Valdovinos v. McGrath

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

FELIX SOLORIO VALDOVINOS,  No. 08-15918
Petitioner-Appellant,
v.  D.C. No.
4:02-CV-01704-CW
JOE MCGRATH,
OPINION
Respondent-Appellee.

Appeal from the United States District Court
for the Northern District of California
Claudia Wilken, District Judge, Presiding

Argued and Submitted
September 1, 2009—San Francisco, California

Filed March 10, 2010

Before: Betty B. Fletcher and Andrew J. Kleinfeld,
Circuit Judges, and Kevin Thomas Duffy,* District Judge.

Opinion by Judge B. Fletcher

*The Honorable Kevin Thomas Duffy, United States District Judge for
the Southern District of New York, sitting by designation.

3819
 VALDOVINOS v. MCGRATH 3823

COUNSEL

Christopher J. Cannon, Sugarman & Cannon, San Francisco,
California, for the petitioner-appellant.

Edmund G. Brown, Jr., Dane R. Gillette, Gerald A. Engler,
Peggy S. Ruffra, and Jeremy Friedlander, San Francisco, Cali-
fornia, for the respondent-appellee.

OPINION

B. FLETCHER, Circuit Judge:

Petitioner-Appellant Felix Solorio Valdovinos appeals from
the district court’s denial of his amended habeas corpus peti-
tion challenging his jury conviction of first degree murder. He
contends that the government withheld potentially exculpa-
tory evidence in violation of Brady v. Maryland, 373 U.S. 83
(1963), and that his trial counsel’s performance fell below the
level required under Strickland v. Washington, 466 U.S. 668
(1984). Because a reasonable probability exists that the undis-
closed Brady material could have altered the result of the pro-
ceeding, we reverse in part and remand with instructions to
the district court to issue a writ of habeas corpus.

I.

On December 1, 1998, a jury convicted Valdovinos of the
first degree murder of Nelson Caballero. On May 11, 1998,
Caballero was shot outside a San Jose nightclub. The shooter
3824 VALDOVINOS v. MCGRATH
fired two shots from a .380 caliber semi-automatic handgun,
hitting Caballero once in the stomach and once in the head.
The murder investigation ultimately led to the arrest of Val-
dovinos in Oregon in June 1998.

At trial, the prosecution relied heavily on eyewitness testi-
mony implicating Valdovinos in the killing. The prosecution
called as eyewitnesses four of Caballero’s acquaintances who
were present at the shooting. Three of these witnesses identi-
fied Valdovinos as the shooter at both the preliminary hearing
and trial.

One witness, Joaquin Diaz, testified that the shooter wore
a black cowboy hat and a black leather jacket, and had a mus-
tache. Diaz stated that the gunman was approximately the
same height as Diaz, who stood five feet, six inches. Diaz also
testified that one of the shooter’s companions wore cowboy
garb and a hat, but was taller than Diaz, and that a third man
talking to Caballero at the time of the shooting did not wear
any cowboy apparel and was Diaz’s height.

Tracy Castro and Kyong “Say” Miranda also witnessed the
shooting outside the club. At trial, Castro testified that, as she
exited the club that night, she observed a man wearing a white
cowboy hat, jeans, and a black waist-length jacket shoot
Caballero in the stomach and then in the temple. Castro also
testified that the shooter was six feet tall. After the shooting,
Castro saw the shooter leave with another person in a gray
car.

Miranda testified at trial that the shooter was a Hispanic
male wearing a light tan straw cowboy hat, a short leather
jacket, and jeans. She said he was tall and slender and had a
mustache, and that he drove away in a gray car with a male
passenger.

Caballero’s girlfriend, Blanca Torres, told the police the
shooter wore a black hat, a dark jacket, was a bit muscular,
and had a mustache.
 VALDOVINOS v. MCGRATH 3825
Diaz, Castro, and Miranda all identified Valdovinos as the
shooter at both the preliminary hearing and trial. Torres could
not identify the shooter.

During the course of the investigation, Detective Ernesto
Alcantar presented two of the eyewitnesses each with two
photographic lineups. A few days after the shooting, Detec-
tive Alcantar showed Castro and Diaz each a photo lineup of
six Hispanic males with mustaches and short to medium black
hair. At that time, Castro did not identify Valdovinos but
selected another photograph. Diaz chose the photo of Val-
dovinos but said he was not certain of the identification.

Several months later, in advance of the preliminary hearing,
Detective Alcantar showed Castro and Diaz each a second
photographic lineup using a different photograph of Val-
dovinos. Again, Diaz chose Valdovinos’s photo but said he
was not sure and Castro identified someone other than Val-
dovinos.

