Marcos Reis-Campos v. Martin Biter ( 2016 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARCOS REIS-CAMPOS, No. 15-15683
Petitioner-Appellant,
D.C. No.
v. 3:12-cv-03369-SI
MARTIN BITER, Warden,
Respondent-Appellee. OPINION
Appeal from the United States District Court
for the Northern District of California
Susan Illston, District Judge, Presiding
Argued and Submitted June 15, 2016
San Francisco, California
Filed August 8, 2016
Before: J. Clifford Wallace, Mary M. Schroeder,
and John B. Owens, Circuit Judges.
Opinion by Judge Owens
2 REIS-CAMPOS V. BITER
SUMMARY*
Habeas Corpus
The panel affirmed the district court’s denial of a
California state prisoner’s habeas corpus petition challenging
his conviction by jury trial for second-degree murder.
The panel held that under Brady v. Maryland, the
prosecution concealed evidence that could have bolstered the
petitioner’s self-defense claim, but this error did not
sufficiently prejudice the defense to warrant habeas corpus
relief.
The panel also held that there was no error under the
Antiterrorism and Effective Death Penalty Act in the state
court’s rejection of a Napue claim of a violation of due
process in the presentation of false testimony.
COUNSEL
Dennis P. Riordan (argued) and Donald M. Horgan, Riordan
& Horgan, San Francisco, California, for Petitioner-
Appellant.
Gregory A. Ott (argued) and Michelle J. Swanson, Deputy
Attorneys General; Jeffrey M. Laurence, Senior Assistant
Attorney General; Kamala D. Harris, Attorney General;
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
REIS-CAMPOS V. BITER 3
Office of the California Attorney General, San Francisco,
California; for Respondent-Appellee.
OPINION
OWENS, Circuit Judge:
Marcos Reis-Campos appeals from the district court’s
order denying his petition for writ of habeas corpus
challenging his 2007 second-degree murder conviction. He
correctly argues that the prosecution concealed evidence that
could have bolstered his self-defense claim. However, the
immensely deferential standard of review mandates that we
affirm the district court.
I. Factual Background and Procedural History
On June 26, 2004, Reis-Campos—a Norteño gang
member—killed Luis Guillermo Fuentes—the head of the
local (and rival) MS-13 gang. The shooting occurred in
Norteño territory in San Francisco, where Reis-Campos
encountered Fuentes and his six-year-old son walking down
the sidewalk. Fuentes wore blue shoes, MS-13’s color. Reis-
Campos was not wearing or displaying anything red, his
gang’s color. Reis-Campos shot Fuentes six times, hitting
him in the face, back of the head, and back. After the
shooting, Reis-Campos ran away, tossed the gun, and entered
a laundromat, where he was arrested.
4 REIS-CAMPOS V. BITER
A. Trial
1. The Prosecution Case
Reis-Campos was charged with first-degree murder in
violation of California Penal Code § 187. In his July 2007
jury trial, the prosecution argued that Reis-Campos executed
Fuentes to gain status in the Norteño gang, and that Fuentes
disrespected the Norteños by wearing blue shoes in Norteño
territory. The prosecution also contended that Fuentes was an
easy target because his six-year-old son was present. While
the prosecution acknowledged that Fuentes belonged to MS-
13, it downplayed his violent history, at one point
characterizing Fuentes as “a family man,” emphasizing that
“[h]e has kids and he’s a [house] painter.” The prosecution
contended that Reis-Campos’ self-defense claim was
“fabricated” and that his testimony about Fuentes’ prior
threats was not credible.
To support its case, the prosecution called, among other
witnesses: (1) Fuentes’ son; (2) an eyewitness to the shooting;
and (3) Reis-Campos’ cellmate, who testified that Reis-
Campos confided that he had confronted Fuentes, and after
Fuentes pulled a knife and told him to leave him alone,
chased down and shot Fuentes.
The prosecution also called San Francisco Police Sergeant
Mario Molina, the case investigator and gang expert. Molina
testified about various gang practices. He opined that the
killing benefitted Reis-Campos by helping him rise in the
Norteño ranks, and the Norteños by providing recognition
and warning rival gangs.
