Maxwell v. Roe

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

BOBBY JOE MAXWELL,  No. 06-56093
Petitioner-Appellant, D.C. No.
v.  CV-02-09555-
ERNIE ROE, JVS(FMO)
Respondent-Appellee.
 OPINION

Appeal from the United States District Court
for the Central District of California
James V. Selna, District Judge, Presiding

Argued and Submitted
December 7, 2009—Pasadena, California

Filed November 30, 2010

Before: Harry Pregerson and Richard A. Paez,
Circuit Judges, and James C. Mahan, District Judge.*

Opinion by Judge Paez

*The Honorable James C. Mahan, United States District Judge for the
District of Nevada, sitting by designation.

18949
 MAXWELL v. ROE 18953

COUNSEL

Verna Wefald, Pasadena, California, for plaintiff-appellant
Bobby Joe Maxwell.

Edmund G. Brown, Jr., Attorney General of the State of Cali-
fornia, Dane R. Gillette, Chief Assistant Attorney General,
18954 MAXWELL v. ROE
Pamela C. Hamanaka, Senior Assistant Attorney General, and
Jaime L. Fuster, Deputy Attorney General, Kenneth C. Byrne,
Supervising Deputy Attorney General, Los Angeles, Califor-
nia, for respondent-appellee Ernie Roe, Warden.

OPINION

PAEZ, Circuit Judge:

Bobby Joe Maxwell was arrested in April 1979 and
charged with murdering ten men in downtown Los Angeles,
California. The media dubbed the murders for which Maxwell
was charged the “Skid Row Stabber” killings. The prosecu-
tion’s best physical evidence linking Maxwell to any of the
crime scenes was a palm print on a public bench found near
the body of one of the victims. The bench, however, was
located in an area Maxwell frequented, and the prosecution
was unable to isolate the age of the print. Lacking solid physi-
cal evidence, the prosecution rested its case on the testimony
of jailhouse informant Sidney Storch. Storch testified that
while he and Maxwell shared a cell, Maxwell confessed.
Maxwell maintained that he was innocent and that Storch was
lying throughout the nine month trial. The jury ultimately
convicted Maxwell of two of the ten counts of first degree
murder and one count of robbery. Maxwell was sentenced to
life in prison without the possibility of parole. In exchange for
his testimony at Maxwell’s trial, Storch was released from
custody one year and eight months early.

Maxwell appeals the district court’s denial of his habeas
petition. Maxwell’s appeal and petition are governed by the
Anti-Terrorism and Effective Death Penalty Act (“AEDPA”).
He raises two critical issues on appeal. First, he alleges that
he was convicted on the basis of false material testimony by
the prosecution’s key informant witness, Sidney Storch, in
violation of his due process rights. Second, he contends that
 MAXWELL v. ROE 18955
the prosecution withheld material information concerning the
deal that Storch received in exchange for his testimony and
Storch’s prior informant history in violation of Brady v.
Maryland, 373 U.S. 83, 87 (1963).1 Pursuant to 28 U.S.C.
§ 1291, we have jurisdiction over this timely appeal. We
reverse in part and affirm in part.

I. Factual Background

David Martin Jones was fatally stabbed on November 9,
1978, as he bedded down at night at the Los Angeles down-
town public library. Shortly before Jones was stabbed, a man
approached three homeless men, all friends of Jones’s, who
were also spending the night outside the library. The prosecu-
tion contended that this man was Jones’s killer. The three
homeless men would later testify that the alleged killer was a
large black man, who said in a soft, low voice that his name
was Luther and he was from Puerto Rico. One witness said he
had a Spanish or Carribean accent and another said he did not.
One of the witnesses, Thomas Jones, later testified that he
looked at the killer’s face in the darkness for about half a min-
ute, and all three described the killer’s gait as unusual and
slow. After speaking with the three witnesses, the man walked
away from the three homeless men toward where Jones lay.
Shortly thereafter Jones shouted that he had been stabbed. The
three men ran to Jones, who was gasping and blood soaked.
When Thomas Jones asked Jones who stabbed him, Jones
replied, “The guy that just left.”
1
Maxwell also claims: (1) that the trial court violated his confrontation
clause and due process rights by admitting the preliminary hearing testi-
mony of deceased witness Thomas Jones and excluding voiceprint analy-
sis evidence relevant to Jones’s testimony; and (2) that the trial court
violated his due process rights by excluding third-party culpability evi-
dence suggesting that Gary Stinson committed the murders. We have
examined Maxwell’s arguments and the record, and we conclude that the
state appellate court neither made an unreasonable determination of the
facts nor misapplied clearly established federal law in rejecting Maxwell’s
challenges to these evidentiary rulings. We, therefore, affirm the district
court’s rulings on these issues.
18956 MAXWELL v. ROE
Frank Garcia’s body was discovered on a park bench at the
Los Angeles City Hall Mall on Thanksgiving morning,
November 28, 1978. His empty wallet lay beside his body on
the park bench. Garcia had been stabbed 20 times. Roughly
three months later, in early January 1979, graffiti was found
on a restroom wall of the Greyhound Bus Station which said:
“My name is Luther, I kill wino’s to put them out of their mis-
ery.”

In April 1979, Maxwell was arrested. A knife consistent in
size with Jones’s stab wound and Garcia’s stab wounds was
found on Maxwell’s person as was a Bic cigarette lighter.
Police seized a sweatshirt, a cap, tennis shoes, and a log book
from Maxwell’s sister’s home. On the log book Maxwell had
written “Satan, praise be unto you.”

At a lineup where Maxwell was instructed to say “my name
is Luther,” none of the three homeless men who saw Jones’s
alleged murderer identified Maxwell. In fact, one witness
said, “you’ve got everyone up there that doesn’t look like
him.” At the preliminary hearing six months later, however,
Thomas Jones heard Maxwell speak in court, and at that time
he identified Maxwell’s voice as that of the killer.2 One of the
other witnesses, upon seeing Maxwell at the preliminary hear-
ing, wrote the prosecutor a letter in which he said, “I sure
hope you have the right guy, because if you do, he sure did
change a lot in the last six months.” As for the knife, Max-
well’s sister testified that Maxwell frequently carried a knife,
and a friend of Maxwell’s testified that he once saw Maxwell
with a knife but that “generally, people in that neighborhood
always carry knives.”

Muddy shoeprints were found near Garcia’s body, and the
prosecution’s expert concluded that the prints were consistent
with a pair of Maxwell’s shoes and with measurements made
of his stride. A defense expert examined the muddy shoeprints
2
Thomas Jones died before Maxwell’s trial began.
 MAXWELL v. ROE 18957
and concluded that the prints were too indistinct to show any-
thing and it was impossible to make a gait comparison with-
out knowing the speed of the person who left the prints.
Garcia’s wife testified that the Bic lighter looked like one
Garcia had, but she was not shown the lighter in a lineup.
Garcia’s stepson was unable to identify the lighter in a lineup
of similar lighters, and two police detectives said there was
nothing unusual about the lighter to distinguish it from any
other Bic lighter. Blood samples and cigarette butts from the
Jones crime scene could not be linked to Maxwell.

II. Procedural History

Maxwell’s trial began in January 1984 and lasted nine
months. At trial, Storch testified that he shared a cell with
Maxwell in 1983 for about three weeks.3 According to Storch,
one day while sitting together in their cell, Maxwell read a
newspaper article about the Skid Row Stabber case, which
mentioned that a palm print had been found on a public bench
near one of the crime scenes. Upon reading this article, Storch
testified, Maxwell confessed that he had made a “mistake” by
not wearing gloves. Specifically, Storch testified on direct
examination:

Earlier in the evening there was a newspaper article
that had [Maxwell’s] name in it that was passed
down from another cell. . . . [Maxwell] pointed to
3
Maxwell disputes this testimony. Maxwell alleges that the two shared
a cell on November 30, 1983, for four hours, not three weeks, and that the
jail housing records confirm his account of events. Although the housing
records could be construed to support Maxwell’s account of events,
because the state submitted evidence that those records were unreliably
kept in 1983 and suffered from frequent technical glitches, we cannot say
that the superior court made an unreasonable determination of the facts
when it found the housing records were inconclusive. See Wood v. Allen,
130 S.Ct. 841, 848 (2010) (“[A] state-court factual determination is not
unreasonable merely because the federal habeas court would have reached
a different conclusion in the first instance.”).
18958 MAXWELL v. ROE
one particular description in the article . . . he told
me that in this particular instance that the police had
said they found a palmprint of his in an area near one
of the people he was accused of having harmed. He
felt that he wasn’t prone to that kind of mistake[ ],
that he didn’t make that kind of mistake because he
wore gloves with the fingers cut off so as to keep his
hands warm and leave his fingers free. . . .

The prosecution argued during closing arguments that
Storch’s testimony proved that Maxwell had admitted respon-
sibility for each of the ten murders and that he was the Skid
Row Stabber.

After the lengthy trial, the jury returned a verdict of guilty
on two counts of murder and one count of robbery. Maxwell
was found not guilty on three counts of murder and the jury
was unable to reach a verdict on five counts of murder and
three counts of robbery. The jury also found true two special
circumstance allegations, namely multiple murder and murder
committed while engaged in a robbery of the victim. The trial
court sentenced Maxwell to life imprisonment without the
possibility of parole on both counts of conviction with the
sentences to run concurrently.