At the preliminary hearing, Valdovinos’s defense attorney,
in the presence of the prosecutor and Detective Alcantar,
requested a blackboard preliminary hearing, in which a screen
prevents the witnesses from seeing the defendant.1 Defense
counsel made the request based on a review of police reports
indicating the witnesses had never seen a lineup or photo
lineup. Neither the prosecutor nor Detective Alcantar
informed the court or defense counsel that the witnesses
already had seen photo lineups including Valdovinos’s photo,
or that Diaz tentatively had identified Valdovinos’s photo
whereas Castro had chosen different photographs. The court
denied the defense attorney’s request.
1
A blackboard preliminary hearing takes place when the witnesses have
not made any prior identifications of the defendant. A screen blocks the
witness’s view of the defendant so that when the witness later is asked to
make an identification at trial, the witness will not already have seen the
defendant at the preliminary hearing.
3826 VALDOVINOS v. MCGRATH
Defense counsel did not learn of the photo lineups until
cross-examination of Diaz during trial. Detective Alcantar
later testified he had administered two separate photo lineups.

Upon learning of the non-disclosure of the previous photo-
graphic lineups, defense counsel moved for a dismissal. The
trial court determined that the non-disclosure of the photo
lineups fell within the purview of Brady v. Maryland, 373
U.S. 83 (1963). However, the court denied the motion to dis-
miss because it found that the prosecution did not intention-
ally conceal the exculpatory evidence and therefore did not
act in bad faith. The court read a corrective jury instruction
and offered defense counsel a continuance, which counsel did
not take.

Also at trial, the prosecution read into the record the pre-
liminary hearing testimony of Aurelio Lopez and his unsworn
statement to the police. Lopez and another man, Isidro Garcia,
both of whom resided with Valdovinos, were at the club on
the night of the shooting. Lopez was scheduled to testify for
the prosecution at trial, but could not be located once the trial
started. Defense counsel objected to the court declaring Lopez
unavailable and permitting the introduction of his preliminary
hearing testimony, but did not object to the admission of
Lopez’s out-of-court statement.

As part of the investigation, Detective Alcantar and Police
Sergeant Pete Ramirez visited Valdovinos’s apartment. Val-
dovinos was not home, but Lopez and Garcia were present.
The police received consent to search the apartment and
found an ounce of methamphetamine and a nine millimeter
gun in Lopez’s bedroom. They arrested Lopez on an outstand-
ing warrant for drug and gun possession. Police never brought
new gun and drug possession charges against Lopez.

The same day, the detectives interviewed Lopez and Garcia
at the police station. When they asked Lopez if he had seen
Valdovinos with a weapon on the night of the shooting, Lopez
 VALDOVINOS v. MCGRATH 3827
said he did but did not know what kind. When questioned fur-
ther, Lopez stated that the weapon was a gun. Lopez later
contradicted this statement while testifying at the preliminary
hearing.

At trial, Garcia testified that many people at the nightclub
on the night of the shooting were dressed similarly, and that
both Valdovinos and Lopez wore hats and black jackets. Gar-
cia was wearing a black leather jacket, black pants, and boots,
but no hat. Garcia testified that he and Lopez were exiting the
club when Caballero was shot. Garcia said he had heard two
shots and had seen Caballero on the ground.

At the preliminary hearing, Lopez admitted that he told
Detective Alcantar that he had seen Valdovinos with a gun,
but testified that his statements to Detective Alcantar were not
truthful. Lopez explained that he was afraid that he himself
might be a suspect and told Detective Alcantar what he
wanted to hear. Detective Alcantar did not include a photo-
graph of Lopez in either lineup, but testified at trial that Lopez
was similar in size and stature to Valdovinos.

At trial, Detective Alcantar testified that Sergeant Ramirez
had found methamphetamine and a gun in Lopez’s bedroom
when police arrested Lopez. This testimony was the first time
defense counsel had heard of the methamphetamine and gun
found in Lopez’s bedroom.

Again, based on the untimely disclosure of favorable evi-
dence, Valdovinos’s defense counsel moved for a mistrial,
arguing that Lopez’s possession of the gun and drugs could
have been used to impeach his testimony at the preliminary
hearing and that, without this evidence, counsel had been
unable to cross-examine Lopez effectively at the preliminary
hearing. The court denied the request for a mistrial, finding
that the prejudicial impact of the untimely disclosure did not
warrant a mistrial. The jury convicted Valdovinos at the close
of the seven-day trial.
3828 VALDOVINOS v. MCGRATH
A state appellate court affirmed the judgment on August
23, 2000. Valdovinos filed a pro se petition for a writ of
habeas corpus in the California Supreme Court on June 29,
2001, which the state Supreme Court denied on December 19,
2001. Valdovinos’s pro se federal habeas corpus petition fol-
lowed on April 10, 2002.

