Colin Dickey v. Ron Davis ( 2023 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
COLIN RAKER DICKEY, No. 19-99009
Petitioner-Appellant, D.C. No.
1:06-cv-00357-
v. AWI-SAB
RONALD DAVIS, Warden, San
Quentin State Prison, OPINION
Respondent-Appellee.
Appeal from the United States District Court
for the Eastern District of California
Anthony W. Ishii, District Judge, Presiding
Argued and Submitted June 21, 2022
Pasadena, California
Filed May 31, 2023
Before: Mary H. Murguia, Chief Judge, and William A.
Fletcher and Morgan Christen, Circuit Judges.
Opinion by Judge Christen
2 DICKEY V. DAVIS
SUMMARY*
Habeas Corpus / Death Penalty
On Colin Raker Dickey’s appeal from the district court’s
denial of his 28 U.S.C. § 2254 habeas corpus petition
challenging his California conviction and death sentence, the
panel reversed and remanded to the district court with
instructions to grant a conditional writ of habeas corpus as
to the special-circumstances findings and the imposition of
the death penalty, and affirmed the district court’s holding as
to Dickey’s certified guilt-phase claims.
Dickey was sentenced to death in 1991 after a California
state jury convicted him of robbery, burglary, and felony
murder.
Dickey raised several certified claims, including claims
that the prosecutor knowingly used false and misleading
testimony in violation of Napue v. Illinois, 360 U.S. 264(1959), and failed to disclose favorable material evidence in
violation of Brady v. Maryland, 373 U.S. 83 (1963).
The panel wrote that this is an exceptional case in which
the prosecutor deliberately elicited, and then failed to
correct, false and misleading testimony from the State’s star
witness, Gene Buchanan. The prosecutor went on to exploit
Buchanan’s false testimony in his closing argument. He also
failed to produce evidence to the defense team that would
have seriously impeached Buchanan’s testimony. These
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
DICKEY V. DAVIS 3
points were uncontested; the central issue in this appeal was
the materiality of the State’s Napue and Brady violations.
To obtain the death penalty, the State was required to
prove special circumstances. The panel wrote that the record
makes clear that the State’s special-circumstances evidence
depended on Buchanan’s testimony. It also makes clear that
the prosecutor recognized the jury would have ample reason
to doubt Buchanan. To shore up Buchanan’s testimony, the
State asked the court to read aloud a California statute that
put Buchanan on notice that he would subject himself to the
death penalty if he lied under oath and Dickey was
wrongfully convicted and executed. What the jury did not
know—because the prosecutor did not correct the false
testimony—is that Buchanan did lie to them under oath, even
given the potential consequences for doing so in a capital
case.
Reviewing under the deferential standard afforded to
state-court decisions by the Antiterrorism and Effective
Death Penalty Act (AEDPA), 28 U.S.C. § 2254(d), the panel
concluded it was objectively unreasonable for the state court
to decide that the prosecutor’s misconduct was immaterial to
the jury’s special-circumstances findings. The panel
reached this conclusion because the State’s case for the death
penalty unquestionably hinged on Buchanan’s testimony,
and applying Napue’s materiality standard through the lens
of AEDPA, it was objectively unreasonable to conclude that
correcting Buchanan’s false testimony could not have
changed the jury’s decision to impose the death
penalty. Because the panel held that the requirement of
§ 2254(d) is satisfied, the panel resolved Dickey’s claim
without the deference AEDPA otherwise requires. On de
novo review, the panel held that Dickey is entitled to relief.
4 DICKEY V. DAVIS
The panel therefore reversed and remanded to the district
court with instructions to grant a conditional writ as to the
jury’s special-circumstances findings and imposition of the
death penalty. The panel did not reach the merits of any of
Dickey’s other penalty-phase claims.
The panel affirmed the denial of Dickey’s certified guilt-
phase claims related to his conviction for aiding and abetting
the underlying robbery. First, the panel concluded the state
court reasonably determined that the State’s Napue and
Brady violations were not material to the jury’s guilt-phase
verdict and that trial counsel’s failure to investigate and
impeach Buchanan was not prejudicial in the guilt
phase. Separately, the panel separately concluded the
California Supreme Court could have reasonably determined
that Dickey failed to show guilt-phase prejudice stemming
from counsel’s strategy of seeking to select jurors who were
predisposed to vote for the death penalty. Third, the panel
concluded the California Supreme Court could have
reasonably denied Dickey’s claim that trial counsel should
have withdrawn based on an irreconcilable conflict. The
panel did not reach the merits of any of Dickey’s uncertified
guilt-phase claims.
COUNSEL
David Senior (argued), Matthew L. Weston, and Ann K.
Tria, McBreen & Senior, Los Angeles, California, for
Petitioner-Appellant.
Justain P. Riley (argued) and Kimberley A. Donohue,
Deputy Attorneys General; Kenneth N. Sokoler, Supervising
Deputy Attorney General; Michael P. Farrell and James
DICKEY V. DAVIS 5
William Bilderback II, Senior Assistant Attorneys General;
Xavier Becerra, Attorney General of California; Office of
the California Attorney General; Sacramento, California; for
Respondent-Appellee.
OPINION
CHRISTEN, Circuit Judge:
Colin Raker Dickey was sentenced to death in 1991 after
a California state jury convicted him of robbery, burglary,
and felony murder. He appeals the district court’s denial of
his federal habeas corpus petition filed pursuant to
28 U.S.C. § 2254. Dickey raises several certified claims,
including claims that the prosecutor knowingly used false
and misleading testimony in violation of Napue v. Illinois,
360 U.S. 264 (1959), and failed to disclose favorable
material evidence in violation of Brady v. Maryland, 373
U.S. 83 (1963).
This is an exceptional case in which the prosecutor
deliberately elicited, and then failed to correct, false and
misleading testimony from the State’s star witness, Gene
Buchanan. The prosecutor went on to exploit Buchanan’s
false testimony in his closing argument. He also failed to
produce evidence to the defense team that would have
seriously impeached Buchanan’s testimony. These points
are uncontested; the central issue in this appeal is the
materiality of the State’s Napue and Brady violations.
To obtain the death penalty, the State was required to
prove special circumstances, and the record makes clear that
the State’s special-circumstances evidence depended on
6 DICKEY V. DAVIS
Buchanan’s testimony. It also makes clear that the
prosecutor recognized the jury would have ample reason to
doubt Buchanan. To shore up Buchanan’s testimony, the
State asked the court to read aloud a California statute that
put Buchanan on notice that he would subject himself to the
death penalty if he lied under oath and Dickey was
wrongfully convicted and executed. What the jury did not
know—because the prosecutor did not correct the false
testimony—is that Buchanan did lie to them under oath, even
given the potential consequences for doing so in a capital
case.
Reviewing under the deferential standard afforded to
state-court decisions by the Antiterrorism and Effective
Death Penalty Act (AEDPA), 28 U.S.C. § 2254(d), we
conclude it was objectively unreasonable for the state court
to decide that the prosecutor’s misconduct was immaterial to
the jury’s special-circumstances findings. We reach this
conclusion because the State’s case for the death penalty
unquestionably hinged on Buchanan’s testimony, and
applying Napue’s materiality standard through the lens of
AEDPA, it was objectively unreasonable to conclude that
correcting Buchanan’s false testimony could not have
changed the jury’s decision to impose the death penalty.
Because we hold that the requirement of § 2254(d) is
“satisfied,” we “resolve [Dickey’s] claim without the
deference AEDPA otherwise requires.” Panetti v.
Quarterman, 551 U.S. 930, 953 (2007). On de novo review,
we hold that Dickey is entitled to relief.
We therefore reverse and remand to the district court
with instructions to grant a conditional writ of habeas corpus
as to the jury’s special-circumstances findings and
imposition of the death penalty. We deny relief on Dickey’s
DICKEY V. DAVIS 7
guilt-phase claims and do not reach his remaining penalty-
phase claims.
I
A
Marie Caton and Louis Freiri were attacked at Caton’s
Fresno, California residence in November 1988. People v.