Maxwell appealed his convictions and sentence to the Cali-
fornia Court of Appeal. In March 1991, the California Court
of Appeal affirmed the trial court’s judgment in full and
shortly thereafter denied Maxwell’s petition for rehearing.
Maxwell then filed a petition for review with the California
Supreme Court, which the court denied in June 1991.

In October 1991, Maxwell filed a habeas corpus petition in
Los Angeles Superior Court, which was subsequently denied
in August 1993. In October 1995, Maxwell filed a habeas cor-
pus petition in the California Supreme Court. In May 1996,
the California Supreme Court issued an order to show cause,
returnable to the Los Angeles County Superior Court, on the
 MAXWELL v. ROE 18959
issue of whether Maxwell was entitled to relief based on the
allegation that jailhouse informant Sidney Storch gave false
testimony at trial.

The Los Angeles County Superior Court held an evidenti-
ary hearing on the question of whether Storch gave false testi-
mony. That hearing extended over two years, from August
1997 to November 1999. In February 2000, the Superior
Court issued a 34-page written ruling in which it concluded
that while Storch might have proceeded to become an estab-
lished liar and sophisticated jailhouse informant, Storch had
not lied at Maxwell’s trial.

On April 20, 2001, Maxwell filed a second habeas corpus
petition in the California Supreme Court, which the court
denied on December 19, 2001. One Justice dissented from
denial, writing that she was “of the opinion an order to show
cause should issue.”

On December 16, 2002, Maxwell filed a petition for writ of
habeas corpus in federal district court. The district court con-
cluded that Maxwell’s delay in filing his second habeas peti-
tion in the California Supreme Court was reasonable. The
court, therefore, concluded that AEDPA’s one-year statute of
limitations was tolled and Maxwell’s petition was timely.
Addressing the merits, the district court concluded that the
state court had not violated Maxwell’s confrontation clause
and due process rights by admitting the preliminary hearing
testimony of deceased witness Thomas Jones and by exclud-
ing other evidence relevant to Thomas Jones’s testimony; that
the state court did not violate Maxwell’s due process rights by
excluding third-party culpability evidence; and that Max-
well’s due process rights were not violated by the prosecu-
tion’s knowing use of perjured testimony from Storch and
other jailhouse informants. With respect to Storch, the district
court concluded that the state court’s finding that the housing
records were ambiguous was not objectively unreasonable;
that Storch’s lies about the deal he received from the prosecu-
18960 MAXWELL v. ROE
tion and about his informant history did not prejudice Max-
well; and that the prosecution did not violate Brady because
any withheld information was neither material nor prejudicial.
Accordingly, judgment denying the petition with prejudice
was entered in May 2006. Maxwell timely appealed.

III. Standard of Review

We review de novo the district court’s denial of a state pris-
oner’s habeas petition. Parle v. Runnels, 505 F.3d 922, 926
(9th Cir. 2007). Maxwell’s petition is governed by AEDPA.
Under AEDPA, a state prisoner is entitled to relief if the state
court adjudication of a claim resulted in a decision that (1)
“was contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the Supreme
Court of the United States,” or (2) “was based on an unrea-
sonable determination of the facts in light of the evidence
presented in the State court proceedings.” 28 U.S.C.
§ 2254(d). “Clearly established” federal law for purposes of
AEDPA § 2254(d)(1) consists only of Supreme Court hold-
ings; however, circuit court precedent may be “persuasive” in
demonstrating what law is “clearly established” and whether
a state court applied that law unreasonably. Clark v. Murphy,
331 F.3d 1062, 1069 (9th Cir. 2003). As we explain below,
when a state court adjudication is based on an antecedent
unreasonable determination of fact, we proceed to consider
the petitioner’s related claim de novo. Detrich v. Ryan, 619
F.3d 1038, 1059-1060 (9th Cir. 2010).

We review the state court’s last reasoned decision. Barker
v. Fleming, 423 F.3d 1085, 1091-92 (9th Cir. 2005) (citing
Ylst v. Nunnemaker, 501 U.S. 797, 803-04 (1991)). Here, the
California Supreme Court denied direct review and denied the
habeas petition Maxwell filed after the evidentiary hearing. In
other words, the California Supreme Court never issued a rea-
soned decision on any of Maxwell’s federal constitutional
claims. Therefore, we review the Superior Court’s reasoned
order that follows completion of the evidentiary hearing in
 MAXWELL v. ROE 18961
considering Maxwell’s due process claim and the California
Court of Appeal’s opinion with respect to most other claims.
See Ylst, 501 U.S. at 803. No California court has offered a
reasoned decision for denial of Maxwell’s Brady claim; the
California Supreme Court summarily denied it. In such a situ-
ation, we review the factual record de novo to determine
whether the California Supreme Court’s summary denial of
the claim constituted an unreasonable application of Brady.
See Greene v. Lampart, 288 F.3d 1081, 1088-89 (9th Cir.
2002).

IV. Timeliness

The state challenges Maxwell’s habeas petition as
untimely. Under AEDPA, a state prisoner has one year from
the date when his conviction becomes final to file a habeas
corpus petition. 28 U.S.C. § 2244(d)(1)(A). The limitations
period is tolled while “a properly filed application for State
post-conviction or other collateral review . . . is pending.” Id.
§ 2244(d)(2). In the usual case, an application for state post-
conviction review remains “pending” after a lower court
denies a prisoner’s petition for state post-conviction review
and the prisoner files a notice of appeal, provided that the fil-
ing of the notice of appeal is timely under state law. See
Carey v. Saffold, 536 U.S. 214, 219 (2002); see also Banjo v.
Ayers, 614 F.3d 964, 968-969 (9th Cir. 2010).

California’s system of habeas review, however, is unusual
in that there is no way for a prisoner seeking post-conviction
relief to formally appeal a lower court’s decision. See Carey,
536 U.S. at 221. Instead, each level of the California court
system has original jurisdiction over habeas petitions, and a
petitioner, like Maxwell, faced with an unfavorable result in
a lower court must file an original petition with the higher
state court. See Cal. Const., art. VI, § 10 (“The Supreme
Court, courts of appeal, superior courts, and their judges have
original jurisdiction in habeas corpus proceedings.”); see also
Carey, 536 U.S. at 224 (explaining that in California “the
18962 MAXWELL v. ROE
only avenue for a prisoner to challenge the denial of his appli-
cation in the superior court is to file a ‘new petition’ in the
appellate court”).

The United States Supreme Court has determined that Cali-
fornia’s “special system governing appeals” of habeas peti-
tions is “sufficiently analogous to appellate review systems in
other States” that AEDPA’s statute of limitations is tolled
during the time between the unfavorable decision on an origi-
nal petition in a lower court and the filing of a subsequent
petition. See Evans v. Chavis, 546 U.S. 189, 192-93 (2006).
This is commonly referred to as “gap tolling” or “interval toll-
ing.” See Gaston v. Palmer, 417 F.3d 1030, 1041 (9th Cir.
2005) (citing Carey, 536 U.S. at 223); Chaffer v. Prosper, 592
F.3d 1046, 1048 (9th Cir. 2010) (per curiam). AEDPA’s stat-
ute of limitations will be tolled, however, only if the prisoner
timely filed his subsequent petition in a higher state court.

[1] Under California law, a habeas petition is timely if it
is filed within a “reasonable time.” Evans, 546 U.S. at 198;
see also Waldrip v. Hall, 548 F.3d 729, 734 (9th Cir. 2008).
California has not, however, provided guidance as to what
constitutes a “reasonable time.” Evans, 546 U.S. at 198. The
State argues here that Maxwell’s delay from the time that the
Superior Court denied his petition, February 10, 2000, until
the date he next filed a petition with the California Supreme
Court, April 20, 2001, was not reasonable and, therefore,
AEDPA’s limitations period should not be tolled.

A federal habeas court must determine timeliness when
there is no clear indication by the state court. Id. Accordingly,
the district court considered the question and determined that
Maxwell’s delay in filing his petition with the California
Supreme Court was “reasonable” under California law and,
therefore, timely. We agree.

First, we note that it appears that the California Supreme
Court considered the petition on the merits, which at least
 MAXWELL v. ROE 18963
suggests it considered the petition timely. Although the Cali-
fornia Supreme Court denied Maxwell’s petition, one justice
dissented from the denial of rehearing and stated that she was
“of the opinion an order to show cause should issue.” The
California Supreme Court also did not cite to any case law in
support of the dismissal of the petition, as it often does when
rejecting an untimely petition. See, e.g., Cooper v. Brown, 510
F.3d 870 (9th Cir. 2007) (explaining that in that case the Cali-
fornia Supreme Court denied the petitioner’s claims as
untimely and cited to In re Clark, 855 P.2d 729 (Cal. 1993)
and In re Robbins, 959 P.2d 311 (Cal. 1998)). Although this
is not a dispositive statement of consideration on the merits,
and consideration on the merits does not “decide the ques-
tion” of whether the petition was timely, it is a factor we con-
sider. See Carey, 546 U.S. at 194 (explaining that we may
consider whether the California Supreme Court considered a
matter on the merits, but not take such consideration as “an
absolute bellwether” on the timeliness question).

