FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
RICKY LEE EARP, No. 15-56989
Petitioner-Appellant,
D.C. No.
v. 2:00-cv-06508-
MMM
RON DAVIS, Warden of California
State Prison at San Quentin,
Respondent-Appellee. OPINION
Appeal from the United States District Court
for the Central District of California
Margaret M. Morrow, District Judge, Presiding
Argued and Submitted January 12, 2018
Seattle, Washington
Filed February 6, 2018
Before: Jerome Farris, Richard C. Tallman,
and N. Randy Smith, Circuit Judges.
Opinion by Judge Tallman
2 EARP V. DAVIS
SUMMARY *
Habeas Corpus
The panel affirmed the district court’s order on remand
denying on the merits California state prisoner Ricky Earp’s
remaining habeas corpus claims that the state court
improperly denied his motion for a new trial based on
prosecutorial misconduct.
Earp contended that he should have been allowed to
conduct further discovery to explore a possible relationship
between those responsible for the California Department of
Justice’s alleged spoliation of DNA evidence and alleged
witness intimidation; and that the district court improperly
weighed and did not credit the defense witnesses’ testimony,
notwithstanding an adverse inference given to Earp for the
limited purpose of assessing the witnesses’ credibility at the
evidentiary hearing.
The panel held that the district court correctly found that
any link between spoliated evidence established by the
adverse inference (even if true) and the alleged witness
intimidation was too attenuated, and did not abuse its
discretion in declining to authorize further discovery in light
of that finding. The panel held that the district court did not
clearly err in weighing the credibility of the evidence in light
of the evidence adduced at the hearing.
*
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
EARP V. DAVIS 3
COUNSEL
Robert S. Gerstein (argued), Santa Monica, California;
Statia Peakheart, Los Angeles, California; Emily J.M.
Groendyke, Deputy Federal Public Defender; Hilary
Potashner, Federal Public Defender; Office of the Federal
Public Defender, Los Angeles, California; for Petitioner-
Appellant.
James William Bilderback II (argued), Supervising Deputy
Attorney General; A. Scott Hayward, Deputy Attorney
General; Lance E. Winters, Senior Assistant Attorney
General; Xavier Becerra, Attorney General; Office of the
Attorney General, Los Angeles, California; for Respondent-
Appellee.
OPINION
TALLMAN, Circuit Judge:
California state prisoner Ricky Earp appeals the district
court’s order denying his 28 U.S.C. § 2254 habeas corpus
petition. In his petition, Earp claims that the California state
court improperly denied his motion for a new trial based on
the State’s prosecutorial misconduct. This case comes to us
for the third time on appeal.
In 1992, Earp was sentenced to death after a Los Angeles
County jury convicted him for the 1988 first-degree murder
and rape of an 18-month-old girl. Earp filed a motion for a
new trial, arguing that a newly discovered witness, Michael
Taylor, would impeach Dennis Morgan’s trial testimony that
Morgan had never been to the scene on the day of the crime.
However, the government presented evidence that Taylor
4 EARP V. DAVIS
recanted this impeaching statement. Consequently, the trial
court denied Earp’s motion for a new trial without
conducting an evidentiary hearing. The California Supreme
Court affirmed on direct appeal. People v. Earp, 978 P.2d
15, 56 (Cal. 1999). Following an unsuccessful state habeas
petition, Earp then filed a federal habeas petition. Earp v.
Ornoski, 431 F.3d 1158, 1169 (9th Cir. 2005) (“Earp I”).
The district court denied the petition and adopted the state
court’s factual findings, holding that “Taylor’s declarations
were ‘inherently untrustworthy and not worthy of belief.’”
Id.
On subsequent appeal, our panel determined that because
the state court had made its credibility determination without
an evidentiary hearing, the state court had made its decision
based on an unreasonable determination of the facts. Id. We
similarly held that the district court erred when it “reached
its credibility determination without taking the opportunity
to listen to Taylor, test his story, and gauge his demeanor.”
Id. Determining that Earp may have presented a colorable
due process claim, we then remanded the case to the district
court for a hearing to determine the credibility of the parties’
witnesses concerning the alleged prosecutorial misconduct. 1
Id. at 1172.
