Hein v. Sullivan

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

BRANDON WADE HEIN, 
Petitioner-Appellant,
v.
No. 07-56277
WILLIAM JOSEPH SULLIVAN, Warden
of California Correctional  D.C. No.
Institution, at Tehachapi, CV-04-03502-SJO
California, Substituted for Michael
G. Yarborough,
Respondent-Appellee.


TONY MILIOTTI, 
Petitioner-Appellant, No. 07-56288
v.  D.C. No.
JIM HALL, CV-04-03491-SJO
Respondent-Appellee.


JASON SKIP HOLLAND, 
Petitioner-Appellant,
No. 07-56365
v.
 D.C. No.
AL SCRIBNER, Substituted for CV-04-03416-SJO
George A. Ortiz,
Respondent-Appellee.


5451
5452 HEIN v. SULLIVAN

MICAH HOLLAND,  No. 07-56367
Petitioner-Appellant, D.C. No.
v.  CV-04-03407-
DERRAL G. ADAMS, SJO(MLG)
Respondent-Appellee.
 OPINION

Appeal from the United States District Court
for the Central District of California
S. James Otero, District Judge, Presiding

Argued and Submitted
October 7, 2009—Pasadena, California

Filed April 12, 2010

Before: Andrew J. Kleinfeld and Richard C. Tallman,
Circuit Judges, and David G. Trager,* District Judge.

Opinion by Judge Trager

*The Honorable David G. Trager, United States District Judge for the
Eastern District of New York, sitting by designation.
5456 HEIN v. SULLIVAN

COUNSEL

William J. Genego, Santa Monica, California, for petitioner-
appellant Brandon Hein.

Tracy Dressner, La Crescenta, California, for petitioner-
appellant Tony Miliotti.

Manny A. Abascal, Daniel R. Seltzer and Scott P. Lawrence
for petitioner-appellant Micah Holland.

Erwin Chemerinsky, Durham, North Carolina, for petitioner-
appellant Jason Holland.
 HEIN v. SULLIVAN 5457
Victoria B. Wilson, Supervising Deputy Attorney General,
Office of the California Attorney General, Los Angeles, Cali-
fornia, for the respondents-appellees.

OPINION

TRAGER, District Judge:

In 1996, Brandon Hein, Micah Holland, Jason Holland1 and
Tony Miliotti, were convicted, after being tried together in
California state court, of crimes relating to the 1995 attempted
robbery of Michael McLoren, a small-time marijuana dealer,
and the stabbing death of McLoren’s friend, James Farris. All
the participants were teenagers at the time of the stabbing, and
Miliotti and Micah, who were juveniles at the time of trial,
were tried as adults. The jury had been instructed on felony
murder and found all four petitioners guilty of that crime.
Jason, who admitted at trial that he stabbed Farris, was also
convicted of assault with a deadly weapon. After bringing
unsuccessful appeals and habeas corpus petitions in state
court, petitioners filed habeas petitions in federal court, which
were denied.

Before trial, the prosecution had given the lawyer for
McLoren, its only eyewitness to the stabbing and a surviving
victim, a letter in which it promised not to use against him
anything he told the State about his marijuana dealing. Peti-
tioners’ principal challenges — suppression in violation of
Brady v. Maryland, 373 U.S. 83 (1963), presentation of false
testimony and prosecutorial misconduct — stem from the
prosecution’s alleged non-disclosure of that letter to certain
defense counsel. Because, in light of the record from the two-
month-long jury trial, the letter was not the decisively
impeaching evidence petitioners make it out to be and
1
To avoid confusion, we generally refer to brothers Micah and Jason
Holland by their first names only.
5458 HEIN v. SULLIVAN
attempted robbery was the only plausible theory for the insti-
gation of the fight that culminated in Farris’s death as well as
McLoren’s stabbing, petitioners fail to establish the prejudice
required to overturn their convictions. Accordingly, to the
extent the letter was not disclosed, we are satisfied its disclo-
sure would have had little impact on the outcome of the trial.
Likewise, any improper argument made by the prosecution in
summation did not prejudice petitioners. Finally, petitioners’
claim that McLoren testified falsely finds no basis in the
record. Therefore, we affirm the district court’s judgment
denying habeas relief.

