Phillips v. Ornoski

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
RICHARD LOUIS ARNOLD PHILLIPS,  No. 04-99005
Petitioner-Appellant, D.C. No.
v. CV-F-92-05167-
STEVEN W. ORNOSKI, REC
Respondent-Appellee. ORDER
 AMENDING
OPINION, AND
DENYING
REHEARING AND
REHEARING EN
BANC AND
AMENDED
 OPINION
Appeal from the United States District Court
for the Eastern District of California
Robert E. Coyle, Senior District Judge, Presiding
Argued and Submitted
March 25, 2009—San Francisco, California
Withdrawn from Submission July 1, 2010
Resubmitted August 31, 2011
Filed March 16, 2012
Amended May 25, 2012
Before: Betty B. Fletcher, Stephen Reinhardt, and
Andrew J. Kleinfeld, Circuit Judges.
Opinion by Judge Reinhardt;
Partial Concurrence and Partial Dissent by Judge Kleinfeld
5771
PHILLIPS v. ORNOSKI 5777
COUNSEL
Richard Phillips, San Quentin, California, appearing pro se;
Katherine L. Hart, Fresno, California, advisory counsel, for
the petitioner-appellant.
Catherine Chatman, Supervising Deputy Attorney General,
Sacramento, California; Robert Todd Marshall, Assistant
Attorney General, Sacramento, California, for the respondent-
appellee.
ORDER
The majority opinion filed March 16, 2012, slip op. 3155,
and appearing at 673 F.3d 1168 (9th Cir. 2012), is hereby
amended as follows:
5778 PHILLIPS v. ORNOSKI
1. slip op. at 3163, lines 4-5: replace “vacate the jury’s spe-
cial circumstance finding that rendered Phillips death-
eligible,” with “reverse and remand with instructions to
grant the writ as to the jury’s special circumstance find-
ing,”
2. slip op. at 3186-87, n.10, lines 29-30: delete “disclose the
existence of the deal to Phillips, or whether it had the
duty to”
3. slip op. at 3209, lines 12-13: replace “We therefore
vacate that finding.” with “That finding must therefore be
vacated.” and replace “We also vacate the death penalty
sentence” with “So, too, must the death penalty sentence”
4. slip op. at 3209, line 29 – slip op. at 3210, line 1: replace
“Accordingly, we reverse and remand with instructions to
grant a conditional writ of habeas corpus, with instruc-
tions to the state court either to grant Phillips a new trial
on the special circumstance allegation within ninety days
or to sentence him” with “Accordingly, we reverse and
remand to the district court with instructions to grant a
conditional writ of habeas corpus. The state may either
grant Phillips a new trial on the special circumstance alle-
gation within ninety days or sentence him”
With these amendments, the panel has voted to deny the
petitions for rehearing. Judge Kleinfeld would grant
Respondent-Appellee’s petition for rehearing.
Judge Reinhardt voted to deny the suggestions for rehear-
ing en banc, and Judge Fletcher so recommended. Judge
Kleinfeld recommended denying Petitioner-Appellant’s sug-
gestion for rehearing en banc, but recommended granting
Respondent-Appellee’s suggestion for rehearing en banc.
The full court was advised of the suggestions for rehearing
en banc and no judge has requested a vote on whether to
rehear the matter en banc. Fed. R. App. P. 35.
PHILLIPS v. ORNOSKI 5779
The petitions for rehearing and the suggestions for rehear-
ing en banc are DENIED. No further petitions for panel or en
banc rehearing will be entertained.
OPINION
REINHARDT, Circuit Judge:
In this case we consider a capital habeas corpus petition
filed prior to the effective date of the Antiterrorism and Effec-
tive Death Penalty Act (AEDPA) and thus governed by pre-
AEDPA law. Petitioner Richard Louis Arnold Phillips appeals
the district court’s denial of his habeas corpus petition on
three grounds. First, he contends that the district court’s pro-
cedural rulings improperly denied him a full evidentiary hear-
ing. Second, he asserts that his trial counsel provided
constitutionally ineffective assistance under the Sixth Amend-
ment by allowing him to proceed with a manifestly uncon-
vincing alibi defense without first investigating any
alternative defenses. Third, he argues that the prosecution’s
failure to reveal that a key prosecution witness received sig-
nificant benefits in exchange for her testimony after the wit-
ness falsely testified she had been promised no such benefits,
coupled with the prosecutor’s false representation to the jury
that there was no agreement promising such benefits, violated
his due process rights. We conclude that the district court did
not err in its rulings governing the evidentiary hearing below,
and we affirm its denial of Phillips’s ineffective assistance of
counsel claim.
With respect to Phillips’s due process claim, we conclude,
first, that, although the prosecution engaged in a deceptive
ruse that this court has described as “a pernicious scheme
without any redeeming features,” Hayes v. Brown, 399 F.3d
972, 981 (9th Cir. 2005) (en banc) (quoting Willhoite v.
Vasquez, 921 F.2d 247, 251 (9th Cir. 1990) (Trott, J., concur-
5780 PHILLIPS v. ORNOSKI
ring)), the evidence withheld from Phillips and misrepre-
sented to the jury was not material to Phillips’s convictions
for attempted and first-degree murder, nor to his convictions
for robbery, and we accordingly affirm these convictions. We
hold, however, that the prosecution violated Phillips’s due
process rights by depriving him of, and willfully misleading
the jury as to, critical evidence that was material to the special
circumstance finding that the murder was committed during
the course of a robbery (rather than vice versa). We therefore
reverse and remand with instructions to grant the writ as to
the jury’s special circumstance finding, and, accordingly,
Phillips’s death sentence.
I. Factual Background
A. The events of December 7, 1977
In September of 1977, Phillips met Ronald Rose and Bruce
Bartulis, two partners in a general contracting business who
were building a pair of houses on property adjacent to Phil-
lips’s beachfront home in Newport Beach, California. The
three men became acquainted when Phillips offered the con-
tractors use of his electrical outlets to power their construction
tools. Phillips and the contractors became friendly, and Phil-
lips began to visit the construction site regularly to speak with
them.
On the first or second day of November 1977, Phillips
asked Rose and Bartulis if they wanted to invest in a cocaine
deal with him. Under the deal as Phillips described it, Rose
and Bartulis would contribute $25,000 to purchase cocaine
that would be smuggled into the United States from Peru, and
would receive a five-fold return on their investment. Rose and
Bartulis agreed to the illegal investment and provided Phillips
with $10,000 on November 2, 1977, with the $15,000 balance
to be provided at a later date. Over subsequent weeks, Phillips
inquired regarding the remaining balance multiple times.
Approximately three to four weeks after the first payment,
PHILLIPS v. ORNOSKI 5781
Rose provided Phillips with an additional $1,500. Rose
explained to Phillips that he and Bartulis had intended to
finance the transaction using funds derived from their con-
tracting business, and that the business had encountered finan-
cial difficulties. Rose at one point suggested that Phillips
either use only the $11,500 already provided to finance Rose
and Bartulis’s share of the cocaine deal or return the money,
and Phillips agreed to use the funds he had already received.
During the course of these discussions it emerged that Rose
and Bartulis were having difficulty obtaining insulation for
various construction projects. In late November or early
December 1977, Phillips informed Rose that he was capable
of acquiring stolen insulation and offered to arrange a sale of
such material. Rose and Bartulis accepted Phillips’s offer.
According to Rose’s testimony at Phillips’s trial, Phillips told
Rose “that his brother was a part of this deal,” that the insula-
tion was stored in a warehouse in Fresno, and that Rose and
Bartulis would have to receive the insulation there.
Shortly thereafter, on December 7, Phillips informed Rose
and Bartulis of the arrangements for the insulation transac-
tion. Phillips told the two men to meet him that evening at a
prearranged location in Fresno, a city in central California
approximately four hours north of Newport Beach. From that
location, they would drive to a second rendezvous point to
meet Phillips’s insulation source. That day, prior to leaving
Newport Beach, Rose executed a notarized promissory note in
the amount of $25,000 that he tendered to Phillips. Rose
believed the note to be secured by property he owned,
although he never signed the accompanying deed of trust. Of
the $25,000 sum covered by the note, $13,500 constituted the
balance on the cocaine deal and the remainder was intended
as a down payment on a portion of the stolen insulation. Rose
and Bartulis were unsure as to the total quantity of insulation
they would ultimately purchase from Phillips’s source, and
Phillips therefore instructed them to bring as much additional
cash to the meeting as possible.
5782 PHILLIPS v. ORNOSKI
After Rose gave Phillips the promissory note, they parted
ways with plans to meet that evening in Fresno. Rose and
Bartulis drove to Fresno in a two-door Ford Ranchero truck
purchased by Rose for the construction firm and regularly
used by Bartulis. In accordance with Phillips’s suggestion that
he bring extra cash, Rose carried with him to Fresno between
$3,500 and $5,000 in $100 bills inside the left breast pocket
of his jacket. Rose also brought a .44 magnum pistol.
Phillips flew to Sacramento, where his mother lived,
intending to borrow his mother’s car and drive to Fresno.
Fresno is approximately two and half hours south of Sacra-
mento by car. That same day, Sharon Colman, Phillips’s girl-
friend of two months, flew directly to Fresno. Colman had
previously dated and lived with Phillips’s best friend since
childhood, Richard Graybill. Colman, a prostitute, had
arranged to be picked up at the Fresno airport by a client. Her
flight, however, was delayed, and her client was not there
when she landed. She therefore called Phillips at his mother’s
house in Sacramento and asked him to pick her up at the
Fresno airport, which he did.
From the Fresno airport, Phillips and Colman drove to meet
Rose and Bartulis at a gas station. The four proceeded from
there in two separate vehicles to Chowchilla, a town approxi-
mately thirty-five miles north of Fresno along Highway 99.
Phillips and Colman led the way; Bartulis and Rose followed.
Along the way, both cars stopped at a second gas station so
that Phillips could use the restroom. Returning to his car from
the restroom, Phillips stopped to talk to Rose, from whom he
requested a pack of matches. Both cars then continued north
on Highway 99.
Sometime after midnight, both cars pulled off the highway
in Chowchilla and parked in a vacant lot. The lot was in a
deserted area, with no buildings nearby. The vehicles parked
alongside one another, with Phillips’s car to the left so that the
passenger door of his car was in line with and a few feet from
PHILLIPS v. ORNOSKI 5783
the driver-side door of the Ranchero. Phillips sat in the driv-
er’s seat of his car with Colman in the passenger seat; in the
adjacent Ranchero, Bartulis sat in the driver’s seat, with Rose
in the passenger seat.
According to Colman, Phillips got out of his car and went
to talk to Rose and Bartulis for a period of time through the
driver-side window of the Ranchero before reentering his car
through the passenger side, asking Colman to slide over. Col-
man testified that at some point approximately thirty to forty-
five minutes after their arrival at the lot—after Rose and Bar-
tulis had each finished some beers and smoked a marijuana
cigarette—Phillips again exited his car and went to talk to
Rose and Bartulis, leaning into the Ranchero’s open driver-
side window. Rose, however, stated that Phillips came and
spoke to him and Bartulis through the driver-side window
only once, and that the conversation occurred within five min-
utes, not thirty to forty-five minutes, of their arrival at the
vacant lot.
This discrepancy as to timing aside, both Colman and Rose
agree that, at some point after arriving at their destination,
Phillips was leaning into the Ranchero’s driver-side window
talking to Rose and Bartulis when he fired six shots at the two
men using his .45 automatic pistol. Colman saw the shots
being fired from the gun in Phillips’s left hand. Rose did not
see the shots being fired, but he heard the shots come from his
left. Rose was hit five times, with one bullet grazing his skull,
another piercing his arm, and the remaining three entering his
abdomen. Bartulis was shot a single time through his heart
and died almost instantly.
Immediately after the shooting ceased, Phillips hit Bartulis
on the head with the end of his gun, reached through the Ran-
chero’s window and, without opening the truck door, pulled
Bartulis’s wallet out of the truck. He then walked to Rose’s
side of the vehicle and removed Rose’s wallet and a handgun.
Phillips returned to his car and handed both wallets, as well
5784 PHILLIPS v. ORNOSKI
as his and Rose’s handguns, to Colman. In addition to Rose
and Bartulis’s identifications, the two wallets contained a total
of between $120 and $150. Phillips did not remove from the
Ranchero approximately $162 from Rose’s pants pocket, nor
did he take the $3,500 to $5,000 wad of one-hundred-dollar
bills that was in the breast pocket of Rose’s jacket. Phillips
then directed Colman to open the trunk of his car, from
which, according to Colman, he retrieved a gas can, and pro-
ceeded to pour gasoline over Rose and Bartulis’s bodies
inside the Ranchero. As Colman moved Phillips’s car across
the street, Phillips lit the two bodies on fire and made his way
back to his car.
Upon being lit on fire, Rose (who had been shot five times)
jumped out of the now burning Ranchero, and removed his
flaming jacket. He was unable to remove the rest of his burn-
ing clothing and began to run around in pain. Phillips, upon
seeing that Rose was still alive, drove toward him and hit him
with his mother’s car, cracking the windshield. Phillips and
Colman then drove back to Phillips’s mother’s house in Sac-
ramento.
Shortly after Phillips and Colman left the scene, Madera
County Sheriffs discovered Rose (who was remarkably still
alive), extinguished his burning clothing, and transported him
to the hospital, where he underwent surgery followed by three
months of burn treatment and rehabilitation. The deputies also
found Rose’s smoldering jacket, which still contained the
packet of $100 bills that Rose had carried with him from
Newport Beach.
The morning after the shootings, Phillips took his mother’s
car to a shop to have the cracked windshield repaired. Within
a week, Rose was able to communicate to the Madera sheriffs
the names of the people who accompanied him to the vacant
lot. Arrest warrants for Phillips and Colman were issued on
December 14th. Upon learning of the warrants, Colman and
Phillips drove in a Corvette borrowed from Phillips’s brother-
PHILLIPS v. ORNOSKI 5785
in-law to Salt Lake City, where Phillips got a job and assumed
a false identity. Colman stayed with Phillips in Utah for one
or two weeks and then returned to Sacramento in the Cor-
vette. Shortly thereafter she turned herself in to the Madera
County Sheriff’s Department.
