Sivak v. Hardison

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

LACEY MARK SIVAK,  No. 08-99006
Petitioner-Appellant, D.C. No.
v.  1:96-CV-00056-
JOHN HARDISON, Warden, BLW
Respondent-Appellee.
 OPINION

Appeal from the United States District Court
for the District of Idaho
B. Lynn Winmill, Chief District Judge, Presiding

Argued and Submitted
October 7, 2010—Seattle, Washington

Filed September 7, 2011

Before: Alex Kozinski, Chief Judge, Sidney R. Thomas and
Milan D. Smith, Jr., Circuit Judges.

Opinion by Judge Milan D. Smith, Jr.

16925
 SIVAK v. HARDISON 16929

COUNSEL

Bruce D. Livingston (argued) and Colleen Brady Ward, Fed-
eral Defender Services of Idaho, Boise, Idaho; Todd May-
brown, Allen, Hansen & Maybrown, P.S., Seattle,
Washington, for the petitioner-appellant.

L. LaMont Anderson (argued), Deputy Attorney General,
Boise, Idaho, for the respondent-appellee.
16930 SIVAK v. HARDISON
OPINION

M. SMITH, Circuit Judge:

Dixie Wilson was murdered on April 6, 1981, while she
was working at the Baird Oil gas station in Garden City,
Idaho. Approximately $385 was taken from the station’s cash
drawer and safe. Both Petitioner Lacey Sivak and his co-
defendant Randall Bainbridge (who was tried separately)
admitted that they were present when the crime occurred, but
each insisted that the other was responsible for the murder and
robbery. The jury convicted Sivak of felony murder and/or
aiding and abetting felony murder, but acquitted him of pre-
meditated murder. The trial judge then imposed the death pen-
alty. After pursuing other remedies, Sivak filed a federal
habeas petition before the effective date of the Antiterrorism
and Effective Death Penalty Act of 1996 (AEDPA). The dis-
trict court denied him relief.

Although we reject many of Sivak’s contentions on appeal,
we conclude that absent the State’s knowing presentation of
perjured inmate testimony, the result of Sivak’s penalty-phase
hearing could have been different. The only direct evidence
establishing that Sivak, not Bainbridge, committed the murder
came from Bainbridge’s unsworn statement during a police
interrogation, and a pair of jailhouse informants. One of the
informants admitted on the witness stand that he was a habit-
ual liar; the other committed perjury regarding his motives for
testifying and his expectations of receiving preferential treat-
ment from the State. Accordingly, we hold that the State vio-
lated Sivak’s due process rights under Napue v. Illinois, 360
U.S. 264 (1959), and we reverse the district court’s denial of
the writ with respect to Sivak’s death sentence.

FACTUAL AND PROCEDURAL BACKGROUND

A. Guilt Phase

The State charged Sivak with robbery, two counts of mur-
der in the first degree (premeditated murder and felony mur-
 SIVAK v. HARDISON 16931
der), and possession of a firearm during the commission of
the robbery and murder.

1. The Crime

According to her husband, Dixie Wilson left her home
around 6:20 on the morning of April 6, 1981, to go to her job
at the Baird Oil gas station.

By 7:00, she had been stabbed and shot repeatedly. Numer-
ous witnesses testified that, when they found her on the gas
station floor, she was breathing faintly and appeared to be
unconscious, her “face was all bloody,” and blood was com-
ing out of her mouth. One person noted that “her blouse was
kind of up above her breasts,” and another said that her shirt
was “pulled way up” so that “she was naked from . . . [the]
top of her breast down to her pants line.” There was a pool
of blood on the floor around her, and a knife blade was lying
on the ground. The gas station’s money drawer was open, and
contained only loose change, and no bills. An empty money
bag was sitting out on the countertop.

Wilson was unconscious when she arrived at the hospital,
and was declared dead less than an hour later. An autopsy
revealed that she had been shot at least five times in the head
and face, and the coroner recovered seven separate bullet
fragments from her skull. She was stabbed approximately
twenty times around the head, neck, and shoulder, as well as
on her left hand, which a physician described as a defensive
wound. An x-ray appeared to show the tip of a pocketknife
blade lodged in her skull, and the tip of a knife blade was
recovered from her hair.

The State sought to establish that Sivak had two motives
for the crime: to rob the gas station and to resolve a grudge
against Wilson. In addition to the two motives proffered by
the State, Sivak’s former supervisor suggested an alternative
motive for the robbery and killing: Bainbridge’s attraction to
16932 SIVAK v. HARDISON
Wilson. According to the supervisor, Bainbridge appeared at
the station two days after the murder and “started talking
about Dixie,” saying “two or three times . . . how she turned
him on.” Bainbridge appeared “very nervous,” his lips quiv-
ered, his voice broke, and his hands were shaky. (In fact, in
the separate prosecution of Bainbridge, “the prosecutor . . .
pursue[d] a sexual motivation theory.” State v. Bainbridge,
698 P.2d 335, 337 (Idaho 1985).)

2. Jailhouse Informants

During the trial, the State introduced testimony from a
number of inmate witnesses. The first, Jimmy Leytham, said
that when he and Sivak were in jail together, Sivak confessed
to murdering Wilson. Leytham claimed that he was interested
in learning about the crime because he had heard about the
murder on the television news, and had heard from other
inmates that the victim “always helped convicts and stuff.” He
asked Sivak “why he shot her and stabbed her so many
times,” and Sivak responded, “because she kept on moving.”
He then asked Sivak “what happened to the knife handle,”
and Sivak said that he “threw it in the river over by the fair-
grounds.” He asked about what type of gun was used, and
Sivak said that “they used a .22.” He asked about Sivak’s
motive, and Sivak said that “he holds grudges against peo-
ple,” and that “he used to work at the place” and Wilson had
“fired him.”

Leytham admitted to the jury that he had been in jail on
charges of burglary and escape. When asked about his motive
for testifying, Leytham said that he had “a wife and kids out
on the streets,” and he did not “want anything to happen to
them.” Asked whether he was seeking “any particular favorit-
ism from State authorities” in exchange for his testimony,
Leytham said “[n]o.” Asked whether the prosecutor’s “office
or any other State agency” took any actions “with regard to
your incarceration [in] the Ada County jail,” Leytham said
only that his escape charge was dismissed after the prelimi-
 SIVAK v. HARDISON 16933
nary hearing, and a charge pending in another city was also
dismissed. Leytham said that he did not know whether the
prosecutor’s office was involved in the dismissals.

On cross-examination, the defense asked Leytham about
his lengthy criminal history, which included convictions for
burglary and insufficient funds. The defense pointed out that
Leytham’s sentencing “[j]udge probably wasn’t real happy
about seeing [him] the second time” after being lenient during
his first conviction. Leytham acknowledged having a third
burglary charge against him, and admitted that, in the words
of Sivak’s counsel, he had been a “prime candidate for the
penitentiary” before his charges were dismissed following the
preliminary hearing. The defense also asked whether Leytham
talked to the other inmates, which elicited a discussion about
an inmate named Nathan Crispin. The defense asked Leytham
whether he had ever left the jail to travel to Kansas, and
Leytham said he had done so for “[p]ersonal reasons.” The
defense then asked Leytham whether he had testified against
Nathan Crispin in a murder trial in Kansas, and Leytham
responded cryptically and without elaboration, “You’ve got
the information.”

The defense closed its cross-examination of Leytham by
asking, “is it fair to say that you are a free man today because
you testified here today and because you testified in Nathan
Crispin’s case?” Leytham responded unequivocally, “No, sir.”

The State called a second inmate, Duane Grierson, to tes-
tify about Sivak’s jailhouse admissions. According to Grier-
son, Sivak was pleased that Grierson had testified against
Bainbridge, and Sivak wanted to tell his version of events to
Grierson. Sivak then said: “I didn’t rob anybody. . . . Bain-
bridge did. . . . I killed her, . . . and so did he.” Sivak also said
that “he reached a sexual climax from pushing on the body,”
and that Bainbridge “reached one from playing with her
boobs.”
16934 SIVAK v. HARDISON
Asked about why he was testifying, Grierson said, “Be-
cause I believe that they are guilty of it,” and “I believe that
what I am doing is right.” Asked whether “any . . . govern-
ment entity” had made a deal in exchange for his testimony,
he said, “No, sir,” and that he did not “expect” any leniency
in his pending sentencing proceedings. On cross-examination,
Grierson admitted that he had testified in two other cases in
addition to Sivak’s and Bainbridge’s. Grierson initially denied
giving information in the interest of obtaining favorable treat-
ment, but later admitted to writing an affidavit for his sentenc-
ing judge, which stated: “I have been promised deals by the
prosecuting attorney’s office, the main gist of which were that
if I testified in court in certain murder cases, I would not be
sent to any prison, but would receive, at best, a county jail
term.” He also wrote to the sentencing judge that he was “a
chronic liar,” and “lying was a way of life” for him.

3. The Verdict

The jury found Sivak guilty of robbery, first-degree felony
murder, possession of a firearm during the commission of a
robbery, and possession of a firearm during the commission
of a felony murder. The jury acquitted Sivak of first-degree
premeditated murder and possession of a firearm during the
commission of first-degree premeditated murder.

B. Penalty Phase

Consistent with Idaho and federal law at the time, the trial
judge was responsible for making the findings necessary to
impose the death sentence. See State v. Lovelace, 90 P.3d 298,
300-01 (Idaho 2004) (discussing impact of Ring v. Arizona,
536 U.S. 584 (2002), on Idaho capital-sentencing procedures).
Because of the complicated procedural history of the case, we
summarize here the evidence presented in all three of Sivak’s
sentencing hearings.

The defense emphasized two points in favor of a life sen-
tence instead of a death sentence. First, Sivak was not “in that
 SIVAK v. HARDISON 16935
last irredeemable, hopeless category of evil, ugly, horrible
people” for whom the death penalty is warranted. Second,
Bainbridge was primarily responsible for the robbery and
murder, or at the very least, Sivak and Bainbridge were
equally culpable in the robbery and murder, and Bainbridge
had been spared the death penalty.

In the initial sentencing proceeding, the defense called four
witnesses who testified about Sivak’s activities in his local
church and in his former job as an Avon cosmetics salesman.
The defense also presented mitigating evidence about Sivak’s
childhood. Sivak’s sister and mother testified that Sivak’s
alcoholic father “beat him,” and that the beatings occurred “a
lot.” Sivak’s mother also testified that Sivak was “hyperac-
tive” as a child, and an expert witness discussed the associa-
tion between attention deficit hyperactivity disorder and
criminal behavior. The evidence of Sivak’s hyperactivity was
meant not to exculpate him of responsibility, but to raise
doubts about whether it was an impulsive attack rather than
a “planned [and] rational” one. In addition to highlighting
Sivak’s character and upbringing, the defense also empha-
sized the magnitude of Bainbridge’s participation in the mur-
der.

The judge found that “all of the mitigating circumstances
do not outweigh the gravity of each aggravating circumstance
so as to make unjust the imposition of the death penalty.”
(Citing State v. Charboneau, 774 P.2d 299 (Idaho 1989),
overruled on other grounds by State v. Card, 825 P.2d 1081,
1088 (Idaho 1991).) The judge concluded that, because Sivak
“actively participated in the brutal savage slaying and sexu-
ally molesting [sic] of a woman while at the same time butch-
ering her alive,” he had “forfeited his rights to life,” and
“society must be protected.” Accordingly, he imposed the
death penalty.