BACKGROUND

After a joint trial, a jury found petitioners guilty of
attempted robbery, burglary and felony-murder. The prosecu-
tion’s theory was that a fight between petitioners on one side
and McLoren and Farris on the other had ensued after peti-
tioners entered McLoren’s grandparents’ property and
attempted to rob him of marijuana he kept for sale. Petitioners
contended that they were on the property to buy marijuana
from McLoren and that a fight had spontaneously erupted.
Thus, petitioners’ felony-murder convictions hinged on
whether the jury believed the prosecution’s theory that peti-
tioners entered the property in order to rob McLoren of his
marijuana stash rather than petitioners’ theory that the
encounter was an attempted drug buy that went sour.

The Attempted Robbery

(1)

Petitioners’ convictions were attributable, in large part, to
the trial testimony of McLoren. McLoren, who was sixteen at
the time of the stabbing, testified that he maintained a make-
shift shed, which he referred to as “the fort,” in the backyard
of his grandparents’ house in Los Angeles County. The fort
was furnished with a couch, a bed and a desk. McLoren kept
 HEIN v. SULLIVAN 5459
marijuana for sale in a drawer of his desk, which he kept
locked. He also kept a television, VCR and two video game
consoles in the fort, all powered by an extension cord that ran
to the house. The fort was used as a place to smoke marijuana
and watch movies. McLoren also sold marijuana from the
fort.

McLoren testified that he spent much of the afternoon of
May 22, 1995, at the fort watching movies and smoking mari-
juana with his girlfriend and Farris, who was fifteen at the
time. McLoren’s girlfriend left sometime between five and
seven o’clock.

At around 7:15 p.m., McLoren and Farris were hitting a
punching bag outside the fort when McLoren saw petitioners,
Hein, seventeen years-old, Micah, fifteen, Jason, eighteen,
and Miliotti, seventeen, jump over his grandparents’ fence
and into the backyard. McLoren knew petitioners from prior
encounters and said to Farris: “Looks like trouble.” He then
called out to Micah: “What’s up, Micah?”

According to McLoren, petitioners, with Micah in the lead,
approached the fort without saying a word. Micah walked past
McLoren, entered the fort, started pulling on the locked desk
drawer and demanded the key. He was quickly followed into
the fort by McLoren, who, in turn, was followed by Jason and
Hein. (The time between McLoren’s entrance and Jason and
Hein’s entrance was estimated variously on direct to be three,
five and ten seconds.) Micah then shouted at McLoren: “Give
me the keys, ese. You want shit with the Gumbys, ese?”
McLoren understood “Gumbys” to be the name of a gang and
“ese” to be a Mexican slang term “used before a fight
ensues.”

Micah, Jason and Hein then began punching McLoren.
McLoren put his head down, and Micah, Jason and Hein
punched him about ten times. Farris then entered. McLoren
managed to place Micah into a headlock. McLoren proceeded
5460 HEIN v. SULLIVAN
to elbow Micah in the neck and back of the head. Seeing his
brother being elbowed, Jason ran at McLoren, who kicked
Jason in the nose. Someone then placed McLoren into a head-
lock and he felt himself being stabbed. He was stabbed three
more times and thrown against the wall of the fort. McLoren,
lying prone on the ground, looked up and saw Hein punching
Farris, who was sitting on the couch.

McLoren then got up and ran to his grandparents’ house.
He was followed by Farris who reached the house immedi-
ately after. McLoren’s mother was inside and asked what hap-
pened. McLoren told her: “They were trying to steal my stuff,
and they stabbed us.”

Farris collapsed on a table. He was still breathing when the
paramedics arrived. After the paramedics attempted to revive
Farris, McLoren heard one of them say: “He stopped breath-
ing.” Farris was pronounced dead at McLoren’s house. He
died of a stab wound to the main chamber of the heart. Los
Angeles County Sheriff’s deputies also responded and com-
menced the homicide investigation. All four members of the
Holland group were ultimately charged.

