FILED
NOT FOR PUBLICATION SEP 23 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
WILLIS RANDOLPH, No. 08-16275
Petitioner - Appellant, D.C. No. 1:93-cv-05604-LJO
v.
MEMORANDUM *
PEOPLE OF THE STATE OF
CALIFORNIA; et al.,
Respondents - Appellees.
Appeal from the United States District Court
for the Eastern District of California
Lawrence J. O’Neill, District Judge, Presiding
Argued and Submitted August 12, 2010
San Francisco, California
Before: GRABER, CALLAHAN, and BEA, Circuit Judges.
Petitioner Willis Randolph appeals the district court’s denial of his petition
for a writ of habeas corpus, which challenged his 1989 conviction for first degree
murder and use of a firearm. Randolph contends that his jailhouse cell mate,
Ronnie Moore, should not have been permitted to testify at trial about
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
incriminating statements Randolph had made about the murder, because Moore
was a state agent at the time of the confession, and Randolph had defense counsel
before he talked with Moore. Moore’s testimony is claimed to have violated
Randolph’s Sixth Amendment rights under Massiah v. United States, 377 U.S.
201, 206 (1964), which prohibits the government from deliberately eliciting
incriminating statements from a criminal suspect once the right to counsel has
attached. Randolph also contends that his due process rights under Brady v.
Maryland, 373 U.S. 83, 87 (1963), were violated because the government did not
disclose the potentially exculpatory fact that Moore’s testimony could be
suppressed under Massiah.
Both claims turn on whether Moore was a state agent when Randolph
confessed to Moore. The district court found that Moore was not. We hold there
were ample facts upon which the district court could base its finding. Because the
district court did not clearly err, we affirm the denial of Randolph’s habeas
petition.1
Because Randolph’s petition was filed prior to the effective date of the Anti-
Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”), we apply pre-
1
Because the parties are familiar with the facts of the case, we will repeat
them here only to the extent necessary to explain our decision.
2
AEDPA law. Alcala v. Woodford, 334 F.3d 862, 868 (9th Cir. 2003). Under pre-
AEDPA law, we review the denial of petitioner’s habeas petition de novo, but we
review the district court’s finding of facts for clear error. Turner v. Calderon, 281
F.3d 851, 864 (9th Cir. 2002).
It is undisputed that Randolph made several incriminating statements to
Moore between August 17 and August 24, 1989. The district court had a sufficient
basis for its finding that the first meeting between Moore and prosecutors was on
August 24, 1989. The district court also had sufficient evidence to conclude that
Randolph made incriminating statements to Moore before August 17, 1989.
Finally, the district court had ample basis for its finding that Moore’s post-
1997 statements were not credible. Moore has consistently stated that he does not
remember the events of 1989 very well, and that his memory is not very good in
general—due, in part, to his past abuse of marijuana.
Because the district court did not clearly err in finding that Moore was not a
state agent when Randolph confessed to him, Randolph’s Massiah and Brady
claims were properly denied.
AFFIRMED.
3