Dickey, 111 P.3d 921, 928 (Cal. 2005). Caton’s daughter,
Lavelle Garratt, went to check on her mother on November
8 and discovered Caton unconscious in her bedroom. Id.Caton had been beaten and had multiple stab wounds. Id.She died of her injuries eleven days later. Id. Garratt found
Freiri dead from stab wounds in the archway between the
dining room and the living room. Id. When the police
arrived, they discovered two suspicious knives in Caton’s
kitchen and a venetian blind cord wrapped around Freiri’s
neck. Id. The venetian blinds in Caton’s house were all
intact, and no usable fingerprints were found at the scene of
the crime. Id. at 928 & n.2. Garratt told the police that she
suspected her son, Richard Cullumber, had attacked Caton
and Freiri. Id. at 928. Garratt explained that Cullumber was
a drug addict who frequently asked Caton for money, and
that Caton was known to hide large amounts of cash
throughout her house. Id.Cullumber lived in an apartment on Harvard Avenue in
Fresno with Dickey and four other roommates, including
Gail Goldman and Richard Buchanan. Id. Cullumber’s
roommates told the police that Cullumber had packed a bag
and left the apartment on the night of the murders. Id. Five
days later, Cullumber commandeered a car after the police
tried to stop him, warning the driver: “I need the car; I’ve
already killed a woman.” Id. He was cornered after a high-
8 DICKEY V. DAVIS
speed chase and killed himself with a pistol registered to
Freiri. Id.Several months after the murders, Buchanan saw a flyer
at a convenience store announcing that Caton’s relatives
were offering a $5,000 reward for information leading to
conviction of the perpetrator of the murders.1 Id. at 929 n.3,
930–31, 937. Buchanan left his name with the store clerk,
and he was put in touch with Detective Doug Stokes. Id. at
930–31. Buchanan told Stokes that Dickey had been
involved in the murders, and Stokes circled back to the
Harvard Avenue apartment to continue his investigation.
Stokes spoke to Goldman, who had initially denied knowing
anything about the murders. Id. at 930. This time, she
shared more information about events that night. Id. at 929–
30.
Goldman died before the trial began, but her sworn
testimony from Dickey’s preliminary hearing was read into
the record at trial.2 Id. at 929 n.4. In her preliminary hearing
testimony, Goldman said that on the night of the murders she
saw Cullumber take a venetian blind out of the hall closet in
their apartment and go into the bedroom with it. Id. at 929.
Later, she noticed the blind had been returned to the closet
and a blind in the bedroom was missing a cord. Id. Goldman
said that she saw Dickey walk into the kitchen that same
night and open a drawer. Id. She initially testified that
Dickey looked in a knife-and-silverware drawer, but she
1
The reward was originally $3,000 but was later raised to $5,000.
2
The State also presented testimony from Detective Stokes, who gave
his account of what Goldman told him during the investigation. Id. at
929. Stokes’s version of Goldman’s account differed from Goldman’s
own testimony in several respects. See infra Part IV.C.
DICKEY V. DAVIS 9
later clarified that she did not see which drawer Dickey had
opened. Id. at 929 & n.5. According to Goldman, Dickey
and Cullumber soon left the apartment. Id. at 929. Goldman
believed the men had no money when they left because
Cullumber had asked her for money to buy cigarettes. Id.When the two men returned to the apartment later that
evening, Cullumber packed his bags, gave Goldman $40 or
$50 in cash to repay a debt, and left. Id. Goldman testified
that when Detective Stokes showed her one of the knives
found at Caton’s home, she told him, “I have a knife exactly
like that knife, or they are twins[,] . . . . [b]ut mine is in
storage with all my stuff that I have in storage.” When the
prosecutor followed up by asking whether she had “a knife
exactly like that in the apartment on Harvard,” Goldman
responded, “I -- yes,” without specifying when the knife was
at the apartment or whether it was at the apartment but in
storage on the night of the murders.
Goldman also testified that she and Dickey were
watching the news together shortly after the murders and
saw a story reporting that Freiri was dead and Caton was still
alive but near death. Id. Dickey became upset and told
Goldman that he wanted to talk to her in the bedroom, and
Buchanan followed them. Id. In the bedroom, Dickey told
Goldman that he had accompanied Cullumber to Caton’s
house to “help [him] get the money,” but he had nothing to
do with the two murders. Id. (alteration in original).
Goldman recalled Dickey saying that Cullumber had assured
him “nothing was going to happen,” and that at Caton’s
house, Dickey searched for money in Caton’s bedroom with
Caton present. Id. When Dickey stepped out of Caton’s
bedroom, he saw Freiri slumped over in a chair in the living
room and “knew something had happened.” Id. Cullumber
then “went beserk” and “came into the bedroom and started
10 DICKEY V. DAVIS
beating up on [Caton].” Id. The two men found $700, which
they split. Id.Dickey was charged in Fresno County Superior Court
with robbery, burglary, and aiding and abetting murder.
Dickey v. Davis, 231 F. Supp. 3d 634, 653 (E.D. Cal. 2017).
He pled not guilty to all the charges. Id. There was no
physical evidence linking Dickey to the crime scene and no
living witnesses to the crime. The State did not argue at trial
that Dickey killed Caton or Freiri. It argued only that he was
guilty under an aiding-and-abetting theory. Id. at 714–15.
The State sought the death penalty and alleged a number of
special circumstances that allowed imposition of the death
penalty under California law. See Cal. Penal Code
§ 190.2(a)(3), (17)(A) & (G). The jury was instructed that
in order to find any of the special circumstances true, it must
find that Dickey “intended either to kill a human being or to
aid another in the killing of a human being.”
B
Goldman’s preliminary hearing testimony was read to
the jury, but her death left Buchanan as the State’s primary
living witness at trial.
Buchanan’s trial testimony mirrored Goldman’s
preliminary hearing testimony in some respects. He too
testified that Dickey and Cullumber left the apartment on the
night of the murders, that they had no money when they left
but had money when they returned, and that Dickey saw a
news story about the crime a couple days later and admitted
that he had been involved in the robbery. Dickey, 111 P.3d
at 930.
But in key respects, Buchanan’s testimony was much
more incriminating than Goldman’s. He testified that it was
DICKEY V. DAVIS 11
Dickey, not Cullumber, who removed a cord from a venetian
blind in the apartment on the night of the murders. Id. He
also told the jury that when he looked into the bedroom after
Dickey had returned a blind to the closet that night, he saw a
knife identical to Goldman’s on the bed. Id. Buchanan
added that when Dickey and Cullumber had returned to the
apartment, Dickey asked Buchanan to take him and
Cullumber for a drive. Id. According to Buchanan, Dickey
threw a pair of shoes and his jacket out the car window
during the drive. Id.Buchanan described following Goldman and Dickey into
a bedroom at the Harvard Avenue apartment a couple days
after the murders and hearing Dickey tell Goldman that:
him and [Cullumber] had been over to
[Cullumber]’s grandmother’s house, and that
they had entered the house -- how he had
done it, how he had walked up to the door,
knocked, faked like [Cullumber] was going
to be in jail, needed to use the phone, and then
[Cullumber] sneaked in, they were supposed
to tie him them [sic] up, get this money and
everything. And while [Dickey] is
supposedly in the bedroom looking for the
money he hears a commotion, looked out the
bedroom door, sees an elderly man with his
head slumped down, considers him dead, and
that if you kill one you might as well kill them
both.
When asked to clarify what he meant by the last statement,
Buchanan said, “[Dickey] said that he—only what he
thought, he didn’t say what he did. He said that, ‘If you kill
12 DICKEY V. DAVIS
one you might as well kill them both.’” Id. According to
Buchanan, Dickey “didn’t say he said it to [Cullumber], he
just said it as that was his opinion.” Id. Notably, in
Goldman’s preliminary hearing testimony recounting the
conversation she had with Dickey in the bedroom of the
Harvard Avenue apartment, she said nothing at all about
Dickey making this statement.
The jury heard testimony explaining that Buchanan did
not come forward until he saw a flyer announcing the
reward, several months after he heard Dickey’s conversation
with Goldman. Id. Buchanan testified that he came forward
because of his Christian upbringing, not because of the
reward money. Id. at 931. However, in her preliminary
hearing testimony, Goldman said that Buchanan told her he
intended to turn in Dickey so that he could collect the
reward. Id. at 930. The jury also heard testimony from
Dickey, Goldman, and the defense investigator that Dickey
and Buchanan strongly disliked each other. Id. at 931. The
defense investigator testified that Buchanan mentioned his
dislike for Dickey every time they met, and Dickey and
Buchanan both testified that Buchanan was particularly
angry with Dickey because Dickey had torn up the only
photo Buchanan had of his youngest daughter. Id. Adding
to his credibility problems, Buchanan admitted at trial that
he frequently used heroin and cocaine, that he had used
drugs an hour or two before he heard Dickey admit his
involvement in the robbery, and that he had continued using
drugs as recently as the day before his trial testimony.
C
The prosecutor, Ken Hahus, labored throughout the trial
to mitigate Buchanan’s credibility issues. To buttress
Buchanan’s credibility, Hahus asked Buchanan to confirm
DICKEY V. DAVIS 13
on re-direct examination that he was aware of California
Penal Code § 128, which provides that “[e]very person who,
by willful perjury or subornation of perjury procures the
conviction and execution of any innocent person, is
punishable by death or life imprisonment without possibility
of parole.” At Hahus’s request, the trial court took judicial
notice of that statute and read it aloud to the jury.