(2)

Jason Holland testified in the defense’s case-in-chief and
admitted stabbing both Farris and McLoren. On May 22,
Jason, after drinking alcohol and smoking marijuana for sev-
eral hours, drove with petitioners and his friend Chris Velardo
in Velardo’s truck to McLoren’s house. When they arrived,
petitioners exited the truck while Velardo remained in the
driver’s seat. Jason asked Velardo why they were there, to
which Velardo replied: “We’re going to get some weed.”
Jason took that to mean that they were going to buy some
marijuana. Resolution of the true purpose of seeing McLoren
was the key issue the jury had to resolve.

When Jason jumped the fence, Micah was already in the
yard about twenty feet ahead of him. As Micah approached
 HEIN v. SULLIVAN 5461
the fort, Jason heard McLoren say: “What’s up Micah?”
Micah said nothing and waved. Micah and McLoren then
entered the fort and Farris stood in the doorway facing out.

Jason could see inside the fort and observed Micah and
McLoren facing each other about a foot apart. Micah and
McLoren then dropped their heads and started fighting. Jason
and Hein entered the fort and joined the fight.

Jason testified that he stabbed Farris twice after Farris spun
him around. He also testified that the other petitioners did not
believe that he had stabbed McLoren and Farris until he
showed them the bloody knife as they fled the crime scene.

(3)

Petitioners point to a number of occasions where McLoren
provided inconsistent information to the police about the
object of the alleged attempted robbery. For instance, before
McLoren was taken to the hospital on the night of the stab-
bing, he was questioned briefly by the police and told them
that petitioners had come for his electronic equipment.

Then, four days after the stabbing, in a recorded interview,
McLoren was questioned at the hospital by Sheriff’s Homi-
cide Detectives Robert Tauson and William Neumann.
McLoren denied ever having sold marijuana even though he
received assurances from Detective Tauson that the authori-
ties had no interest in prosecuting him. However, McLoren
did admit keeping some marijuana for personal use. Consis-
tent with this version of events, he initially told the detectives
on May 26, 1995, that he thought petitioners had come for his
video games, adding that it was his opinion that petitioners
were “just bored” and were “going to come up on a bunch of
stuff,” such as “a free T.V., VCR . . . and maybe even like a
little bit of marijuana to go with.”

McLoren did not admit selling marijuana until he met with
Deputy District Attorney Jeffrey Semow (“DDA Semow” or
5462 HEIN v. SULLIVAN
“Semow”) on July 10, 1995. In an in camera, ex parte pretrial
hearing, Semow recalled meeting with McLoren’s lawyer,
Ellery Sorkin, on that day. Semow wanted to “see if Mr.
McLoren would testify without transactional immunity.”
Sorkin believed that Semow was building a marijuana prose-
cution against McLoren. To allay Sorkin’s fears, Semow
drafted a letter (“July 10 letter” or “immunity letter”) to
Sorkin promising that “nothing [McLoren] tells me or the
investigating officers about marijuana will be used in any way
against him.”

The Wallet Theft

About an hour before the stabbing, Velardo drove petition-
ers to Gates Park in nearby Calabasas where they intended to
get drunk. As they were pulling into the parking lot, a wallet
sitting in a van caught Jason’s eye. The van belonged to Alyce
Moulder, who was playing with her children in the park.
Jason opened the door of the unlocked van, took the wallet
and closed the door, which Moulder witnessed. Jason jumped
into the bed of the truck and told Velardo to drive.

Velardo then sped out of the parking lot as Moulder yelled:
“Hey don’t take my wallet. I don’t have any money in it. I
need my driver’s license.” Jason rifled through the wallet,
which indeed held no money, and threw it onto the road.

After about five minutes, Moulder collected her children,
got into her van and followed Velardo’s truck. She found the
truck parked at a shopping mall soon after. She pulled up
behind the truck, parked and walked over to it. Only Velardo
was in the truck at that time. Moulder confronted him, grab-
bing his collar and demanding her wallet. He said he did not
have her wallet.

