FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
EARL LLOYD JACKSON,
Petitioner-Appellee,
v. No. 04-99006
JILL BROWN, Warden, Acting D.C. No.
Warden, California State Prison at CV-95-03286-ER
San Quentin,
Respondent-Appellant.
EARL LLOYD JACKSON,
Petitioner-Appellant,
No. 04-99007
v.
JILL BROWN, Warden, Acting D.C. No.
CV-95-03286-ER
Warden, California State Prison at
OPINION
San Quentin,
Respondent-Appellee.
Appeal from the United States District Court
for the Central District of California
Edward Rafeedie, District Judge, Presiding
Argued and Submitted
December 7, 2006—Pasadena, California
Filed January 23, 2008
Before: Kim McLane Wardlaw, Richard A. Paez, and
Jay S. Bybee, Circuit Judges.
Opinion by Judge Wardlaw
885
JACKSON v. BROWN 889
COUNSEL
Tracy J. Dressner, La Crescenta, California, and Jay L. Licht-
man, Los Angeles, California, for the petitioner-appellee/
cross-appellant.
Bill Lockyer, Attorney General; Robert R. Anderson, Chief
Assistant Attorney General; Pamela C. Hamanaka, Senior
Assistant Attorney General; Scott A. Taryle, Deputy Attorney
General; Kyle S. Brodie, Deputy Attorney General; and Susan
Lee Frierson, Deputy Attorney General, Los Angeles, Califor-
nia, for the respondent-appellant/cross-appellee.
OPINION
WARDLAW, Circuit Judge:
Earl Jackson petitions for a writ of habeas corpus challeng-
ing (1) his state court convictions for two counts of burglary
and two counts of murder, (2) the jury’s findings of special
890 JACKSON v. BROWN
circumstances making him death-eligible, and (3) his ultimate
death sentence. The district court denied relief as to his con-
victions, but granted conditional relief as to the special cir-
cumstances findings and the death sentence.1 Warden Brown
(the “State”) does not appeal the district court’s judgment as
to the death sentence itself, but appeals the relief granted as
to the special circumstances findings.2 Jackson cross-appeals
the district court’s denial of relief as to the underlying convic-
tions. We affirm the district court’s partial grant of Jackson’s
petition as to the special circumstances and death sentence
and its partial denial as to his convictions.
I. BACKGROUND
A. The Crimes of Conviction
In 1977, two elderly widows—neighbors in the same apart-
ment building in Long Beach, California—were beaten to
death during burglaries of their residences. Vernita Curtis,
eighty-one, was found lying unconscious on her bedroom
floor on August 29, 1977. Her face was swollen and severely
bruised. She had suffered multiple injuries to her head, neck,
and chest, and died in the hospital four days later. Less than
two weeks later, her next door neighbor, Gladys Ott, ninety,
was found dead in her bed. The injuries suffered by Ott were
even more severe, and included bruises on her face, broken
ribs, a fractured sternum, a detached lung, and extensive lac-
erations to her vagina. Various household items were missing
1
The district court’s conditional grant gives the State of California 120
days from the entry of judgment to either retry Jackson as to the special
circumstances findings or vacate the special circumstances findings and
death sentence. Judgment was entered but stayed pending this appeal.
2
If the district court judgment stands, Jackson cannot be re-sentenced to
death unless the Los Angeles District Attorney’s Office first retries Jack-
son as to both the special circumstances and the death sentence. If we were
to reverse the district court as to the special circumstances finding, Jack-
son could be sentenced to death after only a penalty phase retrial, without
re-litigating the special circumstances that rendered him death-eligible.
JACKSON v. BROWN 891
from both apartments, and Ott’s apartment had been ran-
sacked.
Jackson was sought for questioning after his fingerprints
were found in Ott’s apartment. He turned himself in to the
police and gave two recorded statements. In the initial round
of questioning, Jackson denied any participation in the crime.
Instead, he said he was weightlifting on a nearby balcony and
saw someone walking around looking at the neighborhood
houses. He went for a walk later that evening and passed Ott’s
front door. He told the police: “the lady’s door was open so
I just you know, opened the door, walked in. When I walked
in the lady was laying in bed. I seen the bottle and I touched
it you know.”
Jackson subsequently recanted and confessed to his
involvement in the burglaries that led to the two murders. He
said he had a number of accomplices with whom he had bro-
ken into the apartments seeking money. He entered Ott’s
apartment at night through a kitchen window and unlocked
the front door for his accomplices. He claimed their purpose
was “[t]o find money. That’s all.” When Ott awoke, one of
Jackson’s accomplices punched her in the jaw, apparently
knocking her unconscious. Jackson admitted to “grabb[ing]
her two or three times” and asking her where her money was.
Jackson also said, “I think I hit her once, just once.” He
described taking a television, a vacuum cleaner, and a toaster.
Jackson also described the Curtis burglary. He attributed
the idea to one of his accomplices, Elton Boyd, who was later
convicted for his participation in Curtis’s murder. Jackson
claimed that he did not know Curtis was in the apartment
asleep and that she had woken up in the middle of the bur-
glary. Boyd grabbed Curtis and told Jackson to hold her. Jack-
son complied, believing that Boyd was only planning to tie
her up, but Boyd instead started to hit her. Boyd’s actions
“kind of shocked [Jackson]. He hit her so quick. It happened
so fast.” Jackson “didn’t know that [Boyd] was trying to kill
892 JACKSON v. BROWN
her or nothing.” He did not find out that Curtis had died until
a few days later.
B. The Trial
Jackson was charged with two counts of first-degree mur-
der and two counts of burglary. He was represented by Theo-
dore Veganes, a court-appointed defense attorney. The case
was prosecuted by Paul Marin, a Los Angeles County deputy
district attorney from Long Beach.
At trial, the prosecution presented Jackson’s taped confes-
sion, along with the testimony of several other witnesses tying
him to the crimes. Al Rivera, an identification officer with the
Long Beach police, testified that he had matched a number of
Jackson’s fingerprints to the prints lifted at Ott’s apartment.
Nathaniel Johnson, an older gentlemen who was familiar
with Jackson, testified that he convinced Jackson to turn him-
self in to the police. According to Johnson, Jackson said that
“[t]hey looking for me on a murder rap which I didn’t do.”
Jackson apparently told Johnson that he knew that “four or
five” people were involved in the murder and claimed the
police would never know who was involved unless he told
them.
One witness, Ilena Gaines, testified that she lived in an
apartment upstairs from Curtis and saw Jackson outside the
apartment building when the paramedics removed Curtis from
the building. According to Gaines, when Jackson saw Curtis,
he “smiled” and “laughed” and “said that he was the one who
did that.” On cross-examination, however, Gaines admitted
that Elton Boyd, Jackson’s alleged accomplice, was her boy-
friend and the father of one of her children. She admitted that
Boyd had himself been convicted for Curtis’s murder and that
he blamed Jackson for “say[ing] he beat the old lady up when
he didn’t.” Finally, Gaines admitted that she had only come
forward with her description of Jackson’s statements and
JACKSON v. BROWN 893
actions after Boyd’s arrest, even though she had previously
been questioned about the Curtis killing.
The prosecution read to the jury the testimony of two
unavailable witnesses who had previously testified at the pre-
liminary hearing. The first was Larry Rushing, a fugitive who
claimed to know Jackson “from the streets.” Rushing stated
that in August 1977, Jackson told him that he had “ripped off
the house downstairs” and “said something about he had hit
the old lady.” Rushing had also seen Jackson try to enter one
of the apartments when the “lady left to go to the church.” On
redirect, he said Jackson told him “that the old lady had
messed around and walked in on him and he hit her.”
The second unavailable witness was Debria Lewis, a
woman acquainted with Jackson. Her preliminary hearing tes-
timony was read at trial and described a conversation with
Jackson on the evening of September 11, 1977. According to
Lewis, Jackson “was looking in the evening paper and he saw
the article there of Curtis, the 83-year-old woman. And he
said, ‘This is what I done.’ ” Jackson further said that “if she
had just been still—she had been still and given him the
money, that she would have been walking around today.”
Lewis spoke with the police on September 13, 1977, describ-
ing her conversation with Jackson. In this discussion with the
police, Lewis attributed statements to Jackson that “he and his
partners had planned what they were going to do for a couple
of weeks but one of them messed up” and also that “if she had
been still, she would not have been choked to death.”
Debra Ann Hall, Jackson’s cousin, testified that she talked
to Jackson on September 11, 1977 at Debria Lewis’s apart-
ment. Hall claimed that he pointed out a newspaper article
about the deaths of Curtis and Ott and said something to the
substance of “this is what I did.” Jackson also told Hall that
he did it because “he needed some money.”
894 JACKSON v. BROWN
Finally, the State presented two inmates who claimed to
have met Jackson in jail. Ronald McFarland testified to a con-
versation with Jackson in October 1977:
Well, we talked about his case. He was telling me
about his case, about the murder case; that he killed
an older, aged woman in Long Beach here, and he
told me that him and three of his buddies—one
stayed outside and him and the other two went into
the side kitchen window of her house and they
started ransacking her house and then the lady came
out of her bedroom. And Jackson said he seen her
and pushed her back onto the bed and started beating
her, and then they continued to ransacking. And then
the old lady woke up and started hollering and Jack-
son started beating her and then she was uncon-
scious. This is what he told me.
And then he said he seen a wine bottle or long-
necked bottle of some kind and stuck it into her
vagina.
On redirect, prosecutor Marin queried, “And is it true that no
one promised you anything in exchange for your testimony
against Mr. Jackson?” McFarland responded, “Yes, that’s
right.”
Another co-prisoner, Mark Mikles, claimed to have had
several conversations with Jackson. According to Mikles, a
group of inmates were “woofing at Jackson about his cases,
you know, trying to make him into a tough guy because he
had a couple of 187’s.” He recounted:
So, one guy told him—he says “Come on, man, you
know you killed those two old ladies.
And at first he said “Na, na, that ain’t me man.”
JACKSON v. BROWN 895
And they woofed at him for a little while, you
know. “You are out there doing it up real big.” He
says, “You know you killed those two old dudes.”
In the crowd—it was a little group over in a cor-
ner. He said, “So what if I did kill those two old
bitches, those two old white bitches?”