The district court appointed habeas counsel for Valdovinos.
After a review of the prosecution’s case file yielded additional
undisclosed evidence, Valdovinos’s habeas counsel amended
the habeas petition to include this new evidence. In a traverse
accompanying the amended petition, counsel pointed to four
types of newly discovered evidence.

First, the prosecutor’s case file contained an undisclosed
anonymous letter purportedly sent to Caballero’s family stat-
ing that Caballero’s murder was a contract killing over a debt.
Second, habeas counsel obtained a written statement from a
man named Juan Ledezma stating that Lopez had told
Ledezma that Lopez had two guns of different calibers, Lopez
had killed someone at a bar in San Jose and blamed Val-
dovinos, and Lopez had told his brother to throw out the gun
used in the killing. The third piece of newly discovered evi-
dence was a photograph from the police file taken by police
on the night of the shooting. The man in the photo, identified
as Jose Mongia, is wearing a black hat and black leather
jacket in the photo — the same items eyewitnesses testified
the shooter wore. Habeas counsel also included in the
amended petition additional information regarding the gun
and drugs found in Lopez’s possession during the apartment
search in 1998.

The district court found the new evidence rendered Val-
dovinos’s claims unexhausted and ordered a stay on Decem-
ber 3, 2004, to allow Valdovinos to exhaust his remedies in
state court. Nine months later, on September 9, 2005, Val-
dovinos filed his second state habeas petition, this time con-
taining the previously unexhausted claims. The Supreme
 VALDOVINOS v. MCGRATH 3829
Court denied this petition on July 26, 2006. On August 23,
2006, the district court ordered Valdovinos to file a motion to
amend the stayed petition within two weeks. Valdovinos filed
his motion to amend three weeks later, on September 14,
2006.

The district court denied relief on March 12, 2008, and cer-
tified two issues for appeal: (1) whether the Brady violations
denied Valdovinos due process; and (2) whether Valdovinos’s
trial counsel provided ineffective assistance by failing to
object to the prosecution’s introduction of Lopez’s out-of-
court statements.2 In addition, the state appeals the district
court’s decision to allow Valdovinos to amend his habeas peti-
tion.3 We have jurisdiction under 28 U.S.C. § 2253.

II.

We first determine whether the district court erred in stay-
ing Valdovinos’s petition while he exhausted additional
claims in state court and allowing Valdovinos to amend his
habeas petition. We review for abuse of discretion a district
court’s stay and abeyance of a mixed petition containing both
exhausted and unexhausted claims. Rhines v. Weber, 544 U.S.
269, 279 (2005). We also review for abuse of discretion a dis-
trict court’s decision to allow a habeas petitioner to amend his
petition. Hebner v. McGrath, 543 F.3d 1133, 1136 (9th Cir.
2008). We find the district court did not abuse its discretion
in granting the stay or allowing the amendment.

A.

The district court ordered a stay on December 3, 2004, to
permit Valdovinos to exhaust his remedies in state court. Nine
2
Valdovinos raises an uncertified issue in his opening brief. We decline
to expand the scope of the COA to include the uncertified issue.
3
The state is not required to obtain a COA before raising an issue on
appeal. Fed. R. App. P. 22(b)(3).
3830 VALDOVINOS v. MCGRATH
months later, on September 9, 2005, Valdovinos filed a sec-
ond state habeas petition containing the unexhausted claims
with the California Supreme Court. The state Supreme Court
denied this petition on July 26, 2006 and, on August 23, 2006,
the district court ordered Valdovinos to file a motion to
amend the stayed petition within two weeks. Valdovinos filed
his motion to amend on September 14, 2006.

The state opposed the motion to amend, arguing that Val-
dovinos did not act within a reasonable time to exhaust his
state remedies because he did not file his second state habeas
petition until nine months after the district court entered the
stay. The district court rejected this argument, finding that the
delay provided insufficient grounds upon which to deny Val-
dovinos’s motion to amend the petition.