In 2011, while Earp’s federal habeas petition was on
remand, Earp moved in state court for DNA testing of napkin
and pillow swatches recovered at the crime scene. Earp
hoped the testing would produce evidence that Morgan had
visited the scene, as Taylor would testify he heard Morgan
1
We noted that if the prosecutorial misconduct caused Taylor’s
recantation, Earp would still need to establish prejudice by showing that
Taylor’s testimony entitled him to a new trial under California law. Id.
at 1171 n.10.
EARP V. DAVIS 5
admit. The state court granted the motion, but the laboratory
could not perform the test because it discovered that some of
the evidence was missing. On habeas review, Earp then
sought further discovery from the federal district court to
explore a possible relationship between the disappearance of
the evidence and those involved in the alleged prosecutorial
misconduct. Instead, the district court assumed without
deciding that the State engaged in spoliation, and gave Earp
the benefit of an adverse inference for the limited purpose of
assessing the credibility of the witnesses at the evidentiary
hearing.
Following a thorough evidentiary hearing, the district
court held that Earp failed to prove his prosecutorial
misconduct claim by a preponderance of the evidence, and
therefore, he was not denied his due process rights. The
district court also denied Earp’s discovery motion.
Accordingly, the court denied the only remaining claim from
Earp’s 2001 federal habeas petition. Earp makes two
contentions on appeal: (1) he should have been allowed to
conduct further discovery to explore a possible relationship
between those responsible for the alleged spoliation and the
alleged witness intimidators; and (2) the district court
improperly weighed and did not credit the defense
witnesses’ testimony notwithstanding the adverse inference.
We affirm the district court’s ruling and hold that it did not
abuse its discretion in declining to authorize further
discovery; nor did it clearly err in weighing the credibility of
the witnesses. As Earp had no remaining viable claims, the
district court’s denial of his petition for a writ of habeas
corpus was proper.
I
The facts and circumstances surrounding Earp’s crime
are provided in detail in both the California Supreme Court
6 EARP V. DAVIS
opinion resulting from Earp’s direct appeal, Earp, 978 P.2d
at 27–31, and our prior opinion in Earp I, 431 F.3d at 1165–
66. Here, we provide only a brief overview of the basic facts
and procedural history, with a more penetrating look at the
pertinent record as it relates to the most recent proceedings.
On August 22, 1988, Cindy Doshier left her 18-month-
old daughter, Amanda Doshier, with Ricky Earp for a few
days at his girlfriend’s home in Palmdale, California. Earp,
978 P.2d at 27. Earp claimed that Dennis Morgan appeared
at the home on August 25 in search of heroin. Earp knew
Morgan from their previous time together in state prison.
After giving Morgan a spoon (ostensibly to cook the drug)
and telling him to leave, Earp claimed he left Amanda inside
and went outside to clean paint brushes for approximately
30 minutes. At trial, Earp testified that when he returned,
“[h]e discovered Amanda lying motionless at the bottom of
the stairs, and made a number of attempts to revive her,
including performing CPR, before calling emergency
services. Earp further testified that Morgan left as Earp was
calling for help.” Earp I, 431 F.3d at 1168. After a fireman
arrived to transport Amanda to the emergency room, Earp
fled and was later arrested in Northern California. Morgan
swore that he was never at the house on the day of the attack,
and that he was not responsible for Amanda’s death. Id. at
1165. Morgan also said that Earp asked him to testify that
another man named “Joe” was there that day. Id.
Ultimately, the jury credited the State’s evidence, and Earp
was sentenced to death after the jury convicted him of
Amanda’s rape and murder. Earp, 978 P.2d at 27.
After Earp’s trial, but prior to sentencing, Earp filed a
motion for a new trial alleging (among other claims) that a
jailhouse informant, Michael Taylor, had overheard Morgan
admit that he was at the house that day. The prosecution then
EARP V. DAVIS 7
presented evidence that Taylor later recanted this claim after
being visited by the assistant district attorney and the lead
sheriff’s detective at the Los Angeles County Jail. Stating
that “it would appear that even if this was a declaration by
[Taylor] himself, it is inherently untrustworthy, . . . and not
worthy of belief,” the trial court denied Earp’s motion. The
California Supreme Court subsequently affirmed Earp’s
conviction, id. at 66, and summarily rejected his state habeas
corpus petition.