Colman was taken into custody and was appointed counsel
on December 27, 1977, three weeks after the shooting. The
next day, December 28, Colman and her counsel met with the
lead investigating officers from the Madera sheriff’s depart-
ment and with the district attorney, David Minier. During that
meeting, Colman gave a detailed account of the shooting and
the events leading up to it. Notably, during this hour-long
interview, Colman did not indicate that Phillips had searched
Rose for any length of time, nor did she say that he mentioned
being unable to find the money that Rose had brought with
him, or that he was disappointed by the absence of cash. To
the contrary, she stated that on the ride back from Chowchilla
Phillips disclosed to her his motive for the murder. That
motive, according to Colman, was not robbery but a desire to
eliminate Rose and Bartulis because he was concerned that
they were setting him up, that they would double-cross him,
and that they knew “too much about where the coke was com-
ing from.” In a subsequent interview with police on January
4, 1978, Colman changed her story on these points com-
pletely, now stating that Phillips complained after he returned
to the car that he was disappointed not to have found Rose’s
money. She adhered to and indeed embellished upon the latter
version of her story at trial, testifying that Phillips had spent
“a lot longer” searching Rose than he had spent searching
Bartulis, that upon returning to the car Phillips stated “that he
couldn’t find the money that [Rose] had on him,” and that
during the drive to Sacramento Phillips repeatedly expressed
frustration that he had been unable to find the cash brought by
Rose. Although Colman was at the time of her second police
interview subject to the same capital charges as Phillips, two
months after she gave her statement to the District Attorney
5786 PHILLIPS v. ORNOSKI
she was released on bail without explanation, and her bail sta-
tus was eventually adjusted to personal recognizance.
Once she was released from pre-trial custody, Colman
moved back in with Richard Graybill, her former boyfriend.
On March 13, 1978, just a few weeks after her release, Col-
man and Graybill were arrested for selling heroin to an under-
cover Fresno police officer. After the Madera County
Sheriff’s Department made multiple calls to the Fresno police
department on Colman’s behalf requesting that charges
against her not be pursued because she was an important wit-
ness in a homicide investigation, the charges against her were
dropped.
With the assistance of Graybill, the Madera sheriffs and the
FBI located Phillips in Salt Lake City. Phillips was arrested
and was eventually extradited to California to face prosecu-
tion. He was charged with the first degree murder of Bruce
Bartulis, the attempted murder of Ronald Rose, and the rob-
bery of both Bartulis and Rose. The prosecution also alleged
as a special circumstance that the murder was committed in
furtherance of a robbery. An affirmative jury finding with
respect to the special circumstance was a necessary precondi-
tion to the holding of a capital sentencing proceeding and
imposition of the death penalty. Phillips’s trial began in Janu-
ary of 1980.
B. The Trial
The prosecution’s theory at trial was that Phillips conned
Rose and Bartulis from the start in order to rob them. Minier,
the Madera County District Attorney who prosecuted Phillips,
argued that he never had any intention to import cocaine and
there never was any stolen insulation, but rather Phillips had
used the promised deals as ruses in order to steal tens of thou-
sands of dollars from Rose and Bartulis before attempting to
murder them and steal more. The prosecution argued that on
December 7, the night of the shooting, Phillips lured the two
PHILLIPS v. ORNOSKI 5787
men to the remote lot in Chowchilla with the intention of kill-
ing them, stealing the cash they brought with them to the
meeting, and keeping the money that he had already received
from them without ever having to produce a profit on the non-
existent cocaine deal.
To support this theory, the prosecution highlighted a num-
ber of facts, drawn almost exclusively from the testimony of
Rose and Colman, to show the careful planning that went into
the killings. As evidence of that planning, the prosecutor
argued that Phillips sought to manufacture an alibi by flying
to his mother’s house in Sacramento prior to driving to
Fresno, rather than simply flying to Fresno directly as Colman
did. As further evidence of premeditation, the prosecutor
emphasized that, prior to meeting up with Rose and Bartulis,
Phillips put a gasoline can in the trunk of his mother’s car,1
and that Phillips had asked Rose for matches when the two
cars stopped en route to the vacant lot, actions that the prose-
cution argued showed Phillips intended in advance to burn his
victims.2
The prosecutor likewise underscored evidence indicating
that Phillips acted in a particularly methodical and cold-
blooded manner. For example, he argued that Phillips sought
to cover his tracks, not only by burning the bodies, but by
picking up the bullet shell casings off the ground after the
shooting, as there was only one shell recovered from the
scene despite multiple shots being fired. He further argued
that Phillips’s cold-blooded manner was evidenced by Col-
man’s testimony that Phillips struck Rose and Bartulis in the
head after shooting them.
1
Phillips’s mother testified that she did not normally carry a gasoline
can in the car.
2
In a subsequent penalty phase retrial, Rose explained that he gave Phil-
lips a marijuana cigarette along with the matches, but at Phillips’s initial
guilt trial he testified only that Phillips had requested matches.
5788 PHILLIPS v. ORNOSKI
In addition to emphasizing facts suggesting premeditation
and extensive advanced planning, the prosecutor highlighted
evidence supporting the contention that Phillips’s cocaine and
insulation scheme was a ruse orchestrated to steal money
from Rose and Bartulis. He emphasized that Phillips told
Rose and Bartulis that the stolen insulation was going to be
supplied by his brother even though Phillips does not have a
brother.3 The prosecutor also argued that the fact that Phillips
told Rose to bring “as much money as he could get a hold of”
to Fresno showed that Phillips planned to rob Rose and Bar-
tulis once they got to the deserted lot. Similarly, the prosecu-
tor stressed that Phillips searched the bodies after the shooting
and took Rose and Bartulis’s wallets. He also stressed that,
according to Colman, Phillips said that he was upset that he
could not find the money he expected Rose to be carrying.
Phillips’s primary defense at trial was that he was not at the
crime scene at all. This alibi rested almost exclusively on
Phillips’s own testimony. Phillips took the stand and testified
that on the night of the shooting he was at an illicit business
meeting at a disco. He claimed that he had helped set up the
insulation deal, but that the deal itself was attended only by
Rose, Bartulis, and Graybill (who was to supply the insula-
tion). He further claimed that the real killers were Colman and
Graybill, to whom he had loaned his mother’s car on the night
of the shooting. Phillips testified that Graybill returned to
Phillips’s mother’s house at approximately 4:30 a.m. the
morning of the shooting and that the windshield of the car
was smashed. Finally, Phillips claimed that at some point he
decided to take the fall for Graybill, thinking that he could
plead guilty to second degree murder and thereby keep his
longtime friend out of prison. Phillips did not offer a single
witness to corroborate his alibi, and, when pressed for any
3
Ever since Phillips abandoned his alibi testimony, he has maintained
that the reference to “his brother” was intended to refer to his childhood
friend Graybill. Rose could not remember at trial if Phillips had said “my
brother” or “a brother.”
PHILLIPS v. ORNOSKI 5789
details or specifics supporting it, such as the names of the
people at his supposed meeting, he refused to respond, opting
instead to plead the Fifth Amendment or asserting that if he
gave any details regarding his criminal associates he
“wouldn’t be alive.”
Phillips’s attorney, Paul Martin, emphasized two arguments
in addition to Phillips’s improbable alibi. First, Martin repeat-
edly highlighted evidence suggesting that Bartulis’s murder
did not occur during the course of a robbery, stating in his
closing argument, for example, that,
This would be a dumb way to pull a plain, ordinary
robbery, to meet two people in a rural area not
knowing if they had any money or how much
money, if any, . . . this is no way to pull a robbery.
This is a poor theory in my opinion, . . . particularly
when one of the individuals owes the man charged
$25,000.
Later in his argument, Martin noted, regarding Phillips’s fail-
ure to find the cash stashed in Rose’s jacket pocket, that
“[i]t’s hard to miss a wad the size of a cigarette package in the
upper breast pocket. If the pocket has something in it the size
of a package of cigarettes, it’s not easily missed if someone
is a cool criminal.”
Second, Martin insinuated that Colman was lying in
exchange for offers of leniency from the prosecution. Martin
introduced evidence that Colman—who, like Phillips, had
been charged with capital murder in connection with the
events of December 7, 1977—had been granted an unusual
number of continuances for her preliminary hearing, and been
released on her own recognizance notwithstanding the capital
murder charges against her. In his closing statement, Martin
emphasized that:
She’s threatened with the charge of murder. Why has
it been continued for two years, more or less? . . .
5790 PHILLIPS v. ORNOSKI
[S]he’s now on her own recognizance; doesn’t even
have to post a bail bond. She’s out on the street.
. . . What’s the purpose in continuing it for two
years? Her case could have been resolved with what-
ever deal they’re going to make, and there’s, obvi-
ously, a deal of some kind anticipated. . . . [T]hey’re
holding a murder charge over her head to compel her
to testify, and she’s singing like a bird, the tune that
they call.
Colman, however, flatly denied having received any benefi-
cial treatment in exchange for her testimony, and stated only,
“I’m expecting that they would take into consideration that I
am willing to cooperate.” Colman further stated, “My attorney
has advised me to testify and to put my confidence in my
attorney,” explaining, “She asked me if I had confidence in
her, and if I had confidence in her that — to go under her
advisement, and that her advisement was to testify.” In his
closing statement, the prosecutor, Minier, reaffirmed Col-
man’s denial that she had been promised any benefits, empha-
sizing that she had testified “she has never been promised
anything for her testimony in this case,” and that any efforts
by the defense to insinuate she had received a deal were
“sheer fabrication, just pulled out of the air, totally meaning-
less.”
The jury convicted Phillips on all counts, including the
first-degree murder of Bartulis, and found the special circum-
stance of murder during the commission of a robbery to be
true. At the subsequent penalty phase of the trial, Phillips was
sentenced to death.
C. Post-Conviction Proceedings
Phillips appealed his conviction and sentence directly to the
California Supreme Court. See People v. Phillips, 711 P.2d
423 (Cal. 1985). Five years after the appeal was filed, the
court affirmed Phillips’s conviction but reversed his death
PHILLIPS v. ORNOSKI 5791
sentence. The case was remanded for a new penalty phase
trial. Id. at 459. While he awaited a penalty phase retrial, Phil-
lips filed a state habeas corpus petition making the claim,
among others, that the trial prosecutor, Minier, had offered a
plea deal to Colman’s attorneys with the proviso that the deal
not be communicated to Colman herself and that the deal was,
in fact, communicated to Colman. Phillips argued that Minier
violated his obligations under Brady v. Maryland, 373 U.S. 83
(1963) by failing to disclose the benefits that Colman received
in exchange for her testimony, and violated Napue v. Illinois,
360 U.S. 264 (1959) by failing to correct Colman’s false testi-
mony regarding those benefits. The state court denied Phil-
lips’s Brady/Napue claim for failure to demonstrate
materiality.
In October 1991, Phillips received a penalty phase retrial,
and was again sentenced to death. On March 4, 1992, he filed
this federal habeas petition in the district court, advancing his
Brady/Napue claims and a claim of ineffective assistance of
counsel, among others. The district court declined to entertain
Phillips’s petition because his appeal from his penalty retrial
was at that time still pending in the California state courts.
This panel reversed that decision on May 26, 1995, holding
that Phillips could file a habeas petition as to the guilt phase
separately from any petition as to the penalty phase. Phillips
v. Vasquez, 56 F.3d 1030 (9th Cir. 1995). On remand and
after briefing, the district court denied Phillips’s petition with-
out an evidentiary hearing, holding that Phillips had not set
forth any colorable claims for relief. We again reversed, hold-
ing that Phillips was entitled to an evidentiary hearing on both
his ineffective assistance and Brady/Napue claims. Phillips v.
Woodford, 267 F.3d 966 (9th Cir. 2001).
On remand, the district court scheduled a three-day eviden-
tiary hearing to begin on November 6, 2002. The date was
later continued to December 4, 2002, and then to February 4,
2003. On October 15, 2002, Philips moved to be rehoused in
the Madera County jail to better assist his counsel in prepar-
5792 PHILLIPS v. ORNOSKI
ing for the hearing.4 The district court denied his request, find-
ing that “the convenience of counsel is not sufficient to justify
the risk and expense involved with a federal court ordering a
state entity to move a prisoner.” The district court denied
reconsideration on November 19, 2002.
On December 30, 2002, the district court issued an order
stating: “After careful consideration, it is ORDERED that
depositions in lieu of testimony be taken of David Minier,
Paul Martin, Ron Rose, Sharon Colman, Tom Peterson, and
Casandra Dunn.” Neither party objected to the order.
Depositions were conducted between January 6th and Janu-
ary 13th, 2003. On January 16, 2003, Phillips filed a motion
for a temporary protective order to prevent his deposition
from being taken. On January 21, 2003, the district court
denied his request, finding no basis for the protective order.
The court then ruled, apparently acting sua sponte, that “all
evidence in the upcoming evidentiary hearing will be pre-
sented by deposition . . . and the evidentiary hearing set to
begin February 4, 2003 [is] vacated.” The district judge
asserted that this ruling was “[b]ased on prior agreement of
the parties.”5
On October 21, 2003, Phillips filed a motion requesting
permission to file supplemental exhibits. Phillips then filed a
motion on November 5, 2003, asking the district court to
reconsider its order vacating the evidentiary hearing. The dis-
trict court refused to reconsider its order, stating that, “[b]ased
on prior representations by both parties, no witnesses
4
Phillips stated that because his counsel during the state habeas proceed-
ings had suffered from a nervous breakdown, no one other than himself
had the knowledge of the case necessary to assist his appointed counsel
in preparing the files for the scheduled hearing.
5
Evidence of such an agreement does not exist in the record, although
the status conferences held on May 13 and August 27 of 2002 were not
transcribed.
PHILLIPS v. ORNOSKI 5793
remained to testify at a hearing, so written argument was
determined to be more effective than oral argument and more
effective than oral argument and briefs.” In that same order,
the court refused Phillips’s request to file supplemental exhib-
its, holding that the documents were “untimely” and, in any
event, were either duplicative or irrelevant. On February 20,
2004, the district court denied Phillips’s guilt-phase claims,
ruling on the merits that Phillips had not been prejudiced by
any violations that occurred with respect to either his ineffec-
tive assistance of counsel claim or his Brady/Napue claims.
II. Standard of Review
Because Phillips filed his federal habeas petition before the
effective date of the Anti-Terrorism and Effective Death Pen-
alty Act (AEDPA), “AEDPA’s substantive provisions do not
apply to this appeal.” Phillips, 267 F.3d at 973 (citing Lindh
v. Murphy, 521 U.S. 320, 327 (1997)). We therefore review
de novo questions of law or mixed questions of law and fact
decided by the district court or by the state courts. Jackson v.
Brown, 513 F.3d 1057, 1069 (9th Cir. 2008). We review the
district court’s factual findings for clear error, and accord
state court factual findings a presumption of correctness. Id.
The district court’s procedural rulings, including its decision
to limit the evidentiary hearing to written evidence, are
reviewed for abuse of discretion. Wade v. Calderon, 29 F.3d
1312, 1326 (9th Cir. 1994).
III. Adequacy of the Evidentiary Proceeding Below
Phillips claims that, in conducting the evidentiary hearing
below, the district court abused it discretion by: (1) refusing
to order Phillips transferred from death row in San Quentin to
the Madera County jail; (2) canceling the live hearing sched-
uled for February 4, 2003; and (3) refusing to accept his “Sup-
plemental Guilt Exhibits.” We now address each contention.
5794 PHILLIPS v. ORNOSKI
A. Denial of Transfer
[1] Although Phillips presented several compelling reasons
to justify his transfer from San Quentin to Madera, the district
court did not abuse its discretion in denying this motion. A
prisoner has no right to be housed in a particular institution.