Immediately after the trial court read § 128 aloud, Hahus
asked Buchanan about his interactions with defense
investigator Melvin King and whether King ever bought him
anything. Buchanan testified that King bought him beer on
about three occasions, lunch, and a pair of shoes. Hahus then
asked Buchanan leading questions that compared
Buchanan’s interactions with King to Buchanan’s
interactions with the district attorney’s office:
Q. At anytime have you spoken with anybody
who’s told you they were from my office, from
the D.A.’s Office?
A. No, sir, only when they’ve come to pick
me up for court.
Q. You’ve talked to me a couple of times; is
that right?
A. Yes, sir.
Q. At anytime have the folks who’ve come to
pick you up from my office or me, have we
bought you anything?
A. Not a single thing, sir.
Hahus and Buchanan both knew this testimony was
false, but Hahus made no move to correct it. Instead, in his
14 DICKEY V. DAVIS
closing argument, Hahus reminded the jury of this
testimony, emphasizing that King, the defense investigator,
was the “only investigator who supplied Buchanan with
money or alcohol.” In line with Buchanan’s false testimony
that Buchanan and Hahus had met only “a couple of times,”
Hahus also argued in closing that “[i]t’s pretty clear
Buchanan was not prepared to testify, that he was not
scripted to testify.”
Hahus also acknowledged in his closing argument that
there were multiple reasons to doubt Buchanan’s word. But
he gave the jury his own opinion of Buchanan’s truthfulness:
“Do you think Gene Buchanan would lie for $5,000?
Maybe. Do you think Gene Buchanan would lie to send a
man to prison? I don’t think so.” Dickey’s lawyer objected,
and the judge duly instructed the jury to ignore Hahus’s
statement.
Hahus then emphasized to the jury that Buchanan knew
that under § 128 he could face life in prison or the death
penalty for perjuring himself in a capital case. Hahus told
the jury that Buchanan was a “street-wise,” “con-wise” drug
addict, and a “hype” who used hypodermic needles. But
Hahus argued that Buchanan still “deserves to have you
listen to what he says when he comes into this courtroom”:
He’s still a street person, he’s still a con, he
didn’t change just because he heard a man
admit to burglary, robbery and murder; he’s
still the same man. But that doesn’t mean
that the truth cannot come out of the mouth of
a drug addict. It can come out of the mouth
of a drug addict just as well as it can come
out of the mouth of a priest.
DICKEY V. DAVIS 15
***
Do you think Gene Buchanan would lie to
send a man to prison? Perhaps. Do you
think Gene Buchanan would lie to send a man
to prison that he doesn’t like? Even more
perhaps. Do you think Gene Buchanan
would lie to send a man to prison behind a
murder charge where Gene Buchanan
himself could face a capital case for it?
There’s honor among thieves. There’s also
something else; some things are more
important than others, and even though he
might be a sleazy hype, do you really think he
made all this up for 5,000 bucks when it’s this
serious?
The jury convicted Dickey of two counts of robbery, one
count of burglary, and two counts of felony murder. It also
found true several special circumstances: (1) felony-murder
robbery; (2) felony-murder burglary; and (3) multiple
murder. Dickey, 231 F. Supp. 3d at 653. At the penalty
phase, defense counsel presented no mitigation evidence but
argued that Dickey did not deserve the death penalty because
the State’s theory of the case was limited to Dickey acting as
an aider and abettor. The jury imposed the death penalty.
II
After Dickey was sentenced, the trial court appointed
substitute counsel to represent him. Id. His new counsel
filed motions for a new trial and to modify the verdict. Id.The motions argued that Buchanan’s testimony concerning
whether the prosecution provided him favors had been false
and misleading.
16 DICKEY V. DAVIS
At the hearing on Dickey’s motion for a new trial, the
defense team discovered that the prosecution had known
Buchanan gave false testimony, and rather than correcting it,
the prosecutor had used it in his closing argument. Dickey
learned that it had been the State’s investigator who arranged
a deal with the proprietor of a local boarding house to
provide room and board for Buchanan pending receipt of the
reward for his trial testimony. The jury had heard that
Buchanan was living in a boarding house on credit, but it did
not know that the State had brokered the arrangement.
The defense team also learned from Hahus that he had
met with Buchanan “probably a dozen times before the
trial,” not “a couple of times” as Hahus had posited in the
leading question he had posed to Buchanan.
Hahus further disclosed at the post-trial hearing that
Buchanan had lied to him about a consequential matter
during their very first phone call. Hahus testified that
Buchanan called him approximately a year and a half before
trial and said that he had failed to appear at a hearing on
felony drug charges. Buchanan wanted to know if a warrant
had issued for his arrest and, if so, whether Hahus could get
it withdrawn. Hahus recalled Buchanan telling him that he
and his lawyer had met with Barbara Dotta, the prosecutor
handling Buchanan’s felony drug case, that Dotta had agreed
to dismiss the charges against Buchanan because he was “a
prime witness in the Dickey case,” and that Dotta
purposefully kept this agreement off the record so Dickey’s
counsel would not know about it.
Hahus testified that he “came unglued” after receiving
this call from Buchanan and “began yelling at [Buchanan]
that that was a load of BS,” that no deal had been made, and
that any deals made with witnesses in the Dickey trial would
DICKEY V. DAVIS 17
go through Hahus. Hahus testified that he “was a little
peeved, frankly, that [Buchanan] thought [he] was so big of
an idiot that [he] would believe [Buchanan] telling [him] that
another DA had made some type of deal and was
purposefully trying to keep it from a defense attorney.”
Hahus took notes about this conversation with Buchanan but
testified that he did not disclose them to Dickey’s counsel
until “shortly before the hearing on the motion for a new
trial.” Dickey, 111 P.3d at 937.
Based on this newly discovered evidence and
information, Dickey argued that the prosecutor had
knowingly solicited and used false testimony in violation of
Napue, 360 U.S. 264, and also failed to disclose favorable
material evidence in violation of Brady, 373 U.S. 83. The
trial court denied the motion for a new trial without
addressing whether the State’s knowing use of false
testimony might have affected the jury’s decision. Dickey,
111 P.3d at 944. Instead, the court focused on whether
Buchanan had created a false impression in the minds of the
jury about whether the State bought him anything. The trial
court reasoned that the State “only acted as a conduit” and
had not been involved in providing the benefit Buchanan
received from the boarding house arrangement. Dickey, 231
F. Supp. 3d at 750. The court did not discuss Buchanan’s
false testimony that he had met with Hahus only a couple of
times. Dickey’s post-trial motions were denied, and he was
sentenced to death in 1992. See id. at 653–54.
In 2005, the California Supreme Court considered
Dickey’s direct appeal, which included his Napue and Brady
claims. Dickey, 111 P.3d 921. It affirmed his conviction and
sentence. Id. Dickey also raised these claims in his first state
habeas petition, which the California Supreme Court denied.
The court denied the claims on the merits and also stated that
18 DICKEY V. DAVIS
they were barred because they had been raised and rejected
on direct appeal.3
Dickey filed his federal habeas petition in 2007. The
district court denied relief on his guilt-phase claims in 2017,
Dickey, 231 F. Supp. 3d 634, and denied relief on his
penalty-phase claims in 2019, Dickey v. Davis, No. 1:06-cv-
00357-AWI-SAB, 2019 WL 4393156 (E.D. Cal. Sept. 13,
2019). The court granted a certificate of appealability
(COA) as to whether the prosecution knowingly used false
evidence in violation of Napue and failed to disclose
favorable impeachment evidence in violation of Brady
(Claim XIII).4 Id. at *153. Dickey timely appealed the
district court’s rulings. We have jurisdiction pursuant to 28
U.S.C. § 1291 and § 2253(a).
III
We review de novo a district court’s denial of habeas
relief. Avena v. Chappell, 932 F.3d 1237, 1247 (9th Cir.
2019). Because Dickey filed his federal habeas petition after
3
Dickey argues that, because the California Supreme Court denied his
first state habeas petition summarily, there was no adjudication on the
merits, and this court should review his claim de novo. This is incorrect.
The California Supreme Court expressly stated that all of Dickey’s
claims were denied on the merits, and the Supreme Court has held that a
state court’s unexplained denial is assumed to be an adjudication on the
merits. See Cullen v. Pinholster, 563 U.S. 170, 187–88 (2011);
Harrington v. Richter, 562 U.S. 86, 100 (2011).