In 2001, Earp filed a petition for a writ of habeas corpus
in the District Court for the Central District of California,
alleging 19 separate claims of error. The district court
denied Earp’s petition as to all claims. As to the witness
intimidation claim, the court erroneously relied on the state
court’s credibility findings concerning Taylor’s testimony.
On appeal, we affirmed denial of 17 claims but we reversed
and remanded for an evidentiary hearing on Earp’s
prosecutorial misconduct and ineffective assistance of
counsel (“IAC”) claims. Earp I, 431 F.3d at 1165.
On remand in 2007, the district court conducted an
evidentiary hearing to explore the testimony of Taylor, the
trial prosecutor, Robert Foltz, and the chief investigator for
Los Angeles County, Detective Sergeant Edwin Milkey.
Earp v. Cullen, 623 F.3d 1065, 1069 (9th Cir. 2010) (“Earp
II”). At that hearing, Taylor claimed Foltz and Milkey
intimidated him into recanting his statement that Morgan had
admitted to being at Earp’s home on the day of the attack.
Id. Additionally, Earp sought to introduce the testimony of
Cindy Doshier, Amanda’s mother, who claimed to have been
intimidated by Foltz as well. Id. Instead, at the hearing
Doshier invoked her Fifth Amendment right against self-
incrimination on the basis that she might be subject to
perjury charges. Id. The district judge previously assigned
8 EARP V. DAVIS
to this litigation credited the State’s witnesses, discredited
Earp’s, and again dismissed his petition. Id. at 1070. On
appeal, we again reversed and remanded, holding that the
district court erred in permitting Doshier to avoid testifying
by invoking the Fifth Amendment as the statute of
limitations “had long since expired.” Id. at 1071. We also
held that the district court properly dismissed his IAC claim.
Id. at 1078.
After we issued Earp II, Earp then moved in California
superior court for DNA testing of napkin and pillow
swatches recovered at the scene of the crime. The superior
court granted Earp’s motion under California Penal Code
§ 1405, and the sealed evidence was transported from the
Los Angeles County Sheriff’s Department crime laboratory
to a private laboratory in 2012. Upon its arrival, the private
laboratory discovered that some of the evidence was missing
from its sealed envelope. The supervising criminalist at the
Sheriff’s Department crime laboratory, Kenneth Sewell,
conducted an investigation into the disappearance, and
determined that the evidence had previously been transferred
for a single day in 2002 to the California Department of
Justice’s (“CDOJ”) crime laboratory at the request of
Sheriff’s Department homicide detective Gerry Biehn.
Sewell noted that it was the only occasion in his 25 years of
service when the Sheriff’s Department had released
evidence to the CDOJ.
In 2014, now assigned to a different district judge (Hon.
Margaret Morrow), the district court heard testimony from
Foltz, Milkey, Taylor, and Doshier. Taylor testified that he
had overheard Morgan talk about being at Earp’s house
when Amanda was assaulted, and that Foltz and Milkey had
previously intimidated him into recanting that testimony.
Doshier testified that Foltz had told her Earp’s blood and
EARP V. DAVIS 9
semen were found on Amanda’s body, that she had testified
to that effect at trial, but that she was then intimidated into
immediately recanting that testimony when recalled to the
stand at trial after Foltz threatened to have her other children
taken away. Foltz and Milkey testified that when they
interviewed Taylor after he had given his first declaration,
without any threats or intimidation, he had admitted in a
recorded statement that his claim concerning Morgan was
not true and that he made it up at Earp’s insistence. Foltz
further testified that he had not told Doshier that Earp’s
blood and semen were found on autopsy, and that he had not
intimidated her. Ultimately, the court credited Foltz and
Milkey’s testimony, discredited Taylor’s testimony, and
found Doshier’s testimony “not particularly credible.”
