known lies Storch told at Max-well’s trial, unreasonably found his testi-mony truthful. In 1984, Storch was 37years old and already a career criminal.He had committed crimes of deceit, andhad been arrested at least 13 times andconvicted of at least three felonies. Storchtold numerous confirmed lies at Maxwell’strial, was known as dishonest at the timeof trial, was an experienced informant ac-cording to the testimony of three LAPDofficials, and employed his signature meth-od to ‘‘book’’ Maxwell. If Storch was aneophyte informant at the time of Max-well’s trial, his inexperience showed not inhis forthrightness, but, rather, in the lackof creativity in the lies he told. Storch

simply repeated facts about the Skid RowStabber killings contained in a newspaperarticle he admitted to possessing, and heoffered no details about any of the crimesthat were not already public and in wide-spread print. Storch testified at Maxwell’strial because he wanted to obtain a bene-fit—a reduction in his sentence—and, be-cause he was dishonest, he was willing tosay or do anything to obtain that goal.

As we have observed, ‘‘informants arecut from untrustworthy cloth and must bemanaged and carefully watched.’’ Bernal–Obeso, 989 F.2d at 333. A failure of vigi-lance by the prosecuting authorities, aswas epidemic in Los Angeles County in the1980s, resulted in widespread failure to‘‘prevent [criminal informants] from falselyaccusing the innocent, from manufacturingevidence against those under suspicion ofcrime, and from lying under oath in thecourtroom.’’ Id. As our own Judge Ste-phen Trott has explained in a law reviewarticle on the topic: ‘‘The most dangerousinformer of all is the jailhouse snitch whoclaims another prisoner has confessed tohim. The snitch now stands ready to testi-fy in return for some consideration in hisown case. Sometimes these snitches tellthe truth, but more often they invent testi-mony and stray details out of the air.’’Trott, supra, at 1394.

[18] Here, Storch lied about Maxwell’sconfession in order to reduce his own jailtime. Storch went on to testify for theprosecution, and to lie, in numerous othercases. He became one of Los AngelesCounty’s most infamous jailhouse infor-mants and he operated at the height of theCounty’s jailhouse informant scandal. We

10. Storch and Sterling Norris seem to havehad an ongoing relationship. After testifyingin People v. Sheldon Sanders, No. A039120(L.A.Super.Ct. Apr. 25, 1988), Storch askedthe prosecution for money. Storch stated,

‘‘[p]erhaps I’ve been spoiled by the likes ofMr. Norris TTT but I’ve usually been allowed$30.00 from petty cash TTT and an OK for theInvestigator to stop and get me some smokesand candy.’’


cannot ‘‘reasonably conclude that the find-ing’’ that Storch testified truthfully atMaxwell’s trial ‘‘is supported by the rec-ord.’’ Taylor, 366 F.3d at 1000. ‘‘AED-PA, although emphasizing proper and duedeference to the state court’s findings, didnot eliminate federal habeas review.Where there are real, credible doubtsabout the veracity of essential evidenceand the person who created it, AEDPAdoes not require us to turn a blind eye.’’Hall, 343 F.3d at 984 n. 8. We conclude,based on the record before the state court,that it was an objectively unreasonabledetermination of the facts to find that Sid-ney Storch was telling the truth at Max-well’s trial in 1984. 28 U.S.C.§ 2254(d)(2).

2. Due Process Right

Having concluded that Storch’s testimo-ny was false, we next consider whetherbeing convicted on the basis of Storch’sfalse testimony violated Maxwell’s right todue process under the Fourteenth Amend-ment. See Agurs, 427 U.S. at 103, 96 S.Ct.2392. Maxwell argues that his convictionbased on false material evidence violatedhis due process rights under the Four-teenth Amendment, and we agree.

[19] First, because the state court’sdecision was ‘‘based on an unreasonabledetermination of the facts’’ under§ 2254(d)(2), the AEDPA deference nolonger applies. Detrich, 619 F.3d at 1059.Therefore, we proceed to ‘‘ ‘resolve [Max-well’s related due process] claim withoutthe deference AEDPA otherwise re-quires.’ ’’ Id. (quoting Panetti v. Quarter-man, 551 U.S. 930, 953, 127 S.Ct. 2842, 168L.Ed.2d 662 (2007)). As we recently ex-plained in Detrich, this makes sense and isin accord with the deference principles ofAEDPA because—in light of the statecourt’s reliance on incorrect facts—‘‘we donot know what the state court would have

decided TTT [and] there is no actual deci-sion to which we can defer.’’ Id. at 1060.