4
The district court also granted a COA on whether counsel was
ineffective for intentionally seeking to empanel a pro-death jury (Claim
I); whether counsel was ineffective for failing to investigate and impeach
Buchanan (Claim II(E)); and whether the trial court should have held a
Marsden hearing and whether counsel should have withdrawn from his
representation of Dickey (Claims V and II(I)). Dickey, 2019 WL
4393156, at *153.
DICKEY V. DAVIS 19
April 24, 1996, the Antiterrorism and Effective Death
Penalty Act (AEDPA) applies. See Pub. L. No. 104-132,
110 Stat. 1214 (1996). AEDPA prohibits a federal court
from granting a petition for a writ of habeas corpus unless
the state court’s decision was “contrary to, or involved an
unreasonable application of, clearly established Federal law
as determined by the Supreme Court of the United States,”
or the state court’s decision “was based on an unreasonable
determination of the facts in light of the evidence presented
in the State court proceeding.” 28 U.S.C. § 2254(d)(1)–(2).
“In determining whether a state court decision is contrary
to federal law, we look to the state’s last reasoned decision .
. . as the basis for its judgment.” Avila v. Galaza, 297 F.3d
911, 918 (9th Cir. 2002). When there is no reasoned state-
court decision addressing a habeas claim, there is a
rebuttable presumption that the state court adjudicated the
claim on the merits. See Harrington, 562 U.S. at 99–100. In
that circumstance, federal courts must consider what
arguments could have supported the state court’s decision
and then ask whether it is possible fairminded jurists could
disagree that those arguments or theories are inconsistent
with a prior Supreme Court holding. See id. at 102.
A state court’s decision is contrary to clearly established
federal law if it “‘applies a rule that contradicts the
governing law set forth in [Supreme Court] cases’ or if it
‘confronts a set of facts that are materially indistinguishable
from a decision of [the Supreme] Court and nevertheless
arrives at a result different from [this] precedent.’” Cook v.
Kernan, 948 F.3d 952, 965 (9th Cir. 2020) (alterations in
original) (quoting Williams v. Taylor, 529 U.S. 362, 405–06
(2000)). “Clearly established federal law” refers to the
Supreme Court’s holdings “as of the time of the relevant
state-court decision.” Avena, 932 F.3d at 1247 (alterations
20 DICKEY V. DAVIS
omitted) (quoting Lockyer v. Andrade, 538 U.S. 63, 71
(2003)). Circuit precedent does not clearly establish federal
law for purposes of § 2254(d)(1). Marshall v. Rodgers, 569
U.S. 58, 64 (2013). If a petitioner overcomes the §
2254(d)(1) bar by showing the state court’s decision was
contrary to clearly established federal law, “he must also
demonstrate that he is entitled to relief without the deference
required by AEDPA.” Jones v. Ryan, 52 F.4th 1104, 1115
(9th Cir. 2022); see also Johnson v. Williams, 568 U.S. 289,
303 (2013).
IV
Before the California Supreme Court, Dickey argued that
the State violated Napue by presenting and failing to correct
false or misleading testimony. Specifically, Dickey argued
that the prosecutor elicited false testimony from Buchanan
that: (1) the State had not provided any favors to Buchanan;
and (2) Buchanan met with Hahus only “a couple of times”
prior to trial. The California Supreme Court agreed that
Buchanan’s testimony created the false impression that the
prosecution had not provided him any favors, but it did not
address Buchanan’s testimony concerning the number of
pretrial meetings he had with Hahus. Dickey, 111 P.3d at937–38. The court decided the State’s Napue violation
regarding favors was not material, reasoning that the
prosecutor’s failure to correct Buchanan’s testimony could
not have made a difference at trial. Id. at 938.
For nearly ninety years, it has been established Supreme
Court precedent that a conviction violates due process if it is
obtained through knowing presentation of perjured
testimony. See Mooney v. Holohan, 294 U.S. 103, 112–13
(1935) (per curiam). In 1957, the Supreme Court held that a
prosecutor’s failure to correct a material false impression
DICKEY V. DAVIS 21
also violates due process. See Alcorta v. Texas, 355 U.S. 28,
31 (1957) (per curiam). Dickey’s habeas petition
specifically invokes Napue, in which the Supreme Court
established that a conviction is invalid if the State is aware
of a material falsity and fails to correct it, regardless of
whether the State intentionally solicited the false evidence or
testimony. See Napue, 360 U.S. at 269–70. This is so
because the State’s knowing use of false testimony prevents
“a trial that could in any real sense be termed fair.” Id. at
270 (quoting People v. Savvides, 136 N.E.2d 853, 855 (N.Y.
1956)). “The principle that a State may not knowingly use
false evidence, including false testimony, to obtain a tainted
conviction . . . does not cease to apply merely because the
false testimony goes only to the credibility of the witness.”
Id. at 269.
To prevail on his Napue claim, Dickey bore the burden
of showing that: “(1) 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.” Hayes v. Brown, 399 F.3d 972,
984 (9th Cir. 2005) (en banc) (alteration in original) (quoting
United States v. Zuno-Arce, 339 F.3d 886, 889 (9th Cir.
2003)); see Napue, 360 US. at 269–71. The Supreme Court
has repeatedly acknowledged that the introduction of false
testimony is corrosive to the “truth-seeking function” of our
adversarial system. United States v. Agurs, 427 U.S. 97,
103–04, 103 n.8 (1976) (collecting cases). The Court has
thus explained that the materiality analysis for a Napue
violation requires that a conviction “must be set aside if there
is any reasonable likelihood that the false testimony could
have affected the judgment of the jury.” Id. at 103–04
(emphasis added); see also Giglio v. United States, 405 U.S.
150, 154 (1972).
22 DICKEY V. DAVIS
Napue’s materiality standard is considerably less
demanding than the standard for Brady claims, which
requires that a petitioner show “there is a reasonable
probability that, had the evidence been disclosed to the
defense, the result of the proceeding would have been
different.” Strickler v. Greene, 527 U.S. 263, 280 (1999)
(emphasis added) (quoting United States v. Bagley, 473 U.S.
667, 682 (1985) (opinion of Blackmun, J.)). The Supreme
Court has explained that Napue’s materiality threshold is
lower “not just because [Napue cases] involve prosecutorial
misconduct, but more importantly because they involve a
corruption of the truth-seeking function of the trial process.”
Agurs, 427 U.S. at 104; see also Mooney, 294 U.S. at 113(“[A] deliberate deception of court and jury by the
presentation of testimony known to be perjured . . . is as
inconsistent with the rudimentary demands of justice as is
the obtaining of a like result by intimidation.”). Napue’s
more lenient materiality standard, and the Supreme Court’s
explanation of the rationale for this standard, are pivotal to
the decision we reach in Dickey’s appeal.
A
Dickey argues that the California Supreme Court recited
the correct legal standard for his Napue claim, but based its
decision on an incomplete assessment of Buchanan’s false
testimony, a misapplication of the Napue materiality
standard, and an unreasonable determination of the facts.5
5
Dickey argues that the California Supreme Court’s decision was
premised on an unreasonable determination of the facts because the court
“substantially and unreasonably misstated its factual record regarding
the extent of Buchanan’s indebtedness [to Margie Strickland, who
operated the boarding house at which he was staying].” Because we
DICKEY V. DAVIS 23
As recounted above, to buttress Buchanan’s credibility
before the jury, Hahus asked Buchanan to confirm on re-
direct examination that he was aware of California Penal
Code § 128. Hahus then requested that the trial court read
that statute aloud to the jury6 and immediately followed the
court’s reading with a series of leading questions designed
to contrast Buchanan’s interactions with defense
investigator King against his contacts with the district
attorney’s office:
Q. At anytime have you spoken with anybody
who’s told you they were from my office, from
the D.A.’s Office?
A. No, sir, only when they’ve come to pick
me up for court.
Q. You’ve talked to me a couple of times; is
that right?
A. Yes, sir.
Q. At anytime have the folks who’ve come to
pick you up from my office or me, have we
bought you anything?
A. Not a single thing, sir.
grant relief on Dickey’s penalty-phase Napue claim on other bases, we
do not reach this argument.
6
The trial court stated: “The court will take judicial notice of Penal Code
Section 128. Ladies and -- members of the jury: Penal Code Section 128
provides as follows, and I quote: ‘Every person who, by willful perjury
or subornation of perjury procures the conviction and execution of any
innocent person, is punishable by death or life imprisonment without
possibility of parole. The penalty shall be determined pursuant to
Sections 190.3 and 190.4.’”
