No. 10-136

OFFICE OF T.~. c-LE~K /

ROBERT HOREL, WARDEN, Petitioner,

V.

FELIX SOLORIO VALDOVINOS, Respondent.

ON PETITION FOR WRIT OF CERTIORARI TO THEUNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

REPLY TO BRIEF IN OPPOSITION

EDMUND G. BROWN JR.Attorney General of CaliforniaDANE R. GILLETTEChief Assistant Attorney GeneralDONALD E. DE NICOLADeputy State Solicitor GeneralGERALD A. ENGLERSenior Assistant Attorney GeneralPEGGY S. RUFFRASupervising Deputy Attorney GeneralJEREMY FRIEDLANDERDeputy Attorney GeneralCounsel of Record

455 Golden Gate Avenue, Suite 11000San Francisco, CA 94102-7004Telephone: (415) 703-5974Fax: (415) 703-1234Jeremy.Friedlander@doj.ca.gov

Counsel for Petitioner

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QUESTION PRESENTED

Whether AEDPA deference applies to the statesupreme court’s summary denial of a claim underBrady v. Maryland, 373 U.S. 83 (1963). SeeHarrington v. Richter, 130 S. Ct. 1506 (2010) (No. 09-587).

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TABLE OF CONTENTS

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Argument ...................................................................1I. Valdovinos fails to show that the

Court of Appeals deferentiallyreviewed the Brady claimsummarily rejected by the statesupreme court ......................................1A. The remark of one judge at

oral argument does notshow that the NinthCircuit panel applieddeferential review to thestate supreme court’sdecision ..................................... 1

B. The Ninth Circuit’srecitation of the § 2254(d)deference standard doesnot show that the courtapplied it to the Bradyclaim rejected by the statesupreme court ............................2

C. The panel’s discussion ofthe district court’s opiniondoes not show that itapplied the deferencestandard to the Bradyclaim .........................................4

II. Deferential review would requirethe Court of Appeals to reject theclaim ....................................................5

no

B.C.D.

The anonymous letter ..............5The Mongia photograph ...........7The photo lineups .....................8Lopez’s gun and drugs .............9

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TABLE OF CONTENTS(continued)

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Conclusion ..............................................................11

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TABLE OF AUTHORITIES

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CASES

Board of Trade of City of Chicago v. S.E.C.883 F.2d 525 (7th Cir. 1989) ............................... 1

Brady v. Maryland373 U.S. 83 (1963) ....................................... passim

Brown v. Payton544 UoS. 133 (2005) ..............................................3

Harrington v. Richter130 S. Ct. 1506 (2010) ...................................... 1, 4

Richter v. Hickman578 F.3d 944 (9th Cir. 2009) (en banc) ..............2

Schad v. Ryan606 F.3d 1022 (9th Cir. 2010) ..............................3

Wong v. Belmontes558 U.S. __, 130 S. Ct. 383 (2009) (percuriam) ................................................................3

STATUTES

28 United States Code§ 2254(d) .......................................................... 1, 2

OTHER AUTHORITIES

Antiterrorism and Effective Death Penalty Actof 1996 ......................................................... 1, 3, 4

ARGUMENT

VALDOVINOS FAILS TO SHOW THAT THECOURT OF APPEALS DEFERENTIALLYREVIEWED THE BRADY CLAIM SUMMARILYREJECTED BY THE STATE SUPREME COURT.

In Harrington v. Richter, 130 S. Ct. 1506 (2010),09-587, this Court is considering whether AEDPA(28 U.S.C. § 2254(d)) requires deferential review of astate court’s summary disposition. This case raisesthe same issue. Valdovinos presented to the statesupreme court in a state habeas petition an expandedversion of the claim he had raised in the lower statecourt under Brady v. Maryland, 373 U.S. 83 (1963).The state supreme court summarily denied theclaim. As documented in the State’s petition (Pet. 11-13), the Ninth Circuit reversed the district court andgranted the writ by failing even to consider (muchless to deferentially review) the summary denial.

Valdovinos says the Ninth Circuit did applydeference to the state supreme court’s decision. Heoffers three main arguments. None has merit.

AQ The Remark of One Judge at OralArgument Does Not Show thatthe Ninth Circuit Panel AppliedDeferential Review to the StateSupreme Court’s Decision.

Valdovinos cites Judge Kleinfeld’s statement atoral argument: "’I would find this a lot easier toreverse on Brady grounds if it was a direct appeal,but it’s AEDPA deference which really concerns me.’[Citation]." Opp. 5; see Opp. 13. But statements atoral argument do not establish the consideredopinion of the speaker, let alone of the court. SeeBoard of Trade of City of Chicago v. S.E.C., 883 F.2d

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525, 530 (7th Cir. 1989). This Court reviews thejudgment, not the oral argument.