JURISDICTION AND STANDARD OF REVIEW

We have jurisdiction under 28 U.S.C. §§ 1291 and 2253.
Our review is governed by pre-AEDPA standards. Lindh v.
16936 SIVAK v. HARDISON
Murphy, 521 U.S. 320, 326-27 (1997). As the State implicitly
concedes, this rule applies even though Sivak filed amended
petitions after AEDPA was enacted. See Robinson v. Schriro,
595 F.3d 1086, 1098-99 (9th Cir.) (applying pre-AEDPA
legal standards where initial petition was filed prior to
AEDPA’s enactment and amended petition was filed after
AEDPA’s enactment), cert. denied, 131 S. Ct. 566 (2010);
Hamilton v. Ayers, 583 F.3d 1100, 1105 (9th Cir. 2009)
(same); Jackson v. Brown, 513 F.3d 1057, 1068-69 (9th Cir.
2008) (same); accord Smith v. Mahoney, 611 F.3d 978,
993-95 (9th Cir.) (discussing this issue with respect to
AEDPA statute of limitations), cert. denied, 131 S. Ct. 461
(2010).

Under pre-AEDPA law:

We review the district court’s decision to grant
habeas relief de novo. We review de novo questions
of law and mixed questions of law and fact, whether
decided by the district court or the state courts. The
district court’s factual findings are reviewed for clear
error. We therefore accept its findings ‘absent a defi-
nite and firm conviction that a mistake has been
committed.’ State court factual findings are entitled
to a presumption of correctness, subject to eight
exceptions enumerated in the previous version of 28
U.S.C. § 2254(d).

Jackson, 513 F.3d at 1069 (citations omitted) (quoting Hovey
v. Ayers, 458 F.3d 892, 900 (9th Cir. 2006)).

DISCUSSION

A. Brady and Napue Claims

Sivak contends that the State violated his due process rights
under Brady v. Maryland, 373 U.S. 83 (1963), and Napue v.
Illinois, 360 U.S. 264 (1959), by failing to disclose impeach-
 SIVAK v. HARDISON 16937
ment evidence regarding jailhouse informant Jimmy Leytham,
by allowing Leytham’s false testimony regarding his motives
for testifying to stand uncorrected, and by failing to disclose
statements made by another inmate, Louis Fazio, regarding
Bainbridge’s actions during the murder.

1. Procedural Challenges

Before addressing the merits of Sivak’s contentions, we
first address the State’s arguments that the Napue claim is
procedurally defaulted and unexhausted.

a. Procedural Default

The district court assumed without deciding that the claim
was not procedurally defaulted, and concluded that it failed on
the merits. We review questions regarding procedural default
de novo. Robinson, 595 F.3d at 1099.

The State argues that the Napue claim is procedurally
defaulted because the Idaho Supreme Court held that “Sivak
has waived this issue under the provisions of I[daho] C[ode]
§ 19-2719(5).” Sivak v. State (Sivak V), 8 P.3d 636, 645
(Idaho 2000). That statutory provision requires defendants to
“file any legal or factual challenge to the sentence or convic-
tion that is known or reasonably should be known” within
forty-two days after a death sentence is imposed. Idaho Code
§ 19-2719(3). If a defendant fails to comply, he is “deemed to
have waived such claims for relief as were known, or reason-
ably should have been known” within that forty-two day
period. Id. § 19-2719(5). The only exception is “for issues
that were not known or could not reasonably have been
known,” and which “cast doubt on the reliability of the con-
viction or sentence.” Id. § 19-2719(5)(a)-(b). Applying these
provisions, the Idaho Supreme Court concluded that Sivak’s
Napue claim “reasonably should have been known at the time
of Sivak’s first petition” for post-conviction relief in 1984.
Sivak V, 8 P.3d at 645.
16938 SIVAK v. HARDISON
[1] We have previously held that Idaho’s forty-two day fil-
ing deadline was inadequate in cases involving allegations of
ineffective assistance of counsel where the petitioner “contin-
ued to be represented by his original trial counsel during the
forty-two day period.” Hoffman v. Arave, 236 F.3d 523, 534
(9th Cir. 2001). The reason for our conclusion was self-
evident: “it is the rare attorney who can be expected to con-
tend on appeal that his representation was so poor that he
deprived his client of a fair trial.” Id. (alteration and internal
quotation marks omitted). As a result, we concluded that
“Idaho’s forty-two day filing deadline, as applied to Hoffman,
is uniquely harsh.” Id. Because the rule “frustrate[d] the exer-
cise of a federal right,” it was “inadequate to preclude federal
courts from reviewing the merits of the federal claim.” Id. at
531 (internal quotation marks omitted).

Once again, we conclude that “Idaho’s forty-two day filing
deadline, as applied to [the petitioner], is uniquely harsh,” and
is therefore inadequate. Id. at 534. The Idaho Supreme
Court’s invocation of the § 19-2719(5) time bar in Sivak’s
case is perplexing. The court’s conclusion rested on the appar-
ent premise that Sivak had not raised his Napue claim in his
direct appeal or his first petition for post-conviction relief. See
Sivak V, 8 P.3d at 645. But Sivak did present the Napue claim
in his first post-conviction petition. Sivak’s Second Amended
Petition for Post-Conviction Relief, filed in November 1984,
included a Fourteenth Amendment argument premised on the
prosecutor’s “failure . . . to reveal the substance of plea bar-
gain agreements with two of his witnesses.” After the trial
court denied the petition, Sivak’s opening brief to the Idaho
Supreme Court discussed Napue at length under the subhead-
ing, “Presentation of false testimony.” The Idaho Supreme
Court then considered and rejected Sivak’s Napue claim on
the merits. Sivak v. State (Sivak II), 731 P.2d 192, 203 (Idaho
1986) (citing Napue, 360 U.S. 264); see also id. at 219-22
(Bistline, J., dissenting in relevant part) (discussing Napue
claim at length, explaining that “the majority’s conclusion
against Sivak [on this claim] is without doubt the most unsub-
 SIVAK v. HARDISON 16939
stantiated and distorted holding in the case”). In light of these
undisputed facts, it is unsurprising that two justices dissented
from the subsequent invocation of the § 19-2719(5) time bar.
The justices wrote, correctly, that “Sivak’s claim concerning
the alleged deal between the prosecutor and Leytham was
raised, addressed on its merits, and denied in his prior petition
for post-conviction relief.” Sivak V, 8 P.3d at 646 (Trout &
Silak, JJ., dissenting).

[2] The Idaho Supreme Court’s application of § 19-
2719(5) is premised on an erroneous factual determination,
and Sivak has met his AEDPA burden of introducing clear
and convincing evidence to rebut the presumption that the
state court’s determination is correct. See 28 U.S.C.
§ 2254(e)(1) (2006). While it is unusual to reject a state
court’s use of a procedural bar on the ground that it was erro-
neously applied, “[t]he procedural default doctrine self-
evidently is limited to cases in which a ‘default’ actually
occurred i.e., cases in which the prisoner actually violated the
applicable state procedural rule.” 2 Randy Hertz & James S.
Liebman, Federal Habeas Corpus Practice and Procedure
§ 26.2[c] (6th ed. 2011). Here, the state court applied the
state’s procedural rule to Sivak’s case in an erroneous and
arbitrary manner. Thus, we follow the Supreme Court and our
sister circuits in holding that an erroneously applied proce-
dural rule does not bar federal habeas review.1
1
See James v. Kentucky, 466 U.S. 341, 351 (1984) (deeming state proce-
dural bar inadequate where defendant “sought to invoke the substance of
his federal right”); Mapes v. Coyle, 171 F.3d 408, 429 (6th Cir. 1999)
(deeming state procedural bar inadequate where petitioner “properly raised
[the issue] on post-conviction review and Ohio courts erroneously refused
to consider it”); Forgy v. Norris, 64 F.3d 399, 402 (8th Cir. 1995) (deem-
ing state procedural bar inadequate where state supreme court’s procedural
ruling was contrary to the record and applicable state rules); Kubat v. Thi-
eret, 867 F.2d 351, 366 n.11 (7th Cir. 1989) (deeming state procedural bar
inadequate where state court “ruled that [petitioner] had waived the claim
by failing to raise it on direct appeal[,]” but “[t]he record clearly shows
. . . that [petitioner] did in fact raise and argue the issue in his brief on
direct appeal”).
16940 SIVAK v. HARDISON
b. Exhaustion

The State also argues that, even if the Napue claim is not
procedurally barred, it is unexhausted because Sivak did not
present the factual basis of the Napue claim to the Idaho courts.2

In order to exhaust a claim, the petitioner must fully and
fairly “present both the factual and legal basis for the claim
to the state court.” Robinson, 595 F.3d at 1101; see also 28
U.S.C. § 2254(b) (1994). “Full and fair presentation . . .
requires a petitioner to present the substance of his claim to
the state courts, including a reference to a federal constitu-
tional guarantee and a statement of facts that entitle the peti-
tioner to relief.” Scott v. Schriro, 567 F.3d 573, 582 (9th Cir.)
(per curiam), cert. denied, 130 S. Ct. 1014 (2009).

[3] Sivak specifically argued to the Idaho Supreme Court
that his federal due process rights were violated under Napue
because “[t]he jury was never advised that there existed the
possibility of prospective benefits to Leytham depending
upon the quality of his testimony against petitioner.”
Although Sivak subsequently discovered documentary evi-
dence to bolster this argument, he undeniably presented both
2
We reject the State’s contention that Sivak conceded in the district
court that the Napue claim was not exhausted. It is not clear that Sivak
made such a concession, and the district court declined to rely on this
ground. Absent the district court’s reliance on Sivak’s concession, Sivak
is not bound by his prior assertions. See Reed Elsevier, Inc. v. Muchnick,
130 S. Ct. 1237, 1249 (2010) (“[W]e decline to apply judicial estoppel.
. . . [T]hat doctrine typically applies when, among other things, a ‘party
has succeeded in persuading a court to accept that party’s earlier position,
so that judicial acceptance of an inconsistent position in a later proceeding
would create the perception that either the first or the second court was
misled.’ ” (quoting New Hampshire v. Maine, 532 U.S. 742, 750 (2001)).
Even if Sivak’s purported concession had been accepted by the district
court, “this court can independently review the state court record to deter-
mine whether the issue has actually been exhausted.” Lopez v. Schriro,
491 F.3d 1029, 1041 n.7 (9th Cir. 2007).
 SIVAK v. HARDISON 16941
“the legal and factual basis of his federal constitutional claim”
to the state court. Robinson, 595 F.3d at 1102. He identified
evidence showing that Leytham knew that the prosecution
provided him benefits in exchange for his cooperation, that
the prosecution told him that it would consider providing him
with benefits, and that he testified at trial that he “d[id]n’t
know” whether or not the prosecution was involved in provid-
ing him benefits. This evidence was more than sufficient to
satisfy the exhaustion requirement. “[A]s long as the ‘ultimate
question for disposition’ has remained the same in state and
federal court, . . . ‘variations in the legal theory or factual alle-
gations urged in its support’ are entirely legitimate.” Id. at
1102 n.14 (quoting Picard v. Connor, 404 U.S. 270, 277
(1971)).

Because Sivak’s Napue claim is neither procedurally barred
nor unexhausted, we now turn to the merits of the Napue and
Brady claims.

