NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT MAY 23 2011
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
MICHAEL TODD PANELLA, No. 09-17302
Petitioner - Appellant, D.C. No. 1:06-cv-00795-CRB
v.
MEMORANDUM*
JOHN MARSHALL, Warden,
Respondent - Appellee.
Appeal from the United States District Court
for the Eastern District of California
Charles R. Breyer, District Judge, Presiding
Argued and Submitted May 10, 2011
San Francisco, California
Before: GOULD and M. SMITH, Circuit Judges, and MARBLEY, District Judge.**
California state prisoner Michael Panella appeals the district court’s
dismissal of his 28 U.S.C. § 2254 habeas petition. We have jurisdiction under 28
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Algenon L. Marbley, United States District Judge for
the Southern District of Ohio, sitting by designation.
U.S.C. § 2253. Because the parties are familiar with the factual and procedural
history of this case, we do not recount additional facts except as necessary to
explain the decision. We affirm.
Panella first claims that he was denied due process on the basis of
prosecutorial misconduct. At trial, two government witnesses who had charges
pending on other matters at the time they gave their testimony denied being
motivated to testify by an expectation of leniency. Panella claims that the
prosecution failed to meet two constitutional obligations with respect to this
testimony: (1) the duty under Brady v. Maryland, 373 U.S. 83 (1963), to disclose
the existence of a secret deal for leniency between the prosecution and the
witnesses; and (2) the duty under Napue v. Illinois, 360 U.S. 264 (1959), to correct
the false testimony that the witnesses were not motivated by the expectation of
leniency. The district court did not certify Panella’s Napue claim for our review,
but, because the parties both briefed the claim, we now expand the certificate of
appealability. 9th Cir. R. 22-1(e).
The district court correctly concluded that Panella has not shown that the
state court’s denial of Panella’s habeas petition based on prosecutorial misconduct
was “contrary to, or involved an unreasonable application of” Supreme Court law
or that it “was based on an unreasonable determination of the facts.” 28 U.S.C.
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§ 2254(d). The state court concluded that Panella’s Brady claim failed because
Panella had not produced any evidence that the prosecution promised or suggested
leniency in exchange for the witnesses’ testimony. Likewise, the state court
determined that Panella’s Napue claim failed because he had not produced any
evidence that the prosecution knew at the time of trial that the witnesses lied when
they testified that they did not expect leniency. See United States v. Zuno-Arce, 339
F.3d 886, 889 (9th Cir. 2003) (stating that Napue claim includes the following
elements: “(1) the testimony (or evidence) was actually false, (2) the prosecution
knew or should have known that the testimony was actually false, and (3) that the
false testimony was material.”). As the district court found, Panella has not offered
any evidence or Supreme Court law demonstrating that the state court’s “ruling . . .
was so lacking in justification that there was an error well understood and
comprehended in existing law beyond any possibility for fairminded
disagreement.” Harrington v. Richter, 131 S. Ct. 770, 786–787 (2011).
Nor can we conclude that the district court abused its discretion in denying
Panella an evidentiary hearing on his prosecutorial misconduct claim. The state
court held, and the district court agreed, that Panella’s prosecutorial misconduct
claims would not, if proven, have been material to the outcome of his trial given
the quantity of independent evidence demonstrating Panella’s guilt. See United
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States v. Bagley, 473 U.S. 667, 678 (1985) (Brady materiality); United States v.
Agurs, 427 U.S. 97, 103 (1976) (Napue materiality). Since a habeas petitioner is
not entitled to an evidentiary hearing unless he has “‘alleged facts that, if proven,
would entitle him to habeas relief,’” Earp v. Ornoski, 431 F.3d 1158, 1167 (9th
Cir. 2005) (quoting Williams v. Woodford, 384 F.3d 567, 586 (9th Cir. 2004)), the
district court did not abuse its discretion by concluding that Panella’s inability to
demonstrate materiality rendered an evidentiary hearing unnecessary. See Cullen v.
Pinholster, 131 S. Ct. 1388, 1401 (2011) (“Although state prisoners may
sometimes submit new evidence in federal court, AEDPA’s statutory scheme is
designed to strongly discourage them from doing so.”).
Second, Panella claims juror misconduct, committed when the foreperson
coerced another juror into changing her verdict, warrants reversal of his conviction.
The state court found as a factual matter that the foreperson did not physically
coerce the juror to change her verdict. Without the element of physical coercion,
the state court determined that the allegations in the affidavit described no more
than permissible “heated discussions that naturally occur at times during jury
deliberations.” The record supports the state court’s factual finding, see 28 U.S.C.
§ 2254(d)(2), and Panella has not pointed to any clearly established Supreme Court
law holding that a jury verdict influenced by harassment but not coercion violates
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due process, see 28 U.S.C. § 2254(d)(1). We therefore agree with the district court
that Panella’s claim for habeas relief must be denied.
Finally, the district court did not abuse its discretion in declining to hold an
evidentiary hearing on Panella’s juror misconduct claim because the state court
assumed the truth of Panella’s factual allegations before correctly ruling that no
constitutional error had occurred. See Earp, 431 F.3d at 1167 (holding that
petitioner must establish “colorable claim for relief” before being entitled to
evidentiary hearing). Cf. Pinholster, 131 S.Ct at 1412 (Breyer, J., concurring in
part) (noting that where the state court assumed a habeas petitioner’s facts but
unreasonably found those facts did not violate federal law, a hearing in federal
court might be required).
AFFIRMED.
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