Valdovinos observes that "Judge Kleinfeldspecifically signed the dissent in Richter v. Hickman,578 F.3d 944 (9th Cir. 2009) (en banc) which arguedthat insufficient deference was given the State Courtopinion." Opp. 13-14. Valdovinos does not explainthe relevance of the asserted fact. Perhaps he meansto show that Judge Kleinfeld knows the differencebetween deference and non-deference. See Opp. 13.That fact, too, does not show that the Ninth Circuitactually applied the § 2254(d) deference standard tothe state supreme court’s decisionL in this case.

The Ninth Circuit’s Recitation ofthe § 2254(d) Deference StandardDoes not Show that the CourtApplied It to the .Brady ClaimRejected by the State SupremeCourt.

Valdovinos observes that ~he opinion of theNinth Circuit recites the deference standard. Opp. 6(citing App. 14a). He fails to recognize that thecircuit court applied that standard only to claimsdecided by the state appellate court, not the supremecourt.

With respect to the former, the court used thelanguage of deference. App. 20a ("Here, the appellatecourt found that further impeachment of Lopezwould not have affected the trial or outcome. On itsown, this finding is neither contrary to nor anunreasonable application of established federallaw."); App. 24a ("Therefore, we affirm the districtcourt’s finding that the state court’s decision[rejecting an ineffective assistance claim] was neithercontrary to federal law nor an unreasonableapplication of the law to the facts. [Footnote

omitted.]"). By contrast, the opinion makes nomention of deference with respect to the claimsValdovinos presented to the state supreme court.App. 16a-19a, 20a-22a. The Ninth Circuit held as tothose claims: "The prosecution’s repeated failure todisclose evidence favorable to the defense leads us toconclude that Valdovinos did not receive a fair trialresulting in a verdict worthy of confidence." App.22a.

The Ninth Circuit explicitly mentioned the statesupreme court’s decision only in the proceduralhistory of the opinion. App. 8a, 9a. A later passagestates cryptically that a summary denial requires "anindependent review of the record. [Citationomitted.]" App. 14a. By using the language ofdeference to review the claims decided by the stateappellate court but not the state supreme court, andby not even mentioning the state supreme court’sdecision in any substantive way, the Ninth Circuitmade clear that it was not deferentially reviewingthat decision, if reviewing it at all.

In any event, the circuit court’s recitation of anapplicable legal standard does not by itself establishthat the court actually applied that standard. SeeWong v. Belmontes, 558 U.S. __, 130 S. Ct. 383, 390(2009) (per curiam) ("While the Court of Appealsquoted the pertinent language from Strickiand, thatcourt elsewhere suggested it might have appliedsomething different."); Brown v. Payton, 544 U.S.133, 140 (2005) (Ninth Circuit "purported to decidethe case under the deferential standard AEDPAmandates"); id. at 147 (Ninth Circuit erred when it"made the . . . assumption" that the state supremecourt acted unreasonably in rejecting the claim);Schad v. Ryan, 606 F.3d 1022, 1030 n.2 (9th Cir.2010) (Callahan, J., dissenting) (collecting cases in

which this Court has found that the Ninth Circuitapplied AEDPA deference incorrectly, if at all).

Co The Panel’s Discussion of theDistrict Court’s Opinion Does notShow that It Applied theDeference Standard to the BradyClaim.

Valdovinos says petitioner "attempt[s] toexpand the panel’s discussion about the standard ofreview it used to examine the federal district court’sopinion to imply that the panel used the samestandard to examine the California SupremeCourt’s decision .... " Opp. 6. Valdovinos sayspetitioner’s purported argument "is simply notsupported by the language of the.’ panel opinion, andin fact is contradicted by [it]. " Opp. 6.Valdovinos’s response lacks citation to either ourpetition or the opinion below. Petitioner has notsuggested that the Ninth Circuit’s application of denovo review to the district court’s opinion means thatthe Ninth Circuit applied de now) review to the statesupreme court’s decision.

Because the Ninth Circuit did not applydeference to the state supreme court’s summarydisposition, Richter controls this case. As shown inthe petition (Pet. 14-23) and below, deferentialreview would compel the Ninth Circuit to reverse itsdecision granting the writ.

II. DEFERENTIAL REVIEW WOULD REQUIRETHE COURT OF APPEALS TO REJECT THECLAIM.

Valdovinos says, "the Brady errors in this casewere substantial and undermine confidence in theverdict[.]’’~ Opp. 6. He is wrong in every case.

A. The Anonymous Letter

On March 30, 2004, associate habeas counselfound an anonymous letter in a file in the policedepartment. App. 71a; ER 127-128. The writer ofthe letter disclaimed responsibility for the shootingand said Ramon Balemas ordered it. App.71a-72a;ER 150-151. An envelope attached to the letter wasaddressed to "Eulalio Caballero" and postmarkedOctober 2, 1998. ER 154. The trial began inNovember 1998. CT 139. There is no indication inthe record of how or when the letter reached thepolice file.