2. Legal Framework

[4] In Brady v. Maryland, the Supreme Court held that
“the suppression by the prosecution of evidence favorable to
an accused upon request violates due process where the evi-
dence is material either to guilt or to punishment, irrespective
of the good faith or bad faith of the prosecution.” Brady, 373
U.S. at 87. The Court has subsequently explained that “[t]here
are three components of a true Brady violation: [1] The evi-
dence 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, either will-
fully or inadvertently; and [3] prejudice must have ensued.”
Strickler v. Greene, 527 U.S. 263, 281-82 (1999). Brady
applies not only to information known to the prosecutor, but
also to “evidence ‘known only to police investigators and not
to the prosecutor.’ ” Id. at 280-81 (quoting Kyles v. Whitley,
514 U.S. 419, 438 (1995)).
16942 SIVAK v. HARDISON
In Napue v. Illinois, the Court held that “a conviction
obtained through use of false evidence, known to be such by
representatives of the State, must fall under the Fourteenth
Amendment.” Napue, 360 U.S. at 269. “A claim under Napue
will succeed when ‘(1) the testimony (or evidence) was actu-
ally false, (2) the prosecution knew or should have known that
the testimony was actually false, and (3) the false testimony
was material.’ ” Jackson, 513 F.3d at 1071-72 (quoting Hayes
v. Brown, 399 F.3d 972, 984 (9th Cir. 2005) (en banc)). It is
“irrelevant” whether the defense knew about the false testi-
mony and failed to object or cross-examine the witness,
because defendants “c[an]not waive the freestanding ethical
and constitutional obligation of the prosecutor as a representa-
tive of the government to protect the integrity of the court and
the criminal justice system.” N. Mariana Islands v. Bowie,
243 F.3d 1109, 1122 (9th Cir. 2001); see also Belmontes v.
Brown, 414 F.3d 1094, 1115 (9th Cir. 2005) (“Whether
defense counsel is aware of the falsity of the statement is
beside the point.”), rev’d on other grounds sub nom., Ayers v.
Belmontes, 549 U.S. 7 (2006).

3. Analysis

a. Leytham’s Letters

i. Factual Background

During discovery in the district court, Sivak discovered
four letters in the prosecutor’s files regarding Leytham.

The first letter was written on May 7, 1981, by Ada County
prosecutor Jim Harris to Dennis Albers, the prosecutor of a
neighboring county in which a charge was pending against
Leytham for escaping jail. Harris explained that Leytham had
“come to law enforcement in Ada County with very damaging
eviden[ce] against three inmates in the Ada County Jail pres-
ently being held on murder charges.” Harris acknowledged
that “[t]he escape charge that you have presently pending
 SIVAK v. HARDISON 16943
against Mr. Leytham is . . . of serious concern to you and your
office[,]” but he nevertheless “request[ed] that charges against
Mr. Leytham in Idaho County, relating to the escape above
mentioned, be dismissed by your office.” Harris explained
that his request was “[b]ased on [Leytham’s] cooperation, as
well as the fact that Mr. Leytham is presently serving a sen-
tence in the Ada County Jail resulting from” a prior offense.
Harris concluded by adding, “I do believe that based on the
fact that Mr. Leytham will obviously not be sentenced to the
State Penitentiary (based on his willingness to testify against
these individuals), justice will be served adequately without
proceeding further on the escape charge pending in your juris-
diction.”

The second letter was written a few days later by Harris to
the chairman of the state Commission for Pardons and Parole.
Harris “recommend[ed]” that Leytham “be given additional
consideration for parole from the Idaho State Correctional
Institute” during his upcoming parole hearing the following
week. Harris’s “recommendation [was] based upon Mr.
Leytham’s cooperation” with respect to the two trials in the
Wilson murder, the murder trial in Kansas, and an additional
local murder investigation.

The third letter was written on July 13, 1981, by Leytham
to Jerry Brown, who was “evidently a Kansas prosecutor.”
Sivak V, 8 P.3d at 640. Leytham wrote that Idaho investigator
“Vaughn [Killeen] told me you are in the same position Idaho
is in. They say they will help me when I get out but don’t do
any thing [sic] about it.” Leytham added that he wanted
$6,000 “cash” as “wit[ ]ness fees as soon as you can.” A few
weeks later, Brown forwarded this letter to Killeen.

The fourth letter was written on July 27, 1981, by Killeen
to Leytham. The letter began: “Your witness fee should arrive
shortly. . . . I also wanted to communicate to you about your
status and what this office has done in regards to your current
status. If you recall you had information regarding the
16944 SIVAK v. HARDISON
Bainbridge-Sivak case and you approached me about a ‘deal.’
I informed you we couldn’t make ‘deals’ but if you desired
to testify I would attempt to do something for you but there
would be no guarantees.” Killeen then summarized the “ar-
rangements” that were made in anticipation of Leytham’s tes-
timony in the Sivak, Bainbridge, and Crispin cases: “the
dismissing of criminal charges against you in two jurisdic-
tions, a reduction in sentence and a parole from the Idaho
State Correctional Institute.” Killeen closed by stating that
“[w]ithout our intervention you would still be in prison with
other pending criminal charges against you. I would suggest
you stop trying to make a living off the system . . . . I will see
you at the deposition” in Sivak’s case.

ii. Preliminary Brady/Napue analysis

These letters clearly satisfy the first two requirements of
Brady: they are “favorable to the accused . . . because [they
are] . . . impeaching,” and they “have been suppressed by the
State, either willfully or inadvertently.” Strickler, 527 U.S. at
281-82.

[5] With respect to the first Brady requirement, the letters
are classic examples of impeachment evidence. It is well
established that “[e]vidence of a deal or promise of lenient
treatment in exchange for a witness’s testimony against a
defendant may constitute evidence that must be disclosed
under Brady and Napue.” Hovey, 458 F.3d at 916 (citing
Giglio v. United States, 405 U.S. 150, 154-55 (1972)); see
also Banks v. Dretke, 540 U.S. 668, 685, 700-02 (2004) (find-
ing a Brady violation where prosecution failed to disclose that
key witness “was an informant and that he had been paid
$200 for his involvement in the case”). We have also
explained that “[t]he deal or promise need not be express; fail-
ure to disclose an agreement or guarantee of leniency ‘indi-
cated without making a bald promise’ also may violate
Brady.” Hovey, 458 F.3d at 917 (quoting United States v. But-
ler, 567 F.2d 885, 888 n.4 (9th Cir. 1978) (per curiam)). We
 SIVAK v. HARDISON 16945
have even found a Brady violation where the evidence “im-
plie[d] that a tacit agreement was reached between [a witness]
and the government . . . in exchange for his cooperation.”
United States v. Shaffer, 789 F.2d 682, 689 (9th Cir. 1986).
Here, although there is no evidence of an explicit meeting of
the minds between Leytham and the prosecutor’s office, there
is ample evidence of an implicit quid pro quo between the
prosecutor’s office and Leytham, and that this agreement was
known to Harris, Killeen, and Leytham. We therefore agree
with the Idaho Supreme Court’s factual conclusion “that
Leytham and the prosecutor had reached some type of deal in
exchange for his cooperation.” Sivak V, 8 P.3d at 643.

[6] With respect to the second Brady requirement, the state
undeniably suppressed the letters within the meaning of
Brady. The district court correctly concluded “that the State
suppressed the letters because they were not disclosed until
the Court granted discovery in this habeas matter.” This find-
ing is sufficient to satisfy the second element of Brady. 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.”).

Having concluded that the letters were impeachment evi-
dence and were withheld by the State, we next examine the
materiality of the letters collectively in combination with the
other Brady and Napue violations. See Jackson, 513 F.3d at
1076.

b. Leytham’s False Testimony

During the guilt phase of the trial, Leytham testified that he
had “a wife and kids out on the streets,” and he did not “want
anything to happen to them.” Asked directly whether he “ask-
[ed] for any particular thing—any particular favoritism from
State authorities” in exchange for his testimony, Leytham said
“[n]o.” Asked whether the prosecutor’s “office or any other
State agency” took any actions “with regard to your incarcera-
16946 SIVAK v. HARDISON
tion [in] the Ada County jail,” Leytham said only that his
escape charge was dismissed after the preliminary hearing,
and a charge pending in another city was also dismissed.
Leytham said that he did not know whether the prosecutor’s
office was involved in the dismissals.

The Idaho Supreme Court concluded that:

Much of [Leytham’s] testimony the prosecutor knew
to be inaccurate. As Killeen’s letter makes obvious,
Leytham approached Killeen about a “deal,” not out
of a sense of familial or civic responsibility.
Leytham also asked the prosecutor for monetary
compensation. Leytham knew that the prosecutor’s
office was responsible for his pending charges being
dismissed. Although he denied receiving any other
consideration, he also knew that the prosecutor’s
office was largely responsible for him receiving
parole.

Sivak V, 8 P.3d at 645. These factual findings are entitled to
a presumption of correctness, and the State has not rebutted
this presumption. 28 U.S.C. § 2254(d) (1994). In addition to
the false statements identified by the Idaho Supreme Court,
Leytham also falsely testified that he had traveled to Kansas
for personal reasons. The prosecutor knew or reasonably
should have know that Leytham had traveled to Kansas in
order to testify in the Crispin murder trial. Killeen’s July 27,
1981, letter to Leytham notes that Leytham “requested . . .
$6,000 for [his] continued testimony against Crisp[i]n,” and
Harris’s letter to the parole commission stated that Leytham
had “agreed to testify regarding a murder . . . in the State of
Kansas.”

[7] These findings about Leytham’s testimony establish the
first two elements of a Napue violation: “ ‘(1) the testimony
(or evidence) was actually false [and] (2) the prosecution
knew or should have known that the testimony was actually
 SIVAK v. HARDISON 16947
false.’ ” Jackson, 513 F.3d at 1071 (quoting Hayes, 399 F.3d
at 984).

c. Fazio’s Statement to Police

Sivak also contends that the prosecution withheld a state-
ment from inmate Louis Fazio, who told investigators that
Bainbridge had admitted to fondling the victim’s breasts as
she was dying. However, the statement was not suppressed
during the penalty phase. As the district court correctly found,
“Sivak’s counsel possessed this evidence before the 1988 sen-
tencing hearing” and even “referred to it as part of Sivak’s
mitigation case.” Because the prosecution disclosed the mate-
rial to Sivak, it was not suppressed for purposes of Brady dur-
ing the sentencing phase. In addition, had the Brady material
regarding Fazio been disclosed during the guilt phase and
been admissible, the total mix of evidence would have been
essentially unchanged.

d. Materiality and Prejudice3

Under Brady, withheld “evidence is material only 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. A ‘reasonable probability’ is a probability suf-
ficient to undermine confidence in the outcome.” United
States v. Bagley, 473 U.S. 667, 682 (1985). In determining
materiality, the “suppressed evidence” must be “considered
collectively, not item by item.” Kyles, 514 U.S. at 436.
“[O]nce a reviewing court applying Bagley has found consti-
tutional error there is no need for further harmless-error
review.” Id. at 435.

In contrast, under Napue, a conviction (or capital sentence)
3
“The terms ‘material’ and ‘prejudicial’ are used interchangeably in
Brady cases. Evidence is not ‘material’ unless it is ‘prejudicial,’ and not
‘prejudicial’ unless it is ‘material.’ ” Benn, 283 F.3d at 1053 n.9.
16948 SIVAK v. HARDISON
is “set aside whenever there is ‘any reasonable likelihood that
the false testimony could have affected the judgment of the
jury.’ ” Jackson, 513 F.3d at 1076 (quoting Hayes, 399 F.3d
at 985). Although “Napue does not create a ‘per se rule of
reversal[,]’ ” “[w]e 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. (quoting Hayes, 399 F.3d at 978, 984).