[20] In Killian, as here, the defendantwas convicted of murder based, in largepart, on the testimony of a jailhouse infor-mant. 282 F.3d at 1206–07. In that case,we concluded that irrespective of whetherthe prosecutor knew that the informanthad given false testimony, ‘‘one [could not]reasonably deny that [the jailhouse infor-mant] gave perjured testimony at [peti-tioner’s] trial.’’ Id. at 1208. We went onto ‘‘determine whether ‘there is a reason-able probability that [without all the perju-ry] the result of the proceeding would havebeen different.’ ’’ Id. at 1204, 1208 (citingUnited States v. Young, 17 F.3d 1201, 1204(9th Cir.1994) and United States v. Bagley,473 U.S. 667, 682, 105 S.Ct. 3375, 87L.Ed.2d 481 (1985) ) (alterations in theoriginal). We concluded that the perjuryof ‘‘the prosecution’s main witness’’ under-mined confidence in the verdict and, there-fore, to permit the defendant’s convictionto stand on the basis of such evidenceviolated the petitioner’s due process rights.Id. at 1208, 1211. Accordingly, we re-versed the district court’s denial of habeasrelief. Id. at 1211. We explained that ‘‘agovernment’s assurances that false evi-dence was presented in good faith are littlecomfort to a criminal defendant wronglyconvicted on the basis of such evidence. Aconviction based in part on false evidence,even false evidence presented in goodfaith, hardly comports with fundamentalfairness.’’ Id. at 1209 (internal quotationmarks omitted).

Hall similarly concerned a habeas defen-dant who challenged his conviction, argu-ing that it was based on false materialevidence in violation of his due processrights. 343 F.3d at 981. In that case, thehabeas defendant objected to the admis-sion of incriminating handwritten notesthat a jailhouse informant supplied to the


prosecution. See id. The defendant ar-gued that whether or not the prosecutionknew that the jailhouse notes admittedinto evidence at trial were false at the timeof trial, ‘‘to allow his conviction to stand,based on the present knowledge that theevidence was falsified, is a violation of hisright to due process under the FourteenthAmendment.’’ Id. (citing Agurs, 427 U.S.at 103, 96 S.Ct. 2392). We agreed. Wefirst determined that the alleged writtenconfession, which a jailhouse informanthad provided, was false and material evi-dence. Id. at 982–85. Accordingly, weconcluded that to permit the petitioner’sconviction to stand on the basis of suchfalse material evidence violated his consti-tutional rights, and we reversed the denialof habeas relief. Id. at 985 (reversing thedenial of habeas relief ‘‘[b]ecause false andmaterial evidence was admitted at [peti-tioner’s] trial in violation of his due processrights’’). The Second Circuit has similarlyexplained that ‘‘[i]t is simply intolerableTTT if a state allows an innocent person toremain incarcerated on the basis of lies.’’Sanders v. Sullivan, 863 F.2d 218, 224 (2dCir.1988) (reversing the denial of habeasrelief and holding that the petitioner’s dueprocess rights were violated when the peti-tioner in that case was convicted based onthe material testimony of a witness whorecanted); see also United States v. Wal-lach, 935 F.2d 445, 473 (2d Cir.1991) (hold-ing that the perjury by a key governmentwitness, irrespective of whether the gov-ernment knew of the perjury at the time oftrial, ‘‘infected the trial proceedings’’ andrequired reversal).

[21] Here, we have resolved thethreshold factual question of falsity andconcluded that Storch perjured himselfwhen he testified that Maxwell confessed.We have also resolved the threshold legalquestion and conclude that under Hall andKillian, to permit a conviction based on

uncorrected false material evidence tostand is a violation of a defendant’s dueprocess rights under the FourteenthAmendment. We proceed, therefore, toconsider whether Storch’s testimony wasmaterial.