In making its findings, the district court noted that Taylor
had a prior conviction for a crime involving dishonesty
(providing a false identification card to police), he had
admitted to previously using at least 12 different aliases,
there were major inconsistencies and implausibility in
Taylor’s testimony, and that his recorded recantation was
“coherent and sounded natural; indeed, he sounded far more
like a person telling the truth than someone reciting
statements he had been told to make only a few minutes
earlier.” Weighing Doshier’s testimony, the district court
considered the fact that “she was consuming heroin multiple
times a day during Earp’s trial and when Foltz made the
alleged threats,” she was “emotionally overwrought” during
the trial of her daughter’s murderer, and it was implausible
Foltz would have intimidated her given that her testimony
“was not directly relevant to proving Earp’s guilt.” As to
evaluating the assumed spoliation of evidence, the court
considered and dismissed its impact: “The mere fact that
Morgan lied on the stand does not mitigate any of the
problems the court has identified with Taylor’s testimony.”
10 EARP V. DAVIS
Conversely, it found Foltz and Milkey “to be credible
witnesses at the evidentiary hearing” based on the coherency
of their testimony. Accordingly, the district court held that
Earp “failed to prove his prosecutorial misconduct claim by
a preponderance of the evidence.”
Earp appeals again. Only the prosecutorial misconduct
claim is presented here. Thus, Earp’s contentions focus
solely on two alleged errors during the district court’s 2014
evidentiary hearing on that issue. In order for us to remand,
Earp must establish that the court clearly erred in finding that
the State did not intimidate Taylor, or that further discovery
was indispensable to developing the fact of witness
intimidation. For if Earp cannot show by a preponderance
of the evidence that witness intimidation occurred, he
necessarily cannot prove that he was prejudiced and habeas
relief warranting a new trial is necessary. See Towery v.
Schriro, 641 F.3d 300, 307 (9th Cir. 2010).
We have jurisdiction under 28 U.S.C. § 2253(a), and we
review de novo the denial of a petition for writ of habeas
corpus. Earp II, 623 F.3d at 1074. The district court’s
decision to deny discovery is reviewed for abuse of
discretion. Jones v. Wood, 114 F.3d 1002, 1009 (9th Cir.
1997). “Factual findings and credibility determinations
made by the district court in the context of granting or
denying [a petition for writ of habeas corpus] are reviewed
for clear error.” Larsen v. Soto, 742 F.3d 1083, 1091–92
(9th Cir. 2013) (quoting Lambert v. Blodgett, 393 F.3d 943,
964 (9th Cir. 2004)).
II
Earp first asserts the district court erred in denying his
request for further discovery into the CDOJ’s alleged
spoliation of evidence. He contends that further
EARP V. DAVIS 11
investigation into how the evidence came to be spoliated
could support his witness intimidation claims. The district
court, however, assumed for the purposes of the hearing that
Earp was entitled to an adverse inference based on the
State’s spoliation for the limited purpose of assessing the
witnesses’ credibility, and correctly found that any link
between that evidence established by the adverse inference
(even if true) and the alleged witness intimidation was too
attenuated. We hold that denying further discovery in light
of that finding was not an abuse of discretion. 2 See United
States v. Hinkson, 585 F.3d 1247, 1267 (9th Cir. 2009) (en
banc).
Under Rule 7 of the Rules Governing 28 U.S.C. § 2254,
a district court may expand the record without holding an
evidentiary hearing. Cooper-Smith v. Palmateer, 397 F.3d
1236, 1241 (9th Cir. 2005), overruled on other grounds by
Daire v. Lattimore, 812 F.3d 766 (9th Cir. 2016). A habeas
petitioner like Earp, however, “is not entitled to discovery as
a matter of ordinary course,” Bracy v. Gramley, 520 U.S.
899, 904 (1997), and he must demonstrate entitlement to an
evidentiary hearing under the federal habeas statute,
Williams v. Taylor, 529 U.S. 420, 430 (2000). We have
previously held “a hearing is required if: ‘(1) [the petitioner]
has alleged facts that, if proven, would entitle him to habeas
relief, and (2) he did not receive a full and fair opportunity
to develop those facts.’” Earp I, 431 F.3d at 1167 (quoting
2
In his reply brief, Earp asserts that the State has waived its
arguments as to the district court’s denial of further discovery, and as to
the proper weight of the adverse inference against the State witnesses’
credibility. See United States v. Dreyer, 804 F.3d 1266, 1277 (9th Cir.
2015). Although it did not address Earp’s arguments point-by-point, the
State did address this issue by arguing that further discovery was
unnecessary because the adverse inference was unrelated to the witness
intimidation claim.
