Tony Goodrum v. Cynthia Tampkins ( 2022 )

FILED
NOT FOR PUBLICATION
MAY 11 2022
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
TONY GOODRUM, No. 19-56239
Petitioner-Appellant, D.C. No.
3:11-cv-02262-AJB-LL
v.
CYNTHIA Y. TAMPKINS, Warden, MEMORANDUM*
Respondent-Appellee.
Appeal from the United States District Court
for the Southern District of California
Anthony J. Battaglia, District Judge, Presiding
Argued and Submitted March 9, 2022
Pasadena, California
Before: BERZON, TALLMAN, and FRIEDLAND, Circuit Judges.
Tony Goodrum appeals the district court’s denial of his habeas corpus
petition, in which he alleges that the State of California committed a Napue
violation by knowingly presenting false testimony from a witness during
Goodrum’s trial or, alternatively, by making false statements during a pre-trial
hearing. See Napue v. Illinois, 360 U.S. 264, 269 (1959) (“[A] conviction obtained
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
through use of false evidence, known to be such by representatives of the State,
must fall under the Fourteenth Amendment.”). Goodrum also appeals the district
court’s decision to deny him an evidentiary hearing on his habeas petition. “We
review de novo a district court’s order to grant or deny a petition for writ of habeas
corpus.” Lopez v. Thompson, 202 F.3d 1110, 1116 (9th Cir. 2000) (en banc). As
the State concedes, because the California Court of Appeal applied “a stricter
standard than is permissible in the case of Napue error,” we do not review with the
deference contemplated by 28 U.S.C. § 2254(d) and instead consider the Napue
claim de novo. Dow v. Virga, 729 F.3d 1041, 1049 (9th Cir. 2013).1 We review
the district court’s decision to deny an evidentiary hearing for abuse of discretion.
Earp v. Ornoski, 431 F.3d 1158, 1166 (9th Cir. 2005) (citing Davis v. Woodford,
384 F.3d 628, 638 (9th Cir. 2004)). We affirm.
1. “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 v.
1
The California Supreme Court summarily denied Goodrum’s petition.
Thus, “we must ‘look through’ that unexplained decision to the last state court to
have provided a ‘reasoned’ decision.” Castellanos v. Small, 766 F.3d 1137, 1145
(9th Cir. 2014) (quoting Ylst v. Nunnemaker, 501 U.S. 797, 806 (1991)). The
California Court of Appeal was the last state court to issue a reasoned decision on
Goodrum’s petition.
2
Brown, 399 F.3d 972, 984 (9th Cir. 2005) (en banc)). The burden is on the
petitioner to show that these three factors are satisfied. See United States v. Zuno-
Arce, 339 F.3d 886, 889 (9th Cir. 2003).
Goodrum is not entitled to habeas relief on the basis of Howard Herring’s
purportedly false trial testimony regarding whether the victim was holding a pipe
at the time of the shooting, because Goodrum has not shown that that testimony
was material. The test of materiality for a Napue violation is whether there is “any
reasonable likelihood that the false testimony could have affected the judgment of
the jury.” Hayes, 399 F.3d at 984 (quoting United States v. Bagley, 473 U.S. 667,
678 (1985)). In this case, the State presented medical and forensic evidence that
showed that the victim would have no longer been a threat by the time Goodrum
fired the second shot. Even assuming that Herring’s trial testimony was false and
that he did see the victim holding a pipe during the shooting, Goodrum cannot
show, in light of the trial record, that there is a reasonable likelihood the jury could
have found Goodrum was acting in self-defense when he shot the victim a second
time.
Goodrum also cannot succeed on his Napue claim based on allegedly false
statements the State made during a pre-trial hearing. Even if Goodrum could show
the State made knowingly false statements about Herring’s whereabouts at that
hearing, those statements would not have been material. The hearing was
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conducted outside the presence of the jury—indeed, the jury had not even been
selected yet. Goodrum has put forward no theory for why the prosecutor’s
purportedly false statements “undermine[] our confidence in the verdict.” Id. at
988. Because there is no reasonable likelihood that any false statements made at
the preliminary hearing affected the verdict, no Napue violation occurred at that
hearing.
2. The district court did not abuse its discretion in declining to afford
Goodrum an evidentiary hearing. We have held that a petitioner is not entitled to
an evidentiary hearing “[i]f the record refutes the applicant’s factual allegations or
otherwise precludes habeas relief.” Hibbler v. Benedetti, 693 F.3d 1140, 1147 (9th
Cir. 2012) (alteration in original) (quoting Schriro v. Landrigan, 550 U.S. 465, 474
(2007)). Because we hold, in light of the trial record, that Goodrum cannot
succeed on his Napue claim—given that any purportedly false testimony elicited or
false statements made by the State were not material to Goodrum’s conviction—an
evidentiary hearing in this case would be “nothing more than a futile exercise.”
Totten v. Merkle, 137 F.3d 1172, 1176 (9th Cir. 1998).2
2
Because Goodrum asked for, but never received, an evidentiary hearing
from the state court that reviewed his habeas petition, he did not “fail[] to develop
the factual basis of [his] claim,” 28 U.S.C. § 2254(e)(2), and we do not base our
decision on any such failure. See Hurles v. Ryan, 752 F.3d 768, 791 (9th Cir.
2014) (“A petitioner who has previously sought and been denied an evidentiary
hearing has not failed to develop the factual basis of his claim.”).
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AFFIRMED.
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