[22] A constitutional error resultingfrom the prosecution’s failure to correctfalse testimony requires a new trial only ifthere is ‘‘any reasonable likelihood that thefalse testimony could have affected thejudgment of the jury.’’ Hayes v. Brown,399 F.3d 972, 985 (9th Cir.2005) (en banc).In order to determine whether Storch’sperjury here undermines confidence in theverdicts, we again compare this case toHall and Killian. In Hall, there was ‘‘ab-solutely no physical or forensic evidenceconnecting [the defendant] to the body orthe alley in which it was found,’’ and thenotes supplied by the informant, likeStorch’s testimony, provided a confessionin what was otherwise a weak case. 343F.3d at 978 (noting that ‘‘[u]nable to findany physical evidence to connect Hall tothe murder, the prosecution relied upontwo documents provided by a jailhouseinformant’’). Because there was ‘‘a rea-sonable likelihood that the introduction ofthe falsified notes affected the jury’s ver-dict,’’ we concluded that the jailhousenotes were material and reversed the dis-trict court’s denial of habeas relief. Id. at984–85 (citing Giglio, 405 U.S. at 154, 92S.Ct. 763).

Like Hall, Killian required us to ‘‘de-cide whether the use of perjured testimonyTTT justifie[d] habeas relief.’’ 282 F.3d at1206. In Killian, the jailhouse informantmade ‘‘virtually the whole case for thegovernment,’’ and the prosecution empha-sized the informant’s testimony duringclosing arguments. Id. at 1209. Becausethe jailhouse informant was the ‘‘make-or-break witness’’ for the state, we concludedthat there was a ‘‘reasonable probability


that without all the perjury the result ofthe proceeding would have been different.’’Id.

[23] Here, as in Hall and Killian,Storch was the ‘‘make-or-break’’ witnessfor the State. Storch’s testimony was thecenterpiece of the prosecution’s case.Nearly all of the other evidence againstMaxwell was circumstantial. In decidingwhether to file murder charges againstMaxwell, the prosecution itself acknowl-edged in internal written notes that werediscovered during the evidentiary hearingthat its case was ‘‘weak from an evidentialstandpoint.’’ The only evidence thatlinked Maxwell to the Jones murder wasthe in-courtroom voice identification ofMaxwell by a witness who had been unableto pick Maxwell out of a lineup in which hespoke, and the fact that Maxwell possesseda knife consistent with Jones’s stab wound.The only evidence that linked Maxwell tothe Garcia murder was Maxwell’s palmprint on a nearby bench in an area Max-well admitted frequenting, some muddyand consistent footprints, and a genericBic lighter found in Maxwell’s pocket atthe time of arrest. In sum, Storch’s testi-mony that Maxwell confessed to making a‘‘mistake’’ in the commission of the Garciamurder was the prosecution’s prize evi-dence. Furthermore, Storch’s testimonywent to both the Garcia and Jones mur-ders; in fact, Storch’s testimony was of-fered to establish Maxwell as the perpetra-tor of all ten of the Skid Row Stabberkillings. Specifically, the State arguedduring closing arguments and continues toargue in its brief on appeal, that Storch’stestimony ‘‘was offered primarily to provethat [Maxwell] had admitted responsibilityfor each of the ten murders.’’

[24] Storch’s testimony is significantnot just because of the paucity of otherevidence but also because of the content ofhis testimony. As this court and the Su-

preme Court have noted, the importanceof ‘‘ ‘the defendant’s own confession isprobably the most probative and damagingevidence that can be admitted againsthim.’ ’’ Arizona v. Fulminante, 499 U.S.279, 296, 111 S.Ct. 1246, 113 L.Ed.2d 302(1991) (quoting Bruton v. United States,391 U.S. 123, 139–40, 88 S.Ct. 1620, 20L.Ed.2d 476 (1968) (White, J., dissenting));see also Moore v. Czerniak, 574 F.3d 1092(9th Cir.2009) (citing Fulminante and con-cluding that counsel’s failure to move toexclude the petitioner’s confession wasprejudicial). The importance of Storch’stestimony was underscored by the prose-cution in its closing argument, when Nor-ris emphasized Storch’s testimony. SeeHall, 343 F.3d at 976 (finding it significantthat the prosecutor emphasized the jail-house informant’s note in his closing argu-ment in reversing denial of habeas relief).The jury also asked to see the transcriptof Storch’s testimony during deliberation,highlighting its import.