REIS-CAMPOS V. BITER 5
In addition, Molina testified about his relationship with
Fuentes. He claimed that he knew Fuentes primarily from
soccer games at a local playground, and did not know of
Fuentes’ high rank in MS-13 until after Fuentes was shot. On
direct examination, when asked about the March 2004
Norteño killing of an MS-13 member, Molina agreed that this
killing could lead to MS-13 retaliation against Norteños.
When asked whether he knew of any such retaliation, Molina
first said that he did not recall any. Asked again, Molina said
that he could not “think of any incident right now.” And on
cross-examination, he again denied any knowledge of
retaliation: “I am not sure there was any specific retaliation
for his death that said we are going to go kill somebody
because [of the March 2004 killing]. I don’t have that
information.” Consistent with his professed lack of
knowledge, Molina said he was unaware of any specific MS-
13 calls to kill Norteños.
2. The Defense Case
Reis-Campos testified in his own defense, and claimed
that Fuentes was out to get him. While the two had started
out on friendly terms, their relationship quickly deteriorated
once Reis-Campos rejected Fuentes’ attempt to recruit him to
MS-13. Reis-Campos’ dating a woman who was carrying the
child of another MS-13 member only made things worse.
Reis-Campos claimed that by December 2003, he was told
that MS-13 wanted to kill him, so he shortly thereafter joined
the Norteños for protection.
Reis-Campos also claimed that Fuentes threatened his life
on several occasions before the June 2004 shooting. These
incidents included: (1) in March 2004, an MS-13 member
shot at him (wounding his female companion); (2) in May
6 REIS-CAMPOS V. BITER
2004, Fuentes and his associates driving in a car chased down
Reis-Campos and his associates and shot at them; (3) in early
June 2004, Fuentes pointed a long-barreled gun at Reis-
Campos outside a pizzeria; and (4) shortly after the pizzeria
incident, Reis-Campos encountered Fuentes at the Hall of
Justice, where Fuentes and an associate flashed gang tattoos
and colors at Reis-Campos.
On the night of the shooting, Reis-Campos said that he
was walking towards a tattoo parlor in Norteño territory when
he saw Fuentes, in blue shoes, walking with his son. His son
then walked away, leaving the two alone. Fuentes, “looking
mad,” approached Reis-Campos and backed him up towards
a wall. A few feet away from Reis-Campos, Fuentes bent
over. Fearing that Fuentes was reaching for a weapon, Reis-
Campos pulled out his gun. And when Fuentes reached for
Reis-Campos’ gun, Reis-Campos opened fire. He testified
that he acted in self-defense, and not to boost his profile
among the Norteños. As Reis-Campos put it: “Could be me
or him. He had tried to kill me in the past.” He said he shot
Fuentes because “[h]e could take the gun away from me and
kill me. He was bigger and stronger than me.”
The jury rejected Reis-Campos’ claim of self-defense, and
found him guilty of second-degree murder (with
enhancements for acting for the benefit of a criminal street
gang and using a firearm),1 as well as active participation in
a street gang.2
1
Cal. Penal Code §§ 186.22(b)(1), 12022.5(a), 12022.53(d).
2
Cal. Penal Code § 186.22(a).
REIS-CAMPOS V. BITER 7
3. Post-Trial Motions
In November 2007, Reis-Campos filed a motion for a new
trial. Before filing its opposition, the prosecution sent this
letter to defense counsel:
It has come to my attention that there may be
a federal informant who provided information
to the Daly City Police Department about a
shooting and that this informant provided
information that “Memo” [Fuentes] was the
purported driver of the vehicle. I have nothing
in writing regarding this.
I have contacted Inspector Draper of the Daly
City Police Department who declined to
provide any documentation concerning this as
there is an ongoing investigation.
I am sharing this information with you in an
abundance of caution.
After this disclosure, Reis-Campos filed a motion for an
evidentiary hearing based on this new information about
Fuentes’ violent past. The trial court denied both motions in
January 2008, and sentenced Reis-Campos to 50 years to life.