Mikles went on to describe a one-on-one conversation with
Jackson:
I said, “You had a couple of hot murder cases, a
couple of 187’s?”
He said, “Yeah.”
I says, “How did you pick up a couple—a couple
of murders in a robbery or something?”
He said, “No. I had a burglary.”
I tell him, “How did you turn a burglary into a
robbery”—excuse me—“a burglary into a murder?”
He said, “Oh, a couple of—me and a couple of my
partners, you know, we were out going to do this
burglary in this apartment complex and we all went
in and we were ransacking the house.”
He was in—he was in the living room, wrapping
up the TV. I remember him telling me something
about wrapping up a TV wire or something like that,
and this old lady comes up in the hallway, and I
guess he caught her attention or something, you
know, or she might have made some noise. I can’t
really remember what cause his attention about it,
you know. I can’t foresee anything catching my
attention when I am ransacking a house, but he went
896 JACKSON v. BROWN
over and hit her a couple of times, and I guess she
was backing up into the bedroom, and he kept firing
on her until she—he knocked her out on the bed.
. . . So he is going—he is in the bedroom, and the
lady is making noise. She is waking up. She is
screaming or something, so he beats on her a couple
of more times, you know. How many times I really
couldn’t say, till he knocked—till what it appeared,
he knocked her out again. She fell down on the bed.
...
....
He told me, when she got up the second time
instead of, instead of her sitting there and being cool,
she started screaming and making a lot of noise.
....
I asked him the question, you know, “Why, you
know, because she was, you know—she was so old
—why pounce on her so much?”
And he said that when she woke up, you know, he
just went off. It just pissed him off so bad, because—
because he sick—he beat her on the point, when he
knocked her out again, he told me that he was so hot
at her that there was a bottle on the stand next to the
bed and he took the bottle and he fucked her in her
pussy with it, his exact words he told me.
On cross examination, defense attorney Veganes tried to
impeach Mikles with his convictions for armed robbery, for
which he was still awaiting sentencing. In particular, Veganes
asked Mikles about his contact with the police:
Q When did you go to the police pursuant to this
information that you just told us about?
JACKSON v. BROWN 897
A I believe it was around the end of March.
Q You know about this from February and before,
and you decided to go to the police at the end of
March; is that correct?
A Yes.
Q And why did you go to the police at that particu-
lar time?
A Because the police were sent to me by other
police?
....
Q The police were sent to you?
A Yeah.
Q By other police?
A Right.
Q And those are the police that are holding your
case in Norwalk?
A No.
....
Q And you were still awaiting sentence on this
offense and still awaiting sentence in Norwalk;
is that correct?
A I am not sure about my cases here. I can’t
remember if I had already been sentenced or not.
898 JACKSON v. BROWN
Q Don’t you have an extreme desire that the cases
in Norwalk be sentenced—or be sentenced con-
current with the time that you are doing here in
the Long Beach cases?
....
A Yeah, it has been decided since March that is
exactly what is going to happen in those cases.
Q That is what you would like to happen?
A That is what I know is going to happen. It is part
of the plea bargain.
Q You know what is going to happen in Norwalk
before you are even sentenced?
A Yeah.
Q And the time you are doing on this case you are
going to credit for the four counts of robbery
you are doing in Norwalk?
A To be run concurrent.
On redirect, Mikles testified that he did not tell the police
about Jackson’s statements until after he had entered into the
plea bargain in Norwalk. Prosecutor Marin then questioned
Mikles further about his police interactions:
Q All right. Now did anyone, up to the time that
you have testified now on this witness stand—
did anyone—when I say “anyone,” I include
sheriffs, police, District Attorneys; in other
words, anyone in law enforcement—did anyone
—probation officers—did anyone promise you
JACKSON v. BROWN 899
anything in exchange for your testifying about
the conversation that Jackson had with you?
A Just a lot of protection.
Q Pardon?
A Just a lot of protection.
Q Just a lot of protection?
A Yeah
Q Is that about all?
A That’s it.
Q And who, incidentally, promised you protec-
tion?
A The Sheriff’s Department did.
In addition to these witnesses tying Jackson to the crime,
the prosecution presented several witnesses who testified to
the general circumstances in which the bodies were found.
Manuel Breton, a deputy medical examiner at the Los Ange-
les County Coroner’s office, described Ott’s injuries in detail.
He testified that all of Ott’s injuries, except those to the
vagina, were caused by blunt force trauma, like a fist or the
wall, and that at least eight to ten blows would have been
required to cause the injuries. He further opined that the vagi-
nal injuries were caused by the insertion of a foreign object.
Marin asked, “Caused by a bottle?” and Breton testified,
“Yes, it could have been.” Finally, he testified that the cause
of Ott’s death was asphyxiation by manual strangulation.
900 JACKSON v. BROWN
C. The Special Circumstances Findings and the Death
Penalty
On January 5, 1979, Jackson was convicted on both counts
of first-degree murder and both counts of burglary.
Under the 1977 California death penalty statute, at least one
“special circumstance” finding was required for a defendant
to qualify for a sentence of death or life without parole. Cal.
Penal Code § 190.2 (1977). The jury found two special cir-
cumstances rendering Jackson death-eligible: (1) that Ott’s
murder was willful, deliberate, and premeditated and was
committed during the commission of a burglary (“murder dur-
ing the commission of a burglary”), and (2) that Jackson had
in this proceeding been convicted of more than one offense of
murder (“multiple murder”). Each of these special circum-
stances findings required that “[t]he defendant was personally
present during the commission of the act or acts causing
death, and with the intent to cause death physically aided or
committed such act or acts causing death.” Id. § 190.2
(emphasis added).
In the separate penalty phase of the trial, the jury returned
a verdict of death for Ott’s murder. Jackson received a life
sentence for Curtis’s murder and four-year sentences for each
burglary, all to run concurrently.
D. Post-conviction proceedings
On automatic appeal to the California Supreme Court,
Jackson challenged the constitutionality of the state’s 1977
death penalty statute and raised various other claims of error.3
3
Jackson argued that much of the evidence used against him was inad-
missible, including his confession, People v. Jackson, 28 Cal. 3d at 297;
photographs of Curtis’s corpse, id. at 302; evidence of Ott’s sexual assault,
id. at 303; Ilena Gaines’s testimony about Elton Boyd’s statements, id. at
306; and the preliminary hearing testimony of Larry Rushing and Debria
JACKSON v. BROWN 901
People v. Jackson, 28 Cal. 3d 264 (1980). Jackson simulta-
neously petitioned the California Supreme Court for a writ of
habeas corpus based on ineffective assistance of counsel.4 Id.
at 282. On October 23, 1980, in a 4-3 decision, the court
issued a consolidated opinion affirming the judgment and
denying Jackson’s habeas petition. Id. at 282. On March 30,
1981, the United States Supreme Court denied Jackson’s peti-
tion for writ of certiorari. Jackson v. California, 450 U.S.
1035 (1981).
On August 10, 1981, Jackson filed a second habeas petition
in the California Supreme Court, alleging, among other
things, that the prosecution had suppressed evidence that Mik-
les and McFarland had been induced to testify against Jack-
son. The court issued an order to show cause and appointed
the Honorable Bernard S. Jefferson, Retired Presiding Justice
of the California Court of Appeal, to serve as a referee in a
special reference proceeding. Justice Jefferson was directed to
make findings on three issues:
Lewis, id. at 311. He also asserted that the trial court erred by denying his
pretrial motion to appoint a second attorney to assist in his defense, id. at
285; declining to give jury instructions for manslaughter, id. at 305; con-
ducting a hearing on his motion for mistrial outside of his presence, id. at
308; excluding Mikles’s prior federal conviction for impeachment pur-
poses, id. at 311; excluding four prospective jurors who declared they
would not impose the death penalty, id. at 313; and allowing his defense
attorney to rest without presenting any mitigating evidence during the pen-
alty phase without an explicit waiver by Jackson, id. at 313-14. Finally,
Jackson argued that the prosecutor committed misconduct by impermiss-
ibly commenting on his courtroom demeanor, id. at 304, and by failing to
disclose Mikles and McFarland as potential witnesses until shortly before
trial, id. at 307.
4
Jackson argued that his attorney was ineffective at the guilt phase for
failing to: “(1) investigate the case in a properly and timely manner; (2)
present a diminished capacity defense at trial; (3) object to certain adverse
evidence; and (4) deny defendant’s guilt during closing argument to the
jury.” People v. Jackson, 28 Cal. 3d at 288. Jackson also claimed ineffec-
tive assistance at the penalty phase based on his counsel’s failure to pre-
sent any mitigating evidence. Id. at 293.
902 JACKSON v. BROWN
(1) whether the admissions defendant made to two
jailhouse informants, Mark Mikles and Ronald
McFarland, deliberately were elicited from defen-
dant at the behest of law enforcement officials so as
to render the statements inadmissible at trial . . . ; (2)
whether the prosecution improperly failed to disclose
to the defense any inducements offered by state
agents to Mikles or McFarland for their testimony at
defendant’s trial; and (3) whether defendant’s trial
counsel failed to provide adequate representation
with respect to the special circumstance allegations
or the penalty phase of the trial.
In re Jackson, 3 Cal. 4th 578, 584 (1992).
On August 16, 1988, after taking testimony from eighteen
witnesses and receiving into evidence twenty-seven exhibits,
Justice Jefferson issued his first report, which made findings
as to the first and third questions. First, the referee found that
Mikles and McFarland had not impermissibly elicited Jack-
son’s statements at the behest of law enforcement. However,
he concluded that Jackson was denied effective assistance of
counsel at both the guilt and penalty phases of the trial. In the
penalty phase, defense attorney Veganes presented no evi-
dence on Jackson’s behalf and only interviewed three poten-
tial witnesses: Jackson’s father, grandmother, and aunt.