In sum, the Superior Court’s findingthat Storch testified truthfully at Max-well’s trial was an unreasonable determi-nation of the facts in light of the evidencethat was presented at the state court evi-dentiary hearing, and Storch’s false testi-mony prejudiced Maxwell’s trial. TheState’s reliance on that perjured testimonyundermines confidence in the verdict. SeeKillian, 282 F.3d at 1210 (citing Stricklerv. Greene, 527 U.S. 263, 290, 119 S.Ct.1936, 144 L.Ed.2d 286 (1999)). Becausethere is a reasonable probability thatStorch’s perjury affected the judgment ofthe jury, we must reverse the denial ofMaxwell’s habeas petition as to this claim.See Agurs, 427 U.S. at 103, 96 S.Ct. 2392.

C. Brady violation

Next, Maxwell argues that the prosecu-tion violated his due process rights underBrady, 373 U.S. at 87, 83 S.Ct. 1194, when


it failed to disclose material evidence aboutSidney Storch. Because no state court hasoffered a reasoned decision for denial ofthe claim, we conduct an independent re-view of the record to determine whetherthe California Supreme Court’s summarydenial of Maxwell’s Brady claim constitut-ed an unreasonable application of Brady.See Greene, 288 F.3d at 1088–89. ‘‘Inde-pendent review of the record is not denovo review of the constitutional issue, butrather, the only method by which we candetermine whether a silent court decisionis objectively unreasonable.’’ Himes v.Thompson, 336 F.3d 848, 853 (9th Cir.2003). Here, we conclude that the statecourt could not have reasonably deter-mined that the suppressed evidence relat-ing to the deal Storch received andStorch’s prior cooperation with law en-forcement as an informant was not materi-al. The failure to disclose this informationundermines confidence in the verdict, andwe, therefore, reverse the district court’sdenial of habeas relief on this claim.11

[25–29] There are three components ofa Brady claim: (1) the evidence at issuemust be favorable to the accused, eitherbecause it is exculpatory or because it isimpeaching; (2) the evidence must havebeen suppressed by the State, either will-fully or inadvertently; and (3) prejudicemust have ensued. Strickler, 527 U.S. at281–82, 119 S.Ct. 1936. The prosecution’ssuppression of evidence favorable to anaccused violates due process where theevidence is material, irrespective of thegood faith or bad faith of the prosecution.Brady, 373 U.S. at 87, 83 S.Ct. 1194; seeKyles, 514 U.S. at 437, 115 S.Ct. 1555(holding that an ‘‘individual prosecutor hasa duty to learn of any favorable evidence

known to the others acting on the govern-ment’s behalf in the case, including thepolice’’). Evidence is material if ‘‘there isa reasonable probability that, had the evi-dence been disclosed to the defense, theresult of the proceeding would have beendifferent,’’ Strickler, 527 U.S. at 280, 119S.Ct. 1936. A reasonable probability isone that is sufficient to undermine confi-dence in the outcome of the trial, seeKyles, 514 U.S. at 434, 115 S.Ct. 1555.Whether the suppressed evidence was ma-terial must be considered collectively, notitem by item. Id.

Here, Maxwell argues that the Statefailed to disclose (1) that the sixteen-monthdeal Storch received in exchange for histestimony was not the original deal offeredto him, but rather a deal Storch indepen-dently negotiated for himself; and, (2)Storch’s prior informant history.

1. Failure to disclose the detailsof Storch’s deal

[30] At the time of trial, Storch main-tained that his primary motivation for tes-tifying was to do his civic duty, and Storchcompletely denied the existence of anydeal with the prosecution. Storch did ulti-mately concede during cross-examinationthat he had received a reduced sentence ofsixteen months for his pending cases inexchange for his testimony. Yet, Storchnever revealed that his sixteen-month dealwas the second deal he received and, moreimportantly, one he had negotiated inde-pendently from his public defender. Infact, when he was asked directly on cross-examination, Storch denied any prior dealsand the prosecution never corrected thislie.

11. Maxwell also argues that the prosecutionwithheld material evidence related to Storch’sreputation, Storch’s heroin use, the housingrecords, and the Sheriff’s Department’s prac-tice of moving informants into cells with de-

fendants to facilitate police investigations.Because Maxwell has failed to establish thatany of this evidence, if suppressed, was mate-rial, we do not discuss Maxwell’s Brady claimwith respect to this evidence.