While Moulder was still arguing with Velardo, petitioners
approached them from across the parking lot. Moulder saw
that Hein was holding something in his hand that she recog-
 HEIN v. SULLIVAN 5463
nized as a wheel locking device known as “The Club.” Peti-
tioners threatened Moulder, screaming at her to leave. She
slowly backed up toward the driver’s side door of her van and
entered it. As she did so, Hein spat on her windshield.
Moulder then pulled away, and Micah threw something which
hit her van.

Procedural History

Petitioners were convicted of burglary, attempted robbery
and felony murder with a special circumstance2 and appealed.
The California Court of Appeals denied all of petitioners’
claims except Miliotti’s claim that insufficient evidence sup-
ported the special circumstance finding against him. Hein,
2
Section 190.2(a) of the California Penal Code provides a penalty of
death or life imprisonment for defendants who are found guilty of first-
degree murder if certain special circumstances are found to be true beyond
a reasonable doubt by the finder of fact. One of the special circumstances
is that the murder was committed during the commission of one of the fel-
onies enumerated in section 190.2(a)(17), which include robbery and bur-
glary. Section 190.2(d) authorizes the death penalty or life imprisonment
for any defendant other than the actual killer who “with reckless indiffer-
ence to human life and as a major participant, aids, abets, counsels, com-
mands, induces, solicits, requests, or assists in the commission of” one of
those felonies. In petitioners’ trial, the jury was instructed that:
[I]t could only find the special circumstance to be true if they
found beyond a reasonable doubt (1) that the defendant with the
intent to kill aided and abetted any actor in the commission of the
first degree murder; or, (2) that the defendant with reckless indif-
ference to human life and as a major participant aided “or” abet-
ted in the commission of the attempted robbery and burglary
which resulted in the death of Farris.
People v. Hein, 104 Cal. Rptr. 2d 85, 91-92 (Cal. Ct. App. 2001). The jury
found the special circumstance to be true beyond a reasonable doubt. Id.
at 87. The record is silent as to which condition of the special circum-
stance the jury found to be true. However, it appears that the jury found
true — and the California Court of Appeals dwelled on — the second con-
dition (i.e., that petitioners “with reckless indifference to human life” and
as “major participant[s]” aided or abetted in the commission of the
attempted robbery and burglary) at least as to Micah, Hein and Miliotti.
5464 HEIN v. SULLIVAN
104 Cal. Rptr. 2d at 92. The court accordingly reduced his
murder conviction to second degree. Id. at 95. He was resen-
tenced to fifteen years to life plus four years. Regarding peti-
tioners’ claims of prosecutorial misconduct, the court found
that the prosecution “contravened the trial court order exclud-
ing gang evidence” and made statements which were “unnec-
essary, professionally questionable and highly risky.” But the
court held that reversal was not necessary because a better
result would not have been reasonably probable had the com-
ments not been made.

Since petitioners claim that they did not find the July 10
letter until after their direct appeal had concluded, their
habeas petitions to the California Supreme Court raised the
issues relating to the letter for the first time. The court sum-
marily denied the petitions. Petitioners filed timely petitions
for habeas corpus in federal court pursuant to 28 U.S.C.
§ 2254. The magistrate judge’s 78-page report and recom-
mendation, which the district court adopted, found that none
of the claims raised warranted habeas relief. Micah and Hein
are currently serving prison sentences of twenty-nine years to
life,3 Miliotti is serving a sentence of nineteen years to life
and Jason is serving a sentence of life without parole.

DISCUSSION

Petitioners raise five claims on appeal: (1) suppression of
evidence in violation of Brady, (2) presentation of false testi-
mony, (3) prosecutorial misconduct, (4) cumulative error and
(5) ineffective assistance of counsel. Their federal due process
claims arising out of their California state prosecution are
subject to the stringent standard of review provided by the
Antiterrorism and Effective Death Penalty Act (“AEDPA”),
28 U.S.C. § 2254.
3
After briefing was completed, Hein’s murder sentence was commuted
from life without parole to a term of twenty-five years to life. His total
custodial sentence is now twenty-nine years to life.
 HEIN v. SULLIVAN 5465
We review a district court’s decision to deny habeas corpus
de novo and its findings of fact for clear error. Richter v.
Hickman, 578 F.3d 944, 951 (9th Cir. 2009) (en banc), cert.
granted sub nom. Harrington v. Richter, 559 U.S. ___ (Feb.
22, 2010). Where, as here, “no state court has explained its
reasoning on a particular claim, we conduct an independent
review of the record to determine whether the state court’s
decision was objectively unreasonable.” Richter, 578 F.3d at
951 (internal citation and quotation marks omitted).