24 DICKEY V. DAVIS
Unbeknownst to the jury, this testimony was false—and
the State knew it. It was not until the post-trial hearing on
Dickey’s motion for a new trial that the State’s investigator,
Willie Martin, revealed that Buchanan contacted Martin
because he “needed food and a place to stay” after he had
been released from jail for an unrelated drug charge in March
1989 and wanted to know what the district attorney’s office
could do to help him. The district attorney’s office had no
funds available to assist Buchanan with housing, but Martin
was aware of the $5,000 reward. Martin contacted Margie
Strickland, a boarding house operator, and asked whether
she would consider allowing Buchanan to stay at her
boarding house and forego paying rent until he received the
anticipated reward. Strickland agreed, and Martin
memorialized the agreement on the Fresno District
Attorney’s Office letterhead. Buchanan signed the
agreement, and Martin and another district attorney’s office
employee witnessed it. Strickland periodically sent running
tallies to Martin at the district attorney’s office indicating
how much money Buchanan owed her. These tallies
included sums for separate loans totaling several hundred
dollars that Strickland made to Buchanan for incidentals like
cigarettes and “personal needs.”7 At the post-trial hearing
on Dickey’s motion for a new trial, Hahus conceded that
when he questioned Buchanan at trial, he was aware of
Buchanan’s housing arrangement and Martin’s role in
brokering the agreement. Dickey, 111 P.3d at 938. Hahus
also revealed that he had “probably a dozen” pretrial
7
After the trial court heard at the post-trial hearing that the district
attorney’s office had arranged housing for Buchanan, the court stated,
“That’s a favor.” The prosecutor conceded, “Well, sure it’s something,
yeah, absolutely, absolutely.”
DICKEY V. DAVIS 25
meetings with Buchanan, not the “couple of” meetings he
posited in the questions he had posed to Buchanan at trial.
B
The last reasoned state-court decision addressing
Dickey’s Napue claim is the California Supreme Court’s
decision denying his direct appeal. Dickey, 111 P.3d at 936–
38. The court rejected Dickey’s Napue claim based on
Buchanan’s false and misleading testimony that personnel
from the prosecutor’s office had not bought him “a single
thing.” Id. at 937–38. Focusing on the trial colloquy in
which Hahus elicited responses to contrast the favors
Buchanan received from the defense (beer on three
occasions, lunch, and a pair of shoes) with the benefits
provided to Buchanan by the prosecution, the court agreed
that the prosecutor had knowingly created the false
impression “that unlike the defense, the prosecution had
done nothing for Buchanan that might reflect on his
credibility.” Id. The California Supreme Court observed
that the prosecutor “sought to exploit the false impression he
had created” in his closing argument, but concluded that
Dickey had not met his burden of showing the false
testimony was material. Id. at 937–38. The court reasoned,
“in light of other information the jury had about Buchanan’s
arrangement with the proprietor of the boarding house, as
well as other indications of his interest in obtaining the
reward, the prosecutor’s action was harmless beyond a
reasonable doubt.” Id. at 937; see also Bagley, 473 U.S. at679–80, 679 n.9 (opinion of Blackmun, J.). The court did
not mention Buchanan’s false testimony that he had met with
Hahus only “a couple of times.”
In a separate section of its decision discussing Dickey’s
challenge to the sufficiency of the evidence supporting the
26 DICKEY V. DAVIS
special circumstances, the California Supreme Court also
observed that “Buchanan’s testimony as to [Dickey’s]
statement did not occur in a vacuum.” Dickey, 111 P.3d at
934. The court concluded there was other evidence
sufficient to support an intent-to-kill finding, although the
prosecution did not rely on it. Id. The court explained:
Under the evidence, the jury was entitled to
reach the following conclusions: The cord
found around Mr. Freiri’s neck came from
the venetian blind in defendants [sic]
apartment, and defendant was responsible for
bringing it to Mrs. Caton’s house. Defendant
was also responsible for bringing the knife
used to stab Mrs. Caton and Mr. Freiri.
Defendant knew his intended victims were
elderly and that Mr. Freiri was partially
paralyzed, and so he could not have believed
he and Cullumber, both younger men, needed
the knife to commit the robberies. Therefore,
defendant intended to kill, and not just rob,
Mrs. Caton and Mr. Freiri. Moreover,
defendant knew he could not escape justice if
Mr. Freiri were left alive. Defendant had
gained entry by saying he needed to use the
phone because Cullumber was going to jail.
Even if Mr. Freiri did not recognize
defendant, he must have known Cullumber,
who was an almost daily visitor to his
grandmother’s home. Mr. Freiri would have
led the police to Cullumber, and Cullumber
would have led them to defendant.
Id.DICKEY V. DAVIS 27
Though the decision on Dickey’s direct appeal did not
address the Napue claim premised on the number of pretrial
meetings Buchanan had with Hahus, id., the State did not
contest at oral argument before our court that the prosecutor
knowingly failed to correct Buchanan’s false or misleading
testimony that he met with Hahus only “a couple of times”
before trial. We therefore assume the California Supreme
Court denied Dickey’s Napue claim regarding Buchanan’s
pretrial meetings with Hahus on the merits, see Cullen, 563
U.S. at 187–88; Richter, 562 U.S. at 99–100, and in light of
Hahus’s post-trial testimony that he met with Buchanan
“probably a dozen times before the trial,” we assume the
California Supreme Court relied on materiality.8
8
Contrary to its position at oral argument, the State’s brief suggests
Hahus had no duty under Napue to correct Buchanan’s statement that
personnel from the prosecutor’s office had not given him “a single
thing.” This suggestion seems to be premised on the theory that because
the State had produced the housing agreement, defense counsel could
have cross-examined Buchanan and established that his testimony was
false. The only authority the State cites for its argument that “failure to
disclose” is a “necessary part of [a] Napue claim” is a footnote in Imbler
v. Pachtman, 424 U.S. 409 (1975). In that footnote, the Supreme Court
merely made the point that Napue violations can be reframed as Brady
violations if the prosecution does not disclose evidence that shows
testimony is false. See Imbler, 424 U.S. at 431 n.34. The State’s
suggestion that there was no Napue violation here is unsupported by
Supreme Court authority and contrary to our decision in United States v.
LaPage, 231 F.3d 488, 492 (9th Cir. 2000) (“[T]he government’s duty
to correct perjury by its witnesses is not discharged merely because
defense counsel knows, and the jury may figure out, that the testimony
is false.”). See also Soto v. Ryan, 760 F.3d 947, 968 n.11 (9th Cir. 2014);
Sivak v. Hardison, 658 F.3d 898, 909 (9th Cir. 2011); United States v.
Alli, 344 F.3d 1002, 1007 (9th Cir. 2003). We agree with the California
Supreme Court’s conclusion that the prosecutor did not fulfill his duty to
correct Buchanan’s false and misleading testimony. See Napue, 360
U.S. at 269–70.
28 DICKEY V. DAVIS
C
Two backdrops inform our analysis of Dickey’s penalty-
phase Napue claims. The first is the egregious lie Buchanan
told Hahus, months before trial, that another prosecutor in
Hahus’s office had agreed to drop felony charges against
him and keep that deal off the record so Dickey’s counsel
would not learn of it. The prosecutor’s failure to produce his
notes of their conversation is the basis of one of Dickey’s
Brady claims. The episode is a critical backdrop to the
Napue claim because it put Hahus on notice that Buchanan
was willing to lie if doing so served his own interests, even
if the lie concerned a matter of considerable importance and
even if the lie would inevitably be discovered.
The second backdrop for Dickey’s Napue claims is the
undeniable centrality of Buchanan’s testimony to the State’s
special-circumstances case. The State’s case for imposition
of the death penalty depended on showing that Dickey
harbored an intent to kill, and by Hahus’s admission, “[t]he
special circumstance finding came from the testimony of
Buchanan.” Dickey points to the State’s thin circumstantial
evidence of his role, and argues that the entire basis for the
State’s argument that he harbored an intent to kill was
Buchanan’s testimony attributing to Dickey the thought: “if
you kill one you might as well kill them both.” Buchanan
was clear that this was something Dickey thought, not
something he said when the crimes were committed, but the
meaning and circumstances under which Dickey allegedly
had this thought were never explained. Importantly,
Goldman’s account of the conversation she had with Dickey
in the bedroom of the Harvard Avenue apartment made no
mention of Dickey expressing this thought.
DICKEY V. DAVIS 29
The importance of Buchanan’s testimony was not lost on
the trial court. In response to Dickey’s mid-trial motion for
acquittal based on insufficient evidence, the court discussed
with counsel whether Buchanan’s testimony regarding
Dickey’s thought was sufficient by itself to show intent to
kill. In response, Hahus initially pointed to evidence that
either Cullumber or Dickey took weapons with them on the
night of the murder and argued such evidence also “clearly
show[ed] intent to kill.” But Hahus backtracked moments
later and clarified that he “misspoke” and that “[t]he physical
evidence [was] not directed at the intent to kill” but rather
“show[ed] an aiding or abetting in the deaths.” Before our
court, however, the State backtracks again and argues that
the California Supreme Court reasonably relied on both the
physical evidence and Goldman’s testimony as supporting
the State’s case that Dickey acted with the requisite intent to
kill.