12 EARP V. DAVIS
Williams v. Woodford, 384 F.3d 567, 586 (9th Cir. 2004)).
“[A] court’s denial of discovery is an abuse of discretion if
discovery is indispensable to a fair, rounded, development of
the material facts.” Jones, 114 F.3d at 1009 (quoting Toney
v. Gammon, 79 F.3d 693, 700 (8th Cir. 1996) (internal
quotation marks omitted)). “Just as bald assertions and
conclusory allegations do not afford a sufficient ground for
an evidentiary hearing, neither do they provide a basis for
imposing upon the state the burden of responding in
discovery to every habeas petitioner who wishes to seek such
discovery.” Mayberry v. Petsock, 821 F.2d 179, 185 (3d Cir.
1987) (citing Wacht v. Cardwell, 604 F.2d 1245, 1246 n.2
(9th Cir. 1979)).
In addition to conducting further discovery, a district
court also “has the broad discretionary power to permit a
[fact-finder] to draw an adverse inference from the
destruction or spoliation against the party or witness
responsible for that behavior.” Glover v. BIC Corp., 6 F.3d
1318, 1329 (9th Cir. 1993) (citing Akiona v. United States,
938 F.2d 158 (9th Cir. 1991)). “[A] ‘reasonable’ inference
is one that is supported by a chain of logic, rather than . . .
mere speculation dressed up in the guise of evidence.” Juan
H. v. Allen, 408 F.3d 1262, 1277 (9th Cir. 2005).
Like undisclosed Brady 3 evidence, facts established
through an adverse inference must still be relevant and
material to a defendant’s claim to warrant inclusion or
further investigation. “Materiality turns on the [evidence]’s
potential, viewed as a matter of law to be decided by the trial
court, for affecting the course of the inquiry.” United States
3
Brady v. Maryland, 373 U.S. 83, 87 (1963) (holding that the
prosecution must disclose evidence that is both favorable to the accused
and material either to guilt or punishment).
EARP V. DAVIS 13
v. Fiorillo, 376 F.2d 180, 184 (2d Cir. 1967) (citing United
States v. Winter, 348 F.2d 204, 211 (2d Cir. 1965)). See also
1 McCormick On Evid. § 185 (7th ed. 2016) (“Materiality
. . . looks to the relation between the propositions that the
evidence is offered to prove and the issues in the case. If the
evidence is offered to help prove a proposition that is not a
matter in issue, the evidence is immaterial.”); United States
v. Boshell, 952 F.2d 1101, 1106 (9th Cir. 1991) (holding that
evidence is only material “if there is a reasonable probability
that, had the evidence been disclosed to the defense, the
result of the proceeding would have been different”) (citing
United States v. Bagley, 473 U.S. 667, 678 (1985)).
Previously, we have disallowed the introduction of
evidence or adverse inferences when they are not relevant to
the party’s claim. See United States v. Laurins, 857 F.2d
529, 538 (9th Cir. 1988) (affirming conviction when the
government destroyed criminal evidence because the
purported evidence “was not a central issue” to defendant’s
claim); Farrow v. United States, 580 F.2d 1339, 1360 (9th
Cir. 1978) (denying further discovery because appellant
failed to present more than conclusory allegations). 4 But see
Soo Park v. Thompson, 851 F.3d 910, 927 (9th Cir. 2017)
(“Materiality does not require incontrovertible evidence of
4
Other circuits have also disallowed irrelevant or immaterial
inferences or evidence when not pertinent to the party’s claim. See
United States v. Ozuna, 561 F.3d 728, 738 (7th Cir. 2009) (affirming
district court’s exclusion of evidence when it was not material to the
defense case); Stanojev v. Ebasco Servs., Inc., 643 F.2d 914, 923 (2d Cir.
1981) (reversing the district court when defendant’s failure to produce
certain evidence “does not establish, or help to establish, a prima facie
case because it bears no logical relationship to a finding of age
discrimination”).
14 EARP V. DAVIS
exculpation; to the contrary, evidence that tends to ‘cast
doubt’ on the government’s case qualifies as material.”).
