FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ALVARO QUEZADA, No. 08-55310
Petitioner-Appellant, D.C. No.
v. CV-04-07532-
A. K. SCRIBNER, RSWL-MLG
Respondent-Appellee.
ORDER
Appeal from the United States District Court
for the Central District of California
Ronald S.W. Lew, Senior District Judge, Presiding
Argued and Submitted
June 10, 2010—Pasadena, California
Filed July 16, 2010
Before: Dorothy W. Nelson and Ronald M. Gould,
Circuit Judges, and James S. Gwin, District Judge.*
COUNSEL
Argued by Karyn H. Bucur, Esq., Laguna Hills, California,
for petitioner-appellant Alvaro Quezada.
Argued by Colleen Tiedemann, Deputy Attorney General,
Los Angeles, California, for respondent-appellee A.K. Scrib-
ner. Stephanie A. Miyoshi, Deputy Attorney General, filed the
briefs.
*The Honorable James S. Gwin, United States District Judge for the
Northern District of Ohio, sitting by designation.
10279
10280 QUEZADA v. SCRIBNER
ORDER
On July 27, 2007, Alvaro Quezada1 filed a first amended
petition for a writ of habeas corpus pursuant to 28 U.S.C.
§ 2254. This amended petition included a claim that the gov-
ernment withheld evidence of compensation paid to a govern-
ment witness in violation of Brady v. Maryland, 373 U.S. 83
(1963). On November 20, 2007, the district court adopted the
Report and Recommendation of the Magistrate Judge and
denied Quezada’s First Amended Petition, stating:
Petitioner has provided no factual basis to support
his accusations, instead relying primarily on a the
[sic] Los Angeles County grand jury report from
1990. . . . Petitioner argues that “the circumstances
of Mr. Aflague’s sudden appearance, his refusal to
discuss other cases and the benefits he may have
received from those cases, viewed in light of the
transcripts of his prior testimony, place him squarely
within the description of the corrupt and misleading
informant system described in that report.”
Petitioner’s argument is based on nothing more than
conjecture and speculation. . . . Petitioner . . . fails
to provide any support for his contention that “Af-
lague clearly received substantial benefits for his
cooperation with police,” beyond the bald assertion
that Aflague’s “allegedly ‘free’ ” testimony was
“highly suspect.”
Quezada filed a timely appeal.
On November 12, 2009, after the parties filed their briefs,
Quezada filed a motion to remand based on newly discovered
1
The record indicates disagreement about whether the Petitioner’s last
name is spelled “Quezada” or “Quesada.” In conformity with the judg-
ment of the district court, we refer to Petitioner as “Quezada.”
QUEZADA v. SCRIBNER 10281
evidence. At a November 2, 1999 hearing, Quezada requested
information about the compensation paid to Joseph Aflague,
a government witness in his state murder and conspiracy trial.
The government informed him that Aflague received reloca-
tion expenses in one other case, and no payment in this case.
Quezada now claims to have discovered evidence in the
spring of 2009 that Aflague received substantial compensa-
tion and that none of it was related to the other case. Quezada
seeks a remand so the district court can consider whether the
prosecution violated Brady by withholding and misrepresent-
ing evidence of compensation which could have been used to
impeach Aflague, a key government witness.
In Townsend v. Sain, the Supreme Court identified six cir-
cumstances in which a federal court must grant an evidentiary
hearing to a habeas applicant. 372 U.S. 293, 313 (1963) (hold-
ing that the federal court must grant an evidentiary hearing
where “(4) there is a substantial allegation of newly discov-
ered evidence”), overruled on other grounds by Keeney v.
Tamayo-Reyes, 504 U.S. 1 (1992). “Assuming that the peti-
tioner has not failed to develop his claim and can meet one of
the Townsend factors, ‘[a]n evidentiary hearing on a habeas
corpus petition is required whenever petitioner’s allegations,
if proved, would entitle him to relief.’ ” Insyxiengmay v. Mor-
gan, 403 F.3d 657, 670 (9th Cir. 2005) (citing Turner v. Mar-
shall, 63 F.3d 807, 815 (9th Cir. 1995)).
To prevail, Quezada must make a substantial allegation of
newly discovered evidence, and he must allege facts that, if
proven, would entitle him to relief. Townsend, 372 U.S.
312-13. He has. Quezada presents evidence that could not
have been discovered earlier through the exercise of reason-
able diligence. Before trial, Quezada requested information
about the financial remuneration that Aflague received from
the government. Around that time, Aflague was cooperating
with the prosecution in two other cases. He testified in
December 1997 in People v. Padilla (Case No. BA 142910)
and in May 1998 in People v. Eulloqui (Case No. BA
10282 QUEZADA v. SCRIBNER
160668). Quezada’s counsel interviewed Aflague and asked
him about his relationship with the police department and the
money he received as a result of his testimony in this and
other cases. Aflague refused to answer. Quezada’s counsel
then asked the court for assistance obtaining this information.