At the evidentiary hearing, Arnold Les-ter, the public defender who representedStorch at the time of Maxwell’s trial, testi-fied that he had worked out a guilty pleadeal to consolidate Storch’s five pendingcases into a combined total sentence of 36months. Lester further testified that thiswas a reasonable sentence given the num-ber of counts and Storch’s prior record.Lester testified that Storch, however, pro-ceeded to work out privately the sixteen-month sentence deal that he ultimatelyreceived. Maxwell was not informed be-fore or at trial of the prior 36–month deal,and the prosecution never correctedStorch when he stated that there was noprior deal. Maxwell argues that the Stateviolated Brady when it failed to disclosethat the sixteen-month deal was Storch’ssecond deal, one that he privately negotiat-ed without the assistance of his publicdefender.

[31] In general, Brady requires prose-cutors to disclose any benefits that aregiven to a government informant, includingany lenient treatment for pending cases.See, e.g., Giglio, 405 U.S. at 150, 92 S.Ct.763; Benn v. Lambert, 283 F.3d 1040, 1057(9th Cir.2002). The question here iswhether the prosecution’s failure to dis-close the details of the prior deal, specifi-cally Storch’s negotiation of a subsequentdeal, was material. In Benn, we held that,among other evidence withheld by theprosecution, the prosecution’s failure todisclose a subsequent deal—even wherethat deal resulted in minimal benefit to theinformant—prejudiced the defendant.Benn, 283 F.3d at 1057. ‘‘The undisclosedbenefits that [the informant] received add-ed significantly to the benefits that weredisclosed and certainly would have ‘cast ashadow’ on [the informant’s] credibility.Thus, their suppression was material.’’ Id.at 1058.

This case is different than Benn insofaras Benn concerned a failure to disclose abetter (albeit only slightly) deal. Here,Maxwell was informed at trial of the dealthat Storch ultimately received. Nonethe-less, the fact that Storch pursued an addi-tional benefit to himself—independent ofand subsequent to the agreement workedout by his public defender—would haveprovided Maxwell with impeaching evi-dence relevant to Storch’s motivation fortestifying and of a different character thanthe other impeachment evidence whichcame to light. Storch testified that ‘‘hisinitial contact with anybody about [testify-ing in the Maxwell case] was with thechaplain’s office in terms of this TTT I waslooking for guidance, more or less.’’ Whenasked during cross-examination if he hadany ‘‘intention to lighten [his] load [i.e.,sentence],’’ Storch adamantly stated thathis intentions were not to reduce his sen-tence: ‘‘Initially, no, sir, and I will saystrongly that way, initially no.’’ Evidencethat Storch had already secured a pleaagreement and came forward to testify atMaxwell’s trial for the sole purpose ofworking a new and better deal would havedirectly impeached Storch’s testimony forwhy he came forward. As the SupremeCourt noted in Napue, ‘‘we do not believethat the fact that the jury was apprised ofother grounds for believing that the wit-ness TTT may have had an interest intestifying against petitioner turned whatwas otherwise a tainted trial into a fairone.’’ 360 U.S. at 270, 79 S.Ct. 1173. Fur-thermore, the details of Storch’s plea nego-tiations would have helped to establishStorch’s sophistication and directly contra-dicted the naivete he professed at trial.The fact that Storch had worked a dealwith Norris without his public defenderwould have been the only evidence—otherthan the evidence of Storch’s informantpast, which was also suppressed—ofStorch’s informant sophistication. Such


evidence differed substantially fromStorch’s other lies, which came to lightduring cross-examination. Storch was notsome innocent inmate who happened tooverhear his cellmate’s confession and thenhad to struggle with the moral dilemma ofwhether to come forward, seeking religiousguidance, as he represented. Storch knewthat his testimony against Maxwell wasbartering material. He used his know-how and connections to negotiate a betterdeal.

In sum, the evidence the governmentwithheld would not simply have been cu-mulative of the impeachment evidencebrought out during cross-examination ofStorch at trial. Rather, it would havecreated substantial doubt as to Storch’scredibility, particularly with respect to hisprofessed naivete. The details of Storch’sown agreement with the prosecution, andthe fact that Storch had negotiated thesubsequent deal independent of his publicdefender, would have allowed defensecounsel to discredit Storch on a novel ba-sis. The prosecution’s failure to correctStorch’s false testimony about his priordeals was prejudicial.