Rizzo v. Dawson, 778 F.2d 527, 530 (9th Cir. 1985); see also
Meachum v. Fano, 427 U.S. 215, 224 (1976). Moreover, as
Phillips acknowledged in his motion for relocation, the power
to order a prisoner transferred is to “be exercised at the sound
discretion of the court.” The district court’s holding that the
risks and costs of relocation so outweighed the inconvenience
suffered by Phillips’s defense team does not constitute a
“clear error of judgment,” as is required to find an abuse of
discretion. See SEC v. Coldicutt, 258 F.3d 939, 941 (9th Cir.
2001).
B. Vacatur of the Live Hearing
[2] Applying pre-AEDPA law, we conclude that the dis-
trict court’s decision to limit the evidentiary hearing to written
evidence likewise did not constitute reversible error. This
court has held that such a decision is within the district court’s
discretion. Williams v. Woodford, 306 F.3d 665, 688 (9th Cir.
2002) (“[A] district court in a habeas proceeding ‘need not
conduct full evidentiary hearings,’ but may instead ‘expand
the record . . . with discovery and documentary evidence.’ ”)
(quoting Watts v. United States, 841 F.2d 275, 277 (9th Cir.
1988) (per curiam)). Because, as the district court observed,
“no witnesses remained to testify at [the] hearing” who had
not already been deposed, avoiding the time and expense of
the live hearing was a legitimate reason to vacate the earlier
order. See Chang v. United States, 250 F.3d 79, 86 (2d Cir.
2001) (“[A district court] may avoid the necessity of an
expensive and time consuming evidentiary hearing in every
[federal habeas] case. It may instead be perfectly appropriate,
depending upon the nature of the allegations, for the district
court to proceed by requiring that the record be expanded to
PHILLIPS v. ORNOSKI 5795
include letters, documentary evidence, and . . . even affida-
vits.”) (quoting Raines v. United States, 423 F.2d 526, 529-30
(4th Cir. 1970)). Although Phillips argues that he was preju-
diced by this ruling because had he known there would be no
hearing he would have conducted his depositions differently,
he had notice by at least December 30, 2002, that depositions
would be used in lieu of live testimony for all witnesses, save
one, then known to the court.6
C. Refusal to Admit Supplemental Exhibits
[3] Finally, the district court did not abuse its discretion by
refusing to admit Phillips’s supplemental exhibits. The district
court, in an order filed on January 21, 2003, set a clear brief-
ing schedule for its decision on the merits of Phillips’s habeas
petition: Phillips’s opening brief and supporting documenta-
tion were due on January 31, 2003, and his reply was due on
February 14, 2003. In a previous order, the court had ruled
that the deadline for the end of discovery was January 15,
2003. Phillips attempted to file his supplemental exhibits on
October 21, 2003, over eight months after the deadline for
post-deposition filings and discovery had passed. All of the
documents Phillips sought to introduce existed prior to 1991.
Phillips argued to the district court that the delay was due to
the disarray of his former attorney’s files, but “[g]iven the dis-
cretion of the district court to ‘control proceedings before it,’
the district court did not abuse its discretion in finding that
[the] motion . . . came too late in the proceedings.” United
States v. Alisal Water Corp., 370 F.3d 915, 922 (9th Cir.
2004) (quoting United States v. Oregon, 913 F.2d 576, 588
(9th Cir. 1990)).
6
Phillips also contends that the district court erred by denying his right
to be present at the evidentiary hearing. The district court had ruled that
Phillips could not attend the hearing two months before it vacated it.
Because we hold that the district court did not abuse its discretion in
vacating the hearing itself, this claim must also fail.
5796 PHILLIPS v. ORNOSKI
IV. Ineffective Assistance of Counsel
Phillips’s ineffective assistance claim is straightforward:
“[he] contends that his trial counsel, Paul Martin, rendered
ineffective assistance by presenting [a] patently meritless alibi
defense to the jury without investigating any other defenses
— notably, the defense that Bartulis was killed during a
shoot-out” between Phillips and Rose. Phillips, 267 F.3d at
976.
In our 2001 opinion reversing the district court’s denial of
an evidentiary hearing, we held that “Phillips’s defense coun-
sel did not reasonably select the alibi defense used at trial. In
this case, . . . the defense used at trial was not selected on the
basis of a reasonable investigation or strategic decision.” Id.
at 980. Martin’s performance in this case was, indeed, ques-
tionable. Without investigating any alternative defenses, Mar-
tin allowed his client, who was charged with capital murder,
to present an improbable alibi defense despite the fact that his
client was unwilling to divulge, as part of that defense,
exactly where he was or what he was doing at the time of the
murder. What is more, Martin apparently committed to the
alibi defense based upon his questionable conclusion that he
was ethically prohibited from investigating a shoot-out theory
once Phillips, in his very first discussion with him about the
facts of the case, said he was not at the scene of the crime.
[4] However, after we issued our opinion holding that
Martin performed deficiently when he failed to investigate
alternatives to Phillips’s alibi defense, the Supreme Court
held that the Sixth Amendment does not impose a strict “con-
stitutional duty to investigate” upon attorneys working in cap-
ital cases. Cullen v. Pinholster, 131 S. Ct. 1388, 1406-07
(2011). In so doing, it relied on “the constitutionally protected
independence of counsel and . . . the wide latitude counsel
must have in making tactical decisions,” id. at 1406 (quoting
Strickland v. Washington, 466 U.S.668, 689 (1984)), as well
as the “strong presumption that counsel made all significant
PHILLIPS v. ORNOSKI 5797
decisions in the exercise of reasonable professional judg-
ment,” id. at 1407 (citations and internal quotation marks
omitted).
[5] Here, although Martin’s strategic decision to proceed
with an alibi defense was highly questionable at best, the
record suggests that Martin did attempt to explain to Phillips
that alibi defenses generally are not feasible when the defen-
dant refuses to account for his whereabouts at the time of the
crime. Moreover, Martin’s investigation did yield a witness
whose testimony provided modest support for Phillips’s alibi
defense: the proprietor of a business not far from the scene of
the crime testified that the morning after the shootings, an
individual other than Phillips loitered in his establishment
brandishing a .45 automatic weapon of the sort used in the
shootings, and that the individual’s car had multiple bullet
holes in it. In short, Martin attempted to confront his client
with the shortcomings of his alibi defense and, remarkably,
found a witness whose testimony tended to corroborate that
defense. Although Martin’s decision to pursue the defense at
trial was most assuredly ill-advised, we cannot, in light of
Pinholster, maintain our conclusion that his decision to pur-
sue the strategy urged by his client did not fall within the
“wide latitude counsel must have in making tactical deci-
sions.” 131 S. Ct. at 1406. Accordingly, in light of the
Supreme Court’s intervening decision, we are compelled to
overrule our 2001 holding that Martin’s performance at Phil-
lips’s trial was constitutionally ineffective, and to now hold
that his shortcomings were not such as to overcome the
“strong presumption that counsel made all significant deci-
sions in the exercise of reasonable professional judgment.” Id.
at 1407.
V. Violation of Phillips’s Due Process Rights
[6] It is a fundamental principle of the American criminal
justice system that “deliberate deception of a court and jurors
by the presentation of known false evidence is incompatible
5798 PHILLIPS v. ORNOSKI
with [the] rudimentary demands of justice.” Giglio v. United
States, 405 U.S. 150, 153 (1972) (internal quotation marks
omitted). When the government obtains a criminal conviction
and deprives an individual of his life or liberty on the basis
of evidence that it knows to be false, it subverts its fundamen-
tal obligation, embodied in the Due Process Clauses of the
Fifth and Fourteenth Amendments, to provide every criminal
defendant with a fair and impartial trial. The Supreme Court
has accordingly held that the government may not knowingly
suppress evidence that is exculpatory or capable of impeach-
ing government witnesses. See Banks v. Dretke, 540 U.S. 668,
691 (2004) (discussing Brady v. Maryland, 373 U.S. 83
(1963)). Similarly, it has held that the government is obligated
to correct any evidence introduced at trial that it knows to be
false, regardless of whether or not the evidence was solicited
by it. See Napue v. Illinois, 360 U.S. 264, 269 (1959); Alcorta
v. Texas, 355 U.S. 28 (1957); Pyle v. Kansas, 317 U.S. 213
(1942).7 These duties provide fundamental protections that are
vital to the successful operation of an adversarial system of
criminal justice; they embody the state’s obligation not to
obtain the accused’s conviction at all costs, but rather to do
justice by furthering the truth-finding function of the court
and jury.
[7] In this case, the state went to elaborate lengths to sug-
gest to the jury that Colman, whose testimony was critical to
securing a finding that Phillips murdered Bartulis during the
commission of a robbery, had received no benefits in
exchange for her testimony, when in fact her attorney had
entered into an agreement on her behalf that would allow her
to escape prosecution on capital murder charges, and all other
7
Napue prohibits the government from knowingly using false evidence
to obtain a criminal conviction, while Alcorta and Pyle obligate the gov-
ernment to correct false evidence thus presented. See Hayes v. Brown, 399
F.3d 972, 978 (9th Cir. 2005) (en banc). For simplicity, we refer to the
state’s failure to fulfill its obligation not to present false evidence, and to
correct it once presented, as a Napue violation.
PHILLIPS v. ORNOSKI 5799
charges related to the offenses allegedly committed by her
and Phillips, in exchange for her testifying against him. More-
over, in furtherance of that agreement, Colman had testified
against Phillips in reliance on her attorney’s recommendation
that she do so. She also, as a result of the Sheriff’s Depart-
ment’s intervention on her behalf regarding a major drug traf-
ficking offense she committed while on bail, was allowed to
escape prosecution for that crime.
At trial, Colman responded to questions from Phillips’s
defense attorney Paul Martin by denying that she had been
promised lenient treatment in exchange for her testimony:
Q And you expect to receive some benefit for testi-
fying here today?
A No.
Q You don’t expect to receive any consideration
whatsoever for testifying?
A I’m hoping that there will be consideration but
—
Q You really expecting to receive some consider-
ation?
A Are you asking me if I have been promised or is
that —
Q I’m asking you for your expectation.
A I’m expecting that they would take into consid-
eration that I am willing to cooperate. . . .
Q So you expect to receive some credit or benefit
in giving testimony here?
5800 PHILLIPS v. ORNOSKI
A I’m hoping that they will take that into consider-
ation.
Minier, the prosecutor who entered into the immunity
agreement on behalf of the state, emphasized Colman’s testi-
mony to the jury in his closing argument:
If the defense, in their arguments, suggests she is a
liar, she is motivated by her desire for leniency, and
you can’t trust her . . . . Well, look at what she said.
She testified . . . that she has never been promised
anything for her testimony in this case. She also tes-
tified that she was hoping for consideration . . . . And
it only seems reasonable that she would hope and
anticipate that she would be treated leniently, and, of
course, that’s why she’s testifying.
Likewise, in his rebuttal closing Minier told the jury:
[Defense counsel] Martin suggested that on the day
of the defendant’s arrest . . . that was the day the bar-
gain was struck with Colman. What bargain we
don’t know. It doesn’t even make any sense. I’d sug-
gest to you, that that kind of an argument is sheer
fabrication, just pulled out of the air, totally mean-
ingless.
Over the course of his habeas proceedings Phillips has
established that, contrary to her testimony and Minier’s state-
ments, Colman was offered and received significant benefits
from the state in exchange for testifying as she did. Phillips
points to substantial, possibly life-saving benefits that Colman
received in exchange for her testimony, and claims that the
prosecution’s failure to disclose these benefits or correct Col-
man’s statements that she expected no such benefits, and per-
haps even more important Minier’s deliberate efforts to
mislead the jury and the court as to the existence of an immu-
nity agreement, violated his due process rights under Napue
PHILLIPS v. ORNOSKI 5801
and Brady. We examine the benefits cited by Phillips, and
conclude that they involved violations of both Napue and
Brady. We also consider a separate Brady violation that arises
from the state’s failure to divulge a prior plea offer and Col-
man’s possible initial acceptance of it. Because these viola-
tions constitute a deprivation of Phillips’s right to due process
only if they were material to Phillips’s various convictions,
we then consider whether Phillips was prejudiced as to any of
them by the prosecution’s failure to comply with the dictates
of Napue and Brady.
A. Colman’s Immunity Agreement
The principal undisclosed benefit that Colman received for
her testimony flowed from an immunity agreement struck
between Minier and her trial lawyer, Cassandra Dunn, on Col-
man’s behalf. This agreement was reached after Dunn
replaced Colman’s first lawyer, Tom Peterson.8 As Minier
acknowledged in a 1990 declaration, “I did have an agreement
with [Dunn] about the benefit Colman would receive for testi-
fying.” Under the terms of that deal all charges, including
capital murder, against Colman relating to her role as Phil-
lips’s accomplice would be dropped completely if and when
she testified against Phillips. Dunn, in a 2003 deposition, con-
firmed the nature and existence of this agreement with Minier,
and testified that, after asking Minier to put the agreement in
writing, she “shortly thereafter” received a letter in which he
“confirmed that he had met with [Dunn] and that he had
agreed that [her] client would receive immunity if she testi-
8
Peterson represented Colman from when she first turned herself in to
the police on December 27, 1977, until Dunn took over her representation
in February 1978. Peterson had also engaged in negotiations with the pros-
ecution. As is discussed further below, the prosecution offered Peterson a
deal, which he communicated to Colman, that would allow her to plead
guilty to a charge carrying a one year sentence if she testified against Phil-
lips. See infra Section V.C. The difference between the two deals is essen-
tially that under the Dunn version Colman was not required to serve any
time.
5802 PHILLIPS v. ORNOSKI
fied truthfully.” Although neither Minier nor Dunn could
recall during postconviction proceedings exactly when they
had negotiated this deal, Dunn testified that it was reached
some time before Phillips’s preliminary hearing in July 1979.
Consistent with Minier’s practice at the time, the deal was
offered to Dunn on the condition that it not be communicated
to Colman, so that Colman would be capable of “truthfully”
representing to the jury that she had received no offers of
leniency in exchange for her testimony. Both Dunn and Col-
man contend that Dunn acceded to Minier’s wishes, and did
not communicate the existence of the offer to Colman. Dunn
did, however, urge Colman to put her confidence in her, and
then advised her to testify. Colman stated at trial that she did
testify against Phillips in reliance on Dunn’s advice to do so.9
All charges against Colman were dropped within a month of
Phillips’s conviction.
[8] Hayes v. Brown, 399 F.3d 972 (9th Cir. 2005) (en
banc) controls this case. It compels us to hold that the prose-
cution’s failure to disclose the existence of the agreement to
dismiss the charges against Colman, and to correct her and
Minier’s own statements at trial that no such deal existed, vio-
lated both Napue and Brady. The facts in Hayes are virtually
identical. In Hayes, as here, the prosecutor had reached a deal
with the attorney for a key state witness, James, providing for
the dismissal of all felony charges against him—including
those relating to the murder with which the defendant Hayes
was charged—if he testified against Hayes at trial. Id. at 977.