Justice Jefferson found that there were many other relatives
who could have provided mitigating evidence, including evi-
dence of “unconscionable” “physical and psychological
abuse” in Jackson’s childhood. Because the decision not to
call any mitigating witnesses was based on Veganes’s misun-
derstanding of the scope of rebuttal evidence, it could not be
considered a reasonable tactical decision. Similarly, at the
guilt phase, Veganes completely failed to investigate the
background of either Mikles or McFarland, despite his belief
that “the testimony of those two witnesses” was “the guts of
the Jackson case.” Had Veganes performed any investigation
of these jailhouse informants, he would have discovered that
JACKSON v. BROWN 903
Mikles was a former member of the Aryan brotherhood, that
Mikles and McFarland had each been offered governmental
assistance in exchange for testifying, and that the two wit-
nesses had been in contact in jail and had the opportunity to
collaborate to ensure consistency in their testimony. The ref-
eree concluded that these witnesses’ testimony was crucial to
the jury’s finding that Jackson committed the crime “with the
intent to cause death”; accordingly, Veganes’s ineffective
assistance prejudiced both the jury’s special circumstances
findings and the jury’s death verdict, although it did not affect
the underlying convictions.
On September 21, 1989, Justice Jefferson issued a supple-
mental report addressing the undisclosed inducements made
to Mikles and McFarland. He found that law enforcement
officers had promised Mikles that they would help him get a
pending six-year sentence reduced, as little time as possible
in an upcoming sentencing, and a pending parole violation
sentence reduced, although they did not promise any specific
results. Prosecutor Marin offered to write a letter to prison
authorities on McFarland’s behalf to help him serve his time
in Arizona, where his family lived. None of these induce-
ments was disclosed at trial; in fact, both witnesses falsely
testified that they had received no promises in exchange for
their testimony, other than the “protection” described by Mik-
les. Justice Jefferson concluded:
This was a clear case of concealment and a failure by
the prosecution to disclose to petitioner Jackson’s
lawyer, the inducements made to Mikles and McFar-
land. The disclosure to the jury of these inducements
could well have caused the Jackson jury to give little
or no credence to the damaging testimony of Mikles
and McFarland.
The California Supreme Court reviewed Justice Jefferson’s
reports and issued an opinion on August 31, 1992. In re Jack-
son, 3 Cal. 4th 578 (1992). The court agreed with the referee
904 JACKSON v. BROWN
that the prosecution improperly failed to disclose the promises
of assistance to Mikles and McFarland and that it failed to
correct the perjured testimony concerning these promises. Id.
at 594-97 (“Accordingly, we conclude that because the prose-
cution should have known of the false and misleading nature
of the informants’ testimony, the prosecution was under a
constitutional obligation to correct that testimony.”). How-
ever, the court concluded, in a 5-2 decision, that these consti-
tutional errors were not prejudicial because Jackson had
admitted to hitting Ott, and, at that time, Jackson knew that
Curtis had recently died from a similar beating. Id. at 598-99.
Therefore, “although defendant did not admit . . . that he acted
with the intent to cause Mrs. Ott’s death,” his statement “went
a long way toward proving the elements of the special circum-
stances finding.” Id. at 599. Moreover, the court pointed to the
testimony of other witnesses and the statements they attri-
buted to Jackson that “clearly established that defendant had
the requisite culpability.” Id. For example, Jackson apparently
referred to the victims as “ ‘two old bags [who] were a nui-
sance and . . . got what they deserved,’ ” id. (emphasis and
alteration in original), and stated that “ ‘[t]his is what I did,
that it was because I needed some money,’ ” id. (emphasis in
original). Accordingly, the court found that the errors did not
justify habeas relief as to either the special circumstances
findings or the death sentence. Id. at 599, 600. For the same
reasons, the court held that even if Veganes’s failure to inves-
tigate Mikles and McFarland was deficient, this deficiency
did not prejudice the special circumstances findings so as to
constitute ineffective assistance of counsel under the Sixth
Amendment. Id. at 604-05. Finally, the court agreed with Jus-
tice Jefferson that Veganes’s failure to investigate potential
mitigating evidence at the penalty phase was deficient perfor-
mance; however, it disagreed with the referee’s conclusion
that Jackson suffered prejudice. Id. at 615.
Jackson filed his first federal habeas petition on April 1,
1996. Because it alleged unexhausted claims, it was stayed
until Jackson exhausted his remedies in state court. On Sep-
JACKSON v. BROWN 905
tember 9, 1996, Jackson filed a third habeas petition in the
California Supreme Court, claiming, among other things, that
the prosecutor impermissibly failed to disclose Mikles’s psy-
chiatric reports. On February 23, 2000, the California
Supreme Court denied this third petition on the merits and on
various procedural grounds.
On March 31, 2000, Jackson filed an amended petition for
writ of habeas corpus in the federal district court. Agreeing
with Justice Jefferson’s reports, the district court found that
“the suppressed impeachment evidence was so extensive and
damning that if the jurors had heard it, Mikles’s and McFar-
land’s credibility would have been irreparably harmed, and
jurors would have given little or no credence to their testimo-
ny.” The district court agreed with the California Supreme
Court that the prosecutor’s errors did not undermine the con-
victions; however, it found that the jailhouse informants’ tes-
timony was central to the finding that Jackson acted with the
intent to cause death and therefore required overturning both
the jury’s special circumstances findings and the death sen-
tence. The district court, like the referee, also concluded that
Jackson had been denied ineffective assistance of counsel by
Veganes’s failure to investigate Mikles and McFarland at the
guilt phase and by his failure to present mitigating evidence
at the penalty phase. Accordingly, the district court granted
Jackson’s petition as to both the special circumstances find-
ings and the death sentence, but not as to the underlying con-
victions. The parties timely appealed the district court’s
judgment.
The State does not contest the district court’s order vacat-
ing the sentence of death; however, it challenges the grant of
relief as to the special circumstances findings. First, it argues
that the district court’s legal findings of prosecutorial error
relied on “new rules” of criminal procedure and hence were
barred by Teague v. Lane, 489 U.S. 288 (1989). Second, it
argues that even if these findings of prosecutorial error were
not Teague-barred, the undisclosed offers and promises were
906 JACKSON v. BROWN
immaterial and any prosecutorial error was harmless. Third,
it argues that Jackson’s claim regarding the undisclosed psy-
chiatric reports was procedurally defaulted, and that, either
way, the failure to disclose did not constitute reversible error.
Finally, the State contends that trial counsel’s failure to inves-
tigate Mikles and McFarland was not deficient and, in any
event, was not prejudicial.
Jackson cross-appeals the partial denial of relief as to his
convictions. The district court heard numerous claims chal-
lenging the convictions but granted a certificate of appeala-
bility only as to whether (1) Jackson’s defense counsel’s
repeated racially derogatory remarks during trial deprived him
of a fair trial; (2) defense counsel impermissibly compelled
him to stand trial in jail clothing despite his desire to wear
civilian apparel; (3) the trial court erred in admitting irrele-
vant and highly prejudicial evidence of Ott’s sexual assault
and his defense attorney was ineffective in failing to object to
this evidence; (4) the introduction of prerecorded testimony
by Larry Rushing and Debria Lewis violated his Sixth
Amendment right to confrontation; and (5) the cumulative
effect of these errors rendered his trial fundamentally unfair.
II. STANDARD OF REVIEW
Because Jackson’s federal petition for writ of habeas cor-
pus was filed before the effective date of the Anti-Terrorism
and Effective Death Penalty Act (AEDPA), the general
AEDPA provisions are inapplicable. See Lindh v. Murphy,
521 U.S. 320, 327 (1997). However, the certificate of
appealability requirements of AEDPA do apply, Slack v.
McDaniel, 529 U.S. 473, 481-82 (2000); therefore, Jackson’s
appeal is limited to those claims that the district court certified
for appeal. 28 U.S.C. § 2253(c).5
5
We did not expand the certificate of appealability to include issues that
the district court declined to certify.
JACKSON v. BROWN 907
We review the district court’s decision to grant habeas
relief de novo. Alcala v. Woodfood, 334 F.3d 862, 868 (9th
Cir. 2003). We review de novo questions of law and mixed
questions of law and fact, whether decided by the district
court or the state courts. Hovey v. Ayers, 458 F.3d 892, 900
(9th Cir. 2006); Silva v. Woodford, 279 F.3d 825, 835 (9th
Cir. 2002); Williams v. Taylor, 529 U.S. 362, 400 (2000)
(O’Connor, J., concurring) (“[Pre-AEDPA], a federal habeas
court owed no deference to a state court’s resolution of such
questions of law or mixed questions.”). The district court’s
factual findings are reviewed for clear error. We therefore
accept its findings “absent a definite and firm conviction that
a mistake has been committed.” Hovey, 458 F.3d at 900
(internal quotation marks omitted). State court factual find-
ings are entitled to a presumption of correctness, subject to
eight exceptions enumerated in the previous version of 28
U.S.C. § 2254(d). Palmer v. Estelle, 985 F.2d 456, 458 (9th
Cir. 1993).6
6
The pre-AEDPA version of 28 U.S.C. § 2254(d) applied the presump-
tion of correctness, “unless the applicant shall establish or it shall other-
wise appear, or the respondent shall admit”:
(1) that the merits of the factual dispute were not resolved in
the State court hearing;
(2) that the factfinding procedure employed by the State court
was not adequate to afford a full and fair hearing;
(3) that the material facts were not adequately developed at the
State court hearing;
(4) that the State court lacked jurisdiction of the subject matter
or over the person of the applicant in the State court proceeding;
(5) that the applicant was an indigent and the State court, in
deprivation of his constitutional right, failed to appoint counsel to
represent him in the State court proceeding;
(6) that the applicant did not receive a full, fair, and adequate
hearing in the State court proceeding; or
(7) that the applicant was otherwise denied due process of law in
the State court proceeding;
(8) or unless that part of the record of the State court proceeding
in which the determination of such factual issue was made, perti-
908 JACKSON v. BROWN
Habeas relief is usually warranted only if the alleged con-
stitutional errors had a “substantial and injurious effect or
influence in determining the jury’s verdict.” Brecht v.
Abrahamson, 507 U.S. 619, 637 (1993) (internal quotation
marks omitted). However, certain types of claims are ana-
lyzed under their own harmless error standards, which can
render Brecht analysis unnecessary. See, e.g., Kyles v. Whit-
ley, 514 U.S. 419, 435 (1995) (noting that Brecht analysis is
unnecessary for Brady claims made on habeas); Hayes v.
Brown, 399 F.3d 972, 984-85 (9th Cir. 2005) (en banc) (same
for Napue claims).