(1)

Due Process Violations: Brady, False Evidence and
Prosecutorial Misconduct

Three of petitioners’ claims — Brady, false evidence and
prosecutorial misconduct — are closely related in that they all
stem principally from the July 10 letter. To wit, petitioners
contend that if the prosecution had not committed a Brady
violation as to the July 10 letter, it would not have been able
to present false evidence concerning McLoren’s immunity, or,
in the alternative, petitioners would have been able to
impeach McLoren with the letter once he gave false testi-
mony. Similarly, if petitioners possessed the letter, they claim,
the prosecution would not have been able to make certain
improper arguments in summation regarding McLoren’s crim-
inal liability without defense counsel pointing out their impro-
priety. In sum, petitioners argue that, when viewed together
with McLoren’s challenged testimony and the prosecution’s
improper summation, the suppression of the letter affected
their convictions by rendering the trial unfair.

We discuss Brady, false evidence and prosecutorial mis-
conduct challenges individually to determine, respectively,
whether the prosecution failed to disclose the July 10 letter,
presented false evidence or made improper argument in sum-
mation. Although we find that the prosecution did not present
false evidence, we agree with petitioners that the prosecution
5466 HEIN v. SULLIVAN
failed to disclose the letter to Jason and Hein and made
improper comments in summation. Because petitioners’
Brady and prosecutorial misconduct claims require similar
analyses for evaluating prejudice4 and encompass overlapping
considerations, we analyze their effect on petitioners’ convic-
tions collectively and conclude that, to the extent the prosecu-
tion committed error, it did not prejudice petitioners.

a. Brady Violation

i. Applicable Law

[1] Hein, Jason and Micah argue that the prosecution’s
failure to disclose favorable evidence, including McLoren’s
immunity letter, constituted a Brady violation.5 “The govern-
4
Although the tests for evaluating the prejudicial impact of these viola-
tions each use a distinct formulation, they both examine the fundamental
fairness of the proceeding. A finding of prejudice, thus, requires that the
conduct have some impact on the outcome of the proceeding — i.e., a rea-
sonable probability that the result of the proceeding would have been dif-
ferent or that it so infected the trial with unfairness as to make the
resulting conviction a denial of due process. See Kyles v. Whitley, 514
U.S. 419, 436 (1995); Donnelly v. DeChristoforo, 416 U.S. 637, 643
(1974). This means that we cannot review each instance of non-disclosure
or prosecutorial misconduct in isolation, but rather must view them collec-
tively in light of the entire record. Kyles, 514 U.S. at 436; Darden v. Wain-
wright, 477 U.S. 168, 182 (1986).
5
Petitioners also allege that the prosecution failed to turn over another
piece of favorable evidence. Detective Tauson took a statement from a
friend of Velardo’s, Katren Anderson, who signed the statement. A copy
of the statement was turned over to petitioners in which Anderson said that
Velardo had told her that, on the day of the stabbing, he and petitioners
were going to “get some bud.” However, petitioners speculate that another
version of the statement existed which indicated that Velardo had said
they intended to “buy some bud”; this alleged, other statement was never
found. Petitioners’ argument appears to be based on a misunderstanding,
for it is probable that no separate version of the statement existed. Peti-
tioners rely on the transcript of an in camera, ex parte hearing at which
Detective Tauson discussed the statement he took from Anderson. At the
hearing, Tauson told the court that Anderson said: “[T]hey were going to
 HEIN v. SULLIVAN 5467
ment violates its constitutional duty to disclose material
exculpatory evidence where (1) the evidence in question is
favorable to the accused in that it is exculpatory or impeach-
ment evidence, (2) the government willfully or inadvertently
suppresses this evidence, and (3) prejudice ensues from the
suppression (i.e., the evidence is ‘material’).” Silva v. Brown,
416 F.3d 980, 985 (9th Cir. 2005). Suppressed evidence must
be considered “collectively, not item by item,” Kyles, 514
U.S. at 436, and 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 differ-
ent,” United States v. Bagley, 473 U.S. 667, 682 (1985). “A
‘reasonable probability’ of a different result is accordingly
shown when the government’s evidentiary suppression
‘undermines confidence in the outcome of the trial.’ ” Kyles,
514 U.S. at 434 (quoting Bagley, 473 U.S. at 678).