As in this case, the prosecution elicited a promise from
James’s attorney that James would not be informed of the
9
We might note that it appears highly improbable that Colman, who was
offered a one year sentence through her first lawyer if she testified against
Phillips, never asked her second lawyer before she testified what the con-
sequences to her might be if she did not testify or if she testified without
immunity. Nor does it seem likely or at all reasonable that she would have
failed to ask before testifying whether any offer had been made regarding
the disposition of the charges, including the capital charges, which she
faced.
PHILLIPS v. ORNOSKI 5803
deal, and at trial James testified that he had received no prom-
ise of benefits in exchange for his testimony. Id. at 977, 980.
As we observed in Hayes, and as is equally applicable here,
that a witness may have been unaware of the agreement
entered into on his behalf may mean that his testimony deny-
ing the existence of such an agreement is not knowingly false
or perjured, but it does not mean it is not false nevertheless.
As we explained in Hayes:
[T]hat the witness was tricked into lying on the wit-
ness stand by the State does not, in any fashion, insu-
late the State from conforming its conduct to the
requirements of due process. . . . It is reprehensible
for the State to seek refuge in the claim that a wit-
ness did not commit perjury, when the witness
unknowingly presents false testimony at the behest
of the State. “This saves [the witness] from perjury,
but it does not make his testimony truthful.” Willho-
ite v. Vasquez, 921 F.2d 247, 251 (9th Cir. 1990)
(Trott, J., concurring). The fact that the witness is
not complicit in the falsehood is what gives the false
testimony the ring of truth, and makes it all the more
likely to affect the judgment of the jury. That the
witness is unaware of the falsehood of his testimony
makes it more dangerous, not less so.
Id. at 981.
[9] Minier’s effort to “insulate” Colman from her own
immunity agreement was a deliberate effort to deceive the
jury—a ruse that flagrantly violated basic due process princi-
ples. As in Hayes, Colman’s denial that she expected to
receive benefits for testifying carried with it a necessarily
implied falsehood: it created the impression that she was not
the beneficiary of any sort of deal. Id. at 981, 983; see also
Alcorta, 355 U.S. at 31 (holding that a habeas petitioner had
been denied due process of law when a prosecutor allowed a
witness to give the jury a “false impression” of his relation-
5804 PHILLIPS v. ORNOSKI
ship with the petitioner’s wife). In fact, there was a deal, one
that would allow her to escape prosecution entirely after hav-
ing confessed in open court to being an accomplice to capital
murder. This deal was not only not disclosed to the defense,10
see Giglio, 405 U.S. at 154, but it also served to facilitate the
presentation of false testimony to the jury by inducing Col-
man to testify that she had received no promise of benefits in
exchange for her testimony, when, in fact, her attorney, who
10
The district court found that “all parties understood [Minier] had a
deal with Dunn but Colman had not been told about it.” Martin’s argu-
ments at trial suggest that he suspected that a deal of some sort existed,
but there is no indication in the record that he in fact knew of the deal. The
state finds evidence of Martin’s knowledge in Minier’s statement in his
2003 deposition that Martin “was not an idiot. Obviously, any defense
attorney in that position would know that there was going to be a benefit.
. . . [T]o suggest that he had no inkling would be total nonsense.” But
Minier also acknowledged, “I don’t believe I ever told Mr. Martin what
the agreement was,” and that if Martin knew there was “going to be a ben-
efit, . . . he probably didn’t know just what it was.” In any event, it is “ ‘ir-
relevant’ whether the defense knew about the false testimony.” Sivak v.
Harrison, 658 F.3d 898, 909 (9th Cir. 2011) (quoting N. Mariana Islands
v. Bowie, 243 F.3d 1109, 1122 (9th Cir. 2001)). That Phillips’s attorney
might have had a generalized suspicion that a deal between Minier and
Colman’s attorney existed did not relieve the state of its Brady obligation
to actually disclose the existence of that deal as well as its terms, nor did
it permit the state to violate its Napue obligation and allow false testimony
to go uncorrected. Certainly, it did not excuse the prosecutor’s deliberate
effort to mislead the jury and the court by making false statements of his
own.
The state also observes that the trial court had ruled that, even if a deal
between Minier and Colman’s attorney existed, the defense could not
introduce evidence of it. The California Supreme Court has held that the
trial court’s ruling was in error because “[t]he defense counsel is entitled
to discover the terms of any agreement for lenient treatment negotiated on
behalf of a prosecution witness.” People v. Phillips, 711 P.2d 423, 433
(Cal. 1985). More important, the trial court’s ruling is irrelevant to
whether the prosecution had a constitutional duty to affirmatively correct
the falsehoods in Colman’s testimony and refrain from making its own
misrepresentations to the jury.
PHILLIPS v. ORNOSKI 5805
was her agent, had accepted the immunity agreement on her
behalf.11
In Hayes we made clear in no uncertain terms that the prac-
tice of “insulating” a witness from her own immunity agree-
ment so that she can profess ignorance of the benefits
provided in exchange for her testimony is an egregious viola-
tion of the prosecution’s obligations under Napue. We
explained that:
There is nothing redemptive about the sovereign’s
conspiring to deceive a judge and jury to obtain a
tainted conviction. This is, as Judge Trott put it, “a
pernicious scheme without any redeeming features.”
Napue forbids the knowing presentation of false evi-
dence by the State in a criminal trial, whether
through direct presentation or through covert subor-
nation of perjury.
Hayes, 399 F.3d at 981 (internal citation omitted). We con-
cluded such deception violates Napue because, regardless of
whether or not the prosecution’s offer is communicated to the
11
That Colman’s attorney went along with the prosecutor’s scheme is
troubling in itself. As we noted in our 2001 opinion granting Phillips an
evidentiary hearing on his claims,
it was not only the prosecutor whose conduct was deplorable, but
the second defense attorney as well. If Dunn indeed concealed
from her client the existence of a plea bargain or immunity agree-
ment, and allowed her client—who faced capital murder charges
—to testify without any knowledge of the agreement she had
reached on her behalf, she plainly violated her ethical duty to
“keep [Colman] reasonably informed of significant develop-
ments” regarding her case, Cal. Bus. and Prof.Code § 6068(m),
and failed to “explain [the] matter to the extent reasonably neces-
sary to permit [Colman] to make informed decisions regarding
[her] representation.” Model Code of Professional Conduct Rule
1.4 (1983).
Phillips, 267 F.3d at 984 n.11.
5806 PHILLIPS v. ORNOSKI
witness prior to her testimony, the practice poses “the distinct
risk that, in preparing [a witness] for his testimony . . .
counsel—who did know about the deal—might have influ-
enced the content of that testimony, deliberately or not.” Id.
at 981 n.1. Here, Dunn’s advice to Colman almost certainly
conveyed the implicit message that she would be treated
favorably by the prosecution if she testified, and may well
have led her to testify in a manner she believed would satisfy
the prosecution’s wishes: only an expectation on Colman’s
part that she would receive treatment similar to or more favor-
able than that embodied in the earlier offer of a one year term12
could explain her decision not to accept that offer and then
proceed to incriminate herself in open court of being an
accomplice to capital murder. Indeed, if Minier did not expect
that the offer would affect Colman’s willingness to testify or
influence the contents of her testimony, it is hard to fathom
why he made an immunity deal at the time he did for the ben-
efit of an individual charged as an accomplice to capital mur-
der. See id. at 987.
Viewed in the most favorable light to the prosecution,
Minier’s deplorable tactic allowed Colman to falsely deny
having received any promise of beneficial treatment in
exchange for her testimony without knowing that her testi-
mony was false. It resulted in Minier arguing to the jury in the
most unequivocal terms (albeit in terms designed to deliber-
ately mislead the jury and the court) that Colman had received
no leniency or other promise of benefits in exchange for her
testimony, emphasizing that “[s]he testified . . . that she has
never been promised anything for her testimony in this case,”
and that any attempts by the defense to intimate that an agree-
ment existed were “sheer fabrication, just pulled out of the air,
totally meaningless.” In this respect, the prosecution’s mis-
conduct went even beyond that which this court held to be
reprehensible in Hayes, where the prosecution vouched for
12
See supra note 9 and infra Section V.C for discussion of the earlier
offer made to Colman’s first attorney, Tom Peterson.
PHILLIPS v. ORNOSKI 5807
the truthfulness of its key witness but did not directly deny to
the jury that a deal had been reached granting him immunity
from all pending charges. See id. at 980.
[10] Minier not only failed to disclose the agreement
reached with Colman’s counsel, thus contravening Brady, but
even more significant, he violated Napue by allowing Colman
to falsely testify that no such deal existed, failing to correct
that false testimony, and then wilfully, deliberately and
unequivocally falsely representing to the jury in his closing
argument that Colman had “never been promised anything for
her testimony in this case.” In doing so, Minier violated his
fundamental obligation to ensure that convictions be obtained
in a manner compatible with the “rudimentary demands of
justice.” Giglio, 405 U.S. at 153.
B. State Assistance With Respect to Colman’s Heroin Arrest
Next, Phillips established through depositions before the
district court that, within weeks of her release on bail in 1978,
Colman was arrested for participating in the sale of heroin to
an undercover Fresno police officer, and that the Madera
County Sheriff’s Department subsequently made multiple
calls to the Fresno police department on Colman’s behalf
advising it that she was an important cooperating witness in
a homicide investigation and requesting that charges against
her not be pursued. Ultimately no charges against Colman
were filed.
[11] That the police officers investigating the Phillips case
interceded on Colman’s behalf multiple times with respect to
an unrelated felony offense was a tangible benefit to Colman
in consideration for her testimony against Phillips. The receipt
of such a benefit could have been used to impeach Colman’s
credibility. The state was thus not only obligated under Brady
to disclose to Phillips that such an intervention had occurred,
but also obligated under Napue to correct Colman’s claim that
she had been promised no benefits, along with Minier’s asser-
5808 PHILLIPS v. ORNOSKI
tion that any intimation that she had received such treatment
was “sheer fabrication”: contrary to these statements, Colman
had already received substantial benefits for her testimony in
the form of direct assistance that enabled her to escape prose-
cution for a serious drug-trafficking offense.
The state insists that Minier was unaware of any calls made
by the Madera sheriff’s department to the Fresno police on
Colman’s behalf. However, even if true, “[t]he Supreme
Court has made abundantly clear . . . that the prosecutor’s
duty to disclose evidence favorable to the accused extends to
information known only to the police.” Jackson v. Brown, 513
F.3d 1057, 1072 (9th Cir. 2008) (citing Kyles v. Whitley, 514
U.S. 419, 438 (1995)). We have thus held that the Constitu-
tion “compel[s] prosecutors to disclose evidence favorable to
the accused, even when that evidence was known only to the
police and not to the prosecutor.” Id. at 1074; see also Giglio,
405 U.S. at 154 (holding that the duty to correct false evi-
dence under Napue extends to evidence not known to be false
by a particular prosecutor but known to be false by the gov-
ernment). Thus, even if Minier himself did not know about
the phone calls made on Colman’s behalf—a somewhat dubi-
ous proposition—it is immaterial to the state’s duty to dis-
close those phone calls and to correct Colman’s false
testimony, and Minier’s false statements, that she had
received no benefits in exchange for her testimony.
The state likewise notes that Colman has testified that she
“never had any understanding that there was any connection
between her status as a witness in Madera County and her
treatment in Fresno County.” Brief of Respondent-Appellee at
134. The record reflects otherwise—in particular, the Fresno
Police Department officer who investigated Colman’s heroin
offense testified that Colman knew that the Madera County
Sheriff’s Department had interceded on her behalf. However,
even if, contrary to the testimony of the police, Colman had
been unaware of the intercession, and thus did not realize that
she provided the jury with misleading testimony when she
PHILLIPS v. ORNOSKI 5809
stated that she would not receive any benefit in exchange for
testifying against Phillips, her own ignorance of the benefits
she had been granted did not relieve the state of its obligation
to correct her false testimony, nor, certainly, did it make the
prosecution’s conduct in deliberately misrepresenting the
facts to the jury and the court any less egregious. See Hayes,
399 F.3d at 981.
C. Plea Offer to Tom Peterson
The separate Brady violation arises out of a plea offer made
to Colman’s first attorney, Tom Peterson. Peterson, in state
post-conviction hearings, testified that three weeks after the
murder Minier orally offered him a plea agreement for Col-
man that would have allowed her to plead guilty as an acces-
sory to murder for a one-year sentence if she testified against
Phillips. Peterson further stated that he communicated the
agreement to Colman, who accepted it. Colman disputes that
she accepted the offer, and the state argues that the behavior
of Minier, Colman, and Colman’s trial attorney, Dunn, indi-
cates that the offer did not survive the termination of Peter-
son’s representation of Colman in February of 1978.13
However, the key parties—Peterson, Minier, and Colman—
all appear to be in agreement that such an offer was, in fact,
extended.14 Its existence was, they acknowledge, never com-
municated to Phillips or his attorney.
13
The state emphasizes, in particular, that there is “no evidence to show
that Dunn was aware of any offer by Peterson to Colman,” and argues that
the fact that Minier and Dunn negotiated a new deal for Colman (of which
according to their testimony they did not inform Colman prior to her
appearance as a witness) demonstrates that they did not view the Peterson
offer as binding. Brief of Respondent-Appellee at 117.
14
Colman testified that Peterson communicated the offer to her but that
she did not accept it, while Minier submitted a 1989 declaration that
appears to accept as true Peterson’s assertion that such a plea agreement
was offered, stating: “It was at all times my position, which I clearly com-
municated both to Mr. Peterson and to Cassandra Dunn, who later repre-
sented Sharon Colman, that Colman should not be informed of the
agreement.” In a 2003 deposition Minier stated, “I recall discussions, but
I don’t recall a fixed agreement [with Peterson].”
5810 PHILLIPS v. ORNOSKI
[12] That such an offer was extended was indisputably evi-
dence “favorable to the accused . . . because it is impeaching,”
and was clearly subject to the duty of disclosure established
in Brady. See Jackson, 513 F.3d at 1071 (citing Strickler v.
Greene, 527 U.S. 263, 281-82 (1999)). Evidence of the offer
would have allowed Phillips to challenge Colman’s credibility
by providing the jury with concrete evidence that she had
good reason to expect beneficial treatment in exchange for her
testimony. Such an expectation of leniency in and of itself
would have provided valuable impeachment of Colman’s
credibility.
[13] Contrary to Phillips’s contention, however, the exis-
tence of the Peterson offer did not obligate the prosecution
under Napue to correct Colman’s testimony that she had not
been promised any benefits. The existence of the offer pro-
vided evidence from which a jury could conclude that Colman
had testified falsely when she denied expecting any benefit in
exchange for her testimony, but because, viewing the facts
most generously from the state’s standpoint, the offer was
never accepted, its existence did not render Colman’s testi-
mony inherently false. We therefore hold that the prosecu-
tion’s failure to divulge the Peterson offer amounted to a
violation of its duty under Brady, but did not implicate its
Napue obligation to correct false evidence.