[1] In Rhines v. Weber, 544 U.S. 269 (2005), the Supreme
Court examined the manner in which courts should treat
mixed petitions containing both exhausted and unexhausted
claims in light of the Antiterrorism and Effective Death Pen-
alty Act’s (“AEDPA”) one-year time limit on the filing of
federal habeas corpus petitions. The Supreme Court held that
a district court has discretion to grant a stay and abeyance of
a mixed petition so that a petitioner may exhaust the unex-
hausted claims in state court before returning to federal court
for review of a “perfected petition.” Id. at 278. Rhines struck
a balance between the congressional intent behind AEDPA —
to “reduce delays in the execution of state and federal crimi-
nal sentences, particularly in capital cases,” id. at 276 (cita-
tions omitted) — and the preservation of petitioners’ rights to
federal review of their claims. Id. at 277.

Rhines opined that a district court would likely abuse its
discretion in denying such a stay where “the petitioner had
good cause for his failure to exhaust, his unexhausted claims
are potentially meritorious, and there is no indication that the
petitioner engaged in intentionally dilatory tactics.” Id. at 278.
Although Rhines directed district courts to “place reasonable
 VALDOVINOS v. MCGRATH 3831
time limits on a petitioner’s trip to state court and back,” id.
at 278, the Court left the determination of that time limit to
the discretion of the district court.

[2] Here, the district court did not abuse its discretion in
finding Valdovinos satisfied the elements of Rhines. First, the
Supreme Court decided Rhines after the district court here
issued the stay without imposing a specific time limit within
which Valdovinos had to file his petition in state court. The
district court reasoned that retroactively imposing a time limit
would have been inappropriate and emphasized that Val-
dovinos had not engaged in dilatory tactics and had no moti-
vation for delay, as he is not a capital defendant. The court
also noted that Valdovinos did not bear the blame for omitting
the additional evidence rendering his claims unexhausted
because he had no knowledge of it due to the misconduct of
the prosecution. We agree. Thus, we hold that the district
court did not abuse its discretion in allowing the amendments
to the original habeas petition.

B.

We next must determine if the amendments arise “from the
same core facts as the timely filed claim” such that they relate
back to the original, timely petition. Mayle v. Felix, 545 U.S.
644, 657 (2005). Following the Supreme Court’s test in
Mayle, we hold that the new evidence in the amended habeas
petition properly relates back to the claims raised in the initial
petition.

[3] Federal Rule of Civil Procedure 15(c) governs amend-
ments to pleadings in habeas proceedings, which are charac-
terized as civil in nature. 28 U.S.C. § 2242. Rule 15(c)
instructs: “An amendment of a pleading relates back to the
date of the original pleading when . . . the amendment asserts
a claim or defense that arose out of the conduct, transaction,
or occurrence set out — or attempted to be set out — in the
original pleading.” Fed. Rule Civ. P. 15(c). In Mayle, the
3832 VALDOVINOS v. MCGRATH
Supreme Court held that “claims added by amendment [must]
arise from the same core facts as the timely filed claims,” and
must not be “separate in both time and type from the origi-
nally raised episodes.” Mayle, 545 U.S. at 657 (quotation and
citation omitted). Thus, we review the district court’s finding
that the new claims related back under the Mayle standard.

1.

We first examine Valdovinos’s Brady claims. The original
petition alleged that Valdovinos was denied due process and
a fair trial by the prosecution’s withholding of the prior photo
lineups, evidence of the drugs and gun found in Lopez’s pos-
session, and the favorable treatment Lopez received for his
testimony. The amendments seek to add that the prosecutor
violated Brady by not disclosing the anonymous letter and the
Mongia photograph.

The district court held that Valdovinos’s revised Brady
claim related back to the Brady claim in the original petition.
We agree.

This case is similar to Mandacina v. United States, 328
F.3d 995 (8th Cir. 2003), which the Mayle court cited with
approval. Mayle, 545 U.S. at 664, n.7. In Mandacina, the
original petition alleged that the government had failed to dis-
close exculpatory evidence. Mandacina, 328 F.3d at 1000.
The petitioner sought to amend his habeas petition to include
the “Borland Report,” to which the original petition made no
reference. Id. The Eighth Circuit concluded that the amended
claim related back to the original petition because the content
of the report was “evidence of other suspects obtained by” the
police department during the murder investigation. Id. at
1001.

[4] Here, both the original and amended claims pertain to
suppressed exculpatory evidence originating from materials
from the police investigation. Each claim, therefore, is of the
 VALDOVINOS v. MCGRATH 3833
same type — exculpatory information the government had in
its file — that the government failed to disclose at the
required time. As in Mandacina, “[t]he Brady claims in the
original [petition] . . . satisfy Rule 15(c) by providing the gov-
ernment with the notice that the statutes of limitation were
intended to provide.” Id. Therefore, we hold that the district
court did not abuse its discretion in permitting the amend-
ments to the Brady claims.

2.

