FILED
NOT FOR PUBLICATION DEC 20 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
JAMES S. GARNETT, No. 11-35316
Petitioner - Appellant, D.C. CIV 2:05-01438 MJP
v.
MEMORANDUM *
RICHARD MORGAN,
Respondent - Appellee.
Appeal from the United States District Court
for the Western District of Washington
Marsha J. Pechman, Chief District Judge, Presiding
Argued and Submitted December 5, 2011
Seattle, Washington
Before: TASHIMA, McKEOWN, and TALLMAN, Circuit Judges.
James Garnett, a Washington state prisoner, appeals the district court’s
denial of his petition for a writ of habeas corpus. Garnett’s petition is governed by
the Antiterrorism and Effective Death Penalty Act of 1996, 28 U.S.C. § 2254.
Garnett argues that the State violated Brady v. Maryland, 373 U.S. 83 (1963), by
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
failing to disclose evidence that Garnett could have used to impeach a state
witness. We affirm the district court’s denial of Garnett’s petition because we
agree with the district court that the suppressed evidence was not material.
At the request of the State, after victim Dan Diorio’s body was found,
Kristine Anderson recorded a series of conversations with Garnett’s wife
Kymberly Garnett. After the recordings were made, but before Garnett’s trial
began, prosecutors told Anderson that a private foundation had offered a $5000
reward in the case. The district court found that Anderson understood that she
needed the prosecutors’ recommendation to receive the reward, and that the
recommendation was dependent on her continued cooperation and testimony at
trial. The district court found that the prosecution did not reveal this information to
the defense.
Garnett argues that he raised this Brady claim in his state personal restraint
petition, but that the Washington courts failed to adjudicate it on the merits. Thus,
he reasons that we should evaluate the claim de novo, Cone v. Bell, 556 U.S. 449,
129 S. Ct. 1769, 1784 (2009), and consider evidence adduced in his federal habeas
case, see Cullen v. Pinholster, 131 S. Ct. 1388, 1401 n.10 (2011); id. at 1417 n.5
(Sotomayor, J., dissenting). For its part, the State contends that the Washington
courts rejected Garnett’s Brady claim on the merits, while at the same time
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suggesting that the particular Brady claim raised here was never presented to any
Washington state court. We need not decide these procedural issues because we
conclude that even on de novo review and considering the new evidence, Garnett’s
claim is without merit.
“There are three components of a true Brady violation: The evidence at
issue must be favorable to the accused, either because it is exculpatory, or because
it is impeaching; that evidence must have been suppressed by the State, either
willfully or inadvertently; and prejudice must have ensued.” Strickler v. Greene,
527 U.S. 263, 281-82 (1999). “[E]vidence is material only if there is a reasonable
probability that, had the evidence been disclosed to the defense, the result of the
proceeding would have been different.” United States v. Bagley, 473 U.S. 667,
682 (1985); see also Kyles v. Whitley, 514 U.S. 419, 434 (1995).
Garnett’s Brady claim fails because there is not a reasonable probability of a
different result had the reward evidence been disclosed to the defense. At
Garnett’s trial for first-degree murder, the state called forty-nine witnesses,
including Anderson. The state presented a host of circumstantial evidence against
Garnett, including that he went to a bar with Diorio on the night of the murder, that
he had a financial motive for the murder, that Diorio’s body was found in a remote
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location with which Garnett was familiar, and that Garnett had stolen the same type
and caliber gun from a neighbor as was used in the murder.
The state also introduced two of Anderson’s recordings. On the first
recording, one speaker described how she had disposed of bloody clothing, which
an unidentified male was wearing when he returned home. On the second
recording, one speaker stated that “James” had used a “zapper” on “Dan” because
he is a “big boy.” Neither recording identified the speakers, identified the full
names of “James” or “Dan,” or directly tied the conversations to the murder of
Diorio.
Anderson testified that the person describing the disposal of bloody clothing
and the zapper use on the recordings was Kymberly Garnett, and that “zapper”
referred to a Taser. Anderson further testified that the conversations were about
the Diorio murder.
The suppression of the reward evidence was not material because even if the
suppressed evidence wholly undermined Anderson’s credibility, it is not
reasonably probable that the jury would not have convicted Garnett. The defense
did not challenge Anderson’s identification of the speakers on the recordings. The
defense apparently did not attempt to argue that the recordings referred to a
different “James” or a different “Dan,” or that “zapper” meant something other
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than a Taser. Thus, it is reasonably probable that even if the jury did not believe
Anderson, the jury would still have concluded that Garnett’s wife stated on the
recordings that she had disposed of Garnett’s bloody clothing and that Garnett
used a Taser on Diorio. And if the jury believed that Kymberly Garnett described
the disposal of Garnett’s bloody clothing and Garnett’s use of a Taser on Diorio, it
is not reasonably probable that the jury would have concluded that recorded
conversation discussed a hypothetical situation rather than the murder of Diorio.
The evidentiary value of the recorded conversations at Garnett’s trial did not
depend on Anderson’s credibility. And even if it did, the decreased evidentiary
weight of this piece of evidence would not reasonably undermine confidence in the
outcome of the entire trial. Therefore, the suppression of evidence that could have
undermined Anderson’s credibility at trial does not undermine confidence in the
outcome of Garnett’s trial.
Accordingly, the judgment of the district court, denying Garnett’s habeas
petition, is AFFIRMED.
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