The Ninth Circuit found the letter’snondisclosure prejudicial because it "denied thedefense important investigative opportunities .... "

1 Valdovinos accuses petitioner of distorting the recordand misunderstanding Brady. Opp. 7. It is only Valdovinoswho has done so. To take just one example beyond thoseaddressed in the text, Valdovinos states: "We now know thatLopez admitted to Juan Ledezma that he had done the shootingand had placed the blame on Valdovinos. See, e._~., App. 111a."Opp. 3. We would "know" that only if we chose to ignore, asValdovinos does, the evidence in the record (summarized at Pet.7), the findings of the district court (App. 74a-75a), and even thedeterminations of the Ninth Circuit (App. 16a). Valdovinos’ssole support for his statement is the part of his own statehabeas petition in which he makes the same unsubstantiatedand unreliable assertion. App. 112a-l13a.

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App. 19a. The court overlooked the facts that (1)Valdovinos himself or someone on his behalf couldhave written the letter, (2) trial counsel never said hewas unaware of the information, (3) the court did notidentify any "important investigative opportunities"the defense lost from the nondisclosure, Pet. 16-17,and (4) the defense never established even that theprosecution possessed the letter at the time of trial.Pet. 17 n. 6.

Valdovinos responds: "Under the AttorneyGeneral’s argument, there could never be a reversalfor failure to disclose Brady information, as long asthere was a theory, no matter how preposterous, thatunder some theoretical set of facts, not supported bythe record, the undisclosed material might not beexculpatory." Opp. 7. Unburdened by record citationor authority, Valdovinos’s argument fails to explainwhat is "preposterous" about any of petitioner’spoints. Counsel said only that he did not becomeaware of the letter until the defense investigatorshowed it to him in 2004. ER 157. Counsel saidnothing about its contents or what he already knewat trial about a "drug killing." Such silence is tellingbecause it is well established that no Brady violationoccurs if counsel knew of the suppressed informationor even if he could have learned it on his own. Pet.16-17 (cases cited). Rather than defend counsel’sstudiously unrevealing declaration, Valdovinosignores it.

Valdovinos writes, "Instead of turning thatmaterial over, as required by Brady, the prosecutionburied the letter and allowed its witnesses to falselyclaim that the prosecution had no evidence that thiswas a drug-related murder." Opp. 8. The argumentfails because it assumes that the prosecutionpossessed the letter at the time of trial. Valdovinos

fails to rebut the State’s explanation of why thatassumption is unwarranted. Pet. 17 n.6.

Stressing testimony from prosecution witnessesand argument from the prosecutor that no evidenceshowed the killing to be drug related, Valdovinossays the letter would have discredited that argument.Opp. 8-9. But Valdovinos ignores the fact thatdefense counsel effectively rebutted the argumentwithout the letter, arguing to the jury that the victimwas a drug dealer and drug user and that Lopez wasan armed drug dealer. App. 73a-74a (district court’sopinion). Regardless, Valdovinos himself actedexactly like a "hit man" in a drug killing. Pet. 22.For that reason as well, additional evidence that thekilling was a drug killing would not have helped him.Likewise, the letter was not material evidence, so itsnondisclosure entitled Valdovinos to no relief underBrady.

B. The Mongia Photograph

The State explained that Valdovinos neverestablished that the prosecution failed to disclose thephotograph showing Jose Mongia in a cowboy hat.Pet. 15. Valdovinos responds by claiming that, in thestate appeal, the State incorrectly argued and thestate appellate court incorrectly found that onlyValdovinos had worn a cowboy hat. Opp. 9.Valdovinos takes these comments out of context. Butit is unnecessary to address them further because hisargument fails regardless. Arguments or remarks inthe state appeal about the significance of the shooterwearing a cowboy hat say nothing about the evidencedisclosed to the defense at trial. If the prosecutionhad not disclosed the Mongia photograph, trialcounsel would have said so in his declaration insupport of Valdovinos’s habeas traverse, just ascounsel said the prosecution never disclosed the

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anonymous letter blaming Balemas for the killing.ER 157. Valdovinos ignores this point. So did theNinth Circuit.

Seeking to rebut the State’s demonstration thatthe Mongia photograph added notching of significance,Valdovinos says the photo showed that he was notthe only one wearing a cowboy hat. Opp. 10.Valdovinos ignores the undisputed evidence at trialshowing the same thing. Pet. 15. He also ignores thefact that none of the three persons who identifiedhim as the shooter did so because he was wearing acowboy hat. Pet. 15. If anything, they made theidentifications in spite of that fact. Pet. 15. Becauseit made no difference that the shooter wore a cowboyhat, the Mongia photo made no difference either.