III. THE STATE’S APPEAL
We agree with the district court and the California Supreme
Court that the prosecution suppressed information favorable
to the defense in violation of Brady v. Maryland, 373 U.S. 83
(1963), and knowingly failed to correct false testimony in vio-
lation of Napue v. Illinois, 360 U.S. 264 (1959). Moreover,
the district court correctly concluded that “the suppressed
impeachment evidence was so extensive and damning that if
the jurors had heard it, Mikles’s and McFarland’s credibility
would have been irreparably impaired.” Further, we agree
with both the district court and state court referee Justice Jef-
ferson that the testimony of these jailhouse informants was
material to the jury’s finding that Jackson acted “with the
intent to cause death.” Therefore, these Brady and Napue
errors entitle Jackson to habeas relief with respect to the
jury’s special circumstances findings and the resulting sen-
tence of death. Accordingly, we need not reach the question
whether Jackson’s defense attorney’s failure to investigate
nent to a determination of the sufficiency of the evidence to sup-
port such factual determination, is produced as provided for
hereinafter, and the Federal court on a consideration of such part
of the record as a whole concludes that such factual determina-
tion is not fairly supported by the record.
28 U.S.C. § 2254(d) (1994).
JACKSON v. BROWN 909
Mikles and McFarland constituted ineffective assistance of
counsel.
The district court correctly held the prosecution account-
able for four distinct Brady and Napue errors. First, the prose-
cutor failed to disclose that he had promised to write a letter
on McFarland’s behalf recommending that he be allowed to
serve his sentence in Arizona, where his family lived, rather
than in California. Second, the prosecutor failed to correct
McFarland’s perjured testimony stating that he had received
no inducements to testify. Third, the prosecutor failed to dis-
close that, in exchange for Mikles’s testimony, law enforce-
ment officers had promised to help him obtain a reduction in
his current sentence and receive lower sentences in his pend-
ing cases. Finally, the prosecutor failed to correct Mikles’s
perjured testimony regarding these promises.7
A. Prosecution’s failure to disclose promises made to
McFarland
[1] The district court found, and the State concedes, that
Deputy District Attorney Marin promised McFarland he
would write a letter on McFarland’s behalf recommending
that he be allowed to serve his California prison sentence in
Arizona near his family in exchange for his cooperation in
Jackson’s trial. The State further concedes that this promise
was not disclosed to the defense. The district court concluded
that the failure to disclose the prosecution’s promise was
Brady error.
[2] In Brady v. Maryland, 373 U.S. 83 (1963), the Court
held that “the suppression by the prosecution of evidence
favorable to an accused upon request violates due process
7
The district court also found that the prosecutor had improperly failed
to disclose psychiatric reports that revealed Mikles’s drug abuse and psy-
chological disorders. We need not reach this claim because it is unneces-
sary to our holding.
910 JACKSON v. BROWN
where the evidence is material either to guilt or to punish-
ment, irrespective of the good faith or bad faith of the prose-
cution.” Id. at 87. There are three essential components to a
Brady claim: (1) “The evidence at issue must be favorable to
the accused, either because it is exculpatory, or because it is
impeaching,” (2) “that evidence must have been suppressed
by the State,” and (3) “prejudice must have ensued.” Strickler
v. Greene, 527 U.S. 263, 281-82 (1999).
[3] Here, there is no doubt that the first two elements are
met. The undisclosed promise was relevant to impeach
McFarland’s credibility and therefore was favorable to Jack-
son. See id. Moreover, the prosecution’s offer was not dis-
closed to the defense, so it is deemed suppressed. See Benn
v. Lambert, 283 F.3d 1040, 1053 (9th Cir. 2002) (“[T]he
terms ‘suppression,’ ‘withholding,’ and ‘failure to disclose’
have the same meaning for Brady purposes.”). All that
remains, therefore, is to determine whether Jackson suffered
prejudice as a result of the prosecution’s failures to comply
with its constitutional obligations.
To determine whether prejudice exists, we look to the
materiality of the suppressed evidence. Hovey v. Ayers, 458
F.3d 892, 916 (9th Cir. 2006). Evidence is material “if there
is a reasonable probability that, had the evidence been dis-
closed to the defense, the result of the proceeding would have
been different.” United States v. Bagley, 473 U.S. 667, 682
(1985). We may find a “reasonable probability” even where
the remaining evidence would have been sufficient to convict
the defendant. Strickler, 527 U.S. at 290. Moreover, we may
find a “reasonable probability” without finding that the out-
come would more likely than not have been different. Kyles
v. Whitley, 514 U.S. 419, 434 (1995). Instead, “[a] ‘reasonable
probability’ of a different result [exists] when the govern-
ment’s evidentiary suppression ‘undermines confidence in the
outcome of the trial.’ ” Id. (quoting Bagley, 473 U.S. at 678).
The materiality of suppressed evidence is “considered col-
lectively, not item by item.” Kyles, 514 U.S. at 436. Here,
JACKSON v. BROWN 911
Jackson asserts numerous Brady and Napue violations. There-
fore, rather than analyze whether the failure to disclose
Marin’s promise was material on its own, “[w]e evaluate . . .
[the] cumulative effect [of the prosecutorial errors] for pur-
poses of materiality separately and at the end of the discus-
sion.” Id. at 436 n.10.
B. Subornation of perjury and failure to correct
McFarland’s false testimony
[4] At trial, Marin asked McFarland, “And is it true that no
one promised you anything in exchange for your testimony
against Mr. Jackson?” McFarland answered, “Yes, that’s
right.” In light of Marin’s promise to help McFarland serve
out his sentence closer to his family, this testimony was false.
Moreover, Marin knew that the testimony was false because
he himself had made the promise; nevertheless, he failed to
correct the perjury.
[5] The Supreme Court has long held that a conviction
obtained using knowingly perjured testimony violates due
process. Mooney v. Holohan, 294 U.S. 103, 112 (1935). In
Napue v. Illinois, 360 U.S. 264 (1959), the Court made clear
that this prohibition against the use of false testimony applies
even when the testimony in question was relevant only to the
witness’s credibility. Id. at 269. A claim under Napue will
succeed when “(1) the testimony (or evidence) was actually
false, (2) the prosecution knew or should have known that the
testimony was actually false, and (3) the false testimony was
material.” Hayes v. Brown, 399 F.3d 972, 984 (9th Cir. 2005)
(en banc) (internal quotation marks and alteration omitted).
Again, the first two elements are undoubtedly met here, so the
only question is whether McFarland’s perjured testimony was
material.
[6] As in the Brady context, the basic question is “ ‘whether
. . . [the defendant] received a fair trial, understood as a trial
resulting in a verdict worthy of confidence.’ ” Hall v. Dir. of
912 JACKSON v. BROWN
Corr., 343 F.3d 976, 983-84 (9th Cir. 2003) (per curiam)
(considering a Napue claim) (quoting Kyles, 514 U.S. at 434
(considering a Brady claim)). Because each additional Napue
and Brady violation further undermines our confidence in the
decision-making process, we analyze the claims “collective-
ly,” Kyles, 514 U.S. at 436, and proceed to consider the other
asserted prosecutorial violations.
C. Prosecution’s failure to disclose promises made to
Mikles
[7] The California Supreme Court and the district court
each found that Mikles was provided significant inducements
in exchange for his testimony against Jackson. In re Jackson,
3 Cal. 4th 578, 592-93 (1992). The state court referee found
that when Mikles first approached the sheriff’s and police
departments, he conditioned his cooperation on assistance in
“(1) having a six-year sentence, previously imposed on him
in Long Beach, recalled and reduced, (2) receiving as little
time, or, if possible, no time, on a number of charges then
pending against him in Norwalk, and (3) having a potential
forty-two-month sentence for a federal parole violation
reduced or eliminated.” Id. at 592. In return, members of the
sheriff’s and police departments promised that “they would
bring his cooperation to the attention of the judges and deputy
district attorneys involved in his cases and use their best
efforts to help him achieve his objectives,” although they
could not guarantee any specific results. Id. After Mikles’s
testimony, these officers kept their promises and made numer-
ous favorable statements on behalf of Mikles in proceedings
against him. Id. at 593. In the end, Mikles received everything
that he had requested: He was released from his six-year sen-
tence, his parole hold was lifted, fifteen pending charges
against him were dropped entirely, and he received a proba-
tionary sentence with no time in custody on a pending armed
robbery conviction. Id.
[8] The State concedes that these inducements were offered
and that they were not disclosed to the defense, but claims
JACKSON v. BROWN 913
that the prosecutor was never made aware of them. The
Supreme Court has made abundantly clear, however, that the
prosecutor’s duty to disclose evidence favorable to the
accused extends to information known only to the police.
Kyles v. Whitley, 514 U.S. 419, 438 (1995). Nevertheless, the
State argues that Kyles’s holding in 1995 created a new rule
of criminal procedure and that Teague v. Lane, 489 U.S. 288
(1989), prohibits its application to this case.
Teague stands for the proposition that “new constitutional
rules of criminal procedure will not be applicable to those
cases which have become final before the new rules are
announced.” Id. at 310. “Under the Teague framework, an old
rule applies both on direct and collateral review, but a new
rule is generally applicable only to cases that are still on direct
review.” Whorton v. Bockting, 127 S. Ct. 1173, 1180 (2007).
Teague explains how we determine whether a “new” constitu-
tional rule of criminal procedure is inapplicable to a given
case:
First, the court must determine when the defendant’s
conviction became final. Second, it must ascertain
the “legal landscape as it then existed,” and ask
whether the Constitution, as interpreted by the prece-
dent then existing, compels the rule. That is, the
court must decide whether the rule is actually “new.”
Finally, if the rule is new, the court must consider
whether it falls within either of the two exceptions to
nonretroactivity.
Beard v. Banks, 542 U.S. 406, 411 (2004) (citations omitted).
Jackson’s case became final on direct appeal when the United
States Supreme Court denied his petition for a writ of certio-
rari on March 30, 1981. Jackson v. California, 450 U.S. 1035
(1981). Thus, we must examine the legal landscape as of that
date “to determine whether existing precedent compelled a
finding that the rule[s] at issue ‘[were] required by the Consti-
tution.’ ” Hayes v. Brown, 399 F.3d 972, 983 (9th Cir. 2005)
914 JACKSON v. BROWN
(en banc) (quoting Lambrix v. Singletary, 520 U.S. 518, 527
(1997)).8
[9] Kyles may have been the first Supreme Court case to
find a Brady violation where the suppressed evidence was
known only to the police, but it did not create a new rule of
criminal procedure. In Kyles itself, the Supreme Court
observed that failing to hold the State “accountable . . . for
evidence known only to police investigators and not to the
prosecutor . . . would . . . amount to a serious change of
course from the Brady line of cases.”9 514 U.S. at 438.