Second, Maxwell has offered a compelling justification for
his delay in filing his second state petition. Under California
law, a petitioner must provide an explanation for any signifi-
cant delay in applying for habeas relief. In re Clark, 959 P.2d
at 738; see also Evans, 546 U.S. at 201 (holding that petition-
er’s “unexplained, hence unjustified, delay of at least six
months” was not reasonable for purposes of California law);
Chaffer, 592 F.3d at 1048 (denying a petition that included a
115-day gap between the filing of the first two habeas peti-
tions and 101-day gap between the second and third habeas
petitions in the California Supreme Court where the petitioner
“offered no justification for the delays as required under Cali-
fornia law”).

[2] Here, Maxwell had good reason for his delay in filing.
This was an unusual case. The original charge was for ten
counts of capital murder, and the case moved at an uncom-
monly slow pace due to its sheer magnitude. Maxwell was
arrested on April 4, 1979, but his trial did not begin until four
18964 MAXWELL v. ROE
years later in January 1984. Maxwell’s jury trial lasted nine
months. Maxwell’s direct appeal took another seven years. On
direct appeal, the combined Reporter’s and Clerk’s Tran-
script, including arguments, filled nearly 20,000 pages. Fol-
lowing his direct appeal, Maxwell filed a habeas corpus
petition in the superior court. That petition was accompanied
by 179 exhibits comprising more than 1700 pages in eight
volumes. That court issued an order to show cause, but denied
the petition without holding an evidentiary hearing. Thereaf-
ter, Maxwell filed a new habeas corpus petition in the Califor-
nia Supreme Court. It was not until twelve years after the jury
returned its guilty verdict that the California Supreme Court
on post-conviction review issued an order to show cause on
the issue of whether jailhouse informant Sidney Storch gave
false testimony. A year after that, the evidentiary hearing
regarding Storch began. The evidentiary hearing spanned over
two years and during that time numerous pleadings were filed,
more than thirty witnesses testified, and over fifty exhibits
were admitted. The record from the two-year hearing filled
ten volumes and thousands of pages. In short, the evidentiary
hearing in this case was astoundingly long, the record com-
plex and voluminous, and Maxwell’s claims were substan-
tially affected by the Storch evidence that was discovered
during the course of the hearing.

Furthermore, as Maxwell’s counsel explained to the district
court, the California Supreme Court petition raised two claims
directly related to the original claims concerning the use of
jailhouse informants, and these claims required her to conduct
significant legal research and to rewrite the petition to incor-
porate evidence that had come to light during the evidentiary
hearing. In particular, because Maxwell challenged the state
court’s factual finding and did so on the basis of evidence
presented over a two-year span, defense counsel—who was
representing Maxwell pro bono at the time4—had to review
4
Maxwell was no longer entitled to a court-appointed attorney at this
stage of the litigation.
 MAXWELL v. ROE 18965
all the new evidence in order to make the case that the Supe-
rior Court had erred in rejecting Maxwell’s claim based on
Storch’s testimony. Aside from conducting new research and
incorporating the new evidence into the habeas petition,
defense counsel explained to the district court that she spent
time determining which of the exhibits and “dozens and doz-
ens of pleadings” should be submitted to the state supreme
court in support of the petition. The magnitude of the task is
apparent in Maxwell’s petition to the California Supreme
Court: the petition spans over 160 pages and cites to the evi-
dentiary hearing record, the reporter’s transcript, and exhibits
from the evidentiary hearing over 500 times.

[3] We have carefully considered Maxwell’s arguments,
and we agree with the district court that based on the need to
review the voluminous record, to conduct legal research of
complex claims, to address the Superior Court’s lengthy deci-
sion, to incorporate the findings of the two-year evidentiary
hearing, and to redraft the original habeas corpus petition,
Maxwell’s delay was reasonable in this case. Furthermore,
one justice of the California Supreme Court dissented from
the denial of Maxwell’s petition. For all these reasons, and
based on the particular circumstances in this case, we agree
with the district court that Maxwell’s delay in filing his
habeas petition with the California Supreme Court was rea-
sonable and, therefore, that AEDPA’s statute of limitations
was tolled during the time between the Superior Court’s deci-
sion and his second petition to the California Supreme Court.
Maxwell’s federal habeas petition was therefore timely.

V. Discussion

A. Background

Maxwell’s conviction was based in large measure on the
testimony of the jailhouse informant Sidney Storch. To put
this case in context, we begin with a brief discussion of Storch
and the use of jailhouse informants in Los Angeles County in
18966 MAXWELL v. ROE
the 1980s. The facts about Storch are recounted from the state
court’s evidentiary hearing.

1. Sidney Storch

Sidney Storch had a long and public history of dishonesty,
starting with his discharge from the U.S. Army in 1964 for
being “a habitual liar.” By the time of Maxwell’s 1984 trial,
Storch was 37 years old and a reported long-time heroin
addict. He was a criminal recidivist, with four felonies and
approximately 13 arrests under his belt. His crime of choice
was forgery, and he was well-known with the Los Angeles
Police Department (“LAPD”) forgery division from both a
defense and prosecution standpoint. In 1981 and 1982, Storch
supplied information to the LAPD about forgery rings. Subse-
quently, in 1983, Storch was arrested by the Los Angeles
Police Department for, among other crimes, impersonating a
Central Intelligence Agency (“CIA”) officer and Howard
Johnson, the son of the well-known Howard Johnson hotel
chain. At the time he was apprehended and placed in a cell
with Maxwell, Storch was in possession of a false California
driver’s license, forged checks, and stolen credit cards. The
detective who arrested Storch characterized him as a “sophis-
ticated forger” and testified that he “would not trust anything
Sidney Storch said unless you could corroborate the informa-
tion with some source.”

Following Storch’s 1983 arrest, Storch’s public defender
negotiated a guilty plea deal whereby Storch’s five pending
cases would be consolidated for sentencing and the court
would impose a total combined sentence of 36 months in
prison. Storch, however, independently negotiated a sixteen-
month prison term, almost two years less than the deal his
public defender had been able to secure for him. In exchange
for his reduced prison term, Storch agreed to testify for the
prosecution at Maxwell’s trial.
 MAXWELL v. ROE 18967
Storch testified at Maxwell’s trial in 1984. Thereafter,
Storch testified for the Los Angeles County District Attor-
ney’s Office in no less than six cases, several of them high-
profile.5 By 1985 or 1986, Storch was classified as an infor-
mant or “K-9” and was housed in the K-9 module, otherwise
known as “informant’s row.” See Hall v. Dir. of Corrs., 343
F.3d 976, 978 (9th Cir. 2003) (per curiam) (explaining that
the jailhouse informant who fabricated material evidence in
that case was housed on “informant’s row”). By 1988, how-
ever, Storch’s informant days were over. Storch was caught
fabricating lies as he testified for the prosecution in the unre-
lated case People v. Sheldon Sanders, No. A039120 (L.A.
Super. Ct. April 25, 1988); as a result, he was marked by the
Los Angeles County District Attorney’s office as unreliable
and unusable and was later indicted for perjury.6
5
One 1989 Los Angeles Times article reported:
According to Storch’s testimony and statements to police, defen-
dants who made incriminating statements to him include: Bobby
Joe Maxwell, convicted in 1984 of two of the “Skid Row Stab-
ber” killings; Tracey Carter, accused of the 1987 robbery and
murder of a minister who had stopped to use a pay telephone in
South-Central Los Angeles, and Stewart Woodman, charged with
engineering the “Ninja”-style killing of Woodman’s parents in
the garage of their fashionable Brentwood condominium. Said
inmate Daniel Roach: “It seems that half the world just confesses
to Sidney Storch.”
Ted Rohrlich & Robert W. Stewart, Jailhouse Snitches: Trading Lies for
Freedom, L.A. Times, Apr. 16, 1989, at 1.
6
The audacious perjury of jailhouse informants like Storch motivated a
Los Angeles County grand jury investigation into the involvement of jail-
house informants in the criminal justice system in Los Angeles County. As
reported to the grand jury, Leslie Vernon White, a jailed informant, dem-
onstrated for the Los Angeles County Sheriff’s Department in 1988 the
ease with which he and others were able to obtain confidential information
and then fabricate confessions of fellow prisoners. Report of the 1989-90
Los Angeles County Grand Jury (hereinafter “Grand Jury Report”), June
26, 1990, at 16. Following Leslie Vernon White’s confirmation of the ease
with which informants could fabricate confessions, the California Attor-
ney General appointed a special counsel and began what was then the
18968 MAXWELL v. ROE
B. Due Process Concerns

Maxwell argues that his due process rights under the Four-
teenth Amendment were violated when he was convicted on
the false material testimony of jailhouse informant Sidney
Storch. In particular, Maxwell alleges that the Superior
Court’s factual determination that Storch testified credibly at
Maxwell’s trial was an unreasonable determination of the
facts and that admission of Storch’s false testimony preju-
diced his case.