In Jackson, we explained the proper method of analyzing
Brady and Napue errors in tandem:

[W]e first consider the Napue violations collectively
and ask whether there is “any reasonable likelihood
that the false testimony could have affected the judg-
ment of the jury.” 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.” At both stages, we must
ask whether the defendant “received a trial resulting
in a verdict worthy of confidence.”

Id. (ellipsis and citations omitted).

[8] If Brady and Napue violations were prejudicial with
respect to either the guilt or penalty phase of the trial, Sivak
is entitled to relief. See, e.g., Cone v. Bell, 129 S. Ct. 1769,
1784 (2009) (“Evidence that is material to guilt will often be
material for sentencing purposes as well; the converse is not
always true, however . . . .”); see also Jackson, 513 F.3d at
1076-77 (analyzing materiality of Napue violation with
respect to sentencing phase).

i. Guilt Phase

[9] Sivak has failed to show that the State’s Napue and
Brady violations prejudiced him during the guilt phase of pro-
 SIVAK v. HARDISON 16949
ceedings. Although the evidence of Sivak’s guilt was not
quite as “overwhelming” as the State repeatedly contends in
its brief, we are confident that the State’s misconduct could
not reasonably have affected the jury’s verdict.

In his testimony to the jury, Sivak did not deny the fact that
he was present at the crime scene when Wilson was shot five
times and stabbed twenty times. Sivak’s theory of the case
was that Bainbridge was the primary actor in the robbery and
murder. Sivak contended he was merely present at the offense
and was incapable of intervening because of his own fear and
Bainbridge’s implicit and explicit threats against Sivak and
Sivak’s family.

Ample evidence rebutted Sivak’s contentions. One eyewit-
ness testified that prior to the murder, “it was [a] real uneasy
atmosphere” in the gas station and Wilson appeared uncom-
fortable in Sivak and Bainbridge’s presence. This testimony
rebutted Sivak’s claim that the murder was spontaneous.
Another eyewitness testified that Bainbridge “was going
through the drawer” that contained the cash, which rebutted
Sivak’s claim that Bainbridge kept the derringer pointed at
him following the murder. Witnesses testified that Bainbridge
and Sivak seemed normal after the murder, which suggested
that Sivak was not scared of Bainbridge. In fact, Bainbridge’s
wife and a friend each testified that Bainbridge seemed more
nervous than usual that morning after the murder, but no one
(other than Sivak himself) testified that Sivak was similarly
affected by the crime.

In addition, a number of employees from the gas station
testified that Sivak disliked Wilson and thought she had been
changing his deposits. They also testified about the station’s
practice of keeping a limited amount of cash in the upper part
of the safe and the remainder of the cash in the lower locked
portion of the safe, and that Sivak thought Wilson had a key
to the lower portion. Another employee testified that someone
who sounded like Sivak called a few days before the murder
16950 SIVAK v. HARDISON
to ask which employee would be working on Monday morn-
ing. Accordingly, there was ample evidence supporting the
State’s theory of the case, as summarized in the State’s clos-
ing argument: “Lacey Sivak thought that Dixie still had the
key to the lower part of that safe. He knew that on Monday
the receipts from the previous weekend were in the lower part
of that safe.”

Finally, and most importantly, Sivak himself admitted
(after first denying it on the stand) that he stole the .22 pistol,
derringer, and ammunition from the store where his mother
worked. Sivak’s fingerprint was on the barrel of the .22, and
he could not explain why there were no other fingerprints on
the gun.

[10] Thus, even if the State had not violated Napue and
Brady, we have full confidence that the jury would still have
convicted Sivak of first-degree murder. It is important to
recall that the jury found Sivak guilty of first-degree felony
murder, and that the jury was properly instructed that anyone
who “aid[s] and abet[s]” a crime is “equally guilty” as the
person who “directly commit[s] . . . the offense.”

Under Idaho law, Sivak could have been convicted of
either aiding and abetting Bainbridge’s felony murder or
directly committing the felony murder.4 Thus, the Napue vio-
lations could not reasonably have affected the guilt-phase out-
4
Because Idaho “treats aiding and abetting as a theory and not as a sepa-
rate offense with distinct elements, . . . there is no basis for a specific una-
nimity instruction” that would “requir[e] the basis for the jury’s verdict
(aider and abettor or principal) be a unanimous decision.” State v. John-
son, 188 P.3d 912, 919-20 (Idaho 2008); see also Schad v. Arizona, 501
U.S. 624, 632 (1991) (plurality opinion) (“ ‘[T]here is no general require-
ment that the jury reach agreement on the preliminary factual issues which
underlie the verdict.’ ”); Schad, 501 U.S. at 649 (Scalia, J., concurring)
(“[I]t has long been the general rule that when a single crime can be com-
mitted in various ways, jurors need not agree upon the mode of commis-
sion.”).
 SIVAK v. HARDISON 16951
come. There is no doubt that a robbery occurred and that
Wilson was killed during the course of that robbery, thus sup-
porting a first-degree felony-murder conviction. The only real
dispute was, if Bainbridge committed both the murder and the
robbery, whether Sivak aided and abetted either of those acts.
The jury heard and rejected Sivak’s contentions that he knew
nothing about the plan to commit robbery and/or murder, that
he did not participate in the robbery or murder, and that he
was threatened into assisting Bainbridge cover up the crimes.

[11] In light of this strong evidence of guilt under either a
direct felony-murder theory or an aiding-and-abetting felony-
murder theory, the Napue violations could not have changed
the jury’s guilt determination. Leytham’s testimony was
wholly cumulative to the other evidence of Sivak’s guilt.
Leytham’s testimony tended to establish that Sivak, not Bain-
bridge, was the actual killer, and tended to bolster Grierson’s
testimony to the same effect. But even if the jury disbelieved
Leytham entirely and, in turn, disbelieved Grierson (an admit-
ted liar whose testimony was corroborated only by Leytham),
there still is no “reasonable likelihood that the false testimony
could have affected the judgment of the jury.” Jackson, 513
F.3d at 1076 (emphasis and internal quotation mark omitted).
As in Morris v. Ylst, 447 F.3d 735, 746 (9th Cir. 2006), Sivak
“testified in his own defense and implicated [others] in the
crime, but the jury disbelieved him,” and “the physical evi-
dence” and various other pieces of evidence “pointed to his
guilt.” Thus, we follow Morris and hold that Sivak has not
shown prejudice on account of the guilt-phase Napue viola-
tions. Cf. Maxwell v. Roe, 628 F.3d 486, 507-08 (9th Cir.
2010) (finding prejudice where perjured witness “was the
‘make-or-break’ witness for the State” (citing Hall v. Dir. of
Corrs., 343 F.3d 976, 978, 984-85 (9th Cir. 2003) (per
curiam); Killian v. Poole, 282 F.3d 1204, 1209 (9th Cir.
2002))), petition for cert. filed, 80 U.S.L.W. 3004 (U.S. June
21, 2011).

We reach the same result under Brady and our collective
Napue-Brady analysis. Had the Brady material regarding
16952 SIVAK v. HARDISON
Leytham been disclosed, Leytham would have been thor-
oughly discredited, and Grierson’s testimony would likewise
have suffered. But Leytham’s substantive testimony was
duplicative to the other evidence presented at trial with
respect to Sivak’s guilt, and, as a result, we have full confi-
dence in the verdict.

[12] Because the errors are not prejudicial standing alone,
we must “consider all of the Napue and Brady violations col-
lectively and ask whether ‘there is a reasonable probability
that . . . the result of the proceeding would have been differ-
ent.’ ” Jackson, 513 F.3d at 1076 (emphasis omitted). We
conclude that the result would not have been different. Even
if the jury had been properly advised that Leytham was com-
mitting perjury and heard from Fazio that Bainbridge admit-
ted to fondling the victim, the guilt-phase verdict would have
been the same. There was simply too much evidence placing
Sivak at the scene of the crime while it occurred, and the jury
rejected Sivak’s exculpatory testimony. Accordingly, there
was no prejudice during the guilt phase on account of the
Napue and Brady violations.

ii. Penalty Phase

We reach a contrary conclusion regarding penalty-phase
prejudice. The penalty phase differed from the guilt phase in
two important respects. First, under Idaho law, the prosecu-
tion was required to prove beyond a reasonable doubt that the
murder satisfied at least one of Idaho’s statutory aggravating
circumstances. Idaho Code § 19-2515(g) (West 1992).5 Sec-
5
The sentencing judge relied on the following provisions:
(5) The murder was especially heinous, atrocious or cruel, mani-
festing exceptional depravity.
(6) By the murder, or circumstances surrounding its commission,
the defendant exhibited utter disregard for human life.
(7) The murder was one defined as murder of the first degree by
section 18-4003, Idaho Code, subsections (b), (c), (d), (e) or (f),
 SIVAK v. HARDISON 16953
ond, the prosecution was required to prove that one of these
aggravating circumstances outweighed all of the mitigating
circumstances, and that the death penalty was warranted.
Idaho Code § 19-2515(c) (West 1992); Charboneau, 774 P.2d
at 323-24; see also Fetterly v. Paskett, 997 F.2d 1295, 1301
(9th Cir. 1993) (“For whatever reason, Idaho has chosen to
prohibit the grouping of aggravating circumstances in connec-
tion with their weighing against whatever elements of mitiga-
tion that appear in a given case.”); accord Hayes, 399 F.3d at
988 (noting that Napue violation “would have affected not
only the special circumstance verdict, but also the jury’s ulti-
mate decision to impose the penalty of death”).

[13] Thus, in determining whether Sivak suffered preju-
dice as a result of the State’s misconduct, we must be confi-
dent in the trial judge’s conclusion that Sivak caused or
intended to cause Wilson’s death, and in the judge’s balancing
of aggravating and mitigating circumstances. The Idaho
Supreme Court has observed that it is difficult to conduct
harmless error review in capital-sentencing cases because
“[a]ggravating and mitigating factors are of a more subjective
nature than evidence of guilt or innocence that can be objec-
tively examined to determine whether a jury’s deliberations
would have come out the same way as to the underlying
offense.” State v. Lovelace, 90 P.3d 298, 304 (Idaho 2004)
(internal quotation marks omitted). In conducting this “sub-
jective” balancing process, the sentencer must be carefully
attuned to “[t]he relative weights of the various types of”
available evidence. Sivak II, 731 P.2d at 205. In light of these
guiding principles of state sentencing law, it is important also
to keep in mind the appropriate prejudice/harmless error stan-

and it was accompanied with the specific intent to cause the death
of a human being.
(8) The defendant, by prior conduct or conduct in the commission
of the murder at hand, has exhibited a propensity to commit mur-
der which will probably constitute a continuing threat to society.
Idaho Code § 19-2515(g) (West 1992).
16954 SIVAK v. HARDISON
dards: if there is any “reasonable probability that . . . the result
. . . would have been different” without the Brady error, Bag-
ley, 473 U.S. at 682, or if “there is any reasonable likelihood
that” the sentencer’s weighing process “could have” been dif-
ferent without the Napue error, Jackson, 513 F.3d at 1076
(internal quotation marks omitted), then we must grant
Sivak’s petition.