Indeed, the principle underlying this unexceptional holding
dates back, at the latest, to the Supreme Court’s decision in
Giglio v. United States, 405 U.S. 150 (1972).
In Giglio, both Napue and Brady errors were at issue. A
federal prosecutor offered immunity to a key witness in return
for grand jury and trial testimony. Id. at 152. After the witness
testified before the grand jury, but before trial, the case was
transferred to another prosecutor who was not aware of the
immunity agreement. The witness testified for the government
at trial, stating that he had not received any promises that he
would not be indicted. Id. at 151-52. Writing for the Court,
Chief Justice Burger found reversible error under Napue and
Brady: “[W]hether the nondisclosure was a result of negli-
gence or design, it is the responsibility of the prosecutor. The
prosecutor’s office is an entity and as such it is the spokesman
8
The State urges that in analyzing whether a rule is new, we should con-
sider only Supreme Court cases. We have rejected this argument, as has
the Supreme Court. See Caspari v. Bohlen, 510 U.S. 383, 395 (1994)
(“Constitutional law is not the exclusive province of the federal courts,
and in the Teague analysis the reasonable views of state courts are entitled
to consideration along with those of federal courts.”); Leavitt v. Arave, 383
F.3d 809, 819 (9th Cir. 2004) (“[W]e have held that circuit court holdings
suffice to create a clearly established rule of law under Teague.”) (quota-
tion omitted).
9
Brady, of course, was decided in 1963, well before Jackson was
indicted.
JACKSON v. BROWN 915
for the Government. A promise made by one attorney must be
attributed, for these purposes, to the Government.” Id. at 154
(citing Restatement (Second) of Agency § 272). Giglio’s
focus on the responsibility of the prosecutor to investigate all
promises made on behalf of the government extends to prom-
ises made by the police, who also make any such promises as
spokespersons for the government, and for whom the prosecu-
tor bears responsibility.
Subsequent cases between Giglio and Kyles also make clear
that Kyles’s holding did not create a new rule of criminal pro-
cedure. In 1978, we held that:
The prosecutor is responsible for the nondisclosure
of assurances made to his principal witnesses even if
such promises by other government agents were
unknown to the prosecutor. Since the investigative
officers are part of the prosecution, the taint on the
trial is no less if they, rather than the prosecutor,
were guilty of nondisclosure.
United States v. Butler, 567 F.2d 885, 891 (9th Cir. 1978) (cit-
ing Barbee v. Warden, 331 F.2d 842, 846 (4th Cir. 1964) (cit-
ing Pyle v. Kansas, 317 U.S. 213 (1942))). A year later, the
Fifth Circuit agreed, echoing the sentiments expressed in
Giglio, when it held that “[t]he duty [of] disclosure is that of
the state, which ordinarily acts through the prosecuting attor-
ney; but if he too is the victim of police suppression of the
material information, the state’s failure is not on that account
excused.” Freeman v. Georgia, 599 F.2d 65, 69-70 (5th Cir.
1979) (quoting Barbee, 331 F.2d at 847). Later, in United
States v. Steel, 759 F.2d 706 (9th Cir. 1985), we reiterated that
“[b]ecause the government was required to furnish all excul-
patory evidence under the doctrine of Brady . . . , and because
investigative officers are part of the prosecution [under] But-
ler, . . . there was indeed a negligent nondisclosure.” Id. at
714. As in Butler, we never suggested that this rule was in any
916 JACKSON v. BROWN
way novel, and the State has cited not a single case plausibly
suggesting the opposite.10
Finally, it is instructive that in Jackson’s own state habeas
proceedings, the California Supreme Court rejected the
State’s argument that the prosecutor did not have a duty to
disclose offers unknown to the prosecutor that were made by
the police and sheriff’s department. See In re Jackson, 3 Cal.
4th 578, 595-96 (1992) (discussing, inter alia, Brady, Giglio,
and Barbee). If the California Supreme Court felt compelled
to follow such a rule in 1992, three years before Kyles, this
suggests that the rule had been in existence well before 1995.
[10] Therefore, on March 30, 1981, the United States Con-
stitution, as interpreted by Brady and Giglio, compelled pros-
ecutors to disclose evidence favorable to the accused, even
when that evidence was known only to the police and not to
the prosecutor. Thus, Kyles did not declare a new rule of con-
stitutional criminal procedure and Teague does not bar its
application.
The prosecution failed to disclose evidence favorable to
Jackson, so the first two Brady elements are met. Whether
prejudice ensued from this suppression will be addressed con-
sidering the prosecutorial errors “collectively.” Kyles, 514
U.S. at 436.
D. Failure to correct Mikles’s perjured testimony
[11] At trial, the prosecutor asked Mikles whether “anyone
—when I say ‘anyone,’ I include sheriffs, police, District
Attorneys; in other words, anyone in law enforcement—did
anyone . . . promise you anything in exchange for your testify-
10
It is also worth mentioning that in Kyles itself, the State of Louisiana
abandoned this argument altogether and conceded at oral argument that it
was “ ‘held to a disclosure standard based on what all State officers at the
time knew.’ ” 514 U.S. at 438 n.11.
JACKSON v. BROWN 917
ing about the conversation that Jackson had with you?” Mik-
les responded, “Just a lot of protection.” The record amply
demonstrates, however, that Mikles was offered much more
than mere “protection.” Therefore, we agree with the Califor-
nia Supreme Court and the district court that Mikles’s state-
ment was false and misleading.
The State contends that Napue did not require the prosecu-
tion to correct Mikles’s perjury because the prosecutor him-
self was unaware of the promises made by the police and
sheriff’s department. Further, it argues that to hold Napue
applicable in such a case would create a new rule barred by
Teague.
[12] Again, we disagree with the State’s analysis. Napue
applies whenever a prosecution “ ‘knew or should have
known that the testimony was false.’ ” Hayes v. Brown, 399
F.3d 972, 984 (9th Cir. 2005) (en banc) (quoting United
States v. Zuno-Arce, 339 F.3d 886, 889 (9th Cir. 2003)). As
described above, the prosecutor has a clear Brady obligation
to investigate whether the police have evidence favorable to
the defendant. Kyles, 514 U.S. at 438 (“[A]ny argument for
excusing a prosecutor from disclosing what he does not hap-
pen to know about boils down to a plea to substitute the police
for the prosecutor, and even for the courts themselves, as the
final arbiters of the government’s obligation to ensure fair tri-
als.”); Giglio, 405 U.S. at 154 (“[W]hether the nondisclosure
was a result of negligence or design, it is the responsibility of
the prosecutor.”). If the prosecutor has a duty to investigate
and disclose favorable evidence known only to the police, he
“should know” when a witness testifies falsely about such
evidence. Accordingly, we agree with the California Supreme
Court’s conclusion that “the prosecution should have known
of the false and misleading nature of the informants’ testimo-
ny,” and therefore “the prosecution was under a constitutional
obligation to correct that testimony.” In re Jackson, 3 Cal. 4th
at 597.
918 JACKSON v. BROWN
The State’s attempt to characterize this fundamental princi-
ple as a “new rule” is unavailing. In Napue itself, the Supreme
Court made clear: “[I]t is established that a conviction
obtained through use of false evidence, known to be such by
representatives of the State, must fall under the Fourteenth
Amendment. The same result obtains when the State,
although not soliciting false evidence, allows it to go uncor-
rected when it appears.” 360 U.S. 264, 269 (1959) (emphasis
added) (internal citations omitted). Further, in Giglio, the
Court explicitly found a Napue violation when the prosecutor
lacked personal knowledge of the perjury. As described
above, Giglio involved one prosecutor’s unknowing failure to
correct false testimony that disavowed promises made by
another prosecutor. 405 U.S. at 155. The Court emphasized
that, “The prosecutor’s office is an entity and as such it is the
spokesman for the Government. A promise made by one
attorney must be attributed, for these purposes, to the Govern-
ment.” Id. at 154. The Court concluded that “the due process
requirements enunciated in Napue and the other cases cited
earlier require a new trial . . . .” Id. at 155. Napue and Giglio
make perfectly clear that the constitutional prohibition on the
“knowing” use of perjured testimony applies when any of the
State’s representatives would know the testimony was false.
[13] The California Supreme Court correctly concluded
that Jackson’s prosecutor should have known of Mikles’s per-
jury and had a constitutional obligation to correct the false
testimony. In re Jackson, 3 Cal. 4th at 597. In 1981, Napue
and Giglio would have compelled the court to come to the
same conclusion, so Teague is not implicated.
E. Materiality
[14] A jury’s finding should be overturned as a result of
Brady and Napue violations if and only if those violations are
material.11 The fundamental question in the materiality analy-
11
Once Brady or Napue claims are deemed material, there is no need for
further harmless error analysis under Brecht v. Abrahamson, 507 U.S. 619
(1993). Kyles, 514 U.S. at 436; Hayes, 399 F.3d at 984-85.
JACKSON v. BROWN 919
sis is whether, despite the prosecution’s errors, the defendant
“received . . . a trial resulting in a verdict worthy of confi-
dence.” Kyles, 514 U.S. at 434 (1995). Because each addi-
tional Napue and Brady violation further undermines our
confidence in the jury’s decision, we analyze the errors “col-
lectively.” See id. at 436.
[15] The materiality analysis proceeds differently for Brady
and Napue claims. Whereas a Brady violation is material
when “there is a reasonable probability that . . . the result of
the proceeding would have been different,” Bagley, 473 U.S.
at 682 (emphasis added), a Napue violation requires that the
conviction be set aside whenever 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) (emphasis added) (internal quotation
marks omitted).12 We have gone so far as to say that “ ‘if it
is established that the government knowingly permitted the
introduction of false testimony reversal is virtually automat-
ic.’ ” Id. at 978 (quoting United States v. Wallach, 935 F.2d
445, 456 (2d Cir. 1991)). Nonetheless, Napue does not create
a “per se rule of reversal.” Id. at 984.