2. Failure to disclose Storch’sexperience as an

informant

[32] Maxwell further argues that theprosecution violated his due process rightswhen it failed to disclose Storch’s priorinformant activities. This evidence, Max-well argues, would have impeachedStorch’s credibility and shown him to be asophisticated informer. The SuperiorCourt did not dispute that Storch was anundisclosed police informant, but the courtcharacterized him as unsophisticated be-cause there was no record of him receivingany benefit in exchange for his informantactivities prior to Maxwell’s case.

Here, as in Benn, Storch denied that hehad previously worked as an informant.Benn, 283 F.3d at 1058; see also UnitedStates v. Shaffer, 789 F.2d 682, 688–89 (9thCir.1986). Specifically, Storch stated thathe had never testified for the district attor-ney and represented himself as someonenew to the informant world. For its part,the prosecution did not reveal that, al-though Storch may technically not havetestified for the state, he had on severaloccasions aided in investigations and actedas an informant on numerous previous oc-casions.

At the evidentiary hearing, Maxwelllearned for the first time that Storch hadassisted the LAPD’s forgery division in theinvestigation of multiple forgery cases pri-or to Maxwell’s trial. As this court ex-plained in Benn, ‘‘[t]he state argues thatthis undisclosed evidence about [the infor-mant’s] history was not material; howeverTTT undisclosed evidence that an informanthad previously participated in a TTT inves-tigation was important impeachment evi-dence that could have been used to dis-credit the informant’s trial testimony thathe had not previously participated in thattype of investigation.’’ Benn, 283 F.3d at1058; see also Shaffer, 789 F.2d at 688–89(holding that defendant’s undisclosed priorinvolvement in a state investigation contra-dicts his prior testimony and was materi-al).

In light of the import of Storch’s testi-mony, evidence of Storch’s prior dealingswith the forgery unit could have been usedto discredit Storch had it been revealed atthe time of trial. Furthermore, it wouldhave provided additional evidence thatStorch was a sophisticated informant withdeveloped connections and relationshipswithin the LAPD. Such information mayhave led Maxwell to investigate Storchmore thoroughly and led to the discoveryof the information that only came to light


at the evidentiary hearing—namely, thatStorch was an experienced informant witha history of lying. Storch’s involvement inprior forgery investigations contradicts hisrepresentations at trial that he had neverworked as an informant for the DistrictAttorney’s office. It also provides addi-tional grounds for a jury to questionStorch’s credibility, grounds which relateto the prosecution’s failure to disclose thefact that Storch’s plea deal was a subse-quent one that he negotiated.

3. Cumulative Brady errors

[33, 34] In determining whether thesuppression of impeachment evidence issufficiently prejudicial to rise to the levelof a Brady violation, we must analyze thetotality of the undisclosed evidence ‘‘in thecontext of the entire record.’’ Agurs, 427U.S. at 112, 96 S.Ct. 2392; see also Bagley,473 U.S. at 682, 105 S.Ct. 3375. The cu-mulative effect of all the undisclosed evi-dence may violate due process and warranthabeas relief under AEDPA. Barker v.Fleming, 423 F.3d 1085, 1094 (9th Cir.2005) (explaining the ‘‘Supreme Court’s re-quirement that the materiality of the with-held evidence be analyzed cumulativelyTTT not item by item’’ (citing Kyles, 514U.S. at 436, 115 S.Ct. 1555)).

Here, the prosecution itself admittedthat the evidence against Maxwell wasweak, that Maxwell had consistently main-tained his innocence, and that the policetestimony about the date of the palm printwas speculative. For these reasons, andthose explained previously, Storch’s testi-mony was crucial to the prosecution’s case.