The State first contends that Leytham’s perjury and the
suppressed letters were not prejudicial because the sentencing
judge had ample reasons to disbelieve Leytham. We disagree.
In Jackson, the defense thoroughly cross-examined one of the
witnesses “about his own attempts to benefit from his cooper-
ation.” Id. at 1077. We held that this cross-examination was
an inadequate substitute for hard evidence of the witness’s
cooperation: “evidence of an explicit promise of assistance by
the trial prosecutor likely would have carried far greater
weight than any speculative benefit [the witness] might have
thought he could achieve on his own.” Id. Similarly, Jack-
son’s jury was aware that robbery charges were pending
against the state’s other key witness, and could have “specu-
lated” he was cooperating to try and get a better deal. Id. We
held that “this speculation pales in comparison to the reality
that law enforcement officers had actually promised” favors
to the witness. Id. We concluded that the two witnesses’
“willingness to lie under oath to keep the promises secret
would cast doubt on [their] entire testimony.” Id.; accord
Silva v. Brown, 416 F.3d 980, 989 (9th Cir. 2005) (holding
that withheld impeachment evidence was material under
Brady because “the undisclosed evidence was not duplicative
of the impeachment evidence actually presented, but rather
was of a different kind”).

[14] Like the witnesses in Jackson, Leytham refused to
admit that he was seeking (and indeed, had received) money
and favorable treatment in exchange for his testimony. This
testimony invited the factfinder to “speculate” about the pos-
sibility that he was testifying out of self-interest rather than
 SIVAK v. HARDISON 16955
public-minded generosity. Leytham even lied about his moti-
vations for testifying and the benefits he had received from
the prosecution. Had the sentencing judge known about
Leytham’s true motivations for testifying, and had the judge
known that Leytham had lied on the witness stand about those
motivations, the judge very likely would have rejected
Leytham’s testimony about Sivak’s purported confession.

There are a number of reasons why the sentencing judge’s
assessment of Leytham’s testimony might have been different
if the State had corrected his falsehoods or disclosed the four
impeaching letters to Sivak. We have explained the impor-
tance of disclosing that a witness has received “prosecution-
provided benefits”: “ ‘Disclosure of an agreement to provide
such benefits, as well as evidence of the benefits themselves,
could have allowed the jury to reasonably conclude that the
informant had a motive other than altruism for testifying on
behalf of the State. Such a finding could have substantially
impeached the informant’s credibility as a witness.’ ” Benn,
283 F.3d at 1057 (alterations omitted) (quoting Singh v.
Prunty, 142 F.3d 1157, 1162 (9th Cir. 1998)). The Supreme
Court has suggested that such information is even more sig-
nificant if the witness has not received a firm commitment
from the prosecution, because witnesses have greater incen-
tives to lie if the potential benefits are “not guaranteed
through a promise or binding contract.” Bagley, 473 U.S. at
683. And as we explained on remand from the Court, “ ‘[t]he
more uncertain the agreement, the greater the incentive to
make the testimony pleasing to the promisor.’ ” Bagley v.
Lumpkin, 798 F.2d 1297, 1302 (9th Cir. 1986) (quoting Boone
v. Paderick, 541 F.2d 447, 451 (4th Cir. 1976)).

In addition, if a witness’s false testimony is corrected by
the prosecution, his “willingness to lie under oath” is exposed
and his credibility is irreparably damaged. Jackson, 513 F.3d
at 1077. There is a substantial difference between “general
evidence of untrustworthiness and specific evidence that a
witness has lied.” Benn, 283 F.3d at 1056-57. “ ‘All the other
16956 SIVAK v. HARDISON
evidence used by the defense to punch holes in the infor-
mant’s credibility amount[s] only to circumstantial reasons
why the informant might alter the truth to continue to feather
his own nest. A lie would be direct proof of this concern,
eliminating the need for inferences.’ ” Id. at 1057 (alterations
omitted) (quoting United States v. Bernal-Obeso, 989 F.2d
331, 336 (9th Cir. 1993)).

Furthermore, these rules are of particular significance when
the witness is incarcerated. We have repeatedly observed that
inmate testimony is inherently unreliable. “Defendants or sus-
pects with nothing to sell sometimes embark on a methodical
journey to manufacture evidence and to create something of
value, setting up and betraying friends, relatives, and cell-
mates alike.” Bowie, 243 F.3d at 1124.

All of these considerations are relevant in this case. Had
Leytham’s lies been exposed, the factfinder very likely would
have rejected Leytham’s testimony about Sivak’s confession.
If the factfinder had rejected Leytham’s testimony, it would
have been forced to reconsider Grierson’s testimony as well.
See id. (“Frequently, and because they are aware of the low
value of their credibility, criminals will even go so far as to
create corroboration for their lies by recruiting others into the
plot.”). Absent Leytham’s corroborating testimony regarding
Sivak’s confession, Grierson’s version of Sivak’s confession
would have been called into doubt. Because Grierson’s own
lies were uncovered at trial and he even admitted to being a
“chronic liar,” the corroborating power of Leytham’s testi-
mony vis-a-vis Grierson’s is clear. Absent the overlap
between Leytham’s and Grierson’s testimony about Sivak’s
confession, the judge reasonably would have reconsidered his
firm conviction that Sivak personally committed the murder.

[15] Once Sivak’s purported confessions to Leytham and
Grierson are removed from the mix of evidence, the sentenc-
ing judge’s aggravating findings are significantly weakened.
We have repeatedly held that Brady and Napue violations
 SIVAK v. HARDISON 16957
were prejudicial where they impacted testimony regarding the
defendant’s purported confession, particularly when the
remaining case against the defendant was entirely circumstan-
tial. Maxwell, 628 F.3d at 508; Jackson, 513 F.3d at 1077-79;
Silva, 416 F.3d at 987; Horton v. Mayle, 408 F.3d 570,
579-81 (9th Cir. 2005); Hayes, 399 F.3d at 985-87; Hall, 343
F.3d at 984. Such a conclusion derives from common sense:
a confession is typically “powerful evidence,” Premo v.
Moore, 131 S. Ct. 733, 744 (2011), but is substantially less
powerful if heard secondhand from a witness with a motive
to lie and a demonstrated pattern of lying, cf. Barker v. Flem-
ing, 423 F.3d 1085, 1097 (9th Cir. 2005) (rejecting Brady
claim where the record contained ample evidence in which
the jury heard that the witness was “a serial liar whose story
that [the defendant] confessed was highly doubtful”).

[16] In light of these considerations, we are compelled to
conclude that there is a reasonable likelihood that the sentenc-
ing outcome could have been different if the State had cor-
rected Leytham’s perjury. Sivak simply did not receive a trial
that “ ‘result[ed] in a [sentence] worthy of confidence.’ ”
Jackson, 513 F.3d at 1076 (quoting Kyles, 514 U.S. at 434).
Although the trial judge heard ample evidence establishing
Sivak’s presence at the scene of the crime, the only direct evi-
dence of Sivak’s personal participation in the crime consisted
of testimony from inmates (Leytham and Grierson) and
Sivak’s co-perpetrator Bainbridge. Given that these three
pieces of evidence are inherently unreliable,6 we cannot be
6
“Bainbridge’s statement had been obtained under questionable circum-
stances shortly after he was arrested and in custody when he was first con-
fronted with the full impact of the state’s accusation that he was guilty of
murder. Few aspects of the criminal law are more familiar than the phe-
nomenon of co-defendants who implicate each other. . . . Bainbridge had
every reason to lie.” State v. Sivak (Sivak III), 806 P.2d 413, 424 (Idaho
1990) (Bistline, J., dissenting); see also State v. Sivak (Sivak I), 674 P.2d
396, 414 (Idaho 1983) (Bistline & Huntley, JJ., dissenting) (“How a dis-
trict judge could divine from the two sources of evidence, to wit, the
sworn and unsworn statements of Sivak as against the unsworn statements
of Bainbridge, who was telling the truth, if either, is beyond my powers
of comprehension.”).
16958 SIVAK v. HARDISON
confident that the trial judge would have reached the same
conclusion, had he known that Leytham (in addition to Grier-
son) lied on the witness stand.

Contrary to the State’s arguments, the Napue violations in
the sentencing phase are not harmless errors that are merely
cumulative to other evidence known to the factfinder. Unlike
the cases cited by the State, this is not a case in which the wit-
ness at issue had already been exposed to the factfinder as a
liar, e.g., Heishman v. Ayers, 621 F.3d 1030, 1035 (9th Cir.
2010) (per curiam), petition for cert. filed, No. 10-10953
(U.S. June 1, 2011); Morris, 447 F.3d at 741, 746, the witness
already testified that he received immunity, Heishman, 621
F.3d at 1035, the witness “explained the conditions of his plea
agreement in open court,” Hamilton, 583 F.3d at 1111, or the
witness admitted that he “ ‘hope[d]’ ” to “receiv[e] lenient
treatment in exchange for his testimony,” Hovey, 458 F.3d at
921. Furthermore, unlike our harmless error analysis of the
guilt phase of this case, there is not “overwhelming evidence
of [Sivak’s] guilt” with respect to the aggravating factors sup-
porting the death sentence, Hamilton, 583 F.3d at 1112, and
there is not reliable independent evidence that Sivak person-
ally caused or intended to cause Wilson’s murder, such as
clear physical evidence and a reliable confession from the
defendant, e.g., Morris, 447 F.3d at 738-39, 741, 746.

[17] Accordingly, we conclude that the State’s failure to
correct Leytham’s false testimony violated Sivak’s due pro-
cess rights with respect to his capital sentence.7

B. Double Jeopardy Clause

Sivak also contends that the trial court violated the Double
Jeopardy Clause because its sentencing findings conflicted
7
Having found Napue error, we need not address Sivak’s Brady claims.
See Jackson, 513 F.3d at 1076 (setting forth two-step procedure for con-
sidering related Napue and Brady claims).
 SIVAK v. HARDISON 16959
with the jury’s acquittal on the premeditated murder count. In
his briefs, Sivak argues that this acquittal “necessarily deter-
mined that he lacked the specific intent to commit murder.”
At oral argument, Sivak offered the more expansive argument
that the acquittal established “that he was not the actual kill-
er.” We disagree with both versions of Sivak’s Double Jeop-
ardy claim.