D. Prosecutorial Misconduct
[14] Before proceeding to consider the materiality of the
Napue and Brady violations, we note that the prosecutor’s
statements in his closing argument that any contention that a
bargain had been struck with Colman was “sheer fabrication,
just pulled out of the air, totally meaningless” also likely con-
stituted the separate due process violation of prosecutorial
misconduct. Unconstitutional prosecutorial misconduct occurs
where the prosecutor engages in actions that “so infec[t] the
trial with unfairness as to make the resulting conviction a
denial of due process.” Greer v. Miller, 483 U.S. 756, 765
PHILLIPS v. ORNOSKI 5811
(1987) (quoting Donnelly v. DeChristoforo, 416 U.S. 637,
643 (1974)) (alteration in original). Minier vouched for the
credibility of a crucial witness by assuring the jury that Col-
man had not received any sort of immunity agreement in
exchange for her testimony. See United States v. Weather-
spoon, 410 F.3d 1142, 1146 (9th Cir. 2005) (finding improper
vouching where prosecutor had told the jury in closing argu-
ments that testifying officers had “no reason to come in here
and not tell . . . the truth,” because by lying they would risk
losing their jobs and face possible perjury charges). That
Minier’s assurances were, in fact, false only heightens the
extent to which this prosecutorial misconduct violated Phil-
lips’s right to due process. Because neither party has
expressly raised the issue of whether Minier’s representations
in his closing argument that no deal with Colman existed con-
stituted prosecutorial misconduct, but both have argued the
issue in terms of Napue, and because Minier’s reenforcement
of the false testimony of a key witness is what renders his
statements particularly egregious, we consider the statements
in terms of a Napue violation rather than in terms of prosecu-
torial misconduct.
E. Materiality
[15] The prosecution’s multiple Napue and Brady viola-
tions warrant reversal of the jury’s verdicts only if they were
material to (1) Phillips’s convictions for first degree murder
and attempted murder, (2) his robbery convictions, or (3) the
jury’s finding that the special circumstance of murder in the
commission of a robbery had been proven. The test for mate-
riality under Napue is distinct from that under Brady: a Napue
violation is material when there is “any reasonable likelihood
that the false testimony could have affected the judgment of
the jury,” United States v. Agurs, 427 U.S. 97, 103 (1976)
(emphasis added); in contrast, a Brady violation is material to
a jury’s verdict when “there is a reasonable probability that
. . . the result of the proceeding would have been different”
but for the violation, United States v. Bagley, 473 U.S. 667,
5812 PHILLIPS v. ORNOSKI
682 (1985) (emphasis added).15 Where, as here, the prosecu-
tion has violated its constitutional obligations under both
Napue and Brady,
we first consider the Napue violations collectively
and ask whether there is “any reasonable likelihood
that the false testimony could have affected the judg-
ment of the jury.” If so, habeas relief must be
granted. However, if the Napue errors are not mate-
rial standing alone, we consider all of the Napue and
Brady violations collectively and ask whether “there
is a reasonable probability that, but for [the errors],
the result of the proceeding would have been differ-
ent.” At both stages, we must ask whether the defen-
dant “received . . . a trial resulting in a verdict
worthy of confidence.”
Sivak v. Hardison, 658 F.3d 898, 912 (9th Cir. 2011) (quoting
Jackson, 513 F.3d at 1076).16
15
Because the “Supreme Court has declared a materiality standard . . .
for this type of constitutional error, there is no need to conduct a separate
harmless error analysis” under Brecht v. Abrahamson, 507 U.S. 619
(1993): “the required finding of materiality necessarily compels the con-
clusion that the error was not harmless.” Hayes, 399 F.3d at 984 (citing
Kyles v. Whitley, 514 U.S. 419, 435 (1995)).
16
There is no basis for the dissent’s assertion that we should require
Phillips to show by “clear and convincing evidence” that he was preju-
diced by the Napue and Brady violations. The two cases the dissent cites
in support of this proposition — Sawyer v. Whitley, 505 U.S. 333 (1992)
and Calderon v. Thompson, 523 U.S. 538 (1998) — are wholly inapposite.
These decisions define the “miscarriage of justice” standard, which, if
met, would permit a federal Court of Appeals to recall the mandate to
revisit its denial of a state prisoner’s habeas petition, Thompson, 523 U.S.
at 558-59, or to entertain the defaulted or successive petition of a state
prisoner claiming he is “actually innocent” of the penalty to which he was
sentenced. Sawyer, 505 U.S. at 335-36. The miscarriage of justice stan-
dard serves to provide a “narrow exception” to the ordinary rules of final-
ity in federal habeas corpus proceedings, representing “a kind of ‘safety
valve’ for the ‘extraordinary case.’ ” Harris v. Reed, 489 U.S. 255, 271
PHILLIPS v. ORNOSKI 5813
In this case, we have found that there are two important
facts that the government was obligated to provide to the jury
under Napue: first, that an immunity agreement had been
entered into at the time of Colman’s testimony ensuring that
no charges whatsoever relating to the events in Chowchilla
would be brought against her; second, that the Sheriff’s
Department had already arranged for charges stemming from
a heroin offense committed by her in Fresno to be dropped in
order to facilitate her testimony against Phillips. We also con-
sider the prosecutor’s deliberate lies regarding the existence
of the immunity agreement. For each of the jury’s findings,
we begin our analysis by examining whether there was “any
reasonable likelihood” that the prosecution’s Napue violations
“could have affected the judgment of the jury.” Agurs, 427
U.S. at 103.17 If we conclude that there is no reasonable likeli-
(1989) (O’Connor, J., concurring). It has no application to a case such as
this, in which we consider the non-defaulted claims a state prisoner raised
in his first federal habeas petition, claims as to which this court has never
rendered a final judgment. See Phillips, 267 F.3d at 973-74. In such cir-
cumstances, we have, in conformance with Supreme Court precedent, con-
sistently applied the less onerous Agurs and Bagley standards in
determining whether Brady and Napue violations were prejudicial with
respect to “either the guilt or penalty phase” of a state habeas petitioner’s
trial. Sivak, 658 F.3d at 912.
17
The state contends that Phillips conceded that he was not prejudiced
by Colman’s testimony. See Phillips v. Woodford, 267 F.3d at 985. In fact,
in his 2000 brief appealing the district court’s denial of an evidentiary
hearing in support of his habeas petition, Phillips conceded only the issue
of whether he was prejudiced by Colman’s failure to divulge the plea offer
that Minier had extended to her first lawyer, Peterson. As is explained
above, that agreement did not implicate the prosecutor’s constitutional
obligation under Napue, and is therefore not at issue in our analysis of
whether the prosecution’s Napue violations were material. See supra Sec-
tion V.C. Our analysis of the prosecution’s Napue violations addresses the
state’s failure to inform the court and the jury both that an immunity
agreement with Colman through her lawyer to drop all charges relating to
the murder offenses had been entered into, and that Colman had already
benefitted from the Madera County Sheriff’s Department’s assistance with
respect to her heroin arrest. It also addresses the prosecutor’s deliberate
5814 PHILLIPS v. ORNOSKI
hood that these violations alone could have affected the jury’s
judgment, we then must ask whether they in combination with
the prosecution’s failure to disclose to the defense the plea
deal offered to Colman’s first attorney, Peterson—a Brady
violation—would satisfy Brady’s higher standard of material-
ity.
We proceed to examine: first, whether the government’s
Napue violations, or, if not, its Napue and Brady violations
together, were material to Phillips’s conviction for first-
degree murder; second, whether they were material to his con-
victions for robbery; and third, whether they were material to
the jury’s special circumstance finding that the murder was
committed during the commission of a robbery.
i. First-Degree Murder
[16] We hold that the prosecution’s Napue violations,
although “pernicious” and “reprehensible,” Hayes, 399 F.3d
at 981, were not material to Phillips’s conviction of first-
degree murder. The disclosure of the benefits Colman
received in exchange for her testimony could not have had
any effect on the jury’s determination that Phillips was guilty
of the murder of Bartulis. Rose provided extensive testimony
identifying Phillips as the culprit, and the prosecution played
at trial an audio tape of a phone conversation recorded after
lies with respect to the agreement. Phillips did not concede prejudice with
respect to these violations. We can, moreover, consider the issue whether
the government’s failure to divulge the Peterson offer was material regard-
less of any prior concession by Phillips because the concession was not
prejudicial to the state, which continued to develop facts and legal argu-
ments in response to this Brady claim. See United States v. Gabriel, 625
F.2d 830, 832 (9th Cir. 1980) (“We may consider an issue conceded or
neglected below . . . when the party against whom the issue is raised
would not be prejudiced and would not have tried his case differently
either by developing new facts in response to or advancing distinct legal
arguments against the issue.”); Glaziers & Glassworkers v. Custom Auto
Glass Dist., 689 F.2d 1339, 1342 n.1 (9th Cir. 1982).
PHILLIPS v. ORNOSKI 5815
Bartulis’s murder but before Phillips’s arrest in which he
described to his friend Richard Graybill that “a .45 sure did
put a big hole right through him. I mean, it didn’t fuck
around.” In addition, Phillips’s flight to another state and his
effort to conceal his identity provided further significant evi-
dence of his guilt. Thus, even had the government disclosed
the evidence showing that aspects of Colman’s testimony and
the prosecutor’s statements were false, and had Phillips suc-
ceeded in undermining Colman’s credibility, a reasonable
juror, in order to conclude that Phillips was not proven guilty
of murdering Bartulis, would not only have had to disregard
Phillips’s recorded statement to Graybill, his flight, and other
post-murder conduct, but would also have had to conclude
that Rose was wrong when he identified the individual who
shot him multiple times, set him on fire and ran him over with
his car, despite the fact that he knew the individual well and
had traveled with him from Fresno to the site of the shooting.
It is unimaginable that the jury could have come to such a
conclusion with or without Colman’s testimony, and we
therefore hold that the state’s Napue violations were not mate-
rial to the jury’s finding that Phillips was guilty of Bartulis’s
murder.
[17] Although whether the state’s Napue violations were
material to the jury’s finding that Phillips had premeditated
Bartulis’s murder is a closer question, we hold that the evi-
dence of premeditation the prosecution presented was suffi-
ciently powerful and abundant that there is not a “reasonable
likelihood” that the prosecution’s failure to correct Colman’s
testimony, and its deliberate falsehood in telling the jury that
there was no agreement, could have affected the jury’s judg-
ment that Phillips premeditated the murder.18 Again, with or
18
A finding that Phillips had premeditated Bartulis’s murder was one of
two possible grounds on which Phillips could be found guilty of first
degree murder, with the other ground being felony murder. The jury, how-
ever, made a special finding that Phillips had premeditated Bartulis’s mur-
der, and we presume here that this finding was the basis for its verdict that
5816 PHILLIPS v. ORNOSKI
without Colman’s testimony, the jury’s conclusion would
undoubtedly have been the same. The prosecution pointed
out: that Phillips sought to manufacture an alibi by flying to
his mother’s house in Sacramento prior to driving to Fresno,
rather than simply flying to Fresno directly; that Phillips lured
Rose and Bartulis to an isolated remote lot, far from his
hometown where he might have been a suspect for the shoot-
ings; that Phillips asked Rose for matches when the two cars
stopped en route to the vacant lot, suggesting that Phillips
intended in advance to set the victims and their car on fire in
order to conceal their identities;19 and that Phillips told Rose
and Bartulis that the stolen insulation was going to be sup-
plied by his brother even though Phillips does not have a
brother, and no insulation was ever produced. The state also
presented evidence that Phillips methodically attempted to
hide his role in the murder, not only by concealing his vic-
tims’ identities by pouring gas on them and lighting them on
fire after shooting them, but also by removing the bullet shell
casings from the scene after the shooting.
[18] The prosecution did offer Colman’s testimony to aug-
ment its case that the murder had been premeditated. Col-
man’s statement that Phillips had pulled a gas can out of the
trunk of his mother’s car supported a finding of premeditation
Phillips was guilty of murder in the first degree. Because we hold that the
prosecution’s Napue and Brady violations were not material to the jury’s
determination that Phillips premeditated Bartulis’s murder, we need not
consider whether Phillips could have been convicted of first-degree felony
murder. In any event, a finding of premeditation is necessary to the deter-
mination in this case that special circumstances existed that rendered Phil-
lips death-eligible. See Cal. Penal Code § 190.2(c)(3) (Deering 1978). As
the judge instructed the jury with respect to special circumstances, the jury
must find that the “murder was wilful, deliberate and premeditated, and
was committed during the commission or attempted commission of Rob-
bery.”.
19
In contrast to his testimony at the penalty-phase retrial, Rose did not
explain at the initial trial that he gave Phillips a marijuana cigarette along
with the matches.
PHILLIPS v. ORNOSKI 5817
in light of Phillips’s mother’s testimony that she did not ordi-
narily keep a gas can in the car. Likewise, the prosecution
sought to demonstrate Phillip’s cold-blooded manner by high-
lighting Colman’s testimony that Phillips struck Rose and
Bartulis in the head after shooting them, which buttressed the
testimony of the doctor who treated Rose that Rose had a
wound “that was probably due to a blow on the head.” Given
the extensive evidence of planning, however, and of the
methodical manner in which the murder was committed, there
is not a “reasonable probability” that, had the jury learned of
the benefits Colman had received and of the prosecutor’s
deliberate falsehood as to the immunity agreement, it might
have found that there was a reasonable doubt as to whether
Phillips had premeditated the murder. We therefore conclude
that the prosecution’s Napue violations were not material to
the jury’s conclusion that Phillips premeditated Bartulis’s kill-
ing, or to its attendant conclusion that Phillips was guilty
beyond a reasonable doubt of first-degree murder.
Having found that the Napue violations were not, standing
alone, material to Phillips’s first-degree murder conviction,
we must consider the Napue violations collectively with the
Brady violation, asking whether “there is a reasonable proba-
bility that, but for [the state’s violations], the result of the pro-
ceeding would have been different.” Jackson, 513 F.3d at
1076 (citations and quotation marks omitted). As is explained
above, the only piece of evidence in this case that was subject
to disclosure under Brady but not Napue was the fact that
prior to trial, while still represented by her first attorney, Col-
man had received a plea offer that would have limited her jail
sentence to one year. Because Colman’s testimony was not
material to the conviction on the first-degree murder count,
this additional violation is of no consequence.20
20
For the same reasons that the prosecution’s violations of Napue and
Brady were not material to Phillips’s conviction for first degree murder of
Bartulis, they were not material to his conviction on the count of
attempted murder of Rose.
5818 PHILLIPS v. ORNOSKI
ii. Robbery
[19] We likewise hold that the prosecution’s Napue and
Brady violations were not material to Phillips’s convictions
for the robberies of Rose and Bartulis. California law defines
“robbery” as “the felonious taking of personal property in the
possession of another, from his person or immediate presence,
and against his will, accomplished by means of force or fear.”