[35] The prosecution failed, however,to disclose multiple pieces of critical im-peachment information that could havebeen used to undermine the credibility ofStorch. Analyzed collectively, the with-held impeachment evidence that Storchhad negotiated himself a better deal cou-

pled with the evidence of Storch’s undis-closed informant past would not simplyhave been cumulative of the impeachmentevidence introduced at trial, which includ-ed lies about his level of education andnumber of felony convictions, but wouldhave created substantial doubt as toStorch’s credibility for different reasons.The withheld evidence went to Storch’ssophistication and motivation in his capaci-ty as a prosecution informant and not, likethe other evidence produced at trial, to hisgeneral propensity for dishonesty. Evenif the lies did not provide a novel angle ofattack on Storch’s credibility, which webelieve they do, as we explained in Killian,‘‘the finders of fact were deprived of thefundamental inference that if [the govern-ment informant] lied about X, Y, and Z, itis quite likely that he lied about Q, R, andS.’’ 282 F.3d at 1209. The evidence with-held revealed that Storch, like the witnessin Benn, was ‘‘completely unreliable, a liarfor hire, [and] ready to perjure himself forwhatever advantage he could squeeze outof the system.’’ 283 F.3d at 1059 (holdingthat the prosecution’s failure to disclosemultiple pieces of critical impeachment evi-dence that could have been used to under-mine credibility of the jailhouse informantwho testified that defendant admitted com-mitting the murders was sufficient to vio-late Brady ).

Because Storch’s testimony implicatingMaxwell was critical to Maxwell’s convic-tion, the jury’s assessment of Storch’scredibility was crucial to the outcome ofthe trial. If the jury had not believedStorch, Maxwell may not have been con-victed. The prosecution’s failure to dis-close this impeachment evidence under-mines confidence in the outcome ofMaxwell’s trial, and the California Su-preme Court’s decision to the contrarywas an unreasonable application of Bra-dy.

513WILD FISH CONSERVANCY v. SALAZARCite as 628 F.3d 513 (9th Cir. 2010)

VI. Conclusion

Storch was one of the most infamousjailhouse informants in Los Angeles histo-ry. In particular, as confirmed by Kryn-iak’s and Markus’s testimony, Storch had apropensity to go after high profile cases.The ‘‘Skid Row Stabber’’ case would havebeen just such a case, and Storch’s testi-mony at Maxwell’s trial is a textbook ex-ample of the ‘‘booking’’ method that Storchhelped make famous. Based on the evi-dence brought to light during the lengthyevidentiary hearing, we conclude that thestate court’s finding that Storch did notgive false testimony was an unreasonabledetermination of the facts in light of theevidence. We further conclude that thereis a reasonable probability that this falsetestimony affected the jury’s verdict. Be-cause the State convicted Maxwell on thebasis of false and material evidence inviolation of his due process rights, we di-rect the district court to grant Maxwellhabeas relief on this claim. We furtherconclude that the prosecution withheld ma-terial evidence in violation of Brady.

We reverse the district court’s judgmentand remand with directions to grant a writof habeas corpus directing the state toprovide Maxwell with a new trial in areasonable amount of time or to releasehim.

REVERSED AND REMANDED.

,

WILD FISH CONSERVANCY,Plaintiff–Appellant,

v.

Kenneth L. SALAZAR, in his officialcapacity as Secretary of the Interior;United States Fish and Wildlife Ser-vice; Rowan W. Gould, in his officialcapacity as Acting Director of theUnited States Fish & Wildlife Service;Julie Collins, in her official capacityas Complex Manager for the Leaven-worth National Fish Hatchery Com-plex, Defendants–Appellees.

No. 09–35531.

United States Court of Appeals,Ninth Circuit.

Argued and Submitted March 4, 2010.

Filed Dec. 7, 2010.

Background: Non-profit environmentalorganization brought action challengingthe operation of fish hatchery, specificallyalleging that Fish and Wildlife Service(FWS) had improperly determined thathatchery’s newly adopted operation andmanagement plan would not jeopardizethreatened bull trout. The United StatesDistrict Court for the Eastern District ofWashington, Lonny R. Suko, Chief Judge,613 F.Supp.2d 1209, granted summaryjudgment for defendants. Plaintiff appeal-ed.

Holdings: The Court of Appeals, Berzon,Circuit Judge, held that:

(1) decision to limit analysis in biologicalopinion to five-year term of operationsand management of hatchery was arbi-trary and capricious;

(2) FWS failed to articulate rational con-nection between facts found and con-clusions made;

Documents

486 628 FEDERAL REPORTER, 3d SERIESsblog.s3.amazonaws.com/wp-content/uploads/2011/07/... · government requires new trial if false testimony could in any reasonable likeli-hood have