Although we must analyze Brady and Napue violations
“collectively,” the difference in the materiality standards
poses an analytical challenge. The Napue and Brady errors
cannot all be collectively analyzed under Napue’s “reasonable
likelihood” standard, as that would overweight the Brady vio-
lations. On the other hand, they cannot be considered in two
separate groups, as that would fail to capture their combined
12
This distinction between Brady materiality and Napue materiality
seems to reflect a sentiment that the prosecution’s knowing use of perjured
testimony will be more likely to affect our confidence in the jury’s deci-
sion, and hence more likely to violate due process, than will a failure to
disclose evidence favorable to the defendant. It likely also acknowledges
that every Napue claim has an implicit accompanying Brady claim: When-
ever the prosecution knowingly uses false testimony, it has a Brady obli-
gation to disclose that witness’s perjury to the defense.
920 JACKSON v. BROWN
effect on our confidence in the jury’s decision. To resolve this
conflict, we first consider the Napue violations collectively
and ask whether there is “any reasonable likelihood that the
false testimony could have affected the judgment of the jury.”
Hayes, 399 F.3d at 985 (emphasis added). If so, habeas relief
must be granted. However, if the Napue errors are not mate-
rial standing alone, we consider all of the Napue and Brady
violations collectively and ask whether “there is a reasonable
probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.” Bagley,
473 U.S. at 682 (emphasis added) (internal quotation marks
omitted); United States v. Zuno-Arce, 25 F. Supp. 2d 1087,
1117 (C.D. Cal. 1998) (applying a two-step materiality analy-
sis to combined Brady and Napue claims), aff’d, 339 F.3d 886
(9th Cir. 2003). At both stages, we must ask whether the
defendant “received . . . a trial resulting in a verdict worthy
of confidence.” Kyles, 514 U.S. at 434.
[16] Jackson does not contend that the prosecutorial errors
surrounding the informants’ testimony undermine the validity
of his convictions; instead, he claims, and the district court
found, that the Brady and Napue violations were material with
respect to the jury’s special circumstances findings. We agree
with the district court that Jackson is entitled to habeas relief
as to the special circumstances findings. Because we conclude
that the Napue violations themselves create a “reasonable
likelihood that the false testimony could have affected” the
jury’s findings that Jackson acted with the intent to cause
death, we need not separately address the materiality of the
Brady violations.
The State argues that the Napue violations were immaterial,
because even if the prosecutor had corrected the false testi-
mony, the truth would have done little to impeach the infor-
mants’ credibility. First, as to McFarland, the State suggests
that the promise to him was made after McFarland initially
spoke to the police about Jackson. Moreover, the jury was
already presented with some evidence that McFarland’s attor-
JACKSON v. BROWN 921
ney had separately tried to use his cooperation against Jack-
son to obtain a reduced sentence. Finally, the State points out
that the prosecution never argued for a finding that McFarland
was credible based on a lack of inducement.
The State underestimates the impeachment value that the
prosecutor’s correction of McFarland’s testimony could have
served. Both the district court and the state court referee
found that McFarland would likely have been thoroughly dis-
credited. A jury could easily find that McFarland, facing an
unknown sentence for a serious crime, would greatly appreci-
ate the chance to serve out his sentence close to his family and
hence would find significant value in the prosecutor’s prom-
ise. Moreover, although the witness had been cross-examined
about his own attempts to benefit from his cooperation, evi-
dence of an explicit promise of assistance by the trial prosecu-
tor likely would have carried far greater weight than any
speculative benefit McFarland might have thought he could
achieve on his own. Moreover, that McFarland was willing to
perjure himself in order to cover up prosecutor Marin’s prom-
ise would surely have called into question the truth of all of
his testimony. Finally, even if Marin never reemphasized this
fact in his later argument, the false impression that McFarland
was a Good Samaritan, volunteering to help the prosecution,
had already been made.
We similarly reject the State’s arguments that Mikles’s
revealed perjury would have had little impact on the jury.
Although the jury was aware that Mikles had pending robbery
charges and it could have speculated that Mikles was cooper-
ating to try to get a better deal, this speculation pales in com-
parison to the reality that law enforcement officers had
actually promised to use their best efforts to get Mikles’s
then-current sentence reduced, get his then-pending charges
dropped, and get his federal parole hold lifted. The facts of
these promises, as opposed to juror speculation as to the tim-
ing of Mikles’s decision to cooperate with the prosecution,
would demonstrate to the jury that Mikles was not an altruis-
922 JACKSON v. BROWN
tic volunteer stepping forward to testify truthfully. Moreover,
his obvious willingness to lie under oath to keep the promises
secret would cast doubt on his entire testimony.
Although some of the facts presented in Mikles’s and
McFarland’s testimony were corroborated by other witnesses
and by the physical evidence, the corroborated facts were
extraneous to the critical predicate finding that the acts caus-
ing death were committed “with the intent to cause death.”
Cal. Penal Code § 190.2 (1977). Mikles and McFarland were
the only two witnesses who testified that Jackson had admit-
ted to personally sexually assaulting and killing Ott. Most of
the relevant facts that Mikles and McFarland described were
unrelated to Jackson’s alleged “intent to kill” and were in fact
corroborated by Jackson himself in his admissions to the
police. Therefore, the jailhouse informants’ ability to regurgi-
tate these corroborated tidbits tells us, at most, that Jackson
discussed the crime with them; it tells us nothing about
whether Jackson was the primary perpetrator. Correcting the
informants’ perjury would have shown that each of these wit-
nesses had a strong incentive to lie in order to secure Jack-
son’s conviction. Each would have known that his story
would be better received by the trial prosecutor the more it
incriminated Jackson. The promises of assistance thus gave
both McFarland and Mikles a strong incentive to lie about
exactly that part of the testimony that was most crucial to the
special circumstances finding that Jackson acted with the “in-
tent to cause death.”
The State asserts that the “intent to cause death” predicate
could have been inferred from the fact that Ott was strangled
and that Jackson had allegedly told Debria Lewis that “[i]f she
had been still, she would not have been choked to death.” It
would read intent into Jackson’s alleged statements that
“[t]his is what I done” and that the “two old bags were a nui-
sance and got what they deserved.”
We do not disagree that inferences might have been drawn
from these statements from which a jury possibly could have
JACKSON v. BROWN 923
found an “intent to cause death” even without Mikles and
McFarland; however, that is not the proper inquiry. Instead,
we must ask whether there exists “any reasonable likelihood
that the false testimony could have affected the judgment of
the jury.” Hayes, 399 F.3d at 984 (emphasis added) (internal
quotation marks omitted).
In many ways, this case resembles Hayes, where we, sitting
en banc, granted habeas relief because the prosecution made
a secret deal with a key witness and allowed the witness to
falsely deny the deal in his testimony. Id. at 988. We found
materiality, noting that “[w]ithout the [witness’s] testimony
. . . , an entirely different trial would have occurred.” Id. at
987. After reiterating that the “[d]eliberate deception of a
judge and jury is ‘inconsistent with the rudimentary demands
of justice,’ ” id. at 978 (quoting Mooney v. Holohan, 294 U.S.
103, 112 (1935)), we found that the “due process violations
ha[d] undermined our confidence in the verdict,” id. at 988.
Here, Mikles and McFarland were the only witnesses to
describe Jackson admitting to personally committing the mur-
ders. The special circumstances findings did not require that
he actually commit the acts (it was sufficient that he “physi-
cally aided” their commission, Cal. Penal Code § 190.2(c)
(1977)); nonetheless, it is clear that the jury would be far
more likely to find the requisite “intent to cause death” if it
believed that Jackson had personally beat on and sexually
assaulted Ott than if it believed only that he was present at the
scene of the acts. The district court correctly ruled that the
remainder of the State’s evidence was “consistent with [Jack-
son’s] participation in the attack on Ott, but . . . at best weak
evidence that [he] intended to cause her death.” As in Hayes,
without Mikles’s and McFarland’s testimony “an entirely dif-
ferent trial would have occurred” with regard to the special
circumstances findings. 399 F.3d at 987.
[17] Mikles and McFarland were the two key witnesses for
the finding of intent to cause death, and, as described above,
924 JACKSON v. BROWN
the prosecution’s solicitation of perjured testimony bolstered
their credibility, whereas the truthful testimony would have
substantially impeached it. We conclude that there is a “rea-
sonable likelihood that the false testimony could have affected
the judgment of the jury.” Id. at 984 (internal quotation marks
omitted). In light of the false testimony, we cannot be sure
that the defendant “received a fair trial, understood as a trial
resulting in a verdict worthy of confidence.” Hall v. Dir. of
Corr., 343 F.3d 976, 984 (9th Cir. 2003) (per curiam) (inter-
nal quotation marks omitted). Under these circumstances,
Napue requires that we affirm the district court’s partial grant
of habeas relief as to the jury’s special circumstances find-
ings.
IV. JACKSON’S CROSS-APPEAL
We, like the district court, having considered each of the
claims as to which it granted Jackson a certificate of appeala-
bility, conclude Jackson is not entitled to habeas relief as to
his underlying convictions. Several of Jackson’s claims are
Teague-barred. The remaining errors, if they occurred at all,
are harmless: The evidence supporting Jackson’s guilt of the
offenses of conviction is overwhelming, so he cannot demon-
strate that the alleged errors had a “substantial and injurious
effect or influence in determining the jury’s verdict.” Brecht
v. Abrahamson, 507 U.S. 619, 637 (1993) (internal quotation
marks omitted).
A. Counsel’s Racist Remarks
Jackson claims that his defense counsel’s repeated racial
references and derogatory remarks about Jackson and African
Americans impermissibly injected race into the proceeding in
violation of his Fourteenth Amendment right to a fair trial. It
is true that Veganes made numerous references to race
throughout the trial, from voir dire up through his penalty
stage closing argument. The district court addressed Jackson’s
claim only briefly, stating: “Counsel’s guilt phase closing
JACKSON v. BROWN 925
argument, including his racial references, was reasonable
under the circumstances.”