[5] We next examine Valdovinos’s ineffective assistance
of counsel claim. The original petition alleged ineffective
assistance of counsel; the amended petition seeks to add new
evidence supporting the claim. The claim has not changed,
but habeas counsel argues the four pieces of newly discovered
evidence “provide a more concrete basis for demonstrating
prejudice” under Strickland v. Washington, 466 U.S. 668
(1984). The four new pieces of evidence are: (1) the photo-
graph of Mongia; (2) the statement by Ledezma implicating
Lopez; (3) the anonymous letter; and (4) police documents
concerning the drugs and gun found in Lopez’s possession.

[6] The district court found that the amended claim arose
from the same conduct, transaction, or occurrence as set forth
in the original pleading, and that the government had received
notice of the claim in the original pleading. The original inef-
fective assistance of counsel claim alleged counsel did not
adequately investigate suppressed exculpatory evidence upon
learning of it. The amended petition simply adds more evi-
dence that counsel did not uncover in its original investiga-
tion. The original petition provided notice of this claim, as the
district court found. Therefore, the district court did not abuse
its discretion in permitting amendment of the original habeas
petition to add newly discovered evidence supporting both the
Brady and the ineffective assistance of counsel claim.
3834 VALDOVINOS v. MCGRATH
III.

In accordance with the standard set forth in AEDPA, a
court may grant a writ of habeas corpus only if the state
court’s ruling:

(1) resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly
established Federal law, as determined by the
Supreme Court of the United States; or (2) resulted
in a decision that was based on an unreasonable
determination of the facts in light of the evidence
presented in the State court proceeding.

28 U.S.C. § 2254(d). “The question under AEDPA is not
whether a federal court believes the state court’s determina-
tion was incorrect but whether that determination was unrea-
sonable — a substantially higher threshold.” Schriro v.
Landrigan, 550 U.S. 465, 473 (2007) (citing Williams v. Tay-
lor, 529 U.S. 362, 410 (2000)). Habeas relief is warranted
only if the error had a “substantial and injurious effect or
influence in determining the jury’s verdict.” Penry v. John-
son, 532 U.S. 782, 795 (2001) (quotations and citations omit-
ted).

In the event that the state court issues a summary denial of
the habeas petition, the district court conducts an independent
review of the record. Richter v. Hickman, 578 F.3d 944, 952
(9th Cir. 2009) (en banc). This court reviews de novo the dis-
trict court’s denial of habeas relief. Id.

A.

[7] We turn now to the substance of Valdovinos’s Brady
claim. As the Supreme Court recently articulated, “[a]lthough
the State is obliged to ‘prosecute with earnestness and vigor,’
it ‘is as much [its] duty to refrain from improper methods cal-
culated to produce a wrongful conviction as it is to use every
 VALDOVINOS v. MCGRATH 3835
legitimate means to bring about a just one.’ ” Cone v. Bell,
___ U.S. ___, 129 S. Ct. 1769, 1782 (2009) (quoting Berger
v. United States, 295 U.S. 78, 88 (1935)). The Court has long
held that the suppression of evidence favorable to an accused
violates due process of law, regardless of whether the prose-
cution suppresses the evidence in good or bad faith. Brady,
373 U.S. at 87. As the Supreme Court explained in Brady,
“[s]ociety wins not only when the guilty are convicted but
when criminal trials are fair; our system of the administration
of justice suffers when any accused is treated unfairly.” Id.
Thus, “when the State withholds from a criminal defendant
evidence that is material to his guilt or punishment, it violates
his right to due process of law in violation of the Fourteenth
Amendment.” Cone, 129 S. Ct. at 1782 (citing Brady, 373
U.S. at 87).

[8] A Brady claim is composed of three necessary ele-
ments: “(1) [t]he evidence at issue must be favorable to the
accused, either because it is exculpatory, or because it is
impeaching, (2) that evidence must have been suppressed by
the State, and (3) prejudice must have ensued.” Jackson v.
Brown, 513 F.3d 1057, 1071 (9th Cir. 2008) (quotations and
citation omitted). “To determine whether prejudice exists, we
look to the materiality of the suppressed evidence.” Id.
“[E]vidence is ‘material’ within the meaning of Brady when
there is a reasonable probability that, had the evidence been
disclosed, the result of the proceeding would have been differ-
ent.” Cone, 129 S. Ct. at 1783; United States v. Jernigan, 492
F.3d 1050, 1053-54 (9th Cir. 2007) (en banc). In other words,
a defendant need not show that he “would more likely than
not have received a different verdict with the evidence.”
Jernigan, 492 F.3d at 1054 (quotation and citation omitted).
Instead, he must show only that “the government’s evidenti-
ary suppression undermines confidence in the outcome of the
trial.” Id. (quotation and citation omitted). A court must con-
sider the materiality of the Brady violations collectively rather
than item by item. Kyles v. Whitley, 514 U.S. 419, 436-37
(1995).
3836 VALDOVINOS v. MCGRATH
The four new pieces of evidence are: (1) the photograph of
Mongia; (2) the anonymous letter; (3) police documents con-
cerning the drugs and gun found in Lopez’s possession; and
(4) the Ledezma statement implicating Lopez. The last piece
of evidence, however, is not Brady material because it was
obtained by Valdovinos’s habeas counsel and never was part
of the prosecution’s file.