1. Legal Framework

[18] In Ashe v. Swenson, 397 U.S. 436 (1970), the
Supreme Court “held that the Double Jeopardy Clause pre-
cludes the Government from relitigating any issue that was
necessarily decided by a jury’s acquittal in a prior trial.”
Yeager v. United States, 129 S. Ct. 2360, 2366 (2009). “In
evaluating collateral estoppel claims, we follow a three-step
process. First, we identify the issues in the two actions to
determine whether they are sufficiently material and similar
to justify invoking the doctrine; second, we examine the
record in the prior case to determine whether the similar issue
was litigated; third, we examine the record of the prior pro-
ceeding to determine whether the issue was necessarily
decided in the first case.” Wilson v. Belleque, 554 F.3d 816,
830 (9th Cir.), cert. denied, 130 S. Ct. 75 (2009). Analysis of
“[t]he preclusive effect of the jury’s verdict . . . is a question
of federal law which we . . . review de novo.” Schiro v. Far-
ley, 510 U.S. 222, 232 (1994). “The burden is ‘on the defen-
dant to demonstrate that the issue whose relitigation he seeks
to foreclose was actually decided in the first proceeding.’ ” Id.
at 233 (quoting Dowling v. United States, 493 U.S. 342, 350
(1990)).8
8
We assume, as the Supreme Court did in Schiro, that in capital-
sentencing proceedings, “collateral estoppel could bar the use of [an] . . .
aggravating circumstance” that is inconsistent with the jury’s verdicts. Id.
at 232. The Eleventh Circuit appears to be the only circuit court to reach
this issue. Delap v. Dugger, 890 F.2d 285, 316 (11th Cir. 1989) (holding
that Ashe’s collateral estoppel “principle properly extends to the sentenc-
ing phase of a capital trial”).
16960 SIVAK v. HARDISON
When determining the preclusive effect of a jury verdict,
we must “examine the record of [the] prior proceeding, taking
into account the pleadings, evidence, charge, and other rele-
vant matter, and conclude whether a rational jury could have
grounded its verdict upon an issue other than that which the
defendant seeks to foreclose from consideration.” Ashe, 397
U.S. at 444 (internal quotation marks omitted). If “there is
more than one rational conclusion that can be drawn from the
first jury’s verdict,” then collateral estoppel cannot apply
because the issue was not necessarily decided by the jury’s
verdict. Santamaria v. Horsley, 133 F.3d 1242, 1246 (9th Cir.
1998) (en banc). “The inquiry ‘must be set in a practical
frame and viewed with an eye to all the circumstances of the
proceedings.’ ” Ashe, 397 U.S. at 444 (quoting Sealfon v.
United States, 332 U.S. 575, 579 (1948)).

2. Analysis

Sivak was charged with two separate counts of first-degree
murder. Count two of the Information charged that he mur-
dered Wilson “willfully, unlawfully, deliberately, with pre-
meditation and with malice aforethought.” Count three
charged him with murdering Wilson “in the perpetration of a
robbery.” The jury found Sivak guilty on count three (felony
murder) but not count two (premeditated murder).

[19] We reject Sivak’s argument that these verdicts con-
clusively establish that he did not personally stab and shoot
Wilson. Sivak is correct that it is possible that the jury con-
cluded that Bainbridge used the murder weapons. However,
we cannot agree that the jury “necessarily decided” whether
Sivak or Bainbridge was the killer. Yeager, 129 S. Ct. at 2366.
We have previously rejected a similar argument, using lan-
guage directly applicable to this case: although the “two ver-
dicts may be harmonized by concluding that the jury found
that [Sivak] was guilty as an aider and abettor[,] . . . it is also
conceivable that all twelve jurors were convinced beyond a
reasonable doubt that [Sivak] played some role, either as the
 SIVAK v. HARDISON 16961
shooter or as an aider and abettor, without ascertaining
exactly which role. We have no way of knowing, because
these alternatives . . . are rationally consistent with the jury’s
verdict in th[is] case.” Santamaria, 133 F.3d at 1246. By con-
victing Sivak on count three, the jury determined that either
Sivak or Bainbridge committed a murder “in the perpetration
of, or attempt to perpetrate robbery,” and, to the extent that it
found that Bainbridge committed the murder, that Sivak “aid-
[ed] and abet[ted] in its commission.”9 By acquitting Sivak on
count two, the jury found reasonable doubt as to whether
Sivak or Bainbridge committed a “willful, deliberate and pre-
meditated killing,” or, to the extent it found that Bainbridge
committed a “willful, deliberate and premeditated killing,”
that there was reasonable doubt whether Sivak aided and abet-
ted that crime. In other words, there are numerous “rational
conclusion[s] that can be drawn from the . . . jury ‘s verdict,”
and we are therefore unable to conclude that the jury found
that Bainbridge, not Sivak, committed the murder. Id. Sivak’s
argument rests entirely on impermissible “guesswork,” “con-
jecture,” and “speculation.” Yeager, 129 S. Ct. at 2368.

Sivak also argues that his acquittal on count two (premedi-
tated murder) should have precluded the sentencing judge
from finding beyond a reasonable doubt that he acted with the
“specific intent” to kill Wilson. He contends that Idaho’s
“specific intent to kill” aggravating factor requires the State
to establish all the elements of first-degree premeditated mur-
der: namely, that “there must be wilfulness, deliberation and
premeditation in addition to malice aforethought.” State v.
Porter, 128 P.3d 908, 911 (Idaho 2005) (quoting State v. Ara-
gon, 690 P.2d 293, 297 (Idaho 1984)).

We are unpersuaded by Sivak’s construction of Idaho law.
At the time of the final sentencing proceeding, the Idaho Code
9
Neither Idaho law nor the federal constitution require jury unanimity
regarding whether Sivak was guilty as a principal or as an aider and abet-
tor. See supra at 16950 n.4.
16962 SIVAK v. HARDISON
included the following statutory aggravating factor: “[1] The
murder was one defined as murder of the first degree by sec-
tion 18-4003, Idaho Code, subsections (b), (c), (d), (e) or (f)
[which establish various types of felony murder], and [2] it
was accompanied with the specific intent to cause the death
of a human being.” Idaho Code § 19-2515(g)(7) (West 1992).10
Sivak does not dispute that his particular felony-murder con-
viction fits within the first part of this statute, as it was a
“murder committed in the perpetration of, or attempt to perpe-
trate, . . . robbery.” Id. § 18-4003(d). Instead, he argues that
the jury’s acquittal on count two conclusively established that
he did not act “with the specific intent to cause the death of
a human being,” id. § 19-2515(g)(7), and that he therefore
may not be subjected to the death penalty on this ground.

Sivak’s argument is unavailing. The Idaho courts have held
that the “specific intent to kill” aggravating factor is identical
to the intent-to-kill element of first and second-degree murder,11
10
The Code has subsequently been amended to state: “The murder was
committed in the perpetration of, or attempt to perpetrate, arson, rape, rob-
bery, burglary, kidnapping or mayhem and the defendant killed, intended
a killing, or acted with reckless indifference to human life.” Idaho Code
§ 19-2515(9)(g).
11
In State v. Windsor, 716 P.2d 1182 (Idaho 1985), the court upheld the
death penalty due to the jury’s finding that the defendant “intentionally
murdered [the victim] while perpetrating or attempting to perpetrate a bur-
glary.” Id. at 1191 (quoting jury instructions; emphasis added by Idaho
Supreme Court). Despite the lack of a premeditation finding, the court
held that the jury’s finding of intent was sufficient to satisfy both Idaho
law’s statutory “specific intent to kill” aggravating factor and the Eighth
Amendment “inten[t] to kill” requirement set forth in Enmund v. Florida,
458 U.S. 782, 798 (1982). Id. at 1191-92.
Similarly, in State v. Dunlap, 873 P.2d 784 (Idaho 1993), the court held
that a guilt-phase finding of “express malice” is sufficient to establish a
penalty-phase finding of specific intent to kill, because express malice
exists “when there is manifested a deliberate intention to unlawfully take
away a life.” Id. at 788 (citing Idaho Code § 18-4002). The Dunlap court
added that “implied malice” was not sufficient to establish intent to kill,
as implied malice exists “when the circumstances attending the killing
 SIVAK v. HARDISON 16963
and we are unable to determine conclusively that the jury
acquitted Sivak of premeditated murder because he lacked an
intent to kill. Instead, the jury could have acquitted Sivak on
numerous grounds other than his intent to kill—for example,
if there was an absence of premeditation or deliberation, or if
Bainbridge committed the murder. By acquitting Sivak of
first-degree premeditated murder, the jury determined (in the
language of the jury instruction) that Sivak did not commit a
“willful, deliberate and premeditated killing.”12 The jury could

show an abandoned and malignant heart.” Id. (citing Idaho Code § 18-
4002). Dunlap thus establishes that something more than implied malice
(i.e., “abandoned and malignant heart” murder) is required to satisfy the
“specific intent to kill” aggravating factor, and that express malice (i.e., a
deliberate and intentional killing) is sufficient.
The Idaho courts’ approach is consistent with the traditional common
law distinction between first- and second-degree murder: an intentional
killing will support a second-degree murder conviction, and if the inten-
tional killing is done with premeditation and deliberation, a first-degree
murder conviction is appropriate. See 2 Charles E. Torcia, Wharton’s
Criminal Law § 142 (15 ed. 2010 Supp.) (“Although an intent to kill,
without more, may support a prosecution for common law murder, such
a murder ordinarily constitutes murder in the first degree only if the intent
to kill is accompanied by premeditation and deliberation.”); 2 Wayne R.
LaFave et al., Substantive Criminal Law § 14.7(e) (2d ed. 2008) (“[I]ntent-
to-kill murder without the added ingredients of premeditation and deliber-
ation is second degree murder.”); accord State v. Pina, 233 P.3d 71, 74-78
(Idaho 2010) (interpreting Idaho criminal law in light of statutory text and
common law).
12
Because the judge did not define the terms “willful,” “deliberate,” and
“premeditated,” these terms “must be given their plain, non-technical
meanings.” State v. Henry, 63 P.3d 490, 493 (Idaho Ct. App. 2003). Here,
the jury’s understanding of these undefined terms is best understood in
light of counsel’s closing arguments. See Schiro, 510 U.S. at 233-35 (rely-
ing on arguments of counsel to determine collateral estoppel effect of jury
verdict). Defense counsel explained that “willful, premeditated, [and]
deliberate murder . . . doesn’t require that you deliberate about it for any
particular amount of time, but you have to meditate about it and think
about it.” Counsel also explained that premeditation and deliberation
required “that [Sivak] thought about it and decided to do it before it hap-
16964 SIVAK v. HARDISON
have reached one of the following conclusions under the jury
instructions: (1) Sivak did not intend to kill Wilson (and thus
did not act willfully, deliberately, or with premeditation); (2)
even if Sivak intended to kill Wilson, he did not form this
intent to kill prior to killing her (and thus did not act deliber-
ately or with premeditation); or (3) even if Sivak formed an
intent to kill prior to killing Wilson, he did not reflect on this
intention (and thus did not act with premeditation). If we take
into account the court’s aiding and abetting instruction, the
number of possible conclusions is multiplied: if the jury con-
cluded that Bainbridge committed the murder, it could have
acquitted Sivak of aiding and abetting because (4) Bainbridge
did not act intentionally, (5) Bainbridge did not form an intent
prior to acting, (6) Bainbridge did not reflect on his intent, or
(7), even if Bainbridge did commit a premeditated murder,
Sivak did not aid and abet the murder.

[20] Viewing the record with “realism and rationality,”
Ashe, 397 U.S. at 444, we must conclude that there is “more

pened.” In rebuttal, the State observed that “[i]f a woman who has been
stabbed 20 times or so and shot five times is not evidence of premeditation
and malice, then premeditation and malice don’t exist.”
The jury presumably followed the attorneys’ explanations, which were
consistent with the plain meaning of the relevant terms, with Idaho law,
and with the facts in the record. The plain meaning of “willful” is “done
deliberately[;] not accidental[ly] or without purpose.” Webster’s Third
New International Dictionary 2617 (2002). The plain meaning of “deliber-
ate” is “consideration of effects and consequences” and “awareness of the
implications or consequences of one’s actions.” Id. at 596. The plain
meaning of “premeditation” is “previous deliberation.” Id. at 1789. These
definitions are consistent with the Idaho Supreme Court’s explanation that
willfulness is “the intent to take life,” premeditation is “conceived before-
hand,” and deliberation is “done with reflection.” Aragon, 690 P.2d at 298.
Consistent with defense counsel’s statements to the jury, the Idaho
Supreme Court has also explained that “[p]remeditation does not require
an appreciable space of time between the intention to kill and the killing;
rather, it may be as instantaneous as two successive thoughts of the mind.”
State v. Olin, 648 P.2d 203, 210 (Idaho 1982).
 SIVAK v. HARDISON 16965
than one rational conclusion that can be drawn from the . . .
jury’s verdict” of acquittal. Santamaria, 133 F.3d at 1246. We
have no way of knowing which of these seven conclusions the
jury actually reached. Accordingly, we agree with the district
court’s conclusion that “Sivak has not established that the
[sentencing judge’s] finding of specific intent ‘was actually
decided in his favor’ ” and “[t]he trial court was free to con-
clude during the subsequent penalty phase, based on all of the
evidence before it, that Sivak intended to kill Wilson.” (Quot-
ing Schiro, 510 U.S. at 236.)