We need not consider whether Veganes’s statements were
reasonable, because Jackson’s claim depends on an initial,
and ultimately fatal, proposition that the acts of a court-
appointed defense counsel constitute state action. The Four-
teenth Amendment’s right to due process only protects dis-
crimination that results from state action. Shelley v. Kraemer,
334 U.S. 1, 13 (1948) (“That Amendment erects no shield
against merely private conduct, however discriminatory or
wrongful.”). Because prosecutors are state actors, “[t]he Con-
stitution prohibits racially biased prosecutorial arguments.”
McClesky v. Kemp, 481 U.S. 279, 309 n.30 (1987) (emphasis
added) (citing Donnelly v. DeChristoforo, 416 U.S. 637, 643
(1974)). However, the Supreme Court has held that “a public
defender does not act under color of state law when perform-
ing a lawyer’s traditional functions to a defendant in a crimi-
nal proceeding.” Polk County v. Dodson, 454 U.S. 312, 322
n.13, 325 (1981) (emphasis added) (noting that when per-
forming these traditional functions “a public defender is not
acting on behalf of the State; he is the State’s adversary”).13
Veganes’s contested statements—made during voir dire
juror questioning and closing arguments—likely fall within
the defense lawyer’s “traditional functions”; moreover, even
if we were inclined to hold otherwise, Teague would prohibit
applying such a rule to Jackson’s case. Dodson was the first
Supreme Court case to consider whether public defenders
acted under color of state law, and it cast into serious doubt
13
In Georgia v. McCollum, the Court created an exception to the general
rule set forth in Dodson, holding that “a criminal defendant’s exercise of
a peremptory challenge constitutes state action for purposes of the Equal
Protection Clause.” 505 U.S. 42, 50 (1992). The Court distinguished Dod-
son by noting that “[i]n exercising a peremptory challenge, a criminal
defendant is wielding the power to choose a quintessential governmental
body—indeed, the institution of government on which our judicial system
depends.” Id. at 54.
926 JACKSON v. BROWN
the notion that a court-appointed counsel’s derogatory state-
ments could be considered state action under the Fourteenth
Amendment. 454 U.S. 312. Dodson was decided several
months after Jackson’s case became final; however, it noted
that prior to its decision, the federal circuits were strongly
divided on the state action issue. Id. at 317 n.4 (“The Courts
of Appeals for the Seventh and Eighth Circuits have held that
public defenders do act under color of state law in their repre-
sentation of indigent defendants. The Fifth and the Tenth Cir-
cuits have held that they do not. The Third and Ninth Circuits
have supported the latter position in dicta . . . .” (internal cita-
tions omitted)). In light of the Supreme Court’s silence and
the disagreement among the federal circuits, we cannot say
that the precedent existing on March 30, 1981, would have
compelled the California Supreme Court to find that Veg-
anes’s conduct constituted state action. See Beard v. Banks,
542 U.S. 406, 411 (2004). Therefore, Teague precludes apply-
ing such a rule in this case. Id. at 411.14
[18] On appeal, Jackson does not argue that Veganes’s rac-
ist statements constituted ineffective assistance of counsel and
has failed to properly raise any such claim. In the district
court, Claim 5 of Jackson’s habeas petition, which was certi-
fied for this appeal, was entitled “Trial counsel provided inef-
fective assistance of counsel and deprived petitioner of a fair
14
Neither of Teague’s exceptions is applicable here. A rule that certain
acts of state-appointed counsel constituted state action would not “for-
bid[ ] punishment of certain primary conduct [n]or . . . prohibit[ ] a certain
category of punishment for a class of defendants because of their status or
offense.” Beard, 542 U.S. at 416 (internal quotation marks omitted). Nei-
ther would such a rule fall within the “extremely narrow” class of “water-
shed rules of criminal procedure.” Schriro v. Summerlin, 542 U.S. 348,
352 (2004). To fit within that exception, “the rule must be one ‘without
which the likelihood of an accurate conviction is seriously diminished.’ ”
Id. Here, any act that a state-appointed counsel could commit that would
rise to the level of a due process violation would likely also implicate the
Sixth Amendment right to counsel; therefore, we cannot say that the lack
of this alternative remedy would seriously diminish the likelihood of an
accurate conviction.
JACKSON v. BROWN 927
trial by repeatedly making racially derogatory remarks to the
jury about petitioner and his African-American ethnicity.”
However, the claim itself makes the same due process argu-
ment Jackson makes before us, without any reference to
Strickland’s two-pronged framework. Because Jackson has
failed to properly raise an ineffective assistance of counsel
claim, we may not reach its merits.
B. Forced Jail Attire
Jackson wore jail clothes throughout the trial, and Veganes
repeatedly pointed out his attire during both voir dire and his
closing arguments. Jackson claims that his family asked Veg-
anes on his behalf to help obtain civilian clothing for the trial
and that Veganes failed to help them. Jackson asserts that this
failure violated his due process rights. The district court
rejected the claim, finding that “[c]ounsel’s decision to have
petitioner wear prison clothing was harmless because the jury
already knew Petitioner was in custody.”
“[T]he State cannot, consistently with the Fourteenth
Amendment, compel an accused to stand trial before a jury
while dressed in identifiable prison clothes . . . .” Estelle v.
Williams, 425 U.S. 501, 512 (1976). However, the Court in
Estelle held that “the failure to make an objection to the court
as to being tried in such clothes, for whatever reason, is suffi-
cient to negate the presence of compulsion necessary to estab-
lish a constitutional violation.” Id. at 512-13 (emphasis
added). Jackson concedes that Veganes did not object to the
jail clothing; indeed, the district court appears to have found
that it was counsel’s decision to dress him in such a manner.
Nevertheless, Jackson argues that an objection should not be
required when a court-appointed defense attorney forces a
defendant to wear jail clothing against his will. In such a sce-
nario, Jackson claims, it is the attorney, acting as a representa-
tive of the state, that provides the impermissible state
compulsion, and the due process violation cannot depend on
the agent of the compulsion objecting to his own actions.
928 JACKSON v. BROWN
[19] Again, Jackson’s argument requires us to first find that
Veganes’s acts constituted state action under the Fourteenth
Amendment. The State reiterates, and we agree, that Teague
prohibits applying such a rule retroactively to Jackson’s case.
For the same reasons described above, when Jackson’s case
became final on March 30, 1981, existing precedent would
not have compelled the California Supreme Court to hold that
a court-appointed defense counsel’s refusal to assist a client
in obtaining civilian clothes constituted state action sufficient
to establish a due process violation. See Polk County v. Dod-
son, 454 U.S. 312, 317 n.4 (1981) (describing how the circuits
were split over the issue of whether public defenders acted
under color of state law). Therefore, Teague prohibits us from
applying such a rule in this case, and Jackson’s failure to
object to his jail clothing prevents him from claiming state
compulsion on appeal.
C. Evidence of Ott’s Sexual Assault
Jackson argues that evidence of Ott’s sexual assault was
improperly admitted and was so prejudicial that it denied him
his right to a fair trial. Moreover, he argues that his attorney’s
failure to object to this evidence constituted ineffective assis-
tance of counsel.
At Jackson’s trial, evidence of the sexual assault first arose
during the prosecution’s redirect of one of the first police offi-
cers to view Ott’s body. The prosecutor asked the officer
about a bottle he found in Ott’s room and asked whether the
officer saw any material on the bottle. Jackson’s attorney,
Veganes, objected and was called to side bar:
My objection is based on 352 of the Evidence Code
on the basis that this question is calling for probative
material that is irrelevant in this case, because . . . it
would be highly prejudicial to describe any hairs or
any potential finding of semen at the scene, because
the reports are all negative in that regard. So to ask
JACKSON v. BROWN 929
questions just leaves speculation on the part of the
jury, so that they can speculate and make this a more
heinous thing than it already is . . . .
Veganes also argued that any evidence of Ott’s vaginal inju-
ries would be highly prejudicial and would be irrelevant as it
was not the cause of death. The trial court apparently agreed:
Well, it may have some relevancy to the penalty
phase, but I have some misgivings about its prejudi-
cial aspect at this phase of the trial; that is, this was
not the cause of death. It does not establish the bur-
glary. It is highly inflammatory and it seems to me,
unless the bottle were used as an instrument to cause
death, that—its prejudicial aspects outweigh its pro-
bative value at this time.
Despite this initial ruling, the court later allowed several
witnesses to testify about Ott’s sexual assault. The day after
the ruling, the prosecutor asked a medical examiner to
describe Ott’s injuries. Veganes objected that “to sit and name
every injury that is potentially found by this witness is really
irrelevant and inflammatory and far exceeds the probative
value.” The trial court overruled the objection, and the exam-
iner testified to all of Ott’s injuries, including those to her
vagina. Veganes did not make any other specific objections.
Similarly, both jailhouse informants elaborated in their testi-
mony about the sexual assault. Mikles claimed that Jackson
told him “that he was so hot at her that there was a bottle on
the stand next to the bed and he took the bottle and he fucked
her in her pussy with it, his exact words he told me.” McFar-
land testified that Jackson said he had “seen a wine bottle or
a long-necked bottle of some kind and stuck it into her vagi-
na.” Veganes failed to object to either of the witnesses’ state-
ments.
Jackson claims that this evidence should not have been
admitted and was so prejudicial that it violated his due pro-
930 JACKSON v. BROWN
cess rights. Even if the state court admitted the evidence in
error, “we cannot disturb the state trial court’s admission of
[evidence] on due process grounds in a habeas proceeding
unless the admission . . . rendered the trial fundamentally
unfair.” Kealohapauole v. Shimoda, 800 F.2d 1463, 1466 (9th
Cir. 1986). Jackson also argues that his attorney’s failure to
object to the evidence was ineffective assistance of counsel.
Jackson must prove that his counsel’s performance was defi-
cient and that “there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding
would have been different.” Strickland v. Washington, 466
U.S. 668, 687-88, 694 (1984).
Assuming, without deciding, that this evidence was admit-
ted in error, it did not render Jackson’s trial fundamentally
unfair with respect to his convictions. Similarly, even if Veg-
anes’s failure to object was deficient, we cannot find that, but
for his errors, there is a reasonable probability that the jury
would not have still convicted Jackson of first-degree murder
and burglary.
[20] The evidence of Jackson’s guilt was overwhelming.