1.

Valdovinos’s habeas counsel stated in a declaration in sup-
port of the amended petition that the prosecution’s file con-
tained photographs of several of the witnesses police
interviewed at the nightclub on the night of the shooting. One
such photo shows a man named Jose Mongia wearing a black
cowboy hat and a black leather jacket, the same items alleg-
edly worn by the shooter.

Valdovinos argues that the prosecution’s failure to disclose
the Mongia photograph was material because the state court
found that Valdovinos was the only one at the crime scene
consistently described as wearing a cowboy hat. The district
court rejected Valdovinos’s Brady claim as to the Mongia
photo because any evidence indicating the authenticity of the
photograph is lacking and therefore the court could not con-
clude the photograph would have affected the trial in any
way. The state contends that the non-disclosure was not mate-
rial because Mongia cannot be the shooter because several
witnesses stated the shooter fled the scene of the crime;
Mongia did not flee since he was available for questioning.

[9] In conducting its Brady analysis, the district court
ignored the possibility that the disclosure of the photo could
have added uncertainty to the identifications of Valdovinos as
the shooter. Various inconsistencies existed between the wit-
nesses’ testimony about the shooter’s appearance: one witness
testified the shooter wore a black cowboy hat and a black
leather jacket, stood five-and-a-half feet tall, and had a mus-
 VALDOVINOS v. MCGRATH 3837
tache; another testified that the shooter wore a white cowboy
hat, a black leather jacket, and was six feet tall, and initially
insisted the shooter had no facial hair; a third witness testified
that the shooter wore a light tan straw hat, a black leather
jacket, and stood over six feet; and a fourth witness hesitantly
described the shooter as wearing a black hat and black leather
jacket. These inconsistencies bolster a finding of materiality
with regard to the Mongia photo. The photograph has the
potential to undermine the significance of the single common-
ality of these descriptions — the cowboy hat — that the court
identified as one of the stand-out characteristics of the
shooter. The fact that many people at the scene that night
actually shared this characteristic, including Mongia, tends to
“undermine[ ] confidence in the outcome of the trial.” Kyles,
514 U.S. at 434 (quotation and citation omitted). Furthermore,
had the prosecution fulfilled its obligations under Brady and
turned this photograph over in a timely manner, the defense
could have elicited testimony from the police to authenticate
it.

2.

The second piece of evidence added in the amended peti-
tion is an anonymous letter addressed to Eulalio Caballero
found in the prosecution’s file. The letter suggests that Nelson
Caballero owed a debt to someone named Ramon Balemos,
and that Balemos paid someone with money and drugs to kill
Caballero. Valdovinos’s trial attorney stated in a declaration
that he had never seen the letter.

The district court found that the letter qualified as Brady
material, but rejected the claim because its disclosure did not
raise any doubt about the verdict, given that the letter was
ambiguous and anonymous and thus inadmissable. The dis-
trict court further concluded the letter would not have led to
any admissible exculpatory evidence.

Valdovinos puts forth several arguments tending to show
the letter’s materiality. First, he argues that the prosecution’s
3838 VALDOVINOS v. MCGRATH
non-disclosure prevented the defense from conducting a
proper investigation, and there is no way to know whether the
trial could have been affected by the results of that investiga-
tion. Valdovinos next argues that the letter impeached the tes-
timony of Detective Alcantar, who testified that there was no
evidence in the case indicating that the murder was drug
related. Defense counsel argued during closing arguments that
Caballero was a drug dealer and that Lopez was a known drug
user, and that drugs could have been the motive for the crime.
In addition, police found a small baggy of a powdery sub-
stance containing cocaine between two cars near a corner of
the club. And blood reports showed that Caballero had
ingested cocaine and methamphetamine in the hours before
his death.