C. Ex Parte Information

Sivak argues that Judge Newhouse violated due process by
basing his sentencing decision on extrajudicial information,
including: (1) telephone calls and letters the judge received
before (and possibly after) the initial sentencing; (2) an
encounter with Sivak’s father where the father exclaimed,
“Why the hell don’t you kill the son of a bitch”; (3) a tele-
phone conversation with a person from the company that
owned the Baird Oil gas station, in which the person indicated
he had opposed the death penalty prior to Sivak’s case but
changed his mind afterwards; (4) a conversation with Judge
Newhouse’s clerk, in which she indicated that she had
changed her attitude toward the death penalty because of
Sivak’s case; and (5) exposure to “stories” and “rumors”
about Sivak having an “unnatural relationship” with his
mother.

In Gardner v. Florida, 430 U.S. 349 (1977), a defendant
challenged his death sentence because the sentencing judge
announced that he was relying, in part, on a confidential pre-
sentence investigation report that had not been provided to the
defense. Id. at 351, 353. The Gardner plurality observed that
when a sentencing judge relies on information not disclosed
to the defendant, there is an inherent risk that the information
“may be erroneous, or may be misinterpreted.” Id. at 359. The
plurality stated that the “truth-seeking function of trials”
16966 SIVAK v. HARDISON
requires courts to afford defense counsel the opportunity to
comment on facts that might influence the judge’s sentence.
Id. at 360. Ultimately, the plurality concluded that the defen-
dant “was denied due process of law when the death sentence
was imposed, at least in part, on the basis of information
which he had no opportunity to deny or explain.” Id. at 362.

[21] A majority of the justices in Gardner agreed with the
plurality that, because the confidential information in the pre-
sentence report had never been provided to the defendant, the
defendant’s conviction must be vacated. Id.; see also id. at
363-64 (White, J., concurring); id. at 364 (Brennan, J., con-
curring). But because of the fragmented nature of the Gardner
decision, the Court has subsequently clarified the scope of
Gardner’s holding. In O’Dell v. Netherland, 521 U.S. 151,
162 (1997), the Court concluded that Justice White’s concur-
rence, not the plurality opinion, was the controlling decision
in Gardner. The O’Dell Court explained that Gardner stands
only for the “narrow” proposition that “ ‘a procedure for
selecting people for the death penalty which permits consider-
ation of secret information relevant to the character and
record of the individual offender‘ violates the Eighth Amend-
ment’s requirement of ‘reliability in the determination that
death is the appropriate punishment.’ ” O’Dell, 521 U.S. at
162 (ellipsis and alteration omitted) (quoting Gardner, 430
U.S. at 364 (White, J., concurring) (emphasis added in
O’Dell)).

As our sister circuits have recognized, O’Dell’s interpreta-
tion of Gardner is now the law of the land. See Vining v.
Sec’y, Dep’t of Corr., 610 F.3d 568, 571 n.1 (11th Cir. 2010),
cert. denied, 131 S. Ct. 2898 (2011); Holland v. Anderson,
583 F.3d 267, 280 (5th Cir. 2009), cert. denied, 130 S. Ct.
2100 (2010); see also O’Dell v. Netherland, 95 F.3d 1214,
1224 (4th Cir. 1996) (relying on Justice White’s Gardner con-
currence), aff’d, 521 U.S. 151. Although we have previously
relied on the Gardner plurality opinion, e.g., McKenzie v.
McCormick, 27 F.3d 1415, 1419-20 (9th Cir. 1994), we are
 SIVAK v. HARDISON 16967
bound to follow the intervening interpretation set forth in
O’Dell, see Miller v. Gammie, 335 F.3d 889, 900 (9th Cir.
2003) (en banc) (“[W]here intervening Supreme Court author-
ity is clearly irreconcilable with our prior circuit authority[,]
. . . a three-judge panel of this court . . . should consider
[it]sel[f] bound by the intervening higher authority and reject
the prior opinion of this court as having been effectively over-
ruled.”).13

[22] Applying the narrow standard articulated in Justice
White’s Gardner concurrence, along with our case law estab-
lishing that the petitioner bears the burden of proving a Gard-
ner violation, see McKenzie, 27 F.3d at 1420, Sivak’s
Gardner claims plainly lack merit. The sentencing judge’s
phone calls, letters, conversation with Sivak’s father, and con-
versation with the court clerk did not contain “ ‘information
relevant to the character and record of the individual offend-
er.’ ” O’Dell, 521 U.S. at 162 (internal quotation mark omit-
ted). As the Idaho Supreme Court correctly observed, the
“calls and letters received by Judge Newhouse . . . apparently
contained no more than an expression of personal opinions”
rather than “factual information.” Sivak II, 731 P.2d at 200.
Although Judge Newhouse’s subsequent deposition has pro-
vided additional details regarding his ex parte contacts, Sivak
has not satisfied his burden of demonstrating that the trial
judge received any “information” about Sivak’s “character
and record” as a result of the phone calls, conversations, and
written correspondence.
13
After the Court handed down O’Dell, we discussed Gardner at some
length in Correll v. Stewart, 137 F.3d 1404 (9th Cir. 1998), without rely-
ing on the Court’s intervening discussion in O’Dell. Correll does not con-
stitute binding circuit precedent regarding the proper application of
Gardner. Our holding in Correll rested on the petitioner’s failure to show
cause and prejudice to overcome his procedural default in state court; we
did not address the merits of the Gardner claim. Correll, 137 F.3d at
1415-16.
16968 SIVAK v. HARDISON
Sivak identifies only one item of ex parte information that
contained facts about Sivak’s character and record: rumors
regarding Sivak’s “unnatural relationship” with his mother.
But even though these rumors were “ ‘relevant to [Sivak’s]
character,’ ” O’Dell, 521 U.S. at 162 (emphasis omitted), they
did not constitute “secret information” for purposes of Gard-
ner. Unlike the confidential, undisclosed information at issue
in Gardner, Sivak knew that the trial judge had received infor-
mation suggesting that Sivak had an unusual relationship with
his mother. The Presentence Report (which was disclosed to
Sivak) stated that “[s]everal” individuals had informed inves-
tigators about the “uniquely close” relationship between Sivak
and his mother, and some individuals even “mistakenly
referred to the defendant’s mother as his wife on several occa-
sions.” Because Gardner requires only that the defendant be
given an “opportunity to respond” to the information at issue,
Gardner, 430 U.S. at 364 (White, J., concurring), and here
Sivak had ample opportunity to explain the nature of his rela-
tionship with his mother, Sivak’s due process rights were not
violated.

Accordingly, we hold that there was no Gardner violation
during Sivak’s sentencing proceedings.

D. Judicial Bias

Sivak also contends that he was denied due process because
the sentencing judge exhibited bias toward him and his coun-
sel. Sivak raises two related arguments. First, Sivak argues
that because Judge Newhouse made up his mind following the
initial sentencing proceeding in 1981, he viewed subsequent
resentencing hearings with “contempt” and “felt an over-
whelming need to vindicate his initial ruling.” Second, Judge
Newhouse “became ‘embroiled in a running, bitter contro-
versy’ with [Sivak] and his counsel,” “such that a detached
observer must conclude that a fair and impartial hearing was
unlikely.” (Quoting Mayberry v. Pennsylvania, 400 U.S. 455,
465 (1971).)
 SIVAK v. HARDISON 16969
[23] “The Due Process clause ‘requires a fair trial in a fair
tribunal before a judge with no actual bias against the defen-
dant or interest in the outcome of his particular case.’ ” Smith,
611 F.3d at 997 (quoting Bracy v. Gramley, 520 U.S. 899,
904-05 (1997)). However, “ ‘[o]nly in the most extreme of
cases would disqualification on the basis of judge bias be con-
stitutionally required.’ ” Id. (alteration omitted) (quoting
Aetna Life Ins. Co. v. Lavoie, 475 U.S. 813, 821 (1986)). In
addition to cases involving actual judicial bias,

Supreme Court precedent reveals only three circum-
stances in which an appearance of bias—as opposed
to evidence of actual bias—necessitates recusal.
First, due process requires recusal of a judge who
“has a direct, personal, substantial pecuniary interest
in reaching a conclusion against one of the litigants.”
Second, due process requires recusal if a judge
becomes “embroiled in a running, bitter controver-
sy” with one of the litigants. . . . Third, due process
requires recusal if the judge acts as “part of the accu-
satory process.”

Crater v. Galaza, 491 F.3d 1119, 1131 (9th Cir. 2007) (alter-
ations and citations omitted).

Although the standard of review governing judicial bias
claims in pre-AEDPA cases “is not entirely clear,” Poland v.
Stewart, 117 F.3d 1094, 1103 (9th Cir. 1997), we have repeat-
edly concluded that a “state court’s finding that the trial judge
was impartial . . . is a finding of historical fact that is entitled
to a presumption of correctness” under 28 U.S.C. § 2254(d)
(1994), Gretzler v. Stewart, 112 F.3d 992, 1009 (9th Cir.
1997); see also Ortiz v. Stewart, 149 F.3d 923, 938 (9th Cir.
1998); Villafuerte v. Stewart, 111 F.3d 616, 632 (9th Cir.
1997) (per curiam). Petitioners must also overcome an addi-
tional presumption against their claim—the “strong presump-
tion that a judge is not biased or prejudiced.” Rhoades v.
16970 SIVAK v. HARDISON
Henry, 598 F.3d 511, 519 (9th Cir. 2010) (citing Bracy, 520
U.S. at 909).

Here, Sivak has failed to overcome the twin presumptions
against finding actual bias: the state courts determined that
Judge Newhouse was impartial, and, in any event, we pre-
sume that Judge Newhouse was impartial because he was a
judicial officer. The state courts’ conclusions are instructive.
When Sivak filed a motion to disqualify Judge Newhouse
during the final round of sentencing in 1992, the motion was
referred to another trial judge, Gerald Schroeder (who later
became Chief Justice of the Idaho Supreme Court). Judge
Schroeder determined that there was “nothing before this
Court that indicates Judge Newhouse cannot decide the merits
of this case based upon facts that may properly be consid-
ered.” Judge Schroeder also determined that there was “no
current record as to the judge’s attitude towards either the
defendant or the defendant’s attorney”—i.e., Sivak had failed
to introduce evidence of bias. Judge Schroeder accordingly
denied Sivak’s motion to recuse Judge Newhouse, subject to
Judge Newhouse’s “final review” to determine actual bias.
Judge Newhouse then stated on the record that “I feel no basis
for disqualification.” In a similar motion filed a few months
later during post-conviction proceedings, Judge Newhouse
concluded that he could “render a fair and impartial determi-
nation based upon the evidence placed before [him].” On
Sivak’s appeal, the Idaho Supreme Court unanimously
affirmed Judge Newhouse’s determination “that he could sit
fairly and impartially and perform the proper legal analysis
which the law requires to be performed.” State v. Sivak (Sivak
IV), 901 P.2d 494, 496 (Idaho 1995).