B. State Court Appeal and Habeas Proceedings
Reis-Campos timely appealed in March 2008. Among
other arguments, he contended that: (1) the prosecution
suppressed material information favorable to the defense and
the trial court erred in denying him a related evidentiary
hearing, violating his rights to due process and a fair trial
8 REIS-CAMPOS V. BITER
under Brady v. Maryland, 373 U.S. 83 (1963), and (2) the
trial court erroneously curtailed his cross-examination of
Officer Molina. The California Court of Appeal rejected his
claims in a reasoned decision in December 2010, and the
California Supreme Court denied review in March 2011.
Through defense investigative efforts, Reis-Campos
obtained new information about Fuentes’ violent past and
Molina’s knowledge of it prior to trial. First, Reis-Campos
discovered that Molina participated in a multi-agency
investigation into MS-13 (“Operation Devil Horns”), which
lasted from 2005 to 2008 and led to a multi-count and multi-
defendant indictment. While working on Operation Devil
Horns and prior to his testimony, Molina learned from an
informant that Fuentes orchestrated the murder of a Norteño
in Daly City to avenge the March 2004 killing of an MS-13
member by a Norteño. This information about the Daly City
murder conflicted with Molina’s trial testimony, where he
claimed no knowledge of any MS-13 retaliation in response
to the March 2004 killing. According to Reis-Campos, not
only did the prosecution withhold this exculpatory evidence,
but Molina perjured himself when he stated that he was
unaware of any retaliation for the March 2004 murder, and
the prosecutor failed to correct his false testimony.
Second, Reis-Campos learned new information
concerning a redacted FBI report about Fuentes that was
disclosed prior to trial. The report stated that an informant
revealed Fuentes had posed as a homeless person to kill
unsuspecting rival gang members, and had taught fellow gang
members this technique. The prosecution convinced the trial
court to prohibit the defense from cross-examining Molina
with the report, reasoning that the report was unreliable
because the source was unknown. After learning about
REIS-CAMPOS V. BITER 9
Operation Devil Horns, Reis-Campos argued that Molina
knew who the source was—the same informant who revealed
Fuentes’ role in avenging the March 2004 murder. Reis-
Campos argued that he could have cross-examined Molina
with the report to establish Fuentes’ reputation for violence,
and also called the informant to testify about Fuentes’
homeless murder ruse and the Daly City killing, again
evincing Fuentes’ violent nature.3
With this new information, Reis-Campos filed a habeas
petition in state court. He argued that the new information
supported his claims that the prosecution had suppressed
evidence, presented false testimony, and failed to correct
false testimony in violation of his federal constitutional rights
under Brady v. Maryland, 373 U.S. 83 (1963), Alcorta v.
Texas, 355 U.S. 28 (1957), and Napue v. Illinois, 360 U.S.
264 (1959).
Reis-Campos also filed a federal habeas petition which
contained both exhausted claims (rejected on direct appeal)
and unexhausted claims (founded on the new evidence that
surfaced after the direct appeal became final). The district
court stayed proceedings for him to exhaust his state court
remedies. The California Court of Appeal summarily denied
his state habeas petition, as did the California Supreme Court.
3
The parties disagree as to whether, under California law, Fuentes’
previous acts of violence were relevant and admissible and whether the
identity of the informant would have been withheld as privileged. We
need not reach these issues; even if we assume all of the contested
evidence was relevant and admissible, it does not meet the materiality
standard required for reversal.
10 REIS-CAMPOS V. BITER
The district court then permitted Reis-Campos to reopen
the case, and he filed an amended federal habeas petition in
April 2013. The district court ultimately denied the petition
on materiality grounds, holding that: (1) his Brady claim
failed because the state court could have reasonably
concluded that the evidence concerning Fuentes’ involvement
in the Daly City killing and the FBI report was not material
to Reis-Campos’ defense; and (2) his Napue claim failed
because, assuming Officer Molina had committed perjury that
the prosecutor knowingly left uncorrected, this too was not
material to Reis-Campos’ defense. The district court issued
a certificate of appealability for all of Reis-Campos’ claims,
and he timely appealed. We have jurisdiction under
28 U.S.C. § 2253(a).
II. Discussion
A. Standard of Review
We review the district court’s denial of a petition for
habeas relief de novo, and its findings of fact for clear error.
Christian v. Frank, 595 F.3d 1076, 1080 (9th Cir. 2010).
The Antiterrorism and Effective Death Penalty Act of
1996 (AEDPA) limits our review of Reis-Campos’ claims.