Here, Earp alleges that further discovery concerning the
destruction of DNA evidence would allow him to bolster his
claim of prosecutorial misconduct by Foltz and Milkey. He
asserts four possible connections to be made. First,
“evidence of past acts is admissible to show bias.” Second,
“[e]vidence regarding Foltz’s or Milkey’s involvement in
the disappearance of material that might have proven
Morgan’s presence would tend [to] show they were part of
an overall effort to suppress evidence of Morgan’s
involvement.” Third, “[d]iscovery as to how and why
Sheriff’s deputy Biehn came to ask DOJ investigator Shore
to obtain the evidence, or as to what Shore did with it and
why, could lead, for example, to information indicating that
either Foltz or Milkey, or both, were involved in obtaining
or disposing of the evidence.” And last, “Milkey had another
connection with the accessing of the evidence that led to its
disappearance: the request to give DOJ investigator Shore
access to the napkin came from a fellow Los Angeles County
Sheriff’s Deputy, homicide detective Gerry Biehn.”
Weighing the evidence, the district court held that “there is
not good cause to permit additional discovery in this case”
because Earp received the adverse inference he desired and
further discovery into the State’s alleged spoliation of
evidence would “not affect [the] decision of the remaining
[witness intimidation] claim of Earp’s habeas petition.”
We agree with the district court’s rationale. First, Earp
received the adverse inference he desired for the purpose of
assessing the witnesses’ credibility: the district court, sitting
as fact-finder, assumed in applying it “that the missing
evidence showed Morgan was at the scene of the crime on
the day in question.” Second, because Earp’s remaining
EARP V. DAVIS 15
habeas claim concerns alleged witness intimidation, he must
make some “plausible showing” that the adverse inference
evidence “would have been material and favorable” to his
prosecutorial misconduct allegations. Cf. United States v.
Valenzuela-Bernal, 458 U.S. 858, 873 (1982). He fails to do
so. Earp’s assertion that further discovery on the CDOJ’s
alleged spoliation of evidence could show bias, a hidden
connection between Foltz, Milkey, and the CDOJ, or an
overall scheme to suppress evidence, are too attenuated and
too speculative. He simply states that his motion should be
granted “[g]iven the reasonable possibility of uncovering
evidence that Foltz and Milkey were somehow connected
with the napkin’s disappearance.” This type of bald
assertion to fish for evidence that may support the defense
theory is not a “reasonable inference” and appears more like
“mere speculation dressed up in the guise of evidence.”
Juan H., 408 F.3d at 1277. Cf. Ashcroft v. Iqbal, 556 U.S.
662, 681 (2009) (holding that mere allegations of a vast
conspiracy to discriminate were not plausible and did not
sufficiently allege a cause of action).
This is exactly the kind of fishing expedition we are
admonished not to permit. Calderon v. U.S. Dist. Court for
the N. Dist. of Cal., 98 F.3d 1102, 1106 (9th Cir. 1996)
(“[C]ourts should not allow prisoners to use federal
discovery for fishing expeditions to investigate mere
speculation.”). As the district court properly concluded,
there is no reasonable connection between whether Morgan
was at the scene of the crime and whether Foltz or Milkey
intimidated witnesses. Further discovery on that matter
would only unnecessarily burden the State. Earp’s meager
conjecture suggests that he might possibly discover a
connection that might possibly exist, which might possibly
change the credibility of the witnesses, if he were only
allowed discovery. But that speculation does not change the
16 EARP V. DAVIS
fact-finder’s ruling on the credibility of the witnesses,
overcome the “broad deference” we afford to district courts
on supervising discovery, and is not “indispensable to a fair,
rounded, development of the material facts.” Jones,
114 F.3d at 1009 (emphasis added). The district court
properly denied further discovery.
III
Earp next argues that the district court improperly
weighed the credibility of Foltz, Milkey, Taylor, and
Doshier, especially in light of the adverse inference drawn
against the State. Because we “cannot substitute [our] own
judgment of the credibility of a witness for that of the fact-
finder,” United States v. Durham, 464 F.3d 976, 983 n.11
(9th Cir. 2006), and the record shows that the district court
carefully and thoughtfully weighed all of the testimony, we
hold that the district court did not clearly err in weighing the
credibility of the witnesses in light of the evidence adduced
at the hearing.
We have repeatedly held that “substantial government
interference with a defense witness’s free and unhampered
choice to testify amounts to a violation of due process.”