Despite having the opportunity to depose Judge Newhouse
during federal habeas proceedings, Sivak has failed to identify
evidence of actual bias sufficient to overcome the presump-
tions against his claim. Judge Newhouse’s deposition contains
various statements expressing frustration with the Idaho
Supreme Court’s repeated reversals of his sentencing deci-
 SIVAK v. HARDISON 16971
sions. But even if a case has been reversed on appeal, “ ‘[i]t
has long been regarded as normal and proper for a judge to
sit in the same case upon its remand and to sit in successive
trials involving the same defendant.’ ” Poland, 117 F.3d at
1103 (quoting Liteky v. United States, 510 U.S. 540, 551
(1994)). While “[s]ome may argue that a judge will feel the
‘motivation to vindicate a prior conclusion’ when confronted
with a question for the second or third time, for instance, upon
trial after a remand, . . . we accept the notion that the ‘consci-
entious judge will, as far as possible, make himself aware of
his biases of this character, and, by that very self-knowledge,
nullify their effect.’ ” Liteky, 510 U.S. at 562 (Kennedy, J.,
concurring) (citations omitted). Although Judge Newhouse
said that the Idaho Supreme Court’s remands were “ridicu-
lous,” he also explained that after each remand, he “did it
over, looked it over with the additional matters and came to
the same conclusion” as he had in the original proceeding.

Sivak’s evidence of purported bias pales in comparison to
the cases he relies upon. Unlike in Porter v. Singletary, 49
F.3d 1483, 1489 (11th Cir. 1995) (per curiam), Sivak has not
identified “specific and ostensibly reliable evidence that the
judge had a fixed predisposition to sentence this particular
defendant to death if he were convicted by the jury.” In Por-
ter, the court clerk submitted a declaration that “before or dur-
ing Porter’s trial,” the trial judge said that “ ‘he would send
Porter to the chair.’ ” Id. at 1487 (quoting declaration); see
also Franklin v. McCaughtry, 398 F.3d 955, 962 (7th Cir.
2005) (finding due process violation where trial judge “de-
cided that Franklin was guilty before he conducted Franklin’s
trial”). Here, in contrast, Judge Newhouse made his sentenc-
ing decision after hearing the parties’ evidence and arguments
during both the guilt and sentencing phases of trial.

Nor is this case like Harrison v. McBride, 428 F.3d 652
(7th Cir. 2005), another case cited by Sivak. In Harrison, a
witness told police detectives that the trial judge was con-
nected with the local drug community. Id. at 655. The trial
16972 SIVAK v. HARDISON
judge essentially “transformed” a pretrial hearing “into a pro-
ceeding to vindicate ‘the credibility of this Court[,]’ “ id. at
669 (quoting trial transcript), and engaged in conduct that “re-
vealed a personal interest in protecting his name and the judi-
ciary in Posey County, an interest he specifically admitted,”
id. at 670 (internal quotation marks omitted). We cannot agree
with Sivak’s argument that Harrison is “much like,” or even
anything like, this case. There is no evidence in the record
establishing that Judge Newhouse conducted Sivak’s proceed-
ings with the goal of vindicating himself or his court.

Sivak also suggests that Judge Newhouse harbored per-
sonal bias against Sivak and his counsel, pointing to the
judge’s statements expressing frustration with Sivak and his
counsel for filing multiple disqualification motions. Judge
Newhouse complained that the motions were creating a “car-
nival atmosphere,” that was turning the proceedings into a
“Roman circus.” These statements do not establish judicial
bias. In Ortiz, we addressed a similar set of facts. The post-
conviction judge had complained about the seemingly endless
cycle of ineffective assistance of counsel claims, calling the
petitions part of a “game” aimed at extending proceedings
into the indefinite future. Ortiz, 149 F.3d at 939 (emphasis
omitted). We rejected the petitioner’s due process claim,
explaining that the judge’s statements “simply reflect[ed] the
judge’s frustration with the number of petitioners who attempt
to manipulate the criminal justice system to serve their own
ends,” and did not reveal “deep-seated favoritism or antago-
nism that would make fair judgment impossible.” Id. at 940
(internal quotation marks omitted). The same conclusions
apply here.

Although Judge Newhouse at one point suggested that
Sivak’s “over-zealous counsel” had “fabricated” ”innuendos
of a partisan and personal nature,” the judge’s statements
were fully consistent with the general rule that “[r]umor, spec-
ulation, beliefs, conclusions, innuendo, suspicion, opinion,
and similar non-factual matters” do not form the basis of a
 SIVAK v. HARDISON 16973
successful recusal motion. Clemens v. U.S. Dist. Ct. for the
Cent. Dist. of Cal., 428 F.3d 1175, 1178 (9th Cir. 2005) (per
curiam) (internal quotation marks omitted). Judge Newhouse
had previously allowed Sivak to present evidence to substanti-
ate his argument that the judge received ex parte information
from letters and phone calls. Sivak’s witness (a reporter from
a local newspaper who had written an article about the judge)
failed to provide probative information supporting the claim.
Judge Newhouse’s single reference to Sivak’s counsel’s “fa-
bricat[ion]” does not establish that he was “personally
embroiled . . . in a running, bitter controversy” with Sivak or
his counsel. See Mayberry, 400 U.S. at 465 (internal quotation
marks omitted); see also Little v. Kern Cnty. Super. Ct., 294
F.3d 1075, 1083 (9th Cir. 2002) (finding due process violation
where trial judge presided over contempt proceeding against
attorney after, in judge’s words, attorney “ ‘smirkingly’ ” sub-
mitted a drawing containing an “ ‘obscene characterization’ ”
of the judge that was “ ‘offensive in the extreme’ ”). Sivak
relies upon Anderson v. Sheppard, 856 F.2d 741, 747 (6th Cir.
1988), but in that case the “judge exhibit[ed] . . . open hostil-
ity and bias [from] the beginning of [the] . . . proceeding,”
essentially telling the pro se plaintiff he would lose and then
“assum[ing] the posture of an advocate” to ensure as much.
Nothing like that occurred here; Judge Newhouse simply con-
cluded that Sivak had not met his burden of substantiating his
allegations that the judge had received ex parte information.

Sivak also suggests that Judge Newhouse violated his due
process rights “when he decided to sit for an interview with
a news reporter to discuss [Sivak’s] case and his initial sen-
tencing decision.” While various state and federal canons of
judicial ethics proscribe such conduct, it is important to
remember that “ ‘[t]he Due Process Clause demarks only the
outer boundaries of judicial disqualifications. Congress and
the states . . . remain free to impose more rigorous standards
for judicial disqualification than those’ ” imposed by the fed-
eral Constitution. Caperton v. A.T. Massey Coal Co., 129 S.
Ct. 2252, 2267 (2009) (quoting Aetna Life Ins., 475 U.S. at
16974 SIVAK v. HARDISON
828). Although Sivak cites numerous cases in which trial
judges have been ordered recused, e.g., United States v. Coo-
ley, 1 F.3d 985, 995 (10th Cir. 1993), or in which different
judges have been assigned to the case upon remand, e.g.,
United States v. Microsoft Corp., 253 F.3d 34, 115 (D.C. Cir.
2001) (en banc) (per curiam), he has not identified a single
case holding that a judge violated a litigant’s constitutional
rights by talking with the media.

[24] Sivak has failed to overcome the presumption that the
Idaho courts correctly determined that Judge Newhouse
lacked actual bias, as well as the presumption that judicial
officers act impartially. Sivak’s case does not involve the type
of “extreme facts” establishing a violation of his due process
rights to an impartial judge. Caperton, 129 S. Ct. at 2265-66.

E. Confrontation Clause

Sivak contends that the sentencing court violated his Con-
frontation Clause rights by considering Bainbridge’s out-of-
court statement. This argument is foreclosed by Williams v.
New York, 337 U.S. 241 (1949), which held that the Confron-
tation Clause does not bar courts from considering unconfron-
ted statements during sentencing proceedings. Sivak
acknowledges that Williams is dispositive, and raises this
argument solely to preserve it for review. The district court
properly denied relief on this claim.

F. Evidentiary Hearing and Further Discovery

Habeas petitioners are “entitled to an evidentiary hearing
only if they allege[ ] facts that, if proved, would entitle them
to relief and if they did not receive a full and fair evidentiary
hearing in the state court.” Swan v. Peterson, 6 F.3d 1373,
1384 (9th Cir. 1993). “[I]f the record refutes the applicant’s
factual allegations or otherwise precludes habeas relief, a dis-
trict court is not required to hold an evidentiary hearing.”
Schriro v. Landrigan, 550 U.S. 465, 474 (2007).
 SIVAK v. HARDISON 16975
“[D]iscovery is available only in the discretion of the court
and for good cause shown.” Rich v. Calderon, 187 F.3d 1064,
1068 (9th Cir. 1999). “Good cause exists ‘where specific alle-
gations before the court show reason to believe that the peti-
tioner may, if the facts are fully developed, be able to
demonstrate that he is . . . entitled to relief.’ ” Smith, 611 F.3d
at 996 (quoting Bracy, 520 U.S. at 908-09). “We review the
district court’s denial of discovery and an evidentiary hearing
for abuse of discretion.” Id. at 997.

The district court considered Sivak’s discovery requests
and granted Sivak limited discovery. Sivak has not identified
any colorable claims that were not developed in federal or
state court. Nor has Sivak identified any “disputed facts” that
would entitled him to relief if resolved in his favor after an
evidentiary hearing. Hendricks v. Vasquez, 974 F.2d 1099,
1103 (9th Cir. 1992) (citing Harris v. Pulley, 885 F.2d 1354,
1378 (9th Cir. 1988)). Accordingly, the district court did not
abuse its discretion by denying further discovery and an evi-
dentiary hearing.

G. Uncertified Issues

We decline to address the issues not included in the district
court’s certificate of appealability. See Cooper-Smith v. Pal-
mateer, 397 F.3d 1236, 1245 (9th Cir. 2005) (citing 9th Cir.
R. 22-1(e)).

CONCLUSION

The State violated Sivak’s federal due process rights under
Napue when it allowed jailhouse informant Jimmy Leytham
to testify falsely. Absent this due process violation, Sivak’s
penalty-phase proceedings could have resulted in a different
outcome. We accordingly remand for the district court to
vacate Sivak’s death sentence. Of course, “the State is not
precluded from seeking to impose a death sentence upon peti-
tioner, ‘provided that it does so through a new sentencing
16976 SIVAK v. HARDISON
hearing at which petitioner is permitted to present any and all
relevant mitigating evidence that is available.’ ” Hitchcock v.
Dugger, 481 U.S. 393, 399 (1987) (quoting Skipper v. South
Carolina, 476 U.S. 1, 8 (1986)).

The judgment of the district court denying the petition as
to Sivak’s conviction is affirmed, the judgment of the district
court denying the petition as to Sivak’s death sentence is
reversed, and the case is remanded to the district court with
instructions that the court enter an appropriate order for a
penalty-phase retrial, if the State elects to seek such a retrial.
The parties shall bear their own costs.

AFFIRMED IN PART, REVERSED IN PART, AND
REMANDED.