NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT MAY 20 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
BERNARD GORDON, No. 11-17758
Petitioner - Appellant, D.C. No. 1:04-cv-05363-LJO-DLB
v.
MEMORANDUM*
C. K. PLILER,
Respondent - Appellee.
Appeal from the United States District Court
for the Eastern District of California
Lawrence J. O’Neill, District Judge, Presiding
Submitted May 16, 2014**
San Francisco, California
Before: McKEOWN and M. SMITH, Circuit Judges, and SELNA, District
Judge.***
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable James V. Selna, District Judge for the U.S. District
Court for the Central District of California, sitting by designation.
Bernard Gordon appeals the district court’s denial of his petition for a writ of
habeas corpus under 28 U.S.C. § 2254 challenging his conviction of robbery and
special-circumstance murder involving the use of a firearm. We have jurisdiction
pursuant to 28 U.S.C. § 2253, and we affirm.
Gordon argues that the prosecution withheld impeachment evidence relating
to the testimony of jailhouse informant Mark Mikles and that it presented false
evidence through Mikles’s testimony. The California Court of Appeal denied
relief, finding that even if the information about Mikles’s testimony had been
disclosed to the defense, “there is no reasonable probability that the result would
have been different.” Mikles was thoroughly impeached with available evidence,
he was not a key witness, and any alleged errors with his testimony were
immaterial in light of other “overwhelmingly strong” eyewitness identification
testimony and inculpatory notes passed between Gordon and his brothers, which
jail personnel intercepted.
We consider Gordon’s appeal under the Antiterrorism and Effective Death
Penalty Act of 1996 (“AEDPA”), which requires that we “deny habeas relief
unless [Gordon] shows that the state court decision ‘was contrary to, or involved
an unreasonable application of, clearly established Federal law, as determined by
the Supreme Court of the United States’ or ‘was based on an unreasonable
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determination of the facts in light of the evidence presented in the State court
proceeding.’” Merolillo v. Yates, 663 F.3d 444, 453 (9th Cir. 2011) (quoting 28
U.S.C. § 2254(d)(1)–(2)). Gordon has not satisfied either prong. See 28 U.S.C.
§ 2254(d)(1).
The Court of Appeal reasonably determined that no error occurred under
Brady v. Maryland, 373 U.S. 83 (1963), because the undisclosed impeachment
evidence both individually and cumulatively did not undermine the court’s
confidence in the outcome of the trial. See Barker v. Fleming, 423 F.3d 1085,
1096, 1100–01 (9th Cir. 2005); cf. Giglio v. United States, 405 U.S. 150, 154–55
(1972) (holding that withheld impeachment evidence was material because the
prosecution’s case depended heavily on that witness’ testimony). Second, the state
court reasonably determined that relief should not be granted under Napue v.
Illinois, 360 U.S. 264 (1959), because any alleged falsehoods in Mikles’s
testimony were not reasonably likely to affect the judgment of the jury. See Giglio,
405 U.S. at 154 (citing Napue, 360 U.S. at 271). He was not the “make-or-break
witness” for the state. See Maxwell v. Roe, 628 F.3d 486, 507–08 (9th Cir. 2010)
(internal quotation marks omitted).
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Gordon has also failed to demonstrate that the Court of Appeal made an
unreasonable determination of the facts. See 28 U.S.C. § 2254(d)(2).1 The record
supports the state court’s findings that Mikles was not a key witness, that he was
extensively impeached about his history of testifying in return for consideration,
and that other evidence established Gordon’s guilt. Gordon provides no clear and
convincing evidence to the contrary. See 28 U.S.C. § 2254(e)(1).
Finally, Gordon has not shown that even if the alleged Brady and Napue
violations do not warrant relief separately, the cumulative effect of the errors
rendered the trial unfair. See Jackson v. Brown, 513 F.3d 1057, 1085 (9th Cir.
2008).
AFFIRMED.
1
In light of our determination that Gordon’s claim under § 2254(d)(2) lacks
merit, we do not address the state’s argument that he forfeited this claim by failing
to file it as an objection to the Magistrate Judge’s findings and recommendations.
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