Cal. Penal Code § 211 (Deering 1977). The only items that
Phillips was alleged to have taken from the persons or pres-
ence of Rose and Bartulis were their wallets and Rose’s gun.21
Rose testified directly that Phillips had taken his wallet, and
the jury had no reason not to credit his testimony. Although
Colman’s testimony was the primary direct evidence that
Phillips took Bartulis’s wallet, substantial circumstantial evi-
dence supported Phillip’s conviction for this crime, including
his attempt to destroy the car and the bodies inside it. The
only plausible explanation of the occurrences on December 7,
1977 is that if Phillips took one wallet he took them both; no
rational explanation would support taking one but not the
other. Given all of the circumstances present in this case, we
cannot conclude that the jury’s verdict that Phillips was guilty
of the robberies “could” have been different but for the prose-
cution’s Napue violations, nor that it “would” have been dif-
ferent but for the prosecution’s Napue violations and its
additional Brady violation.
iii. Special Circumstance Finding
We turn now to the question whether the prosecution’s
Napue violations were material to the jury’s special circum-
stance finding that Bartulis’s murder was committed during
21
Phillips would be guilty of robbery regardless of his motive in taking
these items. It is not a necessary element of robbery that “the taking be for
the purpose of gain.” People v. Green, 609 P.2d 468, 503 (Cal. 1980).
Thus, Phillips’s taking of the wallets and gun in order to conceal his vic-
tims’ identities would warrant his conviction for robbery.
PHILLIPS v. ORNOSKI 5819
the commission or attempted commission of a robbery, a find-
ing that was a necessary prerequisite to Phillips’s being eligi-
ble for the death penalty. We hold that the violations were
material to that finding.
[20] To prove that Phillips murdered Bartulis “during the
commission” of a robbery or attempted robbery, the state bore
the burden of proving beyond a reasonable doubt not just that
Phillips had taken the property of Rose or Bartulis unlawfully,
but that Phillips had the independent purpose of robbing Rose
and Bartulis when he lured them to the lot in Chowchilla.
Under the special circumstance statute that was applied at
Phillips’s trial, the jury was required to make two findings:
first, that Phillips was guilty of the underlying offense of
attempted or completed robbery; second, that the murder had
been committed “in order to advance an independent feloni-
ous purpose” of robbery. Green, 609 P.2d at 505 (interpreting
Cal. Penal Code § 190.2(c)(3) (Deering 1978)); see also Peo-
ple v. Morris, 756 P.2d 843, 854 (Cal. 1988). In Green, the
California Supreme Court held that the “goal” of the special
circumstance statute “is not achieved . . . when the defen-
dant’s intent is not to steal but to kill.” 609 P.2d at 505.22
Green illustrates the distinction between a robbery that is
merely a “second thing to” a murder and murder committed
in order to advance the felonious purpose of robbery. Id. In
Green, the defendant, before killing his wife, took her clothes,
ring and purse in order to conceal her identity when her body
was found. Id. at 501. The court held that there was sufficient
evidence to find the defendant guilty of robbery. Id. at 503.
It then held, however, that the special circumstance of murder
during the commission of a robbery had not been proven
because the murder and the taking of property “was not . . .
a murder in the commission of a robbery but the exact oppo-
site, a robbery in the commission of a murder.” Id. at 505.
22
Green continues to serve as the controlling case with respect to the
special circumstance issue, despite the statute’s subsequent amendment.
See especially People v. Abilez, 161 P.3d 58, 87 (Cal. 2007).
5820 PHILLIPS v. ORNOSKI
Here, likewise, proof that Phillips had robbed his victims was
not enough: the state bore the burden of proving beyond a rea-
sonable doubt that the robbery was a motivating purpose of
Phillips’s criminal actions, that Phillips had led his victims to
an isolated location and shot them because, inter alia, he
intended to rob them. In the words of the California Supreme
Court, the prosecution’s obligation was to prove beyond a rea-
sonable doubt that what occurred in Chowchilla was a “mur-
der in the commission of a robbery, [not] the exact opposite,
a robbery in the commission of a murder.” Id.
[21] Considerable evidence in the record suggests that
Phillips had not, in fact, orchestrated the events of December
7, 1977 for the purpose of robbing Rose and Bartulis, i.e., that
the murder was not committed in order to further the robbery,
but rather that the robbery was incidental to the murder. For
example, although Rose testified that Phillips told him to
bring as much cash as possible to the putative insulation deal,
there is no evidence that Phillips ever followed up on this
request or otherwise attempted to confirm that Rose planned
to or actually brought cash, despite the fact that, as Rose testi-
fied, he had told Phillips over the preceding month that he
was experiencing financial difficulties that limited his access
to funds. Similarly, the evidence at trial indicated that after
shooting Rose and Bartulis, Phillips did not search them thor-
oughly; rather, he conducted a search of Rose so cursory that
he failed to find the wad of bills totaling $3,500 – $5,000 that
Rose had placed in his jacket’s breast pocket,23 and did not
enter the truck to search either Rose or Bartulis. As Phillips’s
attorney, Martin, repeatedly pointed out to the jury, these facts
are inconsistent with the notion that Phillips committed mur-
der in order to further a scheme to rob Rose and Bartulis. One
would generally expect an individual who, for the purpose of
robbing his victims had elaborately planned a double murder,
23
Phillips also failed to take approximately $162 from Rose’s pants
pocket, a fact disclosed in the filed police reports of the incident intro-
duced at pre-trial proceedings but not brought before the jury.
PHILLIPS v. ORNOSKI 5821
developed an alibi, flown from Orange County to Sacramento,
driven from Sacramento to Fresno, and shot two men, to, at
the very least, confirm that they had or had not brought cash
with them, instead of setting their bodies on fire and leaving
the scene with only the minimal funds contained in their wal-
lets and without conducting a thorough search of their persons
or vehicle. As Martin noted at the conclusion of his closing
argument, “this would be a stupid way to plan a robbery, tak-
ing potluck [sic] on what you might get, if anything,” and, we
might add, without even seriously looking for the intended pro-
ceeds.24
[22] Given the minimal evidence that the government pres-
ented in support of its theory that Phillips lured Rose and Bar-
tulis to Chowchilla in order to rob them, Colman’s testimony
was essential to the prosecution’s special circumstance case.
24
The dissent contends that the evidence establishing that Phillips told
his victims to bring money, shot them, and took their wallets “overwhelm-
ingly supported the conclusion that Phillips possessed the intent to rob
these men.” Dis. op. at 5841. Our colleague relies on the California
Supreme Court’s dictum in People v. Marshall, 931 P.2d 262 (Cal. 1997).
In Marshall, the Court first found that no robbery had occurred at all —
the defendant took only an insignificant piece of paper. Id. at 280. The
Court then commented by way of dictum that if a wallet is taken after a
murder a jury “may reasonably infer” that the murder was committed for
the purpose of obtaining money, provided that the evidence establishing
this motive is “reasonable, credible and of solid value.” Id. A jury may
also, however, reasonably infer to the contrary where the evidence is not
such as to require the conclusion that the defendant necessarily committed
the murder in furtherance of a robbery, including where there is evidence
suggesting other motives for the murder, or where some of the prosecu-
tion’s evidence is revealed to be false. Marshall’s hypothetical does not
include any of the facts present in this case that would negate the inference
that the murder was committed for the purpose of robbing the victims.
Moreover, Marshall’s dictum speaks only to what evidence might be
legally sufficient for a jury to find true the special circumstance allegation,
not to what evidence would leave no “reasonable probability” that the jury
“could” have reached the opposite conclusion if statements made by the
prosecution and a key witness were revealed to be false. See Agurs, 427
U.S. at 103; Sivak, 658 F.3d at 917-18.
5822 PHILLIPS v. ORNOSKI
Especially crucial to that case, and emphasized in its closing
argument, was Colman’s testimony that, when Phillips
returned to his car after the shooting, and then again while
driving back to Fresno from Chowchilla, he told her that he
was “disturbed” by the absence of the money he had asked
Rose to bring, and complained about his failure to find any
cash. Also integral was Colman’s testimony that Phillips had
searched Rose extensively for the money, which was other-
wise uncorroborated (Rose testified only that he felt hands
“moving [him] around such as searching [his] pockets,” but
did not testify as to the duration or thoroughness of these
actions). Colman’s testimony “was not only the prosecution’s
most specific evidence” regarding Phillips’s intent to rob Bar-
tulis and Rose, “it was also the most powerful.” Silva v.
Brown, 416 F.3d 980, 987 (9th Cir. 2005). As the prosecution
stated when it appeared that Colman might not be available to
testify during Phillips’s penalty-phase retrial, “[If] Miss Col-
man declined to show up, I don’t even know if we can pro-
ceed. . . . Without her testimony, we have about half a case.
If she didn’t show up, I think we would re-evaluate our case.”
[23] Were Colman’s testimony discredited as a result of
the revelation of her false testimony and her motivation for
lying, the jury could and likely would have concluded that the
theft of the wallets, or any minimal unsuccessful attempt to
steal any other cash on Rose’s person, was simply a “second
thing to” the murder, and thus not a special circumstance
under California law. Had the defense been able to impeach
Colman and cross-examine her regarding her false testimony
and her secret deal, the jury might well have concluded that
in planning the murder Phillips was motivated by unrelated
purposes, such as to cover up his prior narcotics dealings with
Rose and Bartulis and to prevent them from double-crossing
him, as Colman told the investigators prior to the deal but
never told the jury.25 Alternatively, the jury might have con-
25
Minier’s secret deal with Colman’s attorney may have had just the
sort of pernicious effect that led us to condemn this tactic in Hayes:
PHILLIPS v. ORNOSKI 5823
cluded that Phillips was motivated by a desire to retain the
payments Rose and Bartulis had already made to him — the
prosecution itself repeatedly argued for this motivation at
trial, observing that “if he killed Mr. Rose and Mr. Bartulis,
he’d not only have the $11,500 [Rose and Bartulis had ini-
tially given him in cash], but he would have a note for an
additional $25,000.”26 The evidence presented at trial, apart
from Colman’s testimony, was entirely consistent with each
of these alternative motivations, and offered little if any sup-
port for the theory that Phillips’s reason for luring Rose and
Bartulis to Chowchilla was to rob them, and that the murder
was in furtherance of that objective: Phillips may have told
Rose to bring money with him to the putative insulation deal
in order to render the existence of that deal more believable
to Rose, and he may have taken his victims’ wallets in order
to conceal their identities (an interest he also furthered by set-
ting their car on fire). There were, indeed, various possible
namely, it may have induced changes in Colman’s testimony. See 399
F.3d at 981 n.1. During a lengthy December 28, 1977 interview conducted
the day after she turned herself in to the police, Colman stated that Phil-
lips’s only apparent concern after the shooting was his belief that Rose
may not have been killed. Colman said that Phillips told her he shot Rose
and Bartulis not out of any desire to rob them, but rather because he was
concerned that Rose and Bartulis were setting him up, might double-cross
him, and knew too much about his cocaine dealings. It was not until Col-
man’s subsequent January 4, 1978 interview with the police that, after
very specific prompting from investigators, Colman changed her story and
said that Phillips had been disappointed about having been unable to find
Rose’s money. Disclosure of the benefits that Colman received for testify-
ing would have allowed Phillips’s attorney to argue to the jury that the
development of Colman’s inconsistent account—from her initial state-
ments that Phillips was motivated by a concern that Rose and Bartulis
were setting him up, might double-cross him, and knew too much, to her
testimony at trial that Phillips appeared concerned primarily with his
inability to find Rose’s cash—occurred in direct response to the state’s
inducements.
26
Phillips’s retention of these funds would not, of course, constitute a
“robbery” under California law because he did not take these amounts
from the “person or immediate presence” of Rose or Bartulis. See Cal.
Penal Code § 211 (Deering 1977).
5824 PHILLIPS v. ORNOSKI
explanations for why the murder took place, but only Col-
man’s testimony purported to provide an explanation offered
by Phillips himself, one that served as the foundation for the
jury to find that the special circumstance had been proved.
Disclosure of either Colman’s secret deal or the assistance
she received with respect to her heroin arrest would have
allowed Phillips’s counsel to impeach and discredit a witness
whose testimony was absolutely crucial to the state’s special
circumstance case. As we explained in Hayes, and as is
equally true here:
The jury was not permitted to assess whether [the
critical prosecution witness] had an expectation of
favorable treatment that could have affected [her]
testimony because the State affirmatively placed
false evidence before the jury that there was no deal.
. . . If [the witness] had known of the secret deal and
had testified about it [s]he would have been subject
to impeachment—not only on the existence of the
favorable deal, but also on the State’s attempts to
keep the deal from the jury. The State could not have
falsely buttressed [her] credibility before the jury.
Thus, the violation of Napue was material.
399 F.3d at 987-88.
The district court came to a contrary determination regard-
ing the materiality of the state’s violations of its constitutional
obligations by concluding that Colman’s credibility was suffi-
ciently put before the jury by Phillips’s counsel, Martin. The
dissent also embraces this reasoning. Martin introduced evi-
dence that Colman had been released on her own recogni-
zance and had received an unusual number of continuances,
and repeatedly intimated that Colman had negotiated some
sort of deal with the prosecution. But as we explained in Benn
v. Lambert, 283 F.3d 1040 (9th Cir. 2002), “In cases in which
the witness is central to the prosecution’s case, the defen-
PHILLIPS v. ORNOSKI 5825
dant’s conviction indicates that in all likelihood the impeach-
ment evidence introduced at trial was insufficient to persuade
a jury that the witness lacked credibility. Therefore, the sup-
pressed impeachment evidence . . . takes on even greater
importance.” Id. at 1055. Here, hard evidence that a deal had
actually been agreed upon that would allow Colman to escape
prosecution would have had far more persuasive force than
Martin’s assertions, wholly unsupported by any evidence, that
such a deal might have existed, especially in light of the pros-
ecution’s sarcastic and false dismissal of Martin’s suspicions
as “sheer fabrication.” See Jackson, 513 F.3d at 1077
(“[A]lthough the witness had been cross-examined about his
own attempts to benefit from his cooperation, evidence of an
explicit promise of assistance by the trial prosecutor likely
would have carried far greater weight than any speculative
benefit [the witness] might have thought he could achieve on
his own.” ). “The disclosure of a . . . secret deal would not
have been merely cumulative impeachment,” because “[i]t
would have demonstrated that the State was going to great
lengths to give [Colman] a powerful incentive to testify favor-
ably, to the point of letting [her] go free on” capital murder
charges. Hayes, 399 F.3d at 987.
[24] In sum, Colman’s testimony and credibility were criti-
cal to the success of the prosecution’s argument that Phillips
lured Rose and Bartulis to Chowchilla with the independent
purpose of robbing them, and that the robbery was not merely
incidental to the murder, contrary to what the bulk of the evi-
dence other than Colman’s testimony suggested. The false
testimony by Colman that she had received no promise of
benefits in exchange for her testimony—which, in violation of
Napue, the prosecution not only failed to correct but also
affirmatively and falsely reinforced before the jury—directly
implicated Colman’s credibility, and was far more powerful
than all the innuendo and speculation that Phillips’s counsel
was able to offer. Because Phillips was denied a fair opportu-
nity to impeach the credibility of a witness whose testimony
was essential to the jury’s special circumstance finding, we
5826 PHILLIPS v. ORNOSKI
conclude that there is “a reasonable likelihood that the false
testimony could have affected the judgment of the jury,”
Agurs, 427 U.S. at 103, with respect to the finding that Bar-
tulis’s murder occurred during the commission of a robbery.