[4] In Napue v. Illinois, 360 U.S. 264, 269 (1959), the
Supreme Court explained that “it is established that a convic-
tion obtained through use of false evidence, known to be such
by representatives of the State, must fall under the Fourteenth
Amendment,” and “[t]he same result obtains when the State,
although not soliciting false evidence, allows it to go uncor-

most comprehensive inquiry into the use of jailhouse informants in Los
Angeles. See Stephen S. Trott, Words of Warning for Prosecutors Using
Criminals as Witnesses, 47 Hastings L.J. 1381, 1394 (1996) (explaining
that as a result of Leslie Vernon White’s demonstration, “[d]efense law-
yers have compiled a list of 225 people convicted of murder and other fel-
onies, some sentenced to death, in cases in which Mr. White and other
jailhouse informers testified over the last 10 years in Los Angeles County”
(citation omitted)). During the course of the grand jury investigation, over
one hundred and twenty witnesses, including six self-professed jailhouse
informants, testified; Sidney Storch was one of the six informants who tes-
tified. See United States v. Bernal-Obeso, 989 F.2d 331, 334 (9th Cir.
1993) (quoting the Grand Jury Report and explaining that “[c]riminals
caught in our system understand they can mitigate their own problems
with the law by becoming a witness against someone else”).
After testifying before the grand jury, Storch was listed on the 1988
grand jury’s investigating informant abuse list and he was among the indi-
viduals that the grand jury recommended that the District Attorney con-
sider prosecuting for informant abuses. As a result, Storch was the first
informant to be indicted for perjury following the 1988 grand jury investi-
gation. Storch, however, never confronted those charges because he died
in a New York jail before he could be extradited to California.
 MAXWELL v. ROE 18969
rected when it appears.” See also United States v. Agurs, 427
U.S. 97, 103 (1976) (stating that “the Court has consistently
held that a conviction obtained by the knowing use of per-
jured testimony is fundamentally unfair”). We have also con-
cluded that a defendant’s due process rights were violated,
and accordingly granted habeas relief, when it was revealed
that false evidence brought about a defendant’s conviction.
See, e.g., Killian v. Poole, 282 F.3d 1204 (9th Cir. 2002);
Hall, 343 F.3d at 978.

A new trial is not automatically required when false evi-
dence is discovered. Rather, a constitutional error resulting
from the use of false evidence by the government requires a
new trial, “if the false testimony could . . . in any reasonable
likelihood have affected the judgment of the jury.” Giglio v.
United States, 405 U.S. 150, 154 (1972) (quoting Napue, 360
U.S. at 271). We first consider whether the Superior Court’s
finding that Storch testified truthfully at Maxwell’s trial was
an unreasonable determination of the facts in light of the evi-
dence presented in the state court proceedings. 28 U.S.C.
§ 2254(d)(2). Concluding that it was, we proceed to consider
whether Storch’s false testimony was material. Because we
conclude that the false testimony was material and its inclu-
sion undermines confidence in the judgment of the jury, we
reverse the district court’s judgment on this claim. See Kyles
v. Whitley, 514 U.S. 419, 434 (1995).

1. Falsity

The State maintains that the Los Angeles County Superior
Court’s conclusion, following the hearing conducted on Max-
well’s state habeas petition, that Storch gave truthful testi-
mony at Maxwell’s trial was an objectively reasonable
determination of the facts. We disagree.

Our review of a state court’s factual determination is con-
trolled by 28 U.S.C. § 2254(d)(2).7 AEDPA § 2254(d)(2)
7
We apply § 2254(d)(2) to situations, such as that here, where a “peti-
tioner challenges the state court’s findings based entirely on the state
18970 MAXWELL v. ROE
authorizes federal habeas relief in those cases where the state-
court decision “was based on an unreasonable determination
of the facts in light of the evidence presented in the State
court proceeding.” See Miller-El v. Cockrell, 537 U.S. 322,
324 (2003).

Where a petitioner challenges the state court’s findings
based entirely on the state record, “we must be particularly
deferential to our state-court colleagues,” and defer to their
factual findings unless we are “convinced that an appellate
panel, applying the normal standards of appellate review,
could not reasonably conclude that the finding is supported by
the record.” Taylor, 366 F.3d at 999-1000. “This is a daunting
standard—one that will be satisfied in relatively few cases.”
Id. However, “the standard is not impossible to meet.” Id.
After careful consideration of the evidence before the state
court, including that which came to light during the evidenti-
ary hearing, we conclude that Maxwell has met that standard
here.

In May 1996, the California Supreme Court issued an order
to show cause on the single issue of whether Sidney Storch
gave false testimony at Maxwell’s trial, transferring the mat-
ter to the Superior Court. The Superior Court conducted an
evidentiary hearing spanning two years to resolve the ques-
tion. More than thirty witnesses testified and fifty exhibits
were entered into evidence. In February 2000, the Superior
Court denied relief in a 34-page written opinion. The court
acknowledged that Maxwell had established that by 1988
Storch was untrustworthy and a sophisticated “booker” of
defendants or a “jailhouse snitch.” The Superior Court, how-

record.” Taylor v. Maddox, 366 F.3d 992, 999-1000 (9th Cir. 2004). By
contrast, we do not apply 28 U.S.C. § 2254(e)(1), which applies to chal-
lenges based on extrinsic evidence or “evidence presented for the first
time in federal court,” and requires proof by clear and convincing evi-
dence. Id. at 1000.
 MAXWELL v. ROE 18971
ever, concluded that “whatever sophistication Storch pos-
sessed at these later times, he developed after his testimony
against petitioner,” when he was just a “neophyte jailhouse
informant.” The finding that Storch became a sophisticated
“booker” of prisoners only after Maxwell’s trial, given the
evidence that was presented at trial and at the evidentiary
hearing, was arbitrary, and for the reasons set forth below, we
conclude that it was objectively unreasonable to find that
Storch testified truthfully.

First, it is undisputed that Storch told numerous lies at
Maxwell’s trial. At a minimum, Storch lied about his motiva-
tion for coming forward, his prior record, the amount of
money he had stolen, the level of education he attained, and
the fact that he had previously worked out a 36-month prison
term in exchange for his guilty plea before the sixteen-month
deal he ultimately received in exchange for his cooperation
and testimony in Maxwell’s trial. Specifically, Storch testified
at Maxwell’s trial that he was not seeking leniency in
exchange for his testimony. Rather, Storch stated, he had
sought guidance from the prison rabbi about whether to testify
and had concluded thereafter that he should. This was a lie.
The prison rabbi testified that Storch had never discussed
Maxwell’s case with him nor sought his guidance. Storch tes-
tified that there were no deals between him and the prosecu-
tion prior to the sixteen-month deal he received. This was a
lie. Storch’s public defender had previously worked out a 36-
month deal. Storch testified that he had only two prior felony
convictions when in fact he had more. Storch stated that his
five pending cases involved “almost $13,000” of forged
funds, but the amount was closer to $44,000. Finally, Storch
said he had completed two and a half years of college in busi-
ness administration when, in truth, he had never gone to col-
lege.

The fact that Storch told several lies under oath contempo-
raneous with his testimony regarding Maxwell’s alleged con-
fession does not alone establish that Storch lied about the
18972 MAXWELL v. ROE
confession itself. Storch’s perjury, however, indicates a will-
ingness to lie under oath and lends credence to Maxwell’s
arguments that Storch lied when he testified about the alleged
confession and that the prosecution knew or should have
known that Storch gave false testimony.

Storch also misrepresented his sophistication and experi-
ence as a jailhouse informant at Maxwell’s trial. In particular,
Storch testified at trial that he had never testified for the dis-
trict attorney’s office before. Maxwell, however, submitted
evidence at the Superior Court hearing that contradicted this
characterization of Storch as new to the informant world and
new to cooperating with the district attorney’s office.

For example, Gregory Schwien—a detective with the
LAPD Bunco Forgery division—testified that in the early
1980s, Storch “supplied information to us [the police] regard-
ing forgery rings . . . .” Schwien recounted an incident from
1981 or 1982 where Storch wanted to entrap someone, “more
or less set that individual up,” by planting bad checks on him.
After that, despite having worked with Storch for about a
year, Schwien testified at the evidentiary hearing that he
“stopped all contact with [Storch]” because he found Storch
to be unreliable. Patrick Riley, who worked for the LAPD for
23 years, testified that Storch worked as an informant for him
around 1983, a year before Maxwell’s trial. Riley testified at
the evidentiary hearing that Storch “was a person that com-
mitted forgery on an ongoing basis,” a heroin addict, and an
informant. Gary Ingemunson, who worked in the LAPD for-
gery division, testified that he interviewed Storch in 1983
while Storch was in custody. Ingemunson testified that Storch
was “acting as an informant,” “giving me information,” and
“providing information about other criminals in the Los
Angeles area in the forgery field.” Storch’s informant activi-
ties with Schwein, Riley, and Ingemunson all predated Max-
well’s trial. Finally, Samuel George Porter, a sergeant in the
Sheriff’s Department in the inmate reception center, testified
 MAXWELL v. ROE 18973
that when he came into contact with Storch in 1985 or 1986,
Storch was officially classified as an informant or “K-9.”

The testimony of Schwien, Ingemunson, and Riley estab-
lished that Storch misrepresented his informant past at trial
and that Storch did indeed have a history of working as an
informant and “booking” other criminals. It is undisputed that
in at least one such instance, Storch went so far as to suggest
that fake checks be planted on an individual in order to
“book” him. This testimony directly contradicts the district
court’s characterization of Storch as a “neophyte” informant
in 1984. Finally, Porter’s testimony that Storch was officially
classified as a “K-9” by 1985 or 1986, a classification
reserved for seasoned official informants, reasonably suggests
that by 1984 Storch was well on his way to becoming, if not
already, a professional informant.