AEDPA mandates a “‘highly deferential standard for
evaluating state-court rulings,’ which demands that state-
court decisions be given the benefit of the doubt.” Woodford
v. Visciotti, 537 U.S. 19, 24 (2002) (per curiam) (quoting
Lindh v. Murphy, 521 U.S. 320, 333 n.7 (1997)). Under
AEDPA, to obtain habeas relief a petitioner must demonstrate
that the last reasoned state court decision on the merits was
either: (1) “contrary to, or involved an unreasonable
application of, clearly established Federal law” or (2) “based
REIS-CAMPOS V. BITER 11
on an unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.” 28 U.S.C.
§ 2254(d).
Because the state courts summarily denied all of Reis-
Campos’ post-conviction claims, the last reasoned state court
decision was on direct appeal. This impacts our review in
several ways. First, we presume that the state courts
adjudicated Reis-Campos’ habeas claims on the merits. See
Harrington v. Richter, 562 U.S. 86, 99 (2011) (“When a
federal claim has been presented to a state court and the state
court has denied relief, it may be presumed that the state
court adjudicated the claim on the merits.”). Second, under
California law, we assume that the factual allegations in Reis-
Campos’ habeas petition are true. See Cullen v. Pinholster,
563 U.S. 170, 188 n.12 (2011) (citing People v. Duvall,
886 P.2d 1252, 1258–59 (Cal. 1995) (en banc)) (explaining
that under California law, a summary dismissal indicates that
the court found the factual allegations, taken as true except
for wholly conclusory allegations, did not establish a prima
facie case for relief).
Finally, with respect to evaluating the state court’s
reasoning, where a federal claim has been adjudicated in a
reasoned decision, we “look through” subsequent summary
denials and review the last reasoned decision. See Ylst v.
Nunnemaker, 501 U.S. 797, 803 (1991) (“Where there has
been one reasoned state judgment rejecting a federal claim,
later unexplained orders upholding that judgment or rejecting
the same claim rest upon the same ground.”). However,
where there is no reasoned decision on a particular claim, a
petitioner must show that “there was no reasonable basis for
the state court to deny relief.” Harrington, 562 U.S. at 98.
12 REIS-CAMPOS V. BITER
1. Brady Claim
Reis-Campos’ Brady-related claim has a muddled
procedural history.4 Ultimately, as the state court effectively
rejected Reis-Campos’ evidentiary hearing claim based on a
substantive analysis of the potential Brady material, we
employ the “look through” approach here.5 See, e.g.,
Shackleford v. Hubbard, 234 F.3d 1072, 1079 n.2 (9th Cir.
2000) (“The California Supreme Court denied review of [the]
direct appeal and habeas petition without comment. In this
circumstance, we ‘look through’ the unexplained . . .
decisions to the last reasoned decision, the state appellate
court’s decision, as the basis for the state court’s judgment.”).
Additionally, our review under § 2254(d)(1) is “limited to
the record that was before the state court that adjudicated the
claim on the merits.” Pinholster, 563 U.S. at 181. As Reis-
Campos provided further evidence in support of his claim to
4
In the trial court, Reis-Campos “did not assert a Brady violation as an
independent ground for a new trial and sought only an evidentiary hearing
to develop a factual record regarding the new evidence.” As such, the
direct appeal order did not consider the argument, “to the extent Campos
assert[ed] it on appeal, that the prosecution failed to meet its Brady
obligations.” Instead, the state appeal court purported to limit its review
“to the trial court’s denial of his request for an evidentiary hearing.” Even
so, the state court effectively analyzed the merits of a Brady claim,
framing the issue as follows: “[t]he trial court concluded an evidentiary
hearing would not establish a Brady violation regardless of what it showed
because the undisclosed evidence was not material. This is a question of
law that we review independently.”
5
The “look through” approach is more restrictive as it requires that we
assess the reasonableness of the state court’s decision. The result here
would be the same under Harrington, where we consider any reasonable
explanation.
REIS-CAMPOS V. BITER 13
the state habeas court, we review “the reasonableness of the
California Supreme Court’s decision by the evidence that was
before it, and [use] the Court of Appeal’s reasoning in
accordance with our usual practice of ‘looking through’
summary denials to the last reasoned decision.” Cannedy v.
