FILED
NOT FOR PUBLICATION MAR 20 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ANNE MARIE HARRISON, No. 11-55400
Petitioner - Appellant, D.C. No. 2:09-cv-07983-JSL-RZ
v.
MEMORANDUM*
DEBORAH K. JOHNSON,
Respondent - Appellee.
Appeal from the United States District Court
for the Central District of California
J. Spencer Letts, Senior District Judge, Presiding
Argued and Submitted March 4, 2014
Pasadena, California
Before: BYBEE, BEA, and CHRISTEN, Circuit Judges.
Petitioner Anne Marie Harrison appeals the district court’s denial of her
petition for a writ of habeas corpus, alleging that the California Supreme Court
erred in rejecting her Napue false evidence and Brady suppression of material
evidence claims. Because Harrison’s federal habeas petition was filed after the
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
enactment of AEDPA in 1996, that statute governs her petition. See Woodford v.
Garceau, 538 U.S. 202, 210 (2003). This Court will grant Harrison’s petition only
if the California Supreme Court’s denial of Harrison’s state habeas petition
“resulted in a decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the Supreme
Court of the United States” or “resulted in a decision that was based on an
unreasonable determination of the facts in light of the evidence presented in the
State court proceeding.” 28 U.S.C. § 2254(d)(1)–(2). Because the California
Supreme Court summarily denied Harrison’s state habeas petition, this Court
“must determine what arguments or theories . . . could have supported . . . the state
court’s decision; and then [we] must ask whether it is possible fairminded jurists
could disagree that those arguments or theories are inconsistent with the holding in
a prior decision of [the United States Supreme] Court.” Harrington v. Richter, 131
S. Ct. 770, 786 (2011) (emphasis added).
First, Harrison’s Napue false evidence claim based on Michael Lopez’s
allegedly false trial testimony fails because Harrison has not shown that Lopez’s
trial testimony was false, nor that the prosecution “knew or should have known”
that this testimony was false. See Hein v. Sullivan, 601 F.3d 897, 908 (9th Cir.
2010) (stating that to prevail on a Napue claim, a defendant “must show that (1) the
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testimony (or evidence) was actually false, (2) the prosecution knew or should
have known that the testimony [or evidence] was actually false, and (3) that the
false testimony [or evidence] was material.” (alterations in original) (internal
quotation marks and citation omitted)). In particular, a witness’s “later recantation
of his trial testimony does not [necessarily] render his earlier testimony false.” See
Allen v. Woodford, 395 F.3d 979, 994 (9th Cir. 2005). Similarly, Harrison’s Napue
false evidence claim based on Detective McElderry’s allegedly false trial testimony
fails because the California Supreme Court could have reasonably concluded that
this testimony was not false.
Second, Harrison’s Brady suppression of evidence claim based on an
“implied agreement” between Lopez and the prosecution fails because Harrison
has not shown that any such agreement existed. See Jackson v. Brown, 513 F.3d
1057, 1071 (9th Cir. 2008) (stating that to succeed on a Brady claim, a defendant
must demonstrate three elements: “(1) The evidence at issue must be favorable to
the accused . . . , (2) that evidence must have been suppressed by the State, and (3)
prejudice must have ensued” (internal quotation marks omitted)). As the district
court noted, “[Harrison’s] speculation that there must have been a promise or deal,
or even that Lopez believed there must have been a promise, is not sufficient to
show that there was any such deal that needed to be disclosed.” ER 18. Finally,
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Harrison’s Brady claim based on her assertion that Lopez’s trial testimony was
“cross-contaminated” by information from Juan Tovar’s recorded jail cell
conversation with Jonathan Miramontes fails because Harrison has not shown that
any such “cross-contamination” occurred. Nor has Harrison shown the prosecution
suppressed evidence of cross-contamination. Harrison cross-examined Lopez at
trial and could have questioned Lopez about whether he was told of Tovar’s
statement to Miramontes. Moreover, the California Supreme Court could have
reasonably refused to believe Lopez’s 2007 declaration, upon which Harrison
relies to support her claim that the “cross-contamination” evidence existed.
Ultimately, the California Supreme Court could have reasonably rejected
both of Harrison’s Napue claims and both of Harrison’s Brady claims. We
therefore AFFIRM the district court’s denial of Harrison’s petition for a writ of
habeas corpus.
AFFIRMED.
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