Storch not only had an established history of working as an
informant by the time of Maxwell’s trial, but he also had a
signature modus operandi for “booking” fellow inmates. That
method—for which Storch became famous—was precisely
the one that Maxwell alleges Storch employed in this case.
Storch’s method to “book” an inmate was to gain physical
proximity to a high-profile defendant, get information about
the case from the media, usually a newspaper, and then call
the District Attorney or law enforcement and offer to testify.
Several examples of Storch’s use of this “booking” method
came to light during the evidentiary hearing. Sergeant Porter
testified that Storch once requested that a high-profile defen-
dant, who had been in the news, be transferred to his row.
Porter testified that he did not move the defendant because he
believed that Storch planned to use a newspaper article to fab-
ricate testimony against him.8 According to Porter, his suspi-
8
Porter’s testimony that he could freely transfer inmates among cells
was corroborated by the testimony of Phillip Sowers and William Patter-
son. Sowers was an investigator for the City of Los Angeles from 1971-
92. He testified that detectives could easily get inmates moved within the
jail. Similarly, Patterson, a former Los Angeles County Sheriff’s Depart-
ment employee, testified that in late 1982 and early 1983, he was able to
move inmates in order to use them as informants.
18974 MAXWELL v. ROE
cion was based on knowing Storch for five years and
concluding that he “was not credible.”

John Kryniak, a former Pasadena police officer and Los
Angeles District Attorney, testified that in 1986 Storch came
forward and offered to testify for the government in the high-
profile “Ninja murders” case. Kryniak explained that he
decided not to use Storch when he learned that Storch had
been placed in the defendant’s cell after the time Storch
claimed he was there. Kryniak further testified that he chose
not to use Storch’s testimony because he did not believe
Storch was telling the truth and because Storch had a very
checkered history as an informant.

Joseph Markus testified that he was assigned to prosecute
a high-profile case in 1988. Storch testified at the preliminary
hearing for that case. Markus testified that he found Storch’s
testimony suspiciously similar to newspaper stories about the
case, and thus concluded that, “as a result of the similarities
between his testimony and these newspaper stories, I felt that
Storch could make up the information and did not believe his
testimony.” Markus also testified that he found Storch to be
very manipulative and was surprised by his frequent access to
the jailhouse phone.

According to evidence gleaned during the state court evi-
dentiary hearing, Storch lied under oath about more than fel-
low inmates’ confessions. In April 1985, Storch testified for
the prosecution in People v. Stephen Naquin, No. A809434
(L.A. Super. Ct. Oct. 7, 1985). At that trial, a mere nine
months after Maxwell’s trial, Storch lied about the benefit he
received for testifying in Maxwell’s trial and about his moti-
vations for testifying in the Naquin trial itself, among other
fabrications. In November 1985, Storch falsely testified for
the prosecution in another case, People v. Carl Jones, No.
A809938 (L.A. Super. Ct. Nov. 18, 1985). In that case, Storch
falsely testified that he did not expect any benefit for his testi-
 MAXWELL v. ROE 18975
mony and that he had no charges pending against him, among
other lies.

In April 1988, at the trial of People v. Sheldon Sanders, No.
A039120 (L.A. Super. Ct. Apr. 25, 1988), Storch lied while
under oath when he denied getting a deal in exchange for his
testimony in Maxwell’s trial. This lie ultimately resulted in
Storch’s indictment for perjury. In seeking the indictment, the
Deputy Attorney General told the grand jury that:

First of all, Mr. Storch . . . was a People’s witness
in People v. Sanders. He was testifying in a murder
case, and he testified that the defendant indirectly
admitted to the crime. Clearly that’s a material mat-
ter. What he did was, after saying that the defendant
admitted to the crime, he lied about his qualifications
as a witness. He denied having received benefits.
[Storch] knew he received the benefits, and he flat
out denied it . . . . Storch was trying to present him-
self in that case as someone who was lily-white. He
was an experienced witness, he was precise in his
answers, and he jousted with the defense attorney
during the course of his examination.

The Attorney General went on to testify: “We expect that per-
sons are going to come in and tell the truth . . . . That just
plain didn’t happen in the Sanders case. Mr. Storch was a per-
son who lied about his credibility, and it was a serious risk to
the judicial system.”

[5] In sum, Storch perjured himself multiple times at Max-
well’s trial and employed a signature method to “book” fel-
low inmates. Furthermore, Storch had a chronic pattern of
dishonesty that both predated and followed Maxwell’s trial.
The evidence of Storch’s later lies under oath does not estab-
lish the nature of his testimony at Maxwell’s trial, but it
remains relevant. It demonstrates a willingness to commit per-
jury and corroborates Maxwell’s argument that Storch had a
18976 MAXWELL v. ROE
signature modus operandi that he employed as a witness for
the prosecution at Maxwell’s trial.

[6] The preliminary inquiry, then, remains whether it was
objectively unreasonable—in light of the evidence revealed
over the course of the evidentiary hearing—for the Superior
Court to find that Storch testified truthfully at the 1984 trial
when he stated that Maxwell had confessed. The difficulty
here is not whether Storch became a professional “snitch”
who frequently committed perjury. That much is clear.
Rather, the question is whether, as the state court concluded,
in 1984 Storch remained an unsophisticated informant who
was not yet employing the practices for which he would later
be indicted. This requires us to determine whether the state
court’s factual determination was objectively unreasonable, a
standard which, as we noted above, affords the state court
determination the utmost deference.

Despite this deferential review, “deference does not by def-
inition preclude relief. A federal court can disagree with a
state court’s credibility determination and, when guided by
AEDPA, conclude the decision was unreasonable or that the
factual premise was incorrect by clear and convincing evi-
dence.” Cockrell, 537 U.S. at 340. We have, on occasion,
concluded that a state court’s factual determination was
unreasonable. See, e.g., Cooke v. Solis, 606 F.3d 1206, 1216
(9th Cir. 2010) (holding that the state court’s decision to
uphold the Parole Board’s denial of parole was an unreason-
able determination of the facts in light of the evidence); Tay-
lor, 366 F.3d at 1000 (holding that the state court’s finding
that petitioner’s confession was voluntarily obtained was
objectively unreasonable); Hall, 343 F.3d at 984 (holding that
the state appellate court made an unreasonable determination
of the facts in light of the evidence presented by finding that
the falsity of the jailhouse informant’s notes had not been
proven at a hearing); Nunes v. Mueller, 350 F.3d 1045, 1057
(9th Cir. 2003) (holding that the state court’s rejection of the
petitioner’s ineffective assistance of counsel claim was an
 MAXWELL v. ROE 18977
unreasonable determination of the facts in light of the evi-
dence before the state court); Bradley v. Duncan, 315 F.3d
1091, 1094 (9th Cir. 2002) (affirming the district court’s hold-
ing that the state’s finding that the petitioner did not present
sufficient evidence to deserve an instruction on entrapment
was an unreasonable determination of the facts).

Furthermore, we have recognized the unreliability of jail-
house informants—who are themselves incarcerated criminals
with significant motivation to garner favor—and on occasion
have granted habeas or other relief where a defendant was
convicted as a result of fabricated or potentially fabricated
testimony. See, e.g., Hall, 343 F.3d at 985 (reversing the dis-
trict court’s denial of habeas relief where a 1985 California
jailhouse informant later confessed to perjury and the alter-
ation of evidence); Jackson v. Brown, 513 F.3d 1057, 1060-61
(9th Cir. 2008) (affirming the district court’s partial grant of
habeas relief where a 1980s California jailhouse informant
had not disclosed the full benefit he received in exchange for
his testimony); Goldstein v. City of Long Beach, 481 F.3d
1170, 1171 (9th Cir. 2007), reversed on other grounds by Van
de Kamp v. Goldstein, 129 S. Ct. 855 (2009) (noting that
Goldstein was granted habeas relief when it was revealed that
a 1980s California jailhouse informant had not disclosed that
his sentence was reduced in return for testimony)9; Reynoso
v. Giurbino, 462 F.3d 1099, 1102 (9th Cir. 2006) (granting
habeas relief where counsel was ineffective in failing to cross-
examine the 1990 California jailhouse informant about his
motivation for testifying and the informant’s testimony was
suspiciously similar to a recent television broadcast about the
case); Bernal-Obeso, 989 F.2d at 333 (vacating a defendant’s
conviction on direct review and remanding the case back to
the district court for an evidentiary hearing to determine
9
See also Goldstein v. Harris, 82 F. App’x 592 (9th Cir. 2003) (affirm-
ing the grant of habeas relief); Goldstein v. City of Long Beach, 603
F.Supp.2d 1242 (C.D. Cal. 2009) (noting that the informant in Goldstein
was likened to “another notorious informant, Sidney Storch . . . .”).
18978 MAXWELL v. ROE
whether the government informant had lied about prior con-
victions); but see Hovey v. Ayers, 458 F.3d 892, 898 (9th Cir.
2006) (denying habeas relief where failure to impeach a 1980
California jailhouse informant was not ineffective assistance
of counsel); Morales v. Ornoski, 439 F.3d 529, 534 (9th Cir.
2006) (denying habeas relief where petitioner’s claim that
prosecution knowingly presented a 1980s California jailhouse
informant’s false testimony was harmless).