Adams, 706 F.3d 1148, 1159 n.5 (9th Cir. 2013) (emphasis
omitted). We do this because “[h]ad the state supreme court
intended different reasoning because of the newly added
facts, the court could have provided it.” Id.
2. Napue Claim
There is no reasoned state court decision on the Napue
claim because it was not raised on direct appeal. As such, if
there were any reasonable basis for the California Supreme
Court to deny the Napue claim, habeas relief is unwarranted.
See Harrington, 562 U.S. at 102 (“Under § 2254(d), a habeas
court must determine what arguments or theories supported
or, as here, could have supported, the state court’s decision;
and then it must ask whether it is possible fairminded jurists
could disagree that those arguments or theories are
inconsistent with the holding in a prior decision of this
Court.”).
B. No AEDPA Error in Rejecting Brady Claim
Under Brady, “suppression by the prosecution of evidence
favorable to an accused upon request violates due process
where the evidence is material either to guilt or to
punishment.” 373 U.S. at 87. It follows that there are three
elements to a Brady violation: (1) “the evidence at issue must
be favorable to the accused, either because it is exculpatory,
or because it is impeaching,” (2) “that evidence must have
been suppressed by the State, either willfully or
14 REIS-CAMPOS V. BITER
inadvertently,” and (3) “prejudice must have ensued.”6
Strickler v. Greene, 527 U.S. 263, 281–82 (1999). With
respect to the prejudice element, “evidence is material only if
there is a reasonable probability that, had the evidence been
disclosed to the defense, the result of the proceeding would
have been different.” United States v. Bagley, 473 U.S. 667,
682 (1985). “A ‘reasonable probability’ is a probability
sufficient to undermine confidence in the outcome.” Id.
Materiality is considered “collectively, not item by item.”
Kyles, 514 U.S. at 436.
Reis-Campos alleges that the state suppressed two pieces
of evidence in violation of Brady: (1) information possessed
by Officer Molina that Fuentes participated in the Daly City
revenge killing, and (2) information that the prosecution
knew and trusted the informant identified in the FBI report.
As described above, we assume that the prosecution should
have disclosed this additional information about Fuentes’
violent nature, and the State has no good answer as to why it
did not. Indeed, the government’s attempts to explain the
letter that the prosecutor sent to Reis-Campos—both in its
briefing and at oral argument—have fallen short of what we
expect.
Still, the more difficult issue is whether, under AEDPA’s
extremely deferential standard, this error mandates
relief—i.e., whether it sufficiently prejudiced Reis-Campos’
defense. Ultimately, we conclude it does not.
6
As the prosecution’s lead investigator, Officer Molina is a member of
the prosecution team for Brady purposes. Kyles v. Whitley, 514 U.S. 419,
437 (1995).
REIS-CAMPOS V. BITER 15
First, the jury heard expert testimony that Fuentes was the
“shot caller” of MS-13, a vicious street gang responsible for
murders and violence in San Francisco. The jury learned that
to become the shot caller, Fuentes necessarily had a
“readiness to use violence.” And as the shot caller, Fuentes
would have initiated and organized gang killings. While the
prosecutor’s closing argument portraying Fuentes as a
“family man” and a “painter” was a poor attempt to
whitewash his true nature, we cannot say that it was
unreasonable for the state court to conclude that the jury had
still heard sufficient information regarding Fuentes’ history
of violence.7
Second, and more importantly, the jury heard from Reis-
Campos about why he was so scared of Fuentes, and a police
officer corroborated one of the incidents at trial. Assuming
that California law permits a defendant to introduce a
victim’s prior bad acts to corroborate a defendant’s belief that
the victim was violent, the ultimate effect of that evidence
here is not enough to warrant relief. The most persuasive
evidence that Reis-Campos felt compelled to shoot Fuentes
in self-defense necessarily came from Reis-Campos. The fact
that Fuentes, on other occasions, was a violent person has
more limited application to Reis-Campos’ state of mind at the
time of the shooting.