[10] Undeniably, the letter at this point is unauthenticated
and unreliable. Nonetheless, the letter could have been of
some value to the defense, particularly if disclosed at the time
police received it. Given the conflicting identification testi-
mony and a letter pointing to another culprit, the non-
disclosure of the letter denied the defense important investiga-
tive opportunities that had the potential to lead to admissible
evidence. Moreover, only law enforcement officials are in a
position to authenticate the letter, to say how and when the
letter came to be in the file — a task that might have been
possible had the prosecution disclosed the letter when it was
received.

3.

We next turn to the suppressed evidence revealed during
trial. The prosecutor did not disclose before trial that, when
arrested, Lopez was found in possession of an ounce of
methamphetamine and a handgun. Defense counsel learned of
this evidence during the direct examination of Detective
Alcantar. Defense counsel immediately moved for a mistrial,
which the trial court denied.
 VALDOVINOS v. MCGRATH 3839
Valdovinos’s direct appeal raised this issue in the form of
a Confrontation Clause issue, arguing that the non-disclosure
prevented a meaningful opportunity to cross-examine Lopez
at the preliminary hearing. The California Court of Appeals
rejected this argument because it found that a cross-
examination of Lopez that included this information would
not have affected the trial. The court reasoned that defense
counsel raised the issue at closing and suggested to the jury
that Lopez might be the killer, that Lopez’s statements at the
preliminary hearing were conflicting and indicated Lopez
might have been covering for Valdovinos, and that defense
counsel used the information to argue to the jury that Lopez
was telling the authorities what they wanted to hear to escape
charges for this possession.

[11] The Supreme Court has held that a Brady violation is
material if it “undermines confidence in the outcome of the
trial.” Kyles, 514 U.S. at 434 (quotation and citation omitted).
Here, the appellate court found that further impeachment of
Lopez would not have affected the trial or outcome. On its
own, this finding is neither contrary to nor an unreasonable
application of established federal law. However, we include
the prosecutor’s failure to disclose the gun and methamphet-
amine in the cumulative analysis below.

4.

We now review the materiality of the suppressed evidence
collectively. Kyles, 514 U.S. at 436; see also Jackson, 513
F.3d at 1071. The California court did not have cause to con-
sider the cumulative Brady impact because it had before it
only the Brady claim based on the undisclosed photo lineups.
The district court considered the collective impact of the
photo lineups, the Lopez impeachment information, the anon-
ymous letter, and the photograph of Mongia. The district
court concluded that, given the strength of the evidence
against Valdovinos, the cumulative impact of the evidence did
not cast doubt on the trial verdict.
3840 VALDOVINOS v. MCGRATH
This court reviews the district court’s holding de novo.
Richter, 578 F.3d at 951. In conducting the prejudice inquiry,
“[w]e may find a ‘reasonable probability’ [of a different
result] even where the remaining evidence would have been
sufficient to convict the defendant. Moreover, we may find a
‘reasonable probability’ without finding that the outcome
would more likely than not have been different.” Jackson, 513
F.3d at 1071 (citations omitted). The question is whether, in
light of the suppressed evidence, the defendant “received a
fair trial, understood as a trial resulting in a verdict worthy of
confidence.” Id. at 1079 (quotation and citation omitted).

[12] When considered collectively, the suppressed evi-
dence undermines confidence in the verdict. The Mongia pho-
tograph has the potential to weaken the identification
testimony by showing that the stand-out characteristic of the
shooter — the cowboy hat — was not unique to Valdovinos.
The district court relied on the fact that the anonymous letter
and the photograph would have been inadmissible at trial. But
that conclusion is a product of the circumstances under which
they were discovered — belatedly, in the prosecution’s file at
a police station, by an associate habeas counsel. And while
the non-disclosure of the photo lineups did not result in a
finding of materiality on its own, as this court has noted,
“each additional . . . Brady violation further undermines our
confidence in the decision-making process.” Id. at 1072.

[13] Significantly, both the state court and the district
court’s findings of no prejudice relied heavily on the “strong”
eyewitness testimony. But the eyewitness testimony was con-
tradictory about the shooter’s physical appearance, his size,
build, and what he was wearing. The photo lineup evidence
renders the identifications questionable. Castro identified Val-
dovinos as the shooter at the preliminary hearing, but she
picked a person other than Valdovinos in both lineups. Diaz
also identified Valdovinos at the preliminary hearing, but
could not identify him from the photo lineups with any degree
of certainty. And Valdovinos was the only person included in
 VALDOVINOS v. MCGRATH 3841
both photo lineups, despite the fact that Lopez, who also was
present at the nightclub that night, was similar in build and
stature to Valdovinos. The failure to disclose the gun and
drugs found in Lopez’s possession, even if not prejudicial on
its own, only further solidifies our finding of collective preju-
dice.