[7] Based on our review of the state court records, and in
particular the evidence that was presented at the Superior
Court’s evidentiary hearing, we conclude that the state court’s
conclusion that Storch testified truthfully was an unreasonable
determination of the facts. There is simply too much evidence
of Storch’s pattern of perjury to conclude otherwise. At the
time of Maxwell’s trial, Storch was already employing the
“booking” formula that he would later teach others and for
which he would become famous; the housing records show
that Storch had physical proximity to Maxwell; Storch openly
admitted that he was in possession of a newspaper article
about the murders; the newspaper article itself mentioned all
of the specific facts to which Storch testified—namely, that
the police had found Maxwell’s palm print on a nearby park
bench; and, finally, Storch contacted Deputy District Attorney
Sterling Norris with the news of his cellmate’s spontaneous
confession and negotiated his own deal in exchange for his testi-
mony.10

The Superior Court arbitrarily cabined Storch’s perjury
methods to a time period starting after 1984, and, in spite of
the numerous known lies Storch told at Maxwell’s trial,
10
Storch and Sterling Norris seem to have had an ongoing relationship.
After testifying in People v. Sheldon Sanders, No. A039120 (L.A. Super.
Ct. Apr. 25, 1988), Storch asked the prosecution for money. Storch stated,
“[p]erhaps I’ve been spoiled by the likes of Mr. Norris . . . but I’ve usually
been allowed $30.00 from petty cash . . . and an OK for the Investigator
to stop and get me some smokes and candy.”
 MAXWELL v. ROE 18979
unreasonably found his testimony truthful. In 1984, Storch
was 37 years old and already a career criminal. He had com-
mitted crimes of deceit, and had been arrested at least 13
times and convicted of at least three felonies. Storch told
numerous confirmed lies at Maxwell’s trial, was known as
dishonest at the time of trial, was an experienced informant
according to the testimony of three LAPD officials, and
employed his signature method to “book” Maxwell. If Storch
was a neophyte informant at the time of Maxwell’s trial, his
inexperience showed not in his forthrightness, but, rather, in
the lack of creativity in the lies he told. Storch simply
repeated facts about the Skid Row Stabber killings contained
in a newspaper article he admitted to possessing, and he
offered no details about any of the crimes that were not
already public and in widespread print. Storch testified at
Maxwell’s trial because he wanted to obtain a benefit—a
reduction in his sentence—and, because he was dishonest, he
was willing to say or do anything to obtain that goal.

As we have observed, “informants are cut from untrustwor-
thy cloth and must be managed and carefully watched.”
Bernal-Obeso, 989 F.2d at 333. A failure of vigilance by the
prosecuting authorities, as was epidemic in Los Angeles
County in the 1980s, resulted in widespread failure to “pre-
vent [criminal informants] from falsely accusing the innocent,
from manufacturing evidence against those under suspicion of
crime, and from lying under oath in the courtroom.” Id. As
our own Judge Stephen Trott has explained in a law review
article on the topic: “The most dangerous informer of all is
the jailhouse snitch who claims another prisoner has con-
fessed to him. The snitch now stands ready to testify in return
for some consideration in his own case. Sometimes these
snitches tell the truth, but more often they invent testimony
and stray details out of the air.” Trott, supra, at 1394.

[8] Here, Storch lied about Maxwell’s confession in order
to reduce his own jail time. Storch went on to testify for the
prosecution, and to lie, in numerous other cases. He became
18980 MAXWELL v. ROE
one of Los Angeles County’s most infamous jailhouse infor-
mants and he operated at the height of the County’s jailhouse
informant scandal. We cannot “reasonably conclude that the
finding” that Storch testified truthfully at Maxwell’s trial “is
supported by the record.” Taylor, 366 F.3d at 1000. “AEDPA,
although emphasizing proper and due deference to the state
court’s findings, did not eliminate federal habeas review.
Where there are real, credible doubts about the veracity of
essential evidence and the person who created it, AEDPA
does not require us to turn a blind eye.” Hall, 343 F.3d at 984
n.8. We conclude, based on the record before the state court,
that it was an objectively unreasonable determination of the
facts to find that Sidney Storch was telling the truth at Max-
well’s trial in 1984. 28 U.S.C. § 2254(d)(2).

2. Due Process Right

Having concluded that Storch’s testimony was false, we
next consider whether being convicted on the basis of Stor-
ch’s false testimony violated Maxwell’s right to due process
under the Fourteenth Amendment. See Agurs, 427 U.S. at
103. Maxwell argues that his conviction based on false mate-
rial evidence violated his due process rights under the Four-
teenth Amendment, and we agree.

First, because the state court’s decision was “based on an
unreasonable determination of the facts” under § 2254(d)(2),
the AEDPA deference no longer applies. Detrich, 619 F.3d at
1059. Therefore, we proceed to “ ‘resolve [Maxwell’s related
due process] claim without the deference AEDPA otherwise
requires.’ ” Id. (quoting Panetti v. Quarterman, 551 U.S. 930,
953 (2007)). As we recently explained in Detrich, this makes
sense and is in accord with the deference principles of
AEDPA because—in light of the state court’s reliance on
incorrect facts—“we do not know what the state court would
have decided . . . [and] there is no actual decision to which
we can defer.” Id. at 1060.
 MAXWELL v. ROE 18981
[9] In Killian, as here, the defendant was convicted of mur-
der based, in large part, on the testimony of a jailhouse infor-
mant. 282 F.3d at 1206-07. In that case, we concluded that
irrespective of whether the prosecutor knew that the informant
had given false testimony, “one [could not] reasonably deny
that [the jailhouse informant] gave perjured testimony at [peti-
tioner’s] trial.” Id. at 1208. We went on to “determine
whether ‘there is a reasonable probability that [without all the
perjury] the result of the proceeding would have been differ-
ent.’ ” Id. at 1204, 1208 (citing United States v. Young, 17
F.3d 1201, 1204 (9th Cir. 1994) and Bagley, 473 U.S. at 682))
(alterations in the original). We concluded that the perjury of
“the prosecution’s main witness” undermined confidence in
the verdict and, therefore, to permit the defendant’s convic-
tion to stand on the basis of such evidence violated the peti-
tioner’s due process rights. Id. at 1208, 1211. Accordingly, we
reversed the district court’s denial of habeas relief. Id. at
1211. We explained that “a government’s assurances that
false evidence was presented in good faith are little comfort
to a criminal defendant wrongly convicted on the basis of
such evidence. A conviction based in part on false evidence,
even false evidence presented in good faith, hardly comports
with fundamental fairness.” Id. at 1209 (internal quotation
marks omitted).

Hall similarly concerned a habeas defendant who chal-
lenged his conviction, arguing that it was based on false mate-
rial evidence in violation of his due process rights. 343 F.3d
at 981. In that case, the habeas defendant objected to the
admission of incriminating handwritten notes that a jailhouse
informant supplied to the prosecution. See id. The defendant
argued that whether or not the prosecution knew that the jail-
house notes admitted into evidence at trial were false at the
time of trial, “to allow his conviction to stand, based on the
present knowledge that the evidence was falsified, is a viola-
tion of his right to due process under the Fourteenth Amend-
ment.” Id. (citing Agurs, 427 U.S. at 103). We agreed. We
first determined that the alleged written confession, which a
18982 MAXWELL v. ROE
jailhouse informant had provided, was false and material evi-
dence. Id. at 982-85. Accordingly, we concluded that to per-
mit the petitioner’s conviction to stand on the basis of such
false material evidence violated his constitutional rights, and
we reversed the denial of habeas relief. Id. at 985 (reversing
the denial of habeas relief “[b]ecause false and material evi-
dence was admitted at [petitioner’s] trial in violation of his
due process rights”). The Second Circuit has similarly
explained that “[i]t is simply intolerable . . . if a state allows
an innocent person to remain incarcerated on the basis of
lies.” Sanders v. Sullivan, 863 F.2d 218, 224 (2d Cir. 1988)
(reversing the denial of habeas relief and holding that the peti-
tioner’s due process rights were violated when the petitioner
in that case was convicted based on the material testimony of
a witness who recanted); see also United States v. Wallach,
935 F.2d 445, 473 (2d Cir. 1991) (holding that the perjury by
a key government witness, irrespective of whether the govern-
ment knew of the perjury at the time of trial, “infected the
trial proceedings” and required reversal).

[10] Here, we have resolved the threshold factual question
of falsity and concluded that Storch perjured himself when he
testified that Maxwell confessed. We have also resolved the
threshold legal question and conclude that under Hall and Kil-
lian, to permit a conviction based on uncorrected false mate-
rial evidence to stand is a violation of a defendant’s due
process rights under the Fourteenth Amendment. We proceed,
therefore, to consider whether Storch’s testimony was mate-
rial.