Even were the standard that which is applicable for a Brady
violation, we would hold that there is a “reasonable probabili-
ty” that the jury’s special circumstance finding “would have
been different” but for the state’s violations. Bagley, 473 U.S.
at 682. Accordingly, we conclude that the state’s multiple vio-
lations of Napue were material to the special circumstances
finding and thus deprived Phillips of his right to due process.
That finding must therefore be vacated.27 So, too, must the
death penalty sentence that resulted from that finding, as with-
out the special circumstance determination Phillips would not
have been death-eligible. See Green, 609 P.2d at 514
(“[B]ecause . . . the special circumstances findings must . . .
be vacated, the punishment of death likewise cannot stand
under the statute.”).
VI. Conclusion
[25] We conclude that the district court did not abuse its
discretion in its conduct of the evidentiary hearings below,
and affirm its holding that Phillips’s trial counsel was not
ineffective, as well as its holding that the prosecution’s Brady
and Napue violations were not material to Phillips’s first-
degree murder conviction, his attempted murder conviction,
or his robbery convictions. We reverse, however, the district
court’s holding that the prosecution’s Napue violations were
not material to the jury’s special circumstances finding.
Accordingly, we reverse and remand to the district court with
instructions to grant a conditional writ of habeas corpus. The
state may either grant Phillips a new trial on the special cir-
27
Because we find that the Napue errors alone compel vacation of the
special circumstances finding, we do not reach the materiality of the pros-
ecution’s Brady violation, specifically the failure to disclose the plea offer
made to Colman’s first attorney, Peterson.
PHILLIPS v. ORNOSKI 5827
cumstance allegation within ninety days or sentence him to a
penalty other than death in conformance with state law. See,
e.g., People v. Horton, 906 P.2d 478, 484 (Cal. 1995).
AFFIRMED, in part, REVERSED, in part, and
REMANDED.
KLEINFELD, Senior Circuit Judge, concurring in part and
dissenting in part:
Phillips murdered Bruce Bartulis at a vacant lot in 1977. He
did his best to also murder Bartulis’s companion, Robert
Rose. He shot Rose five times with a .45, poured gasoline on
him, set him on fire with matches he had borrowed from Rose
himself when they had stopped at a gas station (even though
Phillips was a non-smoker), and ran him over with a car. Phil-
lips had told Bartulis and Rose, falsely, that he was going to
make them a lot of money if they gave him $25,000 to buy
cocaine for sale, and then told them he was going to sell them
a lot of stolen insulation (they were builders). He did not have
$25,000 worth of cocaine and did not have the stolen insula-
tion. He told them to bring with them all the money they
could get together, and to follow him to the deserted location
he picked. After he shot them both, he took their wallets,
picked up the brass from his cartridges, and went on the lam
under a false name.
Rose amazingly survived the five bullets Phillips shot into
his head, stomach, and arm, survived being set on fire, and
survived being run over. He was the star witness against Phil-
lips at trial, testifying to the events of the murder and
attempted murder, and to the dealings leading up to them.
Phillips’s then-girlfriend, Sharon Colman, who was present at
the crime scene, testified to what Phillips had told her and
what she had seen. The jury heard a tape recording of a phone
call Phillips made to his childhood friend Richard Graybill, in
5828 PHILLIPS v. ORNOSKI
which he bragged about how his “.45 sure did put a big hole
right through him,” referring to one of his victims. Phillips’s
mother testified to the time of his arrival home the night of the
murder, which impeached Phillips’s perjured alibi testimony.
Before trial, Phillips had gone so far as to put out contracts
to kill old friend Graybill, former girlfriend Colman, survivor
Rose, and even Phillips’s own mother, but they also failed to
die on his schedule. The jury viewed as evidence the letter
Phillips wrote to the hit man, providing descriptions, habits,
and residences for his intended victims.
Phillips insisted on testifying at trial, claiming he was not
even there when the murder occurred, having been at a “busi-
ness meeting” elsewhere at the time. He has since admitted
this testimony was a lie, and that he was in fact at the scene
of the crime. But Phillips insisted on the alibi at trial. Phil-
lips’s counsel argued that Graybill must have been the mur-
derer. He showed there was a high likelihood that Colman and
Graybill were getting freedom or lenience in exchange for tes-
timony satisfactory to the prosecution, so they had good rea-
son to testify favorably for the prosecution, truthfully or not.
He even managed to come up with an argument for why Rose,
the victim, might be lying.
Phillips’s counsel also explained to the jury that even if
Phillips had committed the murder and attempted murder, the
jury should not find the “special circumstance” to be true.1
1
Cal. Penal Code § 190.2(a)(17)(A) (“The penalty for a defendant who
is found guilty of murder in the first degree is death or imprisonment in
the state prison for life without the possibility of parole if one or more of
the following special circumstances has been found . . . to be true . . . The
murder was committed while the defendant was engaged in, or was an
accomplice in, the commission of, attempted commission of, or the imme-
diate flight after committing, or attempting to commit . . . Robbery
. . . .”; Cal. Penal Code § 190.4(a) (“In case of reasonable doubt as to
whether a special circumstance is true, the defendant is entitled to a find-
ing that it is not true.”); see also Pulley v. Harris, 465 U.S. 37, 51-53
(1984) (rejecting constitutional challenge to this sentencing scheme and
PHILLIPS v. ORNOSKI 5829
The special circumstance in this case was that “the murder [of
Bartulis] was committed while [Phillips] was engaged in the
commission or attempted commission of a robbery.”2 Phil-
lips’s counsel skillfully wove his special circumstance argu-
ment into the alibi theory, a challenging task. He gave a
reason why Phillips had an interest in keeping Bartulis and
Rose alive, that it would not make sense to kill the goose who
was about to lay the $25,000 egg. It is hard to argue persua-
sively to a jury that “my client wasn’t even there and didn’t
do it, but if he did, his purpose wasn’t robbery,” but counsel
figured out a way to keep the special circumstance issue in the
case as a potential barrier to the death penalty.
Now the majority vacates the jury’s special circumstance
explaining, “Under [California’s] scheme, a person convicted of first
degree murder is sentenced to life imprisonment unless one or more ‘spe-
cial circumstances’ are found, in which case the punishment is either death
or life imprisonment without parole. Special circumstances are alleged in
the charging papers and tried with the issue of guilt at the initial phase of
the trial. At the close of evidence, the jury decides guilt or innocence and
determines whether the special circumstances alleged are present. Each
special circumstance must be proved beyond a reasonable doubt. If the
jury finds the defendant guilty of first degree murder and finds at least one
special circumstance, the trial proceeds to a second phase to determine the
appropriate penalty. Additional evidence may be offered and the jury is
given a list of relevant factors. After having heard all the evidence, the
trier of fact shall consider, take into account and be guided by the aggra-
vating and mitigating circumstances referred to in this section, and shall
determine whether the penalty shall be death or life imprisonment without
the possibility of parole. If the jury returns a verdict of death, the defen-
dant is deemed to move to modify the verdict. The trial judge then reviews
the evidence and, in light of the statutory factors, makes an independent
determination as to whether the weight of the evidence supports the jury’s
findings and verdicts. The judge is required to state on the record the rea-
sons for his findings. If the trial judge denies the motion for modification,
there is an automatic appeal.” (citations, brackets, and quotations omit-
ted)).
2
California Jury Instruction—Criminal (“CALJIC”) No. 8.81.17; Cal.
Penal Code § 190.2(a)(17)(A).
5830 PHILLIPS v. ORNOSKI
finding, speculating that if only the jury had been able to find
out more about the inducements to Colman, the girlfriend, to
say what the prosecutor wanted, the jury might have con-
cluded that the murder was motivated by purposes other than
robbery. The majority speculates that Phillips might have shot
Bartulis and Rose to cover up Phillips’s prior dealings with
them, or to prevent them from double-crossing him, or to
retain the payments Bartulis and Rose had already made to
him. These theories were unsupported by any evidence at
trial. Even if the jury had decided Colman was not worthy of
belief (it may well have, because she was effectively
impeached and her motivation to testify was brought painstak-
ingly before the jury), Colman’s alleged perjured testimony
could not have affected the verdict. The evidence of an intent
to rob by killing came from facts not dependent on anything
Phillips’s girlfriend said.
The purpose of robbery was proved by overwhelming evi-
dence. Rose testified that Phillips instructed him to come up
with as much cash as he could get, that Phillips lured the men
to a deserted location, shot them, then took their wallets. The
jury also learned of Phillips’s motive to rob. He lived in a
$600,000 Newport Beach beachfront house ($600,000 in 1977
dollars), drove an expensive sports car, flew about in private
planes, and dated a beautiful young woman, despite having no
money and needing to borrow $125 from his mother the day
after the murder. If the jury had the slightest doubt that Phil-
lips would murder in cold blood just to get some cash, their
doubts would have been allayed by the proof that he put out
a “contract” on his girlfriend, his old friend, his surviving vic-
tim, and even his own mother.
The majority concludes that none of the prosecutorial mis-
conduct could have made any difference to whether the jury
would have found Phillips guilty of attempted murder, first-
degree murder, and robbery, and that defense counsel was not
constitutionally ineffective. I concur in those conclusions. I
also concur in the characterization of prosecutorial miscon-
PHILLIPS v. ORNOSKI 5831
duct. I do not concur in the attacks on defense counsel’s assis-
tance. The reasons appear more fully in my previous dissent,
found at, Phillips v. Woodford, 267 F.3d 966, 988 (9th Cir.
2001) (Kleinfeld, J., dissenting). Defense counsel appears
from the record to be a very fine lawyer who did an excellent
job for Phillips. The majority now concedes that under Cullen
v. Pinholster,3 defense counsel was not constitutionally inef-
fective, overruling its holding to the contrary in Phillips v.
Woodford.4 I dissent from the portion of the majority’s opin-
ion vacating the jury’s special circumstance finding that the
murder of Bartulis was “committed during the commission or
attempted commission of a robbery.”
Phillips was sentenced to death in 1980. Since then he has
evaded his sentence by means of more than three decades of
additional litigation. And now he succeeds again, on the
meritless claim adopted by the majority that had the jury been
aware of additional impeachment evidence as to the girl-
friend’s motivation for testifying, it might have reasonably
concluded that the robbery was merely incidental to the mur-
der.
The majority appropriately labels the prosecutor’s tactics in
this case as deplorable, but as the United States Supreme
Court has expressly directed:
We do not [ ] automatically require a new trial when-
ever a combing of the prosecutors’ files after the trial
has disclosed evidence possibly useful to the defense
but not likely to have changed the verdict . . . . A
new trial is required if the false testimony could in
any reasonable likelihood have affected the judg-
ment of the jury.5
3
Cullen v. Pinholster, ___ U.S. ___, 131 S. Ct. 1388, 1406-07 (2011).
4
Phillips v. Woodford, 267 F.3d 966, 980 (9th Cir. 2001).
5
Giglio v. United States, 405 U.S. 150, 154 (1972) (citations and quota-
tions omitted).
5832 PHILLIPS v. ORNOSKI
Thus, it is not enough to find constitutional error. Instead, the
court is required to consider all of the evidence and determine
whether the false evidence was material to the jury’s judgment.6
The “any reasonable likelihood” of an effect on the jury
standard applies to direct appeals. This is not a direct appeal.
This is a habeas proceeding, best characterized as a second or
successive habeas proceeding. Probably the correct standard
is that a federal court cannot grant relief unless the evidence
is “clear and convincing” that, had the Colman deal been dis-
closed to defense counsel and the jury, “no reasonable juror
would have found him eligible for the death penalty.”7 Like
the petitioner in Calderon v. Thompson, Phillips’s false alibi
was “devastating to his defense,”8 under any standard.
Because this is a habeas proceeding, we are constrained not
only by the requirement of prejudice, but also by the require-
ment of deference to the state courts. Phillips was convicted
and sentenced in state court. On direct appeal, the California
Supreme Court carefully weighed the prejudicial effect of the
prosecutor’s wrongful nondisclosure of the deal between the
prosecutor and the girlfriend’s lawyer. The Court found, and
the transcript fully supports its finding, that “the jury was
made well aware of the possible impact of Colman’s expecta-
6
See also Smith v. Cain, 565 U.S. ___, 132 S. Ct. 627, 630 (2012) (“We
have observed that evidence impeaching an eyewitness may not be mate-
rial if the State’s other evidence is strong enough to sustain confidence in
the verdict.”).
7
See Sawyer v. Whitley, 505 U.S. 333, 350 (1992) (holding petitioner is
required to “show by clear and convincing evidence that but for constitu-
tional error at his sentencing hearing, no reasonable juror would have
found him eligible for the death penalty”); Calderon v. Thompson, 523
U.S. 538, 560 (1998) (“To the extent a capital petitioner contests the spe-
cial circumstances rendering him eligible for the death penalty, the Sawyer
‘clear and convincing’ standard applies, irrespective of whether the special
circumstances are elements of the offense of capital murder or, as here,
mere sentencing enhancers.”).
8
Calderon v. Thompson, 523 U.S. 538, 561 (1998).
PHILLIPS v. ORNOSKI 5833
tion of leniency on her credibility.”9 The California Supreme
Court further noted, after thorough discussion of the evidence,
that “the key witness against defendant was Ronald Rose,” his
testimony was well-corroborated, the evidence against Phil-
lips was “overwhelming,” and the jury’s verdict “a foregone
conclusion”:10
While the defense should have been given a fuller
opportunity to discover evidence that might have
permitted a stronger attack on Colman’s credibility,
closing arguments on both sides demonstrate that the
jury was made well aware of the possible impact of
Colman’s expectation of leniency on her credibility.
The prosecutor noted that “it wouldn’t make any
sense if she came in here and testified unless she
were hoping for consideration . . . that’s why she’s
testifying.” Defense counsel emphatically brought
home to the jury the potentially coercive effect of the
prosecution’s tactics, declaring that “they’re holding
a murder charge over her head to testify, and she’s
singing like a bird, the tune that they call.” In this
situation, the jury could properly assess Colman’s
credibility even without testimony on a specific
agreement between her attorney and the prosecution.
Furthermore, the evidence against defendant with
respect to the charged offense was overwhelming.
While Colman was an important prosecution wit-
ness, the key witness against defendant was Ronald
Rose, the victim who miraculously survived despite
being shot, set on fire and run over by a car. Given
Rose’s testimony, and the considerable amount of
corroborating evidence, the jury verdict as to guilt
and the special circumstance allegation was virtually
9
People v. Phillips, 41 Cal. 3d 29, 48 (1985).
10
Id. at 49.