7
We disagree with the state court’s observation that because Fuentes
was not the shooter in the Daly City murder, it “would have done little to
undermine the prosecution’s attempt to paint Fuentes as a ‘benign’ gang
member.” Though Fuentes did not pull the trigger, he ordered a fifteen-
year-old member of his gang to do so, and apparently then disciplined that
teenager for not following particular orders. Still, this one point of
disagreement does not render the state court’s overall determination
unreasonable.
16 REIS-CAMPOS V. BITER
Third, the overall evidence in the case supports the state
court’s determination. Reis-Campos shot Fuentes, a rival
gang member, six times in Norteño territory, even though
Fuentes was walking with his six-year-old son. No weapon
was recovered from Fuentes, and no other witness
corroborated Reis-Campos’ testimony that Fuentes initiated
their encounter or reached for Reis-Campos’ gun. Cf. Benn
v. Lambert, 283 F.3d 1040, 1062 (9th Cir. 2002) (explaining
that undisclosed evidence was material where it “would have
substantially undermined the state’s principal theory of
motive and its main support for the aggravating factor . . . , as
well as its contention that the killings were premeditated”).
Finally, contrary to Reis-Campos’ contention, the
withheld evidence had inadequate impeachment value.
Assuming that the undisclosed evidence would have
impeached Molina’s somewhat equivocal testimony, it was
not unreasonable for the state court to determine that it would
not have sufficiently undermined his testimony or credibility.
As the state court observed, Molina “did not testify that
Fuentes was nonviolent or deny that Fuentes was involved in
gang activity”—he was brought in to opine whether the
killing was gang related. While Molina discussed the violent
activities and tendencies of gang members, including Fuentes,
the undisclosed evidence would not have “lent significant
force to [Reis-Campos’] impeachment of Officer Molina.”
Cf. Horton v. Mayle, 408 F.3d 570, 578–79 (9th Cir. 2005)
(holding that failing to disclose a leniency deal was material
because the witness’s testimony was “central to the
prosecution’s case” and “the deal would have provided
powerful and unique impeachment evidence demonstrating
that [the witness] had an interest in fabricating his
testimony”).
REIS-CAMPOS V. BITER 17
In sum, the state court did not err under AEDPA in
rejecting Reis-Campos’ Brady claim and concluding that it
would be extremely unlikely that Fuentes would launch an
unarmed attack against a rival (and likely armed) gang
member, placing his own child in danger. Reis-Campos’
additional evidence did not “undermine confidence in the
outcome” of the trial. Bagley, 473 U.S. at 682.
C. No AEDPA Error in Rejecting Napue Claim
“[A] criminal defendant is denied due process of law
when a prosecutor either knowingly presents false evidence
or fails to correct the record to reflect the true facts when
unsolicited false evidence is introduced at trial.” Hayes v.
Brown, 399 F.3d 972, 984 (9th Cir. 2005) (en banc); see also
Napue, 360 U.S. at 269; Alcorta, 355 U.S. at 29–30.
“A claim under Napue will succeed when ‘(1) the
testimony (or evidence) was actually false, (2) the
prosecution knew or should have known that the testimony
was actually false, and (3) the false testimony was material.’”
Jackson v. Brown, 513 F.3d 1057, 1071–72 (9th Cir. 2008)
(quoting Hayes, 399 F.3d at 984). The Napue materiality
standard is less demanding than Brady. Under Napue, a
conviction must be set aside “whenever there is ‘any
reasonable likelihood that the false testimony could have
affected the judgment of the jury.’” Id. at 1076 (quoting
Hayes, 399 F.3d at 985).
Reis-Campos did not adequately allege a violation of
clearly established federal law with respect to his Napue
claim. He alleged only that Molina knew the testimony was
false, not that the prosecutor had such knowledge. While the
Supreme Court has clearly established that the prosecution’s
18 REIS-CAMPOS V. BITER
Brady duty encompasses evidence “known only to police
investigators and not to the prosecutor,” Kyles, 514 U.S. at
437–38, it is not clearly established that a police officer’s
knowledge of false testimony may be attributed to the
prosecution under Napue. See Briscoe v. LaHue, 460 U.S.
325, 326 n.1 (1983) (noting that while the Supreme Court had
“held that the prosecutor’s knowing use of perjured testimony
violates due process,” the Court had “not held that the false
testimony of a police officer in itself violates constitutional
rights”). Several of our sister circuits have recognized this
lack of clarity.8 See, e.g., Smith v. Massey, 235 F.3d 1259,
1272 (10th Cir. 2000), abrogated on other grounds by Neill
v. Gibson, 278 F.3d 1044, 1057 (10th Cir. 2001); Sargent v.