United States v. Vavages, 151 F.3d 1185, 1188 (9th Cir.
1998) (quoting United States v. Little, 753 F.2d 1420, 1438
(9th Cir. 1984)). In a habeas case, the petitioner must
establish the prosecutor’s misconduct by a preponderance of
the evidence. United States v. Juan, 704 F.3d 1137, 1142
(9th Cir. 2013) (citing Vavages, 151 F.3d at 1188). In
addition to proving that the prosecutor engaged in witness
intimidation, a petitioner seeking habeas relief must also
prove that he was prejudiced by that intimidation. Towery,
641 F.3d at 307 (“A constitutional violation arising from
prosecutorial misconduct does not warrant habeas relief if
the error is harmless.”). See also Sandoval v. Calderon,
EARP V. DAVIS 17
241 F.3d 765, 778 (9th Cir. 2000) (“Our finding of
constitutional error does not end the inquiry, however. To
warrant habeas relief, [the petitioner] must show that the
prosecutor’s improper argument ‘had [a] substantial and
injurious effect or influence in determining the jury’s
verdict.’” (quoting Brecht v. Abrahamson, 507 U.S. 619, 638
(1993))).
Sitting as fact-finder, the trial court judge is tasked with
weighing and making factual findings as to the credibility of
witnesses. Anderson v. City of Bessemer City, N.C., 470
U.S. 564, 575 (1985). We review those findings and
credibility determinations for clear error, Larsen, 742 F.3d
at 1091–92, which “does not vest[] us with power to reweigh
the evidence presented at trial in an attempt to assess which
items should and which should not have been accorded
credibility,” Mondaca-Vega v. Lynch, 808 F.3d 413, 428
(9th Cir. 2015) (quoting Cataphote Corp. v. De Soto Chem.
Coatings, Inc., 356 F.2d 24, 26 (9th Cir. 1966)). Under
Federal Rule of Civil Procedure 52(a)(6), “[f]indings of fact,
whether based on oral or other evidence, must not be set
aside unless clearly erroneous, and the reviewing court must
give due regard to the trial court’s opportunity to judge the
witnesses’ credibility.” In weighing the credibility of
witnesses, “Rule 52(a) demands even greater deference to
the trial court’s findings; for only the trial judge can be aware
of the variations in demeanor and tone of voice that bear so
heavily on the listener’s understanding of and belief in what
is said.” Anderson, 470 U.S. at 575 (citing Wainwright v.
Witt, 469 U.S. 412 (1985)). Although credibility
determinations are not unreviewable,
when a trial judge’s finding is based on his
decision to credit the testimony of one of two
or more witnesses, each of whom has told a
18 EARP V. DAVIS
coherent and facially plausible story that is
not contradicted by extrinsic evidence, that
finding, if not internally inconsistent, can
virtually never be clear error.
Id. at 575.
Here, the district court heard live testimony from all four
witnesses, and found that the State witnesses were credible
and the defense witnesses were not. Earp contends the court
clearly erred by: (1) improperly weighing spoliation
evidence as to Foltz and Milkey’s credibility; (2) failing to
consider Taylor a “neutral, disinterested” witness;
(3) discounting Doshier’s motivation as the victim’s mother;
and (4) disregarding Foltz and Milkey’s alleged motivations
and inconsistencies.
But in making its determination rejecting those
contentions, the district court cited considerable bases to
discredit both Taylor and Doshier’s testimony, dismissed the
impact of the assumed adverse inference urged by the
defense, listened to the tape recording of Taylor’s
recantation, and credited Foltz and Milkey’s testimony. In
light of the extremely deferential standard of review, and the
district court’s consistent and appropriate credibility
findings, which are well supported and articulated in the
record, we affirm the district court’s dismissal of Earp’s
prosecutorial misconduct claim. We agree that whether
Morgan was at the scene of the crime is minimally probative
at best to Earp’s allegations of witness intimidation. Earp
has not established the nexus. Accordingly, Earp cannot
show that his due process rights were violated by the State,
or that he was prejudiced and would be entitled to a new trial.
See Towery, 641 F.3d at 307. The district court’s dismissal
EARP V. DAVIS 19
of Earp’s remaining habeas claim on the merits is
AFFIRMED.