[11] A constitutional error resulting from the prosecution’s
failure to correct false testimony requires a new trial only if
there is “any reasonable likelihood that the false testimony
could have affected the judgment of the jury.” Hayes v.
Brown, 399 F.3d 972, 985 (9th Cir. 2005) (en banc). In order
to determine whether Storch’s perjury here undermines confi-
dence in the verdicts, we again compare this case to Hall and
Killian. In Hall, there was “absolutely no physical or forensic
 MAXWELL v. ROE 18983
evidence connecting [the defendant] to the body or the alley
in which it was found,” and the notes supplied by the infor-
mant, like Storch’s testimony, provided a confession in what
was otherwise a weak case. 343 F.3d at 978 (noting that
“[u]nable to find any physical evidence to connect Hall to the
murder, the prosecution relied upon two documents provided
by a jailhouse informant”). Because there was “a reasonable
likelihood that the introduction of the falsified notes affected
the jury’s verdict,” we concluded that the jailhouse notes were
material and reversed the district court’s denial of habeas
relief. Id. at 984-85 (citing Giglio, 405 U.S. at 154).

Like Hall, Killian required us to “decide whether the use of
perjured testimony . . . justifie[d] habeas relief.” 282 F.3d at
1206. In Killian, the jailhouse informant made “virtually the
whole case for the government,” and the prosecution empha-
sized the informant’s testimony during closing arguments. Id.
at 1209. Because the jailhouse informant was the “make-or-
break witness” for the state, we concluded that there was a
“reasonable probability that without all the perjury the result
of the proceeding would have been different.” Id.

Here, as in Hall and Killian, Storch was the “make-or-
break” witness for the State. Storch’s testimony was the cen-
terpiece of the prosecution’s case. Nearly all of the other evi-
dence against Maxwell was circumstantial. In deciding
whether to file murder charges against Maxwell, the prosecu-
tion itself acknowledged in internal written notes that were
discovered during the evidentiary hearing that its case was
“weak from an evidential standpoint.” The only evidence that
linked Maxwell to the Jones murder was the in-courtroom
voice identification of Maxwell by a witness who had been
unable to pick Maxwell out of a lineup in which he spoke, and
the fact that Maxwell possessed a knife consistent with
Jones’s stab wound. The only evidence that linked Maxwell
to the Garcia murder was Maxwell’s palm print on a nearby
bench in an area Maxwell admitted frequenting, some muddy
and consistent footprints, and a generic Bic lighter found in
18984 MAXWELL v. ROE
Maxwell’s pocket at the time of arrest. In sum, Storch’s testi-
mony that Maxwell confessed to making a “mistake” in the
commission of the Garcia murder was the prosecution’s prize
evidence. Furthermore, Storch’s testimony went to both the
Garcia and Jones murders; in fact, Storch’s testimony was
offered to establish Maxwell as the perpetrator of all ten of
the Skid Row Stabber killings. Specifically, the State argued
during closing arguments and continues to argue in its brief
on appeal, that Storch’s testimony “was offered primarily to
prove that [Maxwell] had admitted responsibility for each of
the ten murders.”

Storch’s testimony is significant not just because of the
paucity of other evidence but also because of the content of
his testimony. As this court and the Supreme Court have
noted, the importance of “ ‘the defendant’s own confession is
probably the most probative and damaging evidence that can
be admitted against him.’ ” Arizona v. Fulminante, 499 U.S.
279, 296 (1991) (quoting Bruton v. United States, 391 U.S.
123, 139-40 (1968) (White, J., dissenting)); see also Moore v.
Czerniak, 574 F.3d 1092 (9th Cir. 2009) (citing Fulminante
and concluding that counsel’s failure to move to exclude the
petitioner’s confession was prejudicial). The importance of
Storch’s testimony was underscored by the prosecution in its
closing argument, when Norris emphasized Storch’s testi-
mony. See Hall, 343 F.3d at 976 (finding it significant that the
prosecutor emphasized the jailhouse informant’s note in his
closing argument in reversing denial of habeas relief). The
jury also asked to see the transcript of Storch’s testimony dur-
ing deliberation, highlighting its import.

[12] In sum, the Superior Court’s finding that Storch testi-
fied truthfully at Maxwell’s trial was an unreasonable deter-
mination of the facts in light of the evidence that was
presented at the state court evidentiary hearing, and Storch’s
false testimony prejudiced Maxwell’s trial. The State’s reli-
ance on that perjured testimony undermines confidence in the
verdict. See Killian, 282 F.3d at 1210 (citing Strickler v.
 MAXWELL v. ROE 18985
Greene, 527 U.S. 263, 290 (1999)). Because there is a reason-
able probability that Storch’s perjury affected the judgment of
the jury, we must reverse the denial of Maxwell’s habeas peti-
tion as to this claim. See Agurs, 427 U.S. at 103.

C. Brady violation

Next, Maxwell argues that the prosecution violated his due
process rights under Brady, 373 U.S. at 87, when it failed to
disclose material evidence about Sidney Storch. Because no
state court has offered a reasoned decision for denial of the
claim, we conduct an independent review of the record to
determine whether the California Supreme Court’s summary
denial of Maxwell’s Brady claim constituted an unreasonable
application of Brady. See Greene, 288 F.3d at 1088-89. “Inde-
pendent review of the record is not de novo review of the con-
stitutional issue, but rather, the only method by which we can
determine whether a silent court decision is objectively unrea-
sonable.” Himes v. Thompson, 336 F.3d 848, 853 (9th Cir.
2003). Here, we conclude that the state court could not have
reasonably determined that the suppressed evidence relating
to the deal Storch received and Storch’s prior cooperation
with law enforcement as an informant was not material. The
failure to disclose this information undermines confidence in
the verdict, and we, therefore, reverse the district court’s
denial of habeas relief on this claim.11

There are three components of a Brady claim: (1) the evi-
dence at issue must be favorable to the accused, either
because it is exculpatory or because it is impeaching; (2) the
evidence must have been suppressed by the State, either will-
11
Maxwell also argues that the prosecution withheld material evidence
related to Storch’s reputation, Storch’s heroin use, the housing records,
and the Sheriff’s Department’s practice of moving informants into cells
with defendants to facilitate police investigations. Because Maxwell has
failed to establish that any of this evidence, if suppressed, was material,
we do not discuss Maxwell’s Brady claim with respect to this evidence.
18986 MAXWELL v. ROE
fully or inadvertently; and (3) prejudice must have ensued.
Strickler, 527 U.S. at 281-82. The prosecution’s suppression
of evidence favorable to an accused violates due process
where the evidence is material, irrespective of the good faith
or bad faith of the prosecution. Brady, 373 U.S. at 87; see
Kyles, 514 U.S. at 437 (holding that an “individual prosecutor
has a duty to learn of any favorable evidence known to the
others acting on the government’s behalf in the case, includ-
ing the police”). Evidence is material if “there is a reasonable
probability that, had the evidence been disclosed to the
defense, the result of the proceeding would have been differ-
ent,” Strickler, 527 U.S. at 280. A reasonable probability is
one that is sufficient to undermine confidence in the outcome
of the trial, see Kyles, 514 U.S. at 434. Whether the sup-
pressed evidence was material must be considered collec-
tively, not item by item. Id.

Here, Maxwell argues that the State failed to disclose (1)
that the sixteen-month deal Storch received in exchange for
his testimony was not the original deal offered to him, but
rather a deal Storch independently negotiated for himself;
and, (2) Storch’s prior informant history.

1. Failure to disclose the details of Storch’s deal

At the time of trial, Storch maintained that his primary
motivation for testifying was to do his civic duty, and Storch
completely denied the existence of any deal with the prosecu-
tion. Storch did ultimately concede during cross-examination
that he had received a reduced sentence of sixteen months for
his pending cases in exchange for his testimony. Yet, Storch
never revealed that his sixteen-month deal was the second
deal he received and, more importantly, one he had negotiated
independently from his public defender. In fact, when he was
asked directly on cross-examination, Storch denied any prior
deals and the prosecution never corrected this lie.

At the evidentiary hearing, Arnold Lester, the public
defender who represented Storch at the time of Maxwell’s
 MAXWELL v. ROE 18987
trial, testified that he had worked out a guilty plea deal to con-
solidate Storch’s five pending cases into a combined total sen-
tence of 36 months. Lester further testified that this was a
reasonable sentence given the number of counts and Storch’s
prior record. Lester testified that Storch, however, proceeded
to work out privately the sixteen-month sentence deal that he
ultimately received. Maxwell was not informed before or at
trial of the prior 36-month deal, and the prosecution never
corrected Storch when he stated that there was no prior deal.
Maxwell argues that the State violated Brady when it failed
to disclose that the sixteen-month deal was Storch’s second
deal, one that he privately negotiated without the assistance of
his public defender.

[13] In general, Brady requires prosecutors to disclose any
benefits that are given to a government informant, including
any lenient treatment for pending cases. See, e.g., Giglio, 405
U.S. at 150; Benn v. Lambert, 283 F.3d 1040, 1057 (9th Cir.
2002). The question here is whether the prosecution’s failure
to disclose the details of the prior deal, specifically Storch’s
negotiation of a subsequent deal, was material. In Benn, we
held that, among other evidence withheld by the prosecution,
the prosecution’s failure to disclose a subsequent deal—even
where that deal resulted in minimal benefit to the informant—
prejudiced the defendant. Benn, 283 F.3d at 1057. “The undis-
closed benefits that [the informant] received added signifi-
cantly to the benefits that were disclosed and certainly would
have ‘cast a shadow’ on [the informant’s] credibility. Thus,
their suppression was material.” Id. at 1058.