The district court found that petitioners had satisfied the
first two Brady factors (i.e., that the evidence was favorable
to petitioners and that the State had suppressed it). However,
it found that petitioners had not satisfied the third (i.e., that
the suppressed evidence was material).

ii. Whether the Prosecution Suppressed the Letter

At a juvenile fitness hearing held on July 24, 1995, and
attended by Micah, Miliotti and Velardo, DDA Semow,
responding to a request for discovery, orally disclosed the
substance of the July 10 letter:

buy some bud.” However, it is apparent that Tauson was paraphrasing the
very statement the prosecution disclosed to petitioners but said “buy”
instead of “get.” The fact that the statement disclosed to petitioners and
the one described by Detective Tauson in the in camera hearing both bore
Anderson’s signature leads us to believe that the statements were one and
the same. In any event, although the defense had Anderson’s statement
through discovery, they neither called her as a witness nor cross-examined
Tauson regarding her statement.
5468 HEIN v. SULLIVAN
There is no immunity agreement for Mr. McLoren,
other than I promised him in writing that nothing he
said in this case about Marijuana, [sic] would be
used as evidence against him. That is it.

Counsel for Miliotti and Micah, as well as Velardo, were
present. (Velardo pled guilty before trial.) Curt Leftwich,
Miliotti’s counsel, was the only attorney present at this hear-
ing to also represent his client at trial. Leftwich did not cross-
examine McLoren regarding his use immunity in the subse-
quent superior court jury trial.

Semow also apparently mentioned the letter later at a pre-
trial discovery hearing held on September 15, 1995, at which
all trial counsel were present:

Those will be available at 1:30: A July 10 letter from
the district attorney [to McLoren’s counsel]; an
August 11 letter consisting of two pages; what
appears to be a misdemeanor complaint, 95M00754,
attached documents, a police report. A supplemen-
tary report bearing the number 495-00136-2222-072;
and another complaint report bearing a D.R. number
of 195-06108-2223-189. So that can be disclosed to
counsel.

Although all counsel attended this hearing, petitioners, with
the exception of Miliotti, claim their counsel did not receive
the July 10 letter.

In early 2002, Miliotti’s habeas counsel found a copy of the
July 10 letter and the transcript of the juvenile fitness hearing
in the file Leftwich gave to Miliotti’s family after the trial and
sent the transcript and a copy of the letter to Leftwich. In a
declaration dated July 10, 2002, Leftwich stated that he did
not recall ever having seen the letter. But he stated that the
transcript of the juvenile fitness hearing refreshed his recol-
 HEIN v. SULLIVAN 5469
lection that he had learned of the letter’s existence when Mili-
otti’s case was in juvenile court.

Trial counsel for Hein and Micah also submitted declara-
tions, in which they claimed not to recall receiving the letter.
Jill Lansing, Hein’s trial counsel, submitted a declaration in
which she stated that she had no recollection of receiving the
letter or having been told of any immunity agreement. She
attached three discovery receipts from 1995, two of which
predate the September 15, 1995, pretrial discovery hearing.
None of the three referenced the July 10 letter. The receipts
also do not reflect that counsel received any of the other mate-
rial mentioned by Semow at that hearing.6 Notably, petitioners
do not claim that the prosecution failed to disclose those other
documents.