5834 PHILLIPS v. ORNOSKI
a foregone conclusion. Under the circumstances,
there was no prejudice to the defendant.11
In addition, the Superior Court of California, County of Mad-
era, in its order denying Phillips’s writ of habeas corpus,
made factual findings and concluded, “Clearly [Colman’s]
credibility because of a ‘deal,’ and a pending murder charge
was put before the jury, and, as stated by the Supreme Court,
the jury had sufficient facts with which to evaluate Sharon
Colman’s testimony.” The federal district court also con-
cluded in a thorough sixty-one page order denying Phillips’s
federal habeas petition that any constitutional errors at trial
could not have reasonably affected the judgment of the jury,
because of the overwhelming evidence against Phillips other
than Colman’s testimony.
The majority rejects the conclusion of every other court to
have addressed this case. “This readiness to attribute error is
inconsistent with the presumption that state courts know and
follow the law.”12 Even assuming “any reasonable likelihood”
of an effect on the jury is the correct standard, this Court is
still required to presume the correctness of state court factual
findings,13 and to review the findings of the district court for
clear error.14 The majority disregards these standards, and
11
Id. at 48-49.
12
Woodford v. Visciotti, 537 U.S. 19, 23 (2002) (per curiam) (citing pre-
and post- AEDPA authority, and reinstating capital sentence for California
prisoner convicted of first-degree murder, attempted murder, and armed
robbery).
13
Sumner v. Mata, 455 U.S. 591, 591-92 (1982) (“28 U.S.C. § 2254(d)
requires federal courts in habeas proceedings to accord a presumption of
correctness to state-court findings of fact”); id. at 592-93 (“the presump-
tion of correctness is equally applicable when a state appellate court, as
opposed to a state trial court, makes the finding of fact”); id. at 595 n.5
(noting rule applies to state court findings of fact on direct appeal and in
state habeas proceedings).
14
Jackson v. Brown, 513 F.3d 1057, 1069 (9th Cir. 2008) (“The district
court’s factual findings are reviewed for clear error. We therefore accept
its findings absent a firm conviction that a mistake has been committed.”
(internal quotations omitted)).
PHILLIPS v. ORNOSKI 5835
instead takes upon itself the role of a jury of two, in an imagi-
nary trial that never occurred.
I need not base my dissent on the precise standard applica-
ble to the constitutional error, limitations of our habeas
authority, or our duty of deference to state court findings and
the presumption of their correctness. The question of how,
precisely, to formulate the standard is quite complex. Should
Phillips have been permitted to raise his new argument at all,
after his many past proceedings? Should the petition raising
the new argument be treated as pre-AEDPA or post-AEDPA?15
To what extent may the state findings be viewed as mixed
questions of fact and law? Did we have authority to direct the
district court to take new evidence, evidence not before the
state courts? Do we have authority to grant a petition based
on evidence so obtained? Should the proper standard for us be
whether Phillips has offered “clear and convincing” evidence
that “no reasonable juror” would have found him to be subject
to the robbery special circumstance, had the jury known of the
prosecutor’s deal with the girlfriend’s lawyer? These complex
questions need not be answered because no matter what, pre-
cisely, our proper standard and our deference obligation to the
state courts may be, the result would be the same. Even were
we reviewing directly, as though we were a state supreme
court, we would have to reach the same conclusion as the Cal-
ifornia Supreme Court reached in this case.
I assume for purposes of discussion that the standard most
favorable to Phillips applies. That standard is whether there is
any reasonable likelihood that the arguably false testimony
Colman gave “could have” affected the judgment of the jury
on the special circumstance finding. The majority concedes
that “[i]t is unimaginable” that the jury could have reached a
different verdict on the first-degree murder charge, despite the
15
See Phillips v. Woodford, 267 F.3d 966, 989 (9th Cir. 2001) (Klein-
feld, J., dissenting) (noting Phillips filed his petition after the AEDPA
went into effect).
5836 PHILLIPS v. ORNOSKI
prosecutor’s wrongdoing. Likewise “[i]t is unimaginable” that
the jury could have reached a different conclusion as to the
special circumstance of the murder occurring “during the
commission of a robbery.” Had the jury been fully informed
of the prosecutor’s agreement with Colman’s lawyer, and that
she had escaped prosecution on unrelated charges, it would
have made no difference to the verdict. The jury was well-
informed of the reasons for skepticism about her testimony.
Colman candidly admitted at trial that she expected the prose-
cution to take her willingness to cooperate into consideration.
The prosecutor admitted during his closing argument that Col-
man was an accomplice who expected leniency, and her testi-
mony should be viewed with distrust:
She also testified that she was hoping for consider-
ation, and that is only understandable; as a matter of
fact, it wouldn’t make any sense if she came in and
testified unless she were hoping for consideration.
Naturally, she’s hoping for consideration. Naturally,
she’s hoping for leniency. And it only seems reason-
able that she would hope and anticipate that she
would be treated leniently, and, of course, that’s why
she’s testifying. And, of course, that’s why her attor-
ney told her to cooperate and to testify. But it
doesn’t mean she’s lying.
. . . . Under the law it is true that Miss Colman is
what’s called an accomplice . . . . That means that
you really stand back and you look at it and you
decide, now, is this girl really telling the truth . . . .
You have to have what’s called corroboration; in
other words, the Defendant could never be convicted
on the testimony of Miss Colman alone.
The judge then instructed the jury that Colman was an accom-
plice and that her testimony should be viewed with distrust:
. . . Sharon Colman was an accomplice . . . . The tes-
timony of an accomplice ought to be viewed with
PHILLIPS v. ORNOSKI 5837
distrust. This does not mean that you may arbitrarily
disregard such testimony, but you should give to it
the weight to which you find it to be entitled after
examining it with care and caution and in the light
of all the evidence in the case.
The jury did not need Colman’s testimony, that Phillips was
disappointed in how little money he got, to conclude that the
murders were committed “during the commission of a rob-
bery.” Indeed, she did not even say that robbery was Phillips’s
purpose. Phillips probably lost his own case by lying to the
jury, and Rose certainly established the state’s case with his
powerful and highly credible testimony. Colman was not the
critical witness for the robbery special circumstance finding.
Rose was.
Rose, the miraculously surviving victim, testified that Phil-
lips “told me to get as much cash together as I could and what
time to meet him and where to meet him in Fresno; that was
early in the morning on the 7th.” That night, Phillips led Rose
to a remote location and shot him five times. Rose testified
that he then felt “someone moving me around such as search-
ing my pockets” and that he heard “a male voice” next to him
while his pockets were being searched. Although Phillips took
Rose’s wallet, which was in his rear pocket, Phillips never
found the “thirty-five hundred to five thousand dollars in
cash” in Rose’s “upper coat pocket.” Phillips then poured gas-
oline on Rose, set him ablaze, and ran him over with his
mother’s car after Rose began running around the dark, empty
parking lot to which Phillips had led him, trying to shed his
burning clothes. The majority speculates that Phillips’s pur-
pose may not have been to take Rose’s and Bartulis’s money,
because he did a poor job of searching them and missed the
wad of cash “the size of a cigarette pack” that Rose had in the
breast pocket of his bloody jacket. Many criminals do slip-
shod work, and many robbers are disappointed with the pro-
ceeds, but “I wouldn’t have robbed and killed him had I
known that was all I would get,” or “I wish I’d searched his
5838 PHILLIPS v. ORNOSKI
other pockets,” is not the same as “I did not kill him as part
of my robbery.”
California law defines robbery as “the felonious taking of
personal property in the possession of another, from his per-
son or immediate presence, and against his will, accomplished
by means of force or fear.”16 Taking a man’s money by killing
him fits the definition whether the robbery victim is dead or
alive when the killer takes his wallet.17 If the jury believed
Rose, as it plainly did, the only reasonable inference was that
Phillips shot and robbed him and Bartulis for their money.
Scratching around for some authority, the majority relies on
the distinction drawn in People v. Green,18 between murders
occurring during the commission of a robbery and murders
where the robbery was incidental to the murder. The distinc-
tion is correct, but the majority errs in applying that distinc-
tion to Phillips’s crimes. In Green, the defendant shot his wife
in the face with a sawed-off shotgun, killing her, because he
thought she was “fooling around” and was going to leave him.19
He had made her take off her clothes, and he removed the
wedding rings from her corpse, took her purse, and got rid of
the shotgun.20 The Court held that he had killed his wife on
account of jealousy or as revenge for “snitching,” without any
purpose of stealing from her, and that he took the clothes,
rings, and purse to leave her unidentifiable, not to steal her prop-
erty.21 The Court held that the special circumstance did not
apply because taking the clothes, rings, and purse “was not in
16
Cal. Penal Code § 211.
17
People v. Navarette, 30 Cal. 4th 458, 499 (2003) (“While it may be
true that one cannot rob a person who is already dead when one first
arrives on the scene, one can certainly rob a living person by killing that
person and then taking his or her property.”).
18
People v. Green, 27 Cal. 3d 1 (1980).
19
Id. at 13-14.
20
Id. at 15-16.
21
Id. at 56.
PHILLIPS v. ORNOSKI 5839
fact a murder in the commission of a robbery but the exact
opposite, a robbery in the commission of a murder.”22 The
robbery aggravator, the Court held, was not a mere matter of
chronology, but a legislative choice to increase the punish-
ment available for criminals “who killed in cold blood to
advance an independent felonious purpose.”23 The Court’s
phrasing of the distinction squarely puts Phillips on the wrong
side, because he killed Bartulis in cold blood in order to steal
his money.
The majority cites two other California cases on this issue,
People v. Abilez,24 and People v. Morris.25 In Abilez, the
defendant raped his 68-year-old mother anally, strangled her,
and took items of value from her house.26 He hated his mother
because she gave him up to his aunt to be raised, even though
his mother raised her other nine children.27 Applying the
Green distinction, Abilez upheld the robbery special circum-
stance finding. The Court distinguished Green because Abilez
had made remarks about needing money, his mother would
not lend him her car or give him money when he asked for it,
she accused him of stealing from her, and he took the car, ste-
reo, and other items from the house after killing her.28 From
these facts, the Court held, the jury could reasonably infer a
concurrent intent to kill, rob, and sodomize.29
In Morris, the defendant was a prostitute who solicited gay
men and killed one of his customers. He said the reason he
22
Id. at 60.
23
Id. at 61.
24
People v. Abilez, 41 Cal. 4th 472 (2007).
25
People v. Morris, 46 Cal. 3d 1 (1988), overruled on other grounds by
In re Sassounian, 9 Cal. 4th 535, 543 n.5 (1995).
26
People v. Abilez, 41 Cal. 4th 472, 483-84 (2007).
27
Id.
28
Id. at 511-12.
29
Id. at 512.
5840 PHILLIPS v. ORNOSKI
killed his customer was that “he had to kill one.”30 The special
circumstance was held not to apply because there was insuffi-
cient evidence that the defendant had taken anything from the
customer when he killed him.31 There was no robbery, so
there was no special circumstance of murdering during the
commission of a robbery.
The majority misses the point in People v Marshall,32 a
highly relevant California Supreme Court decision applying
and expanding upon Green. Marshall had raped and murdered
a woman, and took a letter from her. The letter was from a
grocery store responding to the victim’s request for a “check-
cashing card,” and was of no interest to the murderer. He took
the letter as a souvenir of the crime.33 The reason that the spe-
cial circumstance did not apply was that there was no evi-
dence that he killed the woman “for the purpose of obtaining
the letter.”34 Contrasting Morris’s case with one where the
special circumstance would apply, the Court explained the
Green distinction with a hypothetical case in which, under
Green, the special circumstance would be appropriate. And
the hypothetical is the Phillips case, a murderer who takes the
victim’s wallet:
If a person commits a murder, and after doing so
takes the victim’s wallet, the jury may reasonably
infer that the murder was committed for the purpose
of obtaining the wallet, because murders are com-
monly committed to obtain money. In this case,
30
People v. Morris, 46 Cal. 3d 1, 21 (1988), overruled on other grounds
by In re Sassounian, 9 Cal. 4th 535, 543 n.5 (1995).
31
Id. at 22.
32
People v. Marshall, 15 Cal. 4th 1 (1997).
33
Id. at 12.
34
Id. at 34.
PHILLIPS v. ORNOSKI 5841
however, the letter taken by defendant was, in the
prosecutor’s words, an “insignificant piece of paper.”35
Here, the jury concluded that Phillips committed murder for
the purpose of obtaining Rose’s and Bartulis’s money. Phil-
lips took their wallets, which is where men typically carry
their money. Unlike the murderer in Marshall, he did not take
a worthless memento. The majority comes up with some
notions of why Phillips may have shot and robbed Rose and
Bartulis for some reason other than to take their money, even
though he needed and took the $150 in their wallets. But as
the Supreme Court of California has stated, “we need not dis-
cern the[ ] various mental states in too fine a fashion; a con-
current intent to kill and to commit an independent felony will
support a felony-murder special circumstance.”36 The evi-
dence in this case overwhelmingly supported the conclusion
that Phillips possessed the intent to rob these men. He needed
the money, he told them to bring it, he shot them, and he took
it. The majority’s suggestion that had the jury been fully
informed of Colman’s inducements, it maybe would have
concluded otherwise, “is an insult to the jury.”37
The majority’s willingness to disrupt the well-founded
decision of the California Supreme Court also disturbs “the
State’s interest in the finality of convictions that have sur-
vived direct review within the state court system.”38 As the
United States Supreme Court has stated in overturning similar
decisions:
Finality also enhances the quality of judging. There
is perhaps ‘nothing more subversive of a judge’s
35
Id.
36
People v. Abilez, 41 Cal. 4th 472, 560 (2007).
37
Thompson v. Calderon, 120 F.3d 1045, 1073 (9th Cir. 1997) (en banc)
(Kleinfeld, J., dissenting), rev’d, Calderon v. Thompson, 523 U.S. 538
(1998).
38
Calderon v. Thomas, 523 U.S. 538, 555 (1998).
5842 PHILLIPS v. ORNOSKI
sense of responsibility, of the inner subjective con-
scientiousness which is so essential a part of the dif-
ficult and subtle art of judging well, than an
indiscriminate acceptance of the notion that all the
shots will always be called by someone else.’39
Juries are too likely to impose the death penalty lightly if they
reasonably infer, from decisions like this one, that it will
almost never actually be carried out.
The question the majority addresses seems to be “is there
any conceivable, speculative possibility we can think of that
would make Phillips guilty but without the special circum-
stance?” Whatever the proper standard may be, that is not it.
To determine whether the prosecutor’s wrongdoing was prej-
udicial, the most Phillips could demand would be whether
there is “any reasonable likelihood that the false testimony
could have affected the judgment of the jury.”40 The only
answer to the question is “no.”
The majority correctly concludes that “[i]t is unimaginable”
that the prosecutor’s wrongful conduct could have affected
the first-degree murder guilty verdict. It is likewise unimagin-
able that it could have affected the special circumstance find-
ing. We should affirm.
39
Id. (quoting Bator, Finality in Criminal Law and Federal Habeas Cor-
pus for State Prisoners, 76 Harv. L. Rev. 441, 451 (1963)).
40
United States v. Agurs, 427 U.S. 97, 103 (1976).