[14] We find the cumulative effect of the suppressed evi-
dence denied Valdovinos a fair trial. The prosecution’s
repeated failure to disclose evidence favorable to the defense
leads us to conclude that Valdovinos did not receive a fair
trial resulting in a verdict worthy of confidence. Thus, we
reverse with regard to the Brady claim and remand with
instructions to the district court to issue a writ of habeas cor-
pus.

B.

Valdovinos claims his trial counsel provided ineffective
assistance by failing to object to pre-trial statements that
Lopez made to investigating police, which the prosecution
introduced through the testimony of Sergeant Ramirez.

Valdovinos initially raised this claim in the state appellate
court, challenging the trial court’s decision to permit the intro-
duction of Lopez’s out-of-court statements. In its ruling, the
court first held that Valdovinos had waived the right to appeal
the introduction of Lopez’s statement to police. The court
then held that, “[a]ny argument that counsel was ineffective
for failing to object is also unavailing.”

[15] To prevail on an ineffective assistance of counsel
claim, a petitioner must establish: (1) that counsel’s perfor-
mance was deficient, that is, that it fell below an objective
standard of reasonableness; and (2) that he was prejudiced by
the performance, that is, that “there is a reasonable probability
that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Strickland v. Wash-
3842 VALDOVINOS v. MCGRATH
ington, 466 U.S. 668, 694 (1984). Trial counsel’s failure to
object to evidence inadmissible under state law can constitute
deficient performance under Strickland. See Rupe v. Wood, 93
F.3d 1434, 1444-45 (9th Cir. 1996).

The state court observed that Valdovinos’s trial counsel
highlighted the inconsistencies in Lopez’s statement to police
at the preliminary hearing. Lopez testified during the prelimi-
nary hearing that he told police he saw Valdovinos with a
gun, but that he did not actually know if it was a gun. Ser-
geant Ramirez’s testimony at trial about Lopez’s statement
revealed the same: While Lopez ultimately stated that Val-
dovinos had a gun, Lopez was anything but convincing. Ser-
geant Ramirez testified that Lopez told police he had seen
Valdovinos with a small pistol. However, Lopez also stated
during his police interview that he could not see Valdovinos
at the time of the shooting. When Detective Alcantar asked
Lopez during the interview to describe the gun, Lopez ini-
tially stated he did not know and could not say.

[16] While the state court failed to conduct the inquiry
under the Strickland framework, the result of the analysis
would be the same. The court found trial counsel’s failure to
object did not prejudice Valdovinos. The district court agreed:
“Lopez’s testimony was internally contradictory and did not
strongly incriminate Petitioner.” There did not exist, there-
fore, “a reasonable probability that, but for counsel’s unpro-
fessional errors, the result of the proceeding would have been
different.” Strickland, 466 U.S. at 694. Having found no prej-
udice, the state court did not err in declining to investigate the
deficient performance prong. Id. at 697 (“[T]here is no reason
for a court . . . to address both components of the inquiry if
the defendant makes an insufficient showing on one.”).

[17] Therefore, we affirm the district court’s finding that
 VALDOVINOS v. MCGRATH 3843
the state court’s decision was neither contrary to federal law
nor an unreasonable application of the law to the facts.4

Conclusion

A pattern of non-disclosure permeated the proceedings
against Valdovinos. “By suppressing this evidence, the prose-
cution arrogated to itself a central function belonging to the
criminal jury and pursued its role as adversary to the exclu-
sion of its role as architect of a just trial.” Jernigan, 492 F.3d
at 1057. In so doing, the government deprived Valdovinos of
his due process rights. Because the collective effect of the
Brady evidence was material, we remand this case to the dis-
trict court with instructions to issue the writ of habeas corpus,
unless California elects to retry Valdovinos within a time
period the district court specifies.

AFFIRMED in part, REVERSED in part, and
REMANDED with instructions to issue a writ of habeas cor-
pus unless California elects to conduct a new trial within the
time period the district court specifies.

4
We note, however, that both the state court and the district court relied
on the eyewitness evidence against Valdovinos to support a finding of no
prejudice. The Brady violations warranting habeas relief negate the
strength of this evidence. Cf. Strickland, 466 U.S. at 696 (“[A] verdict or
conclusion only weakly supported by the record is more likely to have
been affected by errors than one with overwhelming record support.”).
However, because we find the Brady violations alone warrant habeas
relief, we need not consider the cumulative prejudice of the Brady viola-
tions with the ineffective assistance of counsel claim. See Whelchel v.
Washington, 232 F.3d 1197, 1212 (9th Cir. 2000).