Jackson confessed to all of the elements of felony murder. His
confession was corroborated both by forensic evidence plac-
ing him at the scene of the crime and by the admissible testi-
mony of several other witnesses. The evidence of Ott’s sexual
assault might well have been prejudicial as to the special cir-
cumstances findings, which required finding that Jackson
acted with the intent to cause death, but it is extremely
unlikely to have prejudiced the underlying convictions. There
is no evidence that the introduction of this evidence “had sub-
stantial and injurious effect or influence in determining the
jury’s verdict.” Brecht, 507 U.S. at 637 (internal quotation
marks omitted). As a result, Jackson is not entitled to habeas
relief on this ground.
D. Right to Confrontation
Nor do we agree that the introduction at trial of preliminary
hearing testimony from Debria Lewis and Larry Rushing vio-
JACKSON v. BROWN 931
lated Jackson’s constitutional right to confrontation. The Sixth
Amendment guarantees the right of an accused in a criminal
prosecution “to be confronted with the witnesses against
him.” U.S. Const. amend. VI. Nevertheless, the prosecution
may introduce the prior testimony of a witness without run-
ning afoul of the Sixth Amendment, as long as two criteria are
met: “First, the prosecutor must prove that the witness is
unavailable to testify at trial. Second, the defendant must have
had the opportunity to cross-examine the witness at the prior
hearing.” Windham v. Merkle, 163 F.3d 1092, 1102 (9th Cir.
1998); see also United States v. Inadi, 475 U.S. 387, 392-94
(1986); Ohio v. Roberts, 448 U.S. 56 (1980). A witness will
be deemed “unavailable” only if “the prosecutorial authorities
have made a good-faith effort to obtain his presence at trial.”
Barber v. Page, 390 U.S. 719, 724-25 (1968). “We review de
novo whether the Supreme Court’s standards for unavaila-
bility have been met.” Windham, 163 F.3d at 1102. In this
case, Jackson had an opportunity to cross-examine both Rush-
ing and Lewis at the preliminary hearing, so the only question
is whether the State made “a good-faith effort” to procure
their appearance at trial.
An investigator, Herman Roethel, testified on December
21, 1978, about his efforts to locate both witnesses. Roethel
testified that on August 16, he was informed that the subpoe-
nas sent to both Rushing and Lewis had been returned in the
mail. Roethel visited Lewis’s apartment but discovered it was
vacant. He managed to contact her husband, who told Roethel
that he had not seen his wife in some time but would instruct
her to contact Roethel if he did. On September 29, Roethel
followed up with her husband, who told him that Lewis was
in custody awaiting a child custody hearing. While Lewis was
in custody, Roethel personally served her with notice to
appear in court on October 3; however, Jackson’s trial was
subsequently continued. Soon thereafter, the authorities
learned that Lewis had several outstanding warrants under dif-
ferent aliases, so they held her in custody until October 20 for
a prostitution charge. However, Roethel only learned of
932 JACKSON v. BROWN
Lewis’s aliases and prostitution after she had been released on
bail, at which point he “lost touch with her.” From then until
December, Roethel repeatedly checked a system to see
whether Lewis had been arrested under any of her aliases.
Finally, Roethel contacted one of Lewis’s friends, who indi-
cated that she had been operating as a prostitute on a particu-
lar street corner. Roethel visited the corner several times, but
was not able to locate her.
Roethel also testified about his attempts to locate Larry
Rushing. Roethel first visited Rushing’s parents’ home. His
sister told him that Rushing occasionally came by the house,
so Roethel left a business card with her and instructed her to
have Rushing contact him. Roethel called the house over the
next few weeks, and Rushing’s sister told him that she had
given Rushing the card. On August 29, Roethel contacted an
officer named Woodward at the L.A.P.D. who had been in
contact with Rushing and who volunteered to contact him
again. Roethel took no further action until December 21,
when he returned to the parents’ house to let them know
Rushing would be needed the following week for trial; they
said they would likely see Rushing over the holidays. Roethel
again contacted Officer Woodward, who claimed that he had
not had time to contact Rushing but that he would do so. On
December 28, Woodward said he had still not had time and
informed Roethel that Rushing was wanted on a warrant. Roe-
thel then contacted Rushing’s probation officer who con-
firmed Rushing’s pending warrant and said that he had not
reported in since June. Finally, Roethel obtained an address
for Rushing and visited it several times but he was never
there.
The trial court held that the investigator had made a reason-
able, good-faith effort to secure the witnesses’ presence and
allowed the State to introduce the preliminary hearing testi-
mony:
I believe that the test is one of reasonable efforts
to secure the attendance of the witness, and in mak-
JACKSON v. BROWN 933
ing an evaluation of the efforts in this case, I am
forced to consider the life-style of the people that the
process server was seeking to serve.
[Rushing] apparently is a fugitive from justice and
the only inference I can get from the testimony is
that he is hiding out. [Lewis] is apparently a prosti-
tute, at least part-time prostitute, who goes by many
aliases and would be extremely difficult to locate if,
in fact, she didn’t want to be located. I expect rea-
sonable efforts to include the things the process
server did in this case. I don’t think you can ask him
to perform superhuman efforts to locate witnesses
such as these, and I think, under the circumstances,
that he did make a diligent effort to serve them with
subpoenas. Therefore, I will permit you to read the
testimony of the two witnesses from the preliminary
hearing.
The district court agreed with the state trial court’s finding
and therefore denied Jackson’s claim for habeas relief: “Peti-
tioner had an opportunity to cross-examine Lewis and Rush-
ing at the preliminary hearing, and after making a good faith
effort to secure their attendance at trial, the prosecution suffi-
ciently established their unavailability.”
We agree under the circumstances that the prosecution
made a good-faith effort to procure Lewis’s appearance. Roe-
thel personally served Lewis while she was in custody, and
she apparently would have been present to testify had the trial
not been continued (Lewis remained in custody on the date of
her originally scheduled appearance). After Lewis was
released, Roethel repeatedly checked to see if Lewis had been
booked under any of her aliases. Finally, once Roethel learned
of the street corner where she was allegedly working, he
repeatedly visited the corner to no avail. In light of Lewis’s
transience and the shifting trial dates, Roethel’s efforts were
reasonable.
934 JACKSON v. BROWN
In contrast, we find that Roethel’s efforts to procure Rush-
ing’s appearance were insufficient to meet the unavailability
requirement of the Confrontation Clause. The Sixth Amend-
ment requires “good-faith efforts undertaken prior to trial to
locate and present th[e] witness.” Ohio v. Roberts, 448 U.S.
56, 74 (1980) (emphasis added). At the time of Jackson’s
trial, California similarly recognized that the state was “re-
quired to show . . . due diligence in attempting to locate [the
witness] within a reasonable time before trial.” People v. Ben-
jamin, 3 Cal. App. 3d 687, 696 (1970) (emphasis added). Yet
Roethel testified that he did absolutely nothing to locate
Rushing between August 29 and December 21, several weeks
into the trial. Instead, he relied exclusively on Officer Wood-
ward to contact Rushing. During this time period, Woodward
apparently made no effort to contact the witness because he
was “too busy and he hadn’t had really any time to check it
out.” Woodward’s occupation with other matters cannot
excuse the prosecution from the Sixth Amendment’s require-
ment of good-faith efforts. Moreover, it is irrelevant whether
Roethel reasonably relied on Officer Woodward; Woodward
was himself a state agent and was therefore no less responsi-
ble than Roethel for performing good-faith efforts to find
Rushing.
[21] Although the admission of Rushing’s preliminary
hearing testimony violated Jackson’s right to confrontation,
we cannot grant habeas relief unless the error “had substantial
and injurious effect or influence in determining the jury’s ver-
dict.” Brecht, 507 U.S. at 637 (1993) (internal quotation
marks omitted). Rushing’s testimony did not have such an
effect on the jury’s guilty verdicts. Rushing testified that Jack-
son said he had “hit” an “old lady” during a burglary and that
he was going to “get the TV from next door.” This is certainly
incriminating testimony, but it added little to Jackson’s con-
fession, which included both of those facts. Indeed, Jackson’s
defense attorney himself urged the trial court to exclude
Rushing’s testimony as “cumulative.” The testimony likely
JACKSON v. BROWN 935
had at most a negligible effect on the jury’s verdict, so it must
be considered harmless error under Brecht.
E. Cumulative Effect
Finally, Jackson argues that the cumulative effect of the
constitutional errors in his case denied him a fair trial. “Cu-
mulative error applies where, although no single trial error
examined in isolation is sufficiently prejudicial to warrant
reversal, the cumulative effect of multiple errors has still prej-
udiced a defendant.” Whelchel v. Washington, 232 F.3d 1197,
1212 (9th Cir. 2000) (internal quotation marks and alterations
omitted). We must ask whether the aggregated errors “ ‘so
infected the trial with unfairness as to make the resulting con-
viction a denial of due process.’ ” Parle v. Runnels, 387 F.3d
1030, 1045 (9th Cir. 2004) (quoting Donnelly v. DeChristo-
foro, 416 U.S. 637, 643 (1974)).
The prosecution violated Brady by failing to disclose
inducements provided to both Mikles and McFarland, and it
violated Napue by allowing these witnesses to present false
testimony about these inducements. We assume, without
deciding, that the trial court erred in allowing evidence of
Ott’s sexual assault to be presented. Finally, the admission of
Rushing’s preliminary hearing testimony violated Jackson’s
right to confrontation.
[22] We conclude that Jackson was not deprived of a fair
trial as to his convictions. Even if the prosecution had entirely
withheld Mikles’s and McFarland’s live testimony, Rushing’s
recorded testimony, and any testimony describing Ott’s sexual
assault, it seems highly unlikely that the jury would have
acquitted Jackson of the felony-murders and the burglaries.
As described above, much of this testimony was crucial to the
special circumstances finding that Jackson committed the
crime “with the intent to cause death”; however, Jackson’s
confession, the forensic evidence placing him at the scene of
the crime, and the supporting testimony of Debra Hall
936 JACKSON v. BROWN
together provided overwhelming evidence of Jackson’s guilt.
Therefore, we find that the errors in Jackson’s case did not so
infect his trial with unfairness as to require reversal of his
conviction.
V. CONCLUSION
For the foregoing reasons, the judgment of the district court
is
AFFIRMED.