FILED
NOT FOR PUBLICATION NOV 26 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
LAMONT STERLING JOHNSON, No. 11-16197
Petitioner - Appellant, D.C. No. 4:07-cv-04483-PJH
v.
MEMORANDUM*
ROBERT A. HOREL, Warden,
Respondent - Appellee.
Appeal from the United States District Court
for the Northern District of California
Phyllis J. Hamilton, District Judge, Presiding
Argued and Submitted November 6, 2013
San Francisco, California
Before: REINHARDT, NOONAN, and WATFORD, Circuit Judges.
1. Petitioner Lamont Johnson seeks habeas relief on the ground that the
government destroyed material exculpatory evidence in violation of his due
process rights. See Arizona v. Youngblood, 488 U.S. 51, 57–58 (1988); California
v. Trombetta, 467 U.S. 479, 488–89 (1984). To prevail on this claim, Johnson
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
must show that the government failed to preserve constitutionally material
evidence. See Youngblood, 488 U.S. at 56–57; Trombetta, 467 U.S. at 489.
Constitutionally material means that the exculpatory value of the evidence was
apparent before it was destroyed, and that the evidence was “of such a nature that
the defendant would be unable to obtain comparable evidence by other reasonably
available means.” Trombetta, 467 U.S. at 489.
The California Court of Appeal found, as a factual matter, that Johnson had
received “everything of an exculpatory nature.” We cannot say this finding was
based on “an unreasonable determination of the facts” in light of the record before
the state court. 28 U.S.C. § 2254(d)(2). By the time of his second trial, Johnson
had access to the press releases that the State withheld and the witnesses who
appear to have been the source of the information contained in the press releases.
Johnson has not identified any other evidence that might have existed suggesting
that a third person was in fact present at the murder scene. In light of the state
court’s factual determination, we cannot say that it unreasonably applied
Trombetta and Youngblood when it denied Johnson relief. See 28 U.S.C.
§ 2254(d)(1); Harrington v. Richter, 131 S. Ct. 770, 786 (2011).
2. We also reject Johnson’s claim regarding the prosecution’s use of
inconsistent factual theories in the trials of Johnson and his co-defendant. No
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Supreme Court precedent clearly establishes that the Due Process Clause bars the
government from prosecuting co-defendants under inconsistent factual theories
absent evidence that the prosecutor knowingly used false evidence or acted in bad
faith. See 28 U.S.C. § 2254(d)(1). There is no evidence of either here.
AFFIRMED.
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