There is no question the State’s case that Dickey acted
with intent to kill was weak and circumstantial. There was
no direct testimony or physical evidence of Dickey’s
involvement in the killing of either Caton or Freiri. The
State identified Dickey’s thumbprint on a blind collected
from the Harvard Avenue apartment, but it is neither
surprising nor incriminating that Dickey’s thumbprint would
be found on a blind taken from the home where he lived,9
and the State’s expert was unable to conclude a cord sample
9
Investigator Mike Hall was able to locate and lift only one identifiable
fingerprint from a slat on the venetian blind, and it matched Dickey’s
thumbprint. Dickey testified that his thumbprint was on the slat of the
blind because he picked it up when it fell off the door and he placed it in
the hall closet.
30 DICKEY V. DAVIS
from the Harvard Avenue apartment blinds matched the cord
used in the crime.
The circumstantial evidence that Dickey took a weapon
to Caton’s house was scant and contradicted. Detective
Stokes testified that Goldman told him she saw Dickey
remove a knife from the silverware drawer on the night of
the murders, but the jury heard Goldman’s testimony that she
saw Dickey look in a drawer, that she was not sure which
drawer, and that there was nothing unusual about Dickey’s
behavior. Goldman did not testify that she saw Dickey take
a knife—or anything else—from the kitchen drawer on the
night of the murders. Buchanan testified that the knife found
at Caton’s house looked similar to one Goldman owned and
that he had last seen that knife lying on a bed at the Harvard
Avenue apartment. This certainly implied that the knife used
in the murders may have come from the Harvard Avenue
apartment, but Buchanan’s statement about the knife does
not account for Goldman’s sworn testimony that she told
Stokes that: “[My knife] is in storage with all my stuff that I
have in storage.”10
Worse for the State, Detective Stokes testified that
Goldman told him Dickey retrieved a blind from the hall
closet on the night of the murders, but the jury heard
Goldman’s recorded pretrial testimony that she saw
Cullumber, not Dickey, get a blind out of the hall closet and
take it into the bedroom. Detective Stokes’s testimony also
conflicted with Goldman’s concerning the origin of the
missing cord; he testified that Goldman told him the blind
from the hall closet was missing a cord, but Goldman
10
The California Supreme Court’s opinion did not mention Goldman’s
testimony that her knife was in storage. See Dickey, 111 P.3d at 928–29.
DICKEY V. DAVIS 31
testified the blind from the bedroom was missing a cord.
And as explained, the jury heard criminalist Gary Cortner
testify that he could not conclude the cord found at the crime
scene was the same cord or from the same spool as any of
the samples taken from the blinds at the Harvard Avenue
apartment.
The record provides little support for the State’s
argument that Goldman’s testimony provided evidence that
Dickey acted with intent to kill. Much of Goldman’s actual
testimony was not favorable to the prosecution, and the State
relied heavily on Detective Stokes’s account of what
Goldman told him about the night of the murders. See
Dickey, 111 P.3d at 929. Stokes’s testimony was
problematic for the State, not only because it was
contradicted in several key respects by Goldman’s pretrial
testimony, but also because Stokes was forced to retract
some of it. Most notably, the jury heard Stokes testify in
some detail that Goldman told him she overheard Cullumber
and Dickey talking about an “easy ripoff” and “money being
hid” while getting dressed to go out together on the night of
the murders. But Stokes acknowledged on cross-
examination that Goldman had never said these things and
abruptly recanted this part of his testimony:
Q. And yesterday you testified that she -- that
she said she heard them talk about an easy
ripoff?
A. Yes.
Q. That’s not in your report, is it?
A. Not in this area, no.
32 DICKEY V. DAVIS
Q. Is it -- attributed as a statement from Gail
[Goldman], is that in your report anywhere?
A. No.
Q. Gail [Goldman] didn’t say that, did she?
A. No.
Q. Gail [Goldman] didn’t say she saw
anybody getting dressed to go out, did she?
A. Getting dressed to go out?
Q. Yeah, putting on hats and gloves and stuff
like that?
A. No.
Q. That was your testimony yesterday,
wasn’t it?
A. Yes.
Q. That was wrong, wasn’t it?
A. Yes.
In short, this is not a case in which the State’s star witness
had credibility problems that were rendered harmless by
physical evidence or the testimony of other witnesses.
Buchanan’s ambiguous statement that Dickey thought to
himself—at some point, before or after the murders—“if you
kill one you might as well kill them both” was the State’s
best evidence that Dickey acted with intent to kill, and
Buchanan’s testimony on this point was unsupported by
other evidence. As Hahus testified at the hearing on
Dickey’s motion for a new trial, “[t]he special circumstance
finding came from the testimony of Buchanan.” Because
Buchanan was the only one who testified that Dickey
DICKEY V. DAVIS 33
expressed that thought, Buchanan’s credibility was
absolutely critical to the State’s special-circumstances case.
On multiple occasions, the Supreme Court has found
perjured testimony material under Napue when it bore on the
credibility of a witness upon whom “the Government’s case
depended almost entirely.” Giglio, 405 U.S. at 154. In
Napue itself, for example, the Court concluded the perjured
testimony was material because it concerned the credibility
of the State’s “principal witness,” whose testimony “was
extremely important because the passage of time and the dim
light [at the scene of the crime] made eyewitness
identification very difficult and uncertain, and because some
pertinent witnesses had left the state.” 360 U.S. at 265–66;
see also Giglio, 405 U.S. at 154–55 (finding Napue’s
materiality standard satisfied when a prosecutor falsely
stated the State’s star witness had not been promised
immunity because this evidence “would be relevant to [the
witness’s] credibility and the jury was entitled to know of
it”); Alcorta, 355 U.S. at 29–32 (finding Napue violation
material because correcting false testimony from the only
eyewitness to a murder would have impeached his credibility
and corroborated the defendant’s “sudden passion” defense).
Here, the California Supreme Court concluded the
State’s failure to correct Buchanan’s false and misleading
testimony about his housing-on-credit arrangement was
immaterial because the jury already knew of the arrangement
and Buchanan’s desire to obtain the $5,000 reward. Dickey,
111 P.3d at 937–38. The court also noted that the jury heard
evidence of Buchanan’s drug addiction and that Buchanan
and Dickey intensely disliked each other. Id. at 931, 937–
38. The State argues on appeal that the California Supreme
Court’s materiality finding was reasonable because “there
was already ample impeachment of Buchanan’s credibility
34 DICKEY V. DAVIS
before the jury,” including (1) Buchanan’s chronic use of
illegal drugs; (2) the fact that he admitted using drugs close
to the time he heard Dickey’s statement to Goldman in the
bedroom; (3) Buchanan’s motivation to get the $5,000
reward; and (4) Buchanan’s admitted antipathy toward
Dickey.
We disagree. Our starting point is recognition of
Buchanan’s role as the State’s star witness. In Napue, the
Supreme Court held that false and misleading testimony
from the State’s star witness was not rendered cumulative or
insignificant merely because the jury already had other
reasons to distrust the witness. See Napue, 360 U.S. at 270.
The prosecutor in Napue failed to correct the State’s primary
witness’s false testimony that the State’s Attorney had not
promised him consideration in exchange for his testimony.
Id. at 266–67. The Illinois Supreme Court had ruled that the
prosecutor’s misconduct was immaterial because “the jury
had already been apprised that someone whom [the witness]
had tentatively identified as being a public defender ‘was
going to do what he could’” to help the witness, and “‘was
trying to get something [done]’ for him.” Id. at 268. The
Supreme Court reversed. The Court explained, “[W]e do not
believe that the fact that the jury was apprised of other
grounds for believing that the witness . . . may have had an
interest in testifying against petitioner turned what was
otherwise a tainted trial into a fair one.” Id. at 270.
In the case before us, to conclude Buchanan’s false and
misleading testimony was harmless, it was necessary for the
state court to decide there was no reasonable likelihood that
his testimony could have made a difference to the jury’s
imposition of the death penalty. The California Supreme
Court did not expressly acknowledge Buchanan’s pivotal
role at trial, but we must assume this was factored into its
DICKEY V. DAVIS 35
materiality analysis. The state court’s decision did recognize
that Hahus “knowingly exploited” Buchanan’s false and
misleading testimony about his housing arrangement by
repeatedly relying on it to bolster Buchanan’s otherwise
tarnished credibility, see Dickey, 111 P.3d at 937, and the
court’s materiality ruling considered that the prosecutor’s
closing argument contrasted Buchanan’s testimony that he
received no favors from the prosecution with his testimony
that the defense investigator bought him things like beer,
lunch, and a pair of shoes, id. at 938. The court did not
acknowledge Buchanan’s false testimony, in answer to
Hahus’s leading question, that he had met with Hahus only
“a couple of times.” Id. at 937–38.