The California Superior Court directed the prosecutor to find
out anything about Aflague’s relationship or ongoing contact
with law enforcement, and indicated that any rewards, sup-
port, or benefits might be relevant, “to the extent Mr. Aflague
might feel he is generating support or building up future
brownie points.”
The prosecutor represented to the court that Aflague
received no benefits for his testimony in this case, and reloca-
tion assistance for his testimony in the Eulloqui case. Aflague
testified that no one promised him anything for his testimony
in this case, and that he got “something” from the district
attorney’s office to relocate because of his testimony in a sep-
arate case.
Quezada now sets forth substantial allegations of newly
discovered facts pursuant to Townsend. 372 U.S. at 313.
Quezada presents evidence that Aflague reported that from
1997 to 2007 he received between $9,000 and $25,000 for his
cooperation with law enforcement. In a December 11, 2008,
declaration, Aflague stated that, contrary to what was previ-
ously represented to the court, the relocation funds and com-
pensation he received were not for his testimony in the
Eulloqui case. He also indicated that he lied about his com-
pensation while testifying in another case in 2007, because he
was angry and frustrated with the defense attorney in that
case. This satisfies the fourth prong of Townsend. See id.
“In habeas proceedings, an evidentiary hearing is required
when the petitioner’s allegations, if proven, would establish
the right to relief.” Totten v. Merkle, 137 F.3d 1172, 1176 (9th
Cir. 1998). The evidence allegedly withheld by the state in
this case is favorable impeachment evidence involving a key
QUEZADA v. SCRIBNER 10283
government witness. The evidence indicates that the govern-
ment never informed Quezada or his counsel of substantial
compensation that the government paid to Aflague, the only
witness that linked Quezada directly to the murder of Bruce
Cleland. Quezada has set forth a colorable claim that this evi-
dence “could reasonably be taken to put the whole case in
such a different light as to undermine confidence in the ver-
dict.” Banks v. Dretke, 540 U.S. 668, 698 (2004) (quoting
Kyles v. Whitley, 514 U.S. 419, 435 (1995)). The evidence
also indicates that this witness, Joseph Aflague, has previ-
ously perjured himself, in this case or another case, regarding
the compensation that he received from the government. “Evi-
dence of bias and prejudice is certainly material for impeach-
ment, but lies under oath to conceal bias and prejudice raise
the impeachment evidence to such a level that it is difficult to
imagine anything of greater magnitude that would undermine
confidence in the outcome of any trial.” Bagley v. Lumpkin,
798 F.2d 1297, 1301 (9th Cir. 1986).
The government does not at this point deny Quezada’s alle-
gations, but instead asserts that remand is inappropriate
because Quezada’s Brady claim is procedurally barred. The
government argues that Quezada must seek leave to file a suc-
cessive habeas petition. There is no support for this conten-
tion. Townsend mandates an evidentiary hearing. See 372 U.S.
at 313. Additionally, the government argues that Quezada’s
claim is time-barred. But AEDPA’s one-year limitation does
not run until “the date on which the factual predicate of the
claim or claims presented could have been discovered through
the exercise of due diligence.” 28 U.S.C. § 2244(d)(1)(D). As
discussed above, Quezada requested compensation informa-
tion from the court, from the government and from Aflague.
Quezada’s attempts to acquire this information were repeat-
edly rebuffed by silence on the part of the informant, or an
outright denial of the existence of missing compensation
information by the government. On December 11, 2008,
Aflague changed his testimony. Quezada discovered this in
the spring of 2009. On the record before us it is clear that
10284 QUEZADA v. SCRIBNER
Quezada did exercise reasonable diligence yet was unable to
acquire this information earlier. Thus, AEDPA’s statute of
limitations does not present a bar to the district court’s consid-
eration of this newly discovered evidence on remand.
We therefore remand to the district court with instructions
to conduct an evidentiary hearing to determine the admissibil-
ity, credibility, veracity and materiality of the newly discov-
ered evidence. See Harris v. Vasquez, 928 F.2d 891, 893 (9th
Cir. 1991) (order). After conducting an evidentiary hearing,
the district court will be in an appropriate position to deter-
mine whether the new facts render Quezada’s Brady claim
unexhausted. The district court should determine whether the
new facts “fundamentally alter the legal claim already consid-
ered by the state courts.” Vasquez v. Hillery, 474 U.S. 254,
260 (1986).
If the district court concludes that the new facts render
Quezada’s Brady claim unexhausted, the district court should
consider whether Quezada is procedurally barred from pro-
ceeding in state court. See Coleman v. Thompson, 501 U.S.
722, 731-32 (1991); Loveland v. Hatcher, 231 F.3d 640,
643-44 (9th Cir. 2000). If Quezada is not procedurally barred,
the court should stay and abey federal proceedings so that
Quezada may exhaust his claims in state court. See Rhines v.
Weber, 544 U.S. 269, 275-76 (2005). If Quezada’s claim is
procedurally barred, the district court should proceed to deter-
mine whether Quezada can show cause and prejudice or man-
ifest injustice to permit federal review of the claim. Strickler
v. Greene, 527 U.S. 263, 282 (1999).
REMANDED.