C. The Photo Lineups

The Ninth Circuit said "It]he photo lineupevidence rendered the [in-.court eyewitness]identifications questionable." App. 21a. By assessingthe in-court identifications in light of the photolineups themselves, the Ninth Circuit incorrectlyassumed that the jury had been unable to assess theidentifications in that way, when in fact the jury wasable to do so because the prosecution disclosed thelineups at trial, albeit belatedly. Pet. 18. Notingthat an instruction had drawn the jury’s attention tothe untimely disclosure and that defense counselexcoriated the police about it, the State’s petitionexplained how the belated disclosure may actuallyhave helped the defense. Pet. 19.

Valdovinos says that the State’s argument is"not based on the record or the Ninth Circuit opinionwhich specifically describes the belated[ly] disclosedexculpatory photo lineups as ’suppressed evidencerevealed during trial.’ App. 19a." Opp. 10-11. He ismistaken. The Ninth Circuit did not describe the

photo lineups as "suppressed evidence revealedduring trial." The court applied that description tothe gun and drugs found in Lopez’s apartment. App.19a. In any event, the Ninth Circuit’s analysis (suchas it was) was consistent with nondisclosure, ratherthan belated disclosure (as explained above), sowhatever description the court may have used at anearlier part of its opinion is irrelevant.

Valdovinos says the belated disclosure"prevented any opportunity for an independent line-up, or even cross-examination, to check specificrecollections at a blackboard preliminary hearing."Opp. 11. The district court rejected this argument.App. 68a-69a. It observed that Valdovinos "does notstate how he could have more effectively cross-examined either Diaz or Castro than he did at thetrial[,]" App. 68a, and he "does not explain howknowing of the photo lineups would have helped himobtain a blackboard preliminary hearing; hisargument for the blackboard hearing was based uponhis assumption that neither Castro nor Diaz hadseen a photo lineup," App. 69a. The district courtalso found that the record "belied" Valdovinos’scontention that "the witnesses’ identification of himat the preliminary hearing were tainted by theundisclosed photo lineups .... " App. 69a. The NinthCircuit did not dispute any of these district courtfindings. Valdovinos ignores those findings and theirtacit acceptance by the Ninth Circuit. Likewise, hefails to show that the state courts unreasonablyresolved the claim against him.

D. Lopez’s Gun and Drugs

The Ninth Circuit accepted the state appellatecourt’s holding that the belated ~disclosure of Lopez’sgun and drugs was not a Brady violation in itself.App. 20a. However, the Ninth Circuit said that "the

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failure to disclose the gun and drugs found in Lopez’spossession . . . only further solidifies our finding ofcollective prejudice." App. 22ao The State pointedout that the Ninth Circuit "appears to haveconsidered the belated disclosure of the evidence attrial as if the evidence was never disclosed" andfailed to explain how the error "solidi fie[d]" prejudice.Pet. 21.

On the first point, Valdovinos again accuses theState of "ignor[ing] the panel’s description of thisinformation as ’suppressed evidence revealed duringtrial’ (App. 19a) .... " Opp. 12. The State ignoredthat language because the Ninth Circuit did, too,when it actually analyzed the error. At that laterpoint, the court described the error as "the failure todisclose the gun and drugs. " App. 22a.Notwithstanding its earlier description, then, thecourt lost sight of what the alleged Brady erroractually was. By failing to explain how the belateddisclosure added prejudice, the court made only moreclear that it misunderstood the nature of the error.

Valdovinos argues that the belated disclosure attrial prevented the defense from using informationabout the drugs and gun to cross-examine Lopez, whoabsconded after testifying at the preliminaryhearing. Opp. 13-14. The state appellate court (App.99a), the district court (App. 70a), and the NinthCircuit (App. 20a) all rejected this argument. Asindicated by those courts, defense counsel’s argumentto the jury about the favorable treatment Lopezreceived from law enforcement after the discovery ofthe gun and drugs was no less effective thananything defense counsel would have said to the juryif he had been able to confront Lopez with the gunand drugs at the preliminary hearing. Valdovinosignores the unanimity of opinions on the point. He

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fails to show the state courts acted unreasonably inrejecting his arguments.

CONCLUSION

The petition for certiorari should be granted.

Dated: September 8, 2010

Respectfully submitted

EDMUND G. BROWN JR.Attorney General of CaliforniaDANE R. GILLETTEChief Assistant Attorney GeneralDONALD E. DE NICOLADeputy State Solicitor GeneralGERALD A. ENGLERSenior Assistant Attorney GeneralPEGGY S. RUFFRASupervising Deputy Attorney General

JEREMY FRIEDLANDERDeputy Attorney GeneralCounsel of RecordCounsel for Petitioner

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