The state-court decision analyzed Buchanan’s false and
misleading testimony only as cumulative evidence that
Buchanan was biased against Dickey and motivated to
ensure his conviction. Evidence that Buchanan had actually
lied on the witness stand was an entirely new category of
impeachment evidence that could have gutted the State’s use
of § 128 to shore up Buchanan’s credibility. It would have
given the jury reason to doubt Buchanan’s veracity in
court—not just his reliability as an addict, or his impartiality
as a person motivated by a reward. None of the evidence the
state court identified in its materiality analysis gave the jury
reason to know that Buchanan was willing to lie to them
under oath—or to know that he had lied to them under oath.
The significance of the State’s star witness having done so,
immediately after being advised in open court of the stark
consequences of § 128, is hard to overstate. Hahus’s
deliberate solicitation of, and failure to correct, Buchanan’s
false testimony was entirely contrary to Napue’s directive
that courts safeguard the “truth-seeking function of the trial
process.” Agurs, 427 U.S. at 103.
36 DICKEY V. DAVIS
The State argues the state court could have reasonably
decided that, if the jury had learned about the prosecution’s
role in Buchanan’s housing arrangement, the jury would
have simply “concluded that the prosecutor’s office has a
generally applicable policy to offer non-monetary housing
assistance for its witnesses before the trial” and that “any
housing assistance was for the purpose of keeping track of
witnesses, not as an inducement to stray from the [] duty to
testify truthfully.” Regarding the number of pretrial
meetings with Hahus, the State contends the court’s
materiality finding was reasonable because the jury still
would have concluded that Buchanan was “neither prepared
nor scripted” because his trial testimony was “fraught with
inconsistencies, tangents and biases.” But the Supreme
Court has emphasized the opposite.
The Court has explained that, when considering
materiality under the more demanding Brady standard, “if
the verdict is already of questionable validity, additional
evidence of relatively minor importance might be sufficient
to create a reasonable doubt.” Id. The other inconsistencies
and evidence of Buchanan’s bias therefore reinforce the
conclusion that, if the jury had known that at least some of
Buchanan’s testimony had in fact been false, it could have
easily made a difference to the outcome. Even “subtle
factors” may be enough to find Napue materiality when
“[t]he jury’s estimate of the truthfulness and reliability of a
given witness may well be determinative of guilt or
innocence.” Napue, 360 U.S. at 269. Here, the jury’s
special-circumstances finding certainly turned on its
assessment of Buchanan’s veracity.
In light of Buchanan’s pivotal role at trial and the weak
evidence that Dickey acted with intent to kill, we are
persuaded that this is the rare case in which AEDPA’s
DICKEY V. DAVIS 37
deferential standard is satisfied. The conclusion that there
was no reasonable likelihood that correcting Buchanan’s
false testimony could have changed the jury’s special-
circumstances decision was both clearly incorrect and an
objectively unreasonable application of clearly established
federal law.
D
On de novo review of Dickey’s Napue claim, we reach
the same result. See Panetti, 551 U.S. at 953; Jones, 52 F.4th
at 1115. The prosecution’s failure to correct Buchanan’s
false and misleading testimony was material because
Buchanan’s testimony was the centerpiece of the State’s case
in support of the special-circumstances finding. We can see
no room to doubt that, if the jury had known Buchanan
testified falsely, there was a reasonable likelihood that this
could have affected its decision to impose a capital sentence.
See Agurs, 427 U.S. at 103; Bagley, 473 U.S. at 678 (opinion
of Blackmun, J.). This conclusion accords with our circuit
precedent holding that “[t]here is a substantial difference
between ‘general evidence of untrustworthiness and specific
evidence that a witness has lied.’” Sivak, 658 F.3d at 916(quoting Benn v. Lambert, 283 F.3d 1040, 1056–57 (9th Cir.
2002)); see also Jackson v. Brown, 513 F.3d 1057, 1077 (9th
Cir. 2008) (finding Napue materiality because revealing a
key witness’s “obvious willingness to lie under oath” would
have “cast doubt on his entire testimony”). As we explained
in Sivak, correcting a witness’s false sworn testimony can
make a powerful difference in the jury’s assessment of the
witness’s trustworthiness:
[I]f a witness’s false testimony is corrected
by the prosecution, his “willingness to lie
under oath” is exposed and his credibility is
38 DICKEY V. DAVIS
irreparably damaged. There is a substantial
difference between “general evidence of
untrustworthiness and specific evidence that
a witness has lied.” “All the other evidence
used by the defense to punch holes in the
informant’s credibility amount[s] only to
circumstantial reasons why the informant
might alter the truth to continue to feather his
own nest. A lie would be direct proof of this
concern, eliminating the need for inferences.”
658 F.3d at 916 (second alteration in original) (citations
omitted) (first quoting Jackson, 513 F.3d at 1077; then
quoting Benn, 283 F.3d at 1056–57; and then quoting id. at
1057). Here, if Hahus had corrected Buchanan’s testimony,
there is clearly a “reasonable likelihood that the false
testimony could have affected the judgment of the jury.”
Agurs, 427 U.S. at 103.
We are particularly troubled that Hahus used leading
questions to elicit Buchanan’s false testimony. Unlike
Napue violations in cases where witnesses have
unexpectedly blurted out a misstatement or surprised a
prosecutor with an embellished or volunteered response,
Buchanan’s false and misleading testimony came in the form
of affirmative answers to Hahus’s prompts—hence, the
California Supreme Court’s apt description that the
prosecutor’s closing argument “sought to exploit the false
impression he had created.” Dickey, 111 P.3d at 938(emphasis added). Given the weight the prosecutor put on
Buchanan’s credibility in his closing argument, imploring
the jury that Buchanan deserved for them to believe him, and
the prosecutor’s frank assessment at the post-trial hearing
that Buchanan’s testimony comprised nearly the entirety of
DICKEY V. DAVIS 39
the State’s evidence of intent to kill, we do not hesitate to
conclude there was a reasonable likelihood that the State’s
failure to correct Buchanan’s testimony could have affected
the jury’s special-circumstances finding.11 We therefore
reverse the district court’s decision as to Dickey’s penalty-
phase Napue claim and do not reach the merits of any of
Dickey’s other penalty-phase claims.
V
We affirm the denial of Dickey’s certified guilt-phase
claims related to his conviction for aiding and abetting the
11
To grant habeas relief on a claim of trial error, we generally assess the
error’s prejudicial effect under Brecht v. Abrahamson, which requires
“actual prejudice.” 507 U.S. 619, 637 (1993) (quoting United States v.
Lane, 474 U.S. 438, 449 (1986)); see also Brown v. Davenport, 142 S.
Ct. 1510, 1519 (2022). We recognize, however, that the circuits have
split on whether the Brecht standard applies when reviewing a state
court’s Napue determination. Compare Haskell v. Superintendent
Greene SCI, 866 F.3d 139, 150 (3d Cir. 2017) (declining to apply Brecht
to a claim of Napue error), and Hayes, 399 F.3d at 984, with United
States v. Clay, 720 F.3d 1021, 1026–27 (8th Cir. 2013) (applying Brecht
to a Napue claim), Trepal v. Sec’y, Fla. Dep’t of Corr., 684 F.3d 1088,
1111–13 (11th Cir. 2012), Rosencrantz v. Lafler, 568 F.3d 577, 587–90
(6th Cir. 2009), Douglas v. Workman, 560 F.3d 1156, 1173 n.12 (10th
Cir. 2009) (per curiam), and Gilday v. Callahan, 59 F.3d 257, 268 (1st
Cir. 1995). Our circuit has continued to apply the materiality standard
specific to Napue claims, reasoning that “there is no need to conduct a
separate harmless error analysis” when “the required finding of [Napue]
materiality necessarily compels the conclusion that the error was not
harmless.” Hayes, 399 F.3d at 984 (citing Kyles v. Whitley, 514 U.S.
419, 435 (1995)). Regardless, applying Brecht would not change our
materiality conclusion here because the State’s failure to correct
Buchanan’s false testimony leaves us with “grave doubt” about whether
the error had “substantial and injurious effect or influence in determining
the jury’s verdict.” Davis v. Ayala, 576 U.S. 257, 268 (2015) (quoting
O’Neal v. McAninch, 513 U.S. 432, 436 (1995)).