Sec’y, Fla. Dep’t of Corr., 480 F. App’x 523, 530 (11th Cir.
June 25, 2012).
Even if we assume that Reis-Campos sufficiently alleged
that Molina knowingly perjured himself and the prosecutor
suborned such perjury, his claim still fails on materiality
grounds for the same reasons we previously explained.
8
Further, the federal courts of appeal are split on the substantive issue.
The Fourth and Second circuits have held that “knowingly false or
misleading testimony by a law enforcement officer is imputed to the
prosecution” for purposes of determining whether there has been a Napue
violation. Boyd v. French, 147 F.3d 319, 329 (4th Cir. 1998); Wedra v.
Thomas, 671 F.2d 713, 717 n.1 (2d Cir. 1982) (same). The Tenth and
Fifth Circuits have declined to impute the knowledge of a law
enforcement officer to the prosecution where there has been an alleged
Napue violation. See Smith v. Sec’y of N.M. Dep’t of Corr., 50 F.3d 801,
830–31 (10th Cir. 1995); Koch v. Puckett, 907 F.2d 524, 531 (5th Cir.
1990). Our court has not yet addressed the question. See, e.g., Henry v.
Ryan, 720 F.3d 1073, 1084 (9th Cir. 2013) (“We need not reach the
question of whether Detective Patterson’s knowledge must be imputed to
the prosecution.”).
REIS-CAMPOS V. BITER 19
As we outlined in Jackson, analyzing collective prejudice
for concurrent Brady and Napue violations requires a special
framework because the materiality standards differ:
The Napue and Brady errors cannot all be
collectively analyzed under Napue’s
“reasonable likelihood” standard, as that
would overweight the Brady violations. On
the other hand, they cannot be considered in
two separate groups, as that would fail to
capture their combined effect on our
confidence in the jury’s decision. To resolve
this conflict, we first consider the Napue
violations collectively and ask whether there
is “any reasonable likelihood that the false
testimony could have affected the judgment of
the jury.” If so, habeas relief must be granted.
However, if the Napue errors are not material
standing alone, we consider all of the Napue
and Brady violations collectively and ask
whether “there is a reasonable probability
that, but for counsel’s unprofessional errors,
the result of the proceeding would have been
different.” At both stages, we must ask
whether the defendant “received . . . a trial
resulting in a verdict worthy of confidence.”
513 F.3d at 1076 (citations omitted). The Jackson analysis
does not change the result here. First, considering only the
Napue violation, there is no “reasonable likelihood that the
false testimony could have affected the judgment of the jury.”
Id. (emphasis and citation omitted). Standing alone, Molina’s
testimony that he did not know of any retaliation for a
particular gang-related killing would not have affected the
20 REIS-CAMPOS V. BITER
jury’s determination of whether Reis-Campos feared for his
life when he encountered Fuentes, nor would the prosecutor’s
correction of Molina’s perjury have cast significant doubt on
Molina’s credibility or testimony. Second, even when
combined with the Brady violations, there is no reasonable
probability that the result of the proceeding would have been
different. As we previously explained, the jury already had
heard significant testimony about Fuentes’ violent tendencies
and status as the leader of a vicious gang, and the incentives
for Reis-Campos to attack Fuentes to gain status in his own
gang.
The prosecutor’s withholding of information and
Molina’s false testimony are very troubling. Yet “troubling”
is not the relevant standard. It is materiality, evaluated in
light of AEDPA deference, that controls. Ultimately, these
failures do not materially change the already negative and
violent depiction of Fuentes. It was not unreasonable for the
state court to determine that nothing that the government
suppressed or falsely proffered addressed the most
fundamental question before the jury—whether Reis-Campos
shot Fuentes because he feared for his life on June 26, 2004.
As such, though the prosecution’s tactics were suspect, the
state court did not err under AEDPA in rejecting Reis-
Campos’ claims.
For these reasons, we AFFIRM the district court’s denial
of Reis-Campos’ petition for habeas relief.