[14] This case is different than Benn insofar as Benn con-
cerned a failure to disclose a better (albeit only slightly) deal.
Here, Maxwell was informed at trial of the deal that Storch
ultimately received. Nonetheless, the fact that Storch pursued
an additional benefit to himself—independent of and subse-
quent to the agreement worked out by his public defender—
would have provided Maxwell with impeaching evidence rel-
evant to Storch’s motivation for testifying and of a different
18988 MAXWELL v. ROE
character than the other impeachment evidence which came to
light. Storch testified that “his initial contact with anybody
about [testifying in the Maxwell case] was with the chaplain’s
office in terms of this . . . I was looking for guidance, more
or less.” When asked during cross-examination if he had any
“intention to lighten [his] load [i.e., sentence],” Storch ada-
mantly stated that his intentions were not to reduce his sen-
tence: “Initially, no, sir, and I will say strongly that way,
initially no.” Evidence that Storch had already secured a plea
agreement and came forward to testify at Maxwell’s trial for
the sole purpose of working a new and better deal would have
directly impeached Storch’s testimony for why he came for-
ward. As the Supreme Court noted in Napu, “we do not
believe that the fact that the jury was apprised of other
grounds for believing that the witness . . . may have had an
interest in testifying against petitioner turned what was other-
wise a tainted trial into a fair one.” 360 U.S. at 270. Further-
more, the details of Storch’s plea negotiations would have
helped to establish Storch’s sophistication and directly contra-
dicted the naivete he professed at trial. The fact that Storch
had worked a deal with Norris without his public defender
would have been the only evidence—other than the evidence
of Storch’s informant past, which was also suppressed—of
Storch’s informant sophistication. Such evidence differed
substantially from Storch’s other lies, which came to light
during cross-examination. Storch was not some innocent
inmate who happened to overhear his cellmate’s confession
and then had to struggle with the moral dilemma of whether
to come forward, seeking religious guidance, as he repre-
sented. Storch knew that his testimony against Maxwell was
bartering material. He used his know-how and connections to
negotiate a better deal.

[15] In sum, the evidence the government withheld would
not simply have been cumulative of the impeachment evi-
dence brought out during cross-examination of Storch at trial.
Rather, it would have created substantial doubt as to Storch’s
credibility, particularly with respect to his professed naivete.
 MAXWELL v. ROE 18989
The details of Storch’s own agreement with the prosecution,
and the fact that Storch had negotiated the subsequent deal
independent of his public defender, would have allowed
defense counsel to discredit Storch on a novel basis. The pros-
ecution’s failure to correct Storch’s false testimony about his
prior deals was prejudicial.

2. Failure to disclose Storch’s experience as an
informant

Maxwell further argues that the prosecution violated his
due process rights when it failed to disclose Storch’s prior
informant activities. This evidence, Maxwell argues, would
have impeached Storch’s credibility and shown him to be a
sophisticated informer. The Superior Court did not dispute
that Storch was an undisclosed police informant, but the court
characterized him as unsophisticated because there was no
record of him receiving any benefit in exchange for his infor-
mant activities prior to Maxwell’s case.

Here, as in Benn, Storch denied that he had previously
worked as an informant. Benn, 283 F.3d at 1058; see also
United States v. Shaffer, 789 F.2d 682, 688-89 (9th Cir.
1986). Specifically, Storch stated that he had never testified
for the district attorney and represented himself as someone
new to the informant world. For its part, the prosecution did
not reveal that, although Storch may technically not have tes-
tified for the state, he had on several occasions aided in inves-
tigations and acted as an informant on numerous previous
occasions.

At the evidentiary hearing, Maxwell learned for the first
time that Storch had assisted the LAPD’s forgery division in
the investigation of multiple forgery cases prior to Maxwell’s
trial. As this court explained in Benn, “[t]he state argues that
this undisclosed evidence about [the informant’s] history was
not material; however . . . undisclosed evidence that an infor-
mant had previously participated in a . . . investigation was
18990 MAXWELL v. ROE
important impeachment evidence that could have been used to
discredit the informant’s trial testimony that he had not previ-
ously participated in that type of investigation.” Benn, 283
F.3d at 1058; see also Shaffer, 789 F.2d at 688-89 (holding
that defendant’s undisclosed prior involvement in a state
investigation contradicts his prior testimony and was mate-
rial).

[16] In light of the import of Storch’s testimony, evidence
of Storch’s prior dealings with the forgery unit could have
been used to discredit Storch had it been revealed at the time
of trial. Furthermore, it would have provided additional evi-
dence that Storch was a sophisticated informant with devel-
oped connections and relationships within the LAPD. Such
information may have led Maxwell to investigate Storch more
thoroughly and led to the discovery of the information that
only came to light at the evidentiary hearing—namely, that
Storch was an experienced informant with a history of lying.
Storch’s involvement in prior forgery investigations contra-
dicts his representations at trial that he had never worked as
an informant for the District Attorney’s office. It also pro-
vides additional grounds for a jury to question Storch’s credi-
bility, grounds which relate to the prosecution’s failure to
disclose the fact that Storch’s plea deal was a subsequent one
that he negotiated.

3. Cumulative Brady errors

In determining whether the suppression of impeachment
evidence is sufficiently prejudicial to rise to the level of a
Brady violation, we must analyze the totality of the undis-
closed evidence “in the context of the entire record.” Agurs,
427 U.S. at 112; see also Bagley, 473 U.S. at 682. The cumu-
lative effect of all the undisclosed evidence may violate due
process and warrant habeas relief under AEDPA. Barker v.
Fleming, 423 F.3d 1085, 1094 (9th Cir. 2005) (explaining the
“Supreme Court’s requirement that the materiality of the
 MAXWELL v. ROE 18991
withheld evidence be analyzed cumulatively . . . not item by
item” (citing Kyles, 514 U.S. at 436)).

Here, the prosecution itself admitted that the evidence
against Maxwell was weak, that Maxwell had consistently
maintained his innocence, and that the police testimony about
the date of the palm print was speculative. For these reasons,
and those explained previously, Storch’s testimony was cru-
cial to the prosecution’s case.

[17] The prosecution failed, however, to disclose multiple
pieces of critical impeachment information that could have
been used to undermine the credibility of Storch. Analyzed
collectively, the withheld impeachment evidence that Storch
had negotiated himself a better deal coupled with the evidence
of Storch’s undisclosed informant past would not simply have
been cumulative of the impeachment evidence introduced at
trial, which included lies about his level of education and
number of felony convictions, but would have created sub-
stantial doubt as to Storch’s credibility for different reasons.
The withheld evidence went to Storch’s sophistication and
motivation in his capacity as a prosecution informant and not,
like the other evidence produced at trial, to his general pro-
pensity for dishonesty. Even if the lies did not provide a novel
angle of attack on Storch’s credibility, which we believe they
do, as we explained in Killian, “the finders of fact were
deprived of the fundamental inference that if [the government
informant] lied about X, Y, and Z, it is quite likely that he lied
about Q, R, and S.” 282 F.3d at 1209. The evidence withheld
revealed that Storch, like the witness in Benn, was “com-
pletely unreliable, a liar for hire, [and] ready to perjure him-
self for whatever advantage he could squeeze out of the
system.” 283 F.3d at 1059 (holding that the prosecution’s fail-
ure to disclose multiple pieces of critical impeachment evi-
dence that could have been used to undermine credibility of
the jailhouse informant who testified that defendant admitted
committing the murders was sufficient to violate Brady).
18992 MAXWELL v. ROE
[18] Because Storch’s testimony implicating Maxwell was
critical to Maxwell’s conviction, the jury’s assessment of
Storch’s credibility was crucial to the outcome of the trial. If
the jury had not believed Storch, Maxwell may not have been
convicted. The prosecution’s failure to disclose this impeach-
ment evidence undermines confidence in the outcome of
Maxwell’s trial, and the California Supreme Court’s decision
to the contrary was an unreasonable application of Brady.

VI. Conclusion

Storch was one of the most infamous jailhouse informants
in Los Angeles history. In particular, as confirmed by
Kryniak’s and Marcus’s testimony, Storch had a propensity to
go after high profile cases. The “Skid Row Stabber” case
would have been just such a case, and Storch’s testimony at
Maxwell’s trial is a textbook example of the “booking”
method that Storch helped make famous. Based on the evi-
dence brought to light during the lengthy evidentiary hearing,
we conclude that the state court’s finding that Storch did not
give false testimony was an unreasonable determination of the
facts in light of the evidence. We further conclude that there
is a reasonable probability that this false testimony affected
the jury’s verdict. Because the State convicted Maxwell on
the basis of false and material evidence in violation of his due
process rights, we direct the district court to grant Maxwell
habeas relief on this claim. We further conclude that the pros-
ecution withheld material evidence in violation of Brady.

[19] We reverse the district court’s judgment and remand
with directions to grant a writ of habeas corpus directing the
state to provide Maxwell with a new trial in a reasonable
amount of time or to release him.

REVERSED AND REMANDED.