40 DICKEY V. DAVIS
underlying robbery. Dickey makes five claims relevant to
the guilt phase: (1) the State violated Napue by knowingly
using false testimony; (2) the State withheld favorable and
material evidence in violation of Brady; (3) his trial counsel,
Marvin Schultz, rendered ineffective assistance of counsel
by failing to investigate and impeach Buchanan and,
relatedly, by failing to interview and call Strickland as a
witness regarding the housing arrangement; (4) Schultz was
ineffective for seeking to empanel a pro-death jury; and (5)
Schultz was ineffective for failing to withdraw as counsel
due to an irreconcilable conflict with Dickey.12 The
California Supreme Court rejected the first three of these
claims on direct review. See Dickey, 111 P.3d at 936–38,
937 n.9. Dickey raised the first four claims in his first state
habeas petition and the last claim in his second petition. The
California Supreme Court denied all five claims on the
merits without offering its reasoning.
We first conclude the state court reasonably determined
that the State’s Napue and Brady violations were not
material to the jury’s guilt-phase verdict and that Schultz’s
failure to investigate and impeach Buchanan was not
prejudicial in the guilt phase. Unlike the special-
circumstances finding, Buchanan did not provide the only
key evidence of Dickey’s participation in the robbery and
burglary. Goldman’s statements corroborated some of
12
Dickey also argues, based on the facts underlying the fifth claim, that:
(1) the trial court erred by failing to conduct a Marsden hearing and order
substitute counsel for the penalty phase when it learned after the guilt
phase that Dickey’s relationship with Schultz had deteriorated; and (2)
Schultz rendered ineffective assistance of counsel by failing to know the
law regarding Marsden or request substitute counsel for Dickey.
Because we grant relief on Dickey’s Napue claim pertaining to
imposition of the death penalty, we do not reach these claims.
DICKEY V. DAVIS 41
Buchanan’s testimony and linked Dickey to the crimes. For
example, Goldman’s observations of Dickey on the night of
the crimes corroborated Buchanan’s testimony that Dickey
admitted going to Caton’s house to steal money. Goldman
also corroborated Buchanan’s testimony that Cullumber and
Dickey left the apartment together and did not have any
money, but when they returned, one or both of them had
money. Both Buchanan and Goldman recalled that two days
after the crimes, Dickey confessed that he and Cullumber
went to Caton’s house to steal money and when Dickey was
in the bedroom of the house, he heard a commotion and then
saw Freiri slumped over in a chair.
Because Buchanan was not the sole witness who
provided critical evidence that Dickey confessed to
Goldman that he aided and abetted the robbery and burglary,
the California Supreme Court did not unreasonably
determine that there was no reasonable likelihood the
prosecution’s Napue and Brady violations could have
changed the jury’s guilty verdicts. For the same reason, the
California Supreme Court reasonably concluded that
Schultz’s failure to investigate and impeach Buchanan and
his failure to call Strickland as a witness regarding the
housing arrangement did not result in guilt-phase prejudice.
See Richter, 562 U.S. at 105; Strickland v. Washington, 466
U.S. 668, 694 (1984).
Separately, we conclude the California Supreme Court
could have reasonably determined that Dickey failed to show
guilt-phase prejudice stemming from Schultz’s strategy of
seeking to select jurors who were predisposed to vote for the
death penalty. Schultz explained that he pursued this
strategy because he felt that jurors who “tend to be more pro
death once they f[ind] guilt” also “demand[] they be
absolutely positively convinced of the defendant’s guilt” and
42 DICKEY V. DAVIS
therefore are “more demanding of the quantum and quality
of prosecution evidence” during the guilt phase. Because the
California Supreme Court did not address this claim on
direct review, we consider what arguments could have
supported the court’s rejection of the claim. See Richter, 562
U.S. at 99–102. Dickey asserts that he need not show
prejudice because Schultz’s jury-selection strategy falls
under an exception to the Strickland prejudice requirement
that applies when “counsel entirely fails to subject the
prosecution’s case to meaningful adversarial testing.” See
United States v. Cronic, 466 U.S. 648, 659 (1984). But the
exception Dickey relies upon is only applicable “when the
attorney’s failure to oppose the prosecution goes to the
proceedings as a whole—not when the failure occurs only at
specific points in the trial.” Gallegos v. Ryan, 820 F.3d
1013, 1034 (9th Cir. 2016) (emphasis added) (quoting
United States v. Thomas, 417 F.3d 1053, 1057 (9th Cir.
2005)). Assuming that Schultz’s strategy constituted
deficient performance, Dickey therefore still must show the
strategy resulted in prejudice.
Dickey argues that Schultz’s strategy was prejudicial
because studies have found that pro-death-penalty jurors are
also more prone to vote for conviction.13 Without more, this
speculative argument is insufficient. Establishing prejudice
“in the context of juror selection” requires a “showing that,
as a result of trial counsel’s failure to exercise peremptory
challenges, the jury panel contained at least one juror who
13
Dickey also suggests that Schultz’s strategy was prejudicial because it
resulted in a jury that was not “reflective of a cross-section of society.”
This argument is foreclosed by the Supreme Court’s decision in Lockhart
v. McCree, which held that the representative cross-section requirement
does not apply to petit juries. 476 U.S. 162, 174 (1986).
DICKEY V. DAVIS 43
was biased.” Davis v. Woodford, 384 F.3d 628, 643 (9th Cir.
2004). A juror is biased if he or she has “such fixed opinions
that [he or she] could not judge impartially the guilt of the
defendant.” United States v. Quintero-Barraza, 78 F.3d
1344, 1349 (9th Cir. 1995) (quoting Patton v. Yount, 467
U.S. 1025, 1035 (1984)). All seated jurors in Dickey’s trial
stated they could “follow the law and the trial court’s
instructions; put aside personal feelings and remain open-
minded and consider all facts and circumstances of the
crimes in making the penalty determination; and stated that
the possibility of a death sentence would not affect his or her
guilt phase determination.” Dickey, 231 F. Supp. 3d at 671;
see also Lockhart, 476 U.S. at 178 (rejecting the argument
that a jury composed of jurors willing to impose the death
penalty is biased because “an impartial jury consists of
nothing more than ‘jurors who will conscientiously apply the
law and find the facts’” (emphasis omitted) (quoting
Wainwright v. Witt, 469 U.S. 412, 423 (1985))). We
therefore conclude the California Supreme Court could have
reasonably determined that Dickey failed to show guilt-
phase prejudice resulting from Schultz’s jury-selection
strategy.14
Third, we conclude the California Supreme Court could
have reasonably denied Dickey’s claim that Schultz should
have withdrawn based on an irreconcilable conflict. The
14
The State asserts that Dickey’s claim that Schultz’s strategy resulted
in a biased jury is procedurally barred because it was not timely
presented in state court. We do not address the State’s argument because
we conclude this claim fails on the merits. See Franklin v. Johnson, 290
F.3d 1223, 1232 (9th Cir. 2002) (“[A]ppeals courts are empowered to,
and in some cases should, reach the merits of habeas petitions if they are
. . . clearly not meritorious despite an asserted procedural bar.”); see also
Ayala v. Chappell, 829 F.3d 1081, 1095–96 (9th Cir. 2016).
44 DICKEY V. DAVIS
Supreme Court “has never held that an irreconcilable
conflict with one’s attorney constitutes a per se denial of the
right to effective counsel,” Carter v. Davis, 946 F.3d 489,
508 (9th Cir. 2019) (per curiam), and Dickey does not
identify how Schultz’s failure to withdraw prior to the guilty
verdict resulted in prejudice. Because AEDPA “conditions
habeas relief on a determination that the state-court decision
unreasonably applied ‘clearly established Federal law’ as
pronounced by the U.S. Supreme Court,” Dickey is not
entitled to relief on this claim. Id. (quoting 28 U.S.C.
§ 2254(d)(1)).
VI
We reverse and remand to the district court with
instructions to grant a conditional writ of habeas corpus as
to the special-circumstances findings and the imposition of
the death penalty. The State may either grant Dickey a new
trial on the special-circumstances allegations within ninety
days or agree that he may be sentenced to a penalty other
than death in conformance with state law. See Phillips v.
Ornoski, 673 F.3d 1168, 1197 (9th Cir. 2012). We affirm
the district court’s holding as to Dickey’s certified guilt-
phase claims, but do not reach the merits of any of Dickey’s
uncertified guilt-phase claims or his non-Napue penalty-
phase claims.
AFFIRMED IN PART, REVERSED IN PART, AND
REMANDED.15
15
Costs are taxed against the State. See Fed R. App. P. 39(a)(4).