James Sussman represented Micah at trial but not at the
juvenile fitness hearing. In a signed declaration, Sussman
stated that he was unaware of the July 10 letter. Sussman pre-
pared a writ challenging the findings of the juvenile court, but
this was before the transcript of the July 24 juvenile fitness
hearing had been made available. Although Semow had dis-
closed the entire contents of the letter on the record at that
hearing, and Sussman admitted that he later reviewed the tran-
script for impeachment purposes after the writ was denied, he
“did not ‘pay attention to the discussions or arguments of
counsel.’ ”

In the court below, the State did not object to the magistrate
judge’s factual finding that none of the petitioners, with the
exception of Miliotti, received the July 10 letter or were
6
Because the record reflects only oral disclosure of the letter at the juve-
nile fitness hearing, Miliotti’s counsel, Leftwich, probably did not receive
a copy of the letter then but rather after the September 15, 1995, discovery
hearing. It, thus, seems odd that, despite Semow’s explicit statement that
counsel should pick the letter up at 1:30 the day after the discovery hear-
ing, only Leftwich appears to have actually received it.
5470 HEIN v. SULLIVAN
apprised of its existence. However, the State now correctly
argues that the prosecution fulfilled its Brady obligation to
Micah by disclosing the existence of the July 10 letter to
Micah’s counsel at the juvenile fitness hearing.

[2] The State concedes that Hein and Jason meet the sec-
ond Brady element. The magistrate judge did not dwell on
this element of the Brady test, finding that the agreement was
suppressed as to Micah as well as to Jason and Hein. After
citing Banks v. Dretke, 540 U.S. 668, 695-96 (2004), for the
proposition that the Supreme Court’s “decisions lend no sup-
port to the notion that defendants must scavenge for hints of
undisclosed Brady material when the prosecution represents
that all such material has been disclosed,” the magistrate
judge determined that the immunity deal was not disclosed
because “[t]he existence of the letter was not made clear to
trial counsel.” Holland v. Adams, No. CV-04-3407-
SJO(MLG), slip op. at 20 (C.D. Cal. filed Apr. 3, 2007).

[3] Banks does not support the magistrate judge’s finding
as to Micah. Semow disclosed the July 10 letter on the record
at the juvenile fitness hearing attended by Micah, Miliotti and
Velardo. Even though Sussman, Micah’s trial counsel, was
not present at that hearing, he read the transcript, explaining
that he did not “pay attention to the discussions or arguments
of counsel.” Thus, the record supports a finding that Micah’s
failure to discover the July 10 letter was the result of his
defense counsel’s carelessness, rather than the prosecution’s
alleged misconduct. In reality, Micah is seeking to advance an
ineffective assistance of counsel claim masquerading as a
Brady claim. Micah is no doubt trying to cast a patina of pro-
secutorial misconduct on his counsel’s failure to follow up on
Semow’s disclosure at the juvenile fitness hearing.7
7
We also note that it is unusual that Micah’s counsel at the juvenile fit-
ness hearing did not notify Sussman of the immunity letter.
 HEIN v. SULLIVAN 5471
[4] As to Jason and Hein, the record, as it stands, supports
the conclusion that disclosure was not made to them although
that non-disclosure, if it occurred, was likely inadvertent. At
a pretrial discovery hearing, attended by all trial counsel,
Semow mentioned that “[a] July 10 letter from the district
attorney [to McLoren’s counsel]” — presumably, the immu-
nity letter — would be available “at 1:30” the next day. How-
ever, it was apparently not included in the materials disclosed
by the prosecution. In addition, Jason and Hein did not partic-
ipate in the juvenile fitness hearing, and the record is silent as
to whether transcripts of that hearing were made available to
them. Jason and Hein, therefore, satisfy the second Brady ele-
ment. Before turning to the materiality of the non-disclosure,
we consider whether the prosecution presented false evidence
or made improper arguments in summation.

b. False Evidence

[5] Petitioners contend that the prosecution presented false
evidence and failed to correct false testimony in violation of
the Supreme Court’s decision in Napue v. Illinois, 360 U.S.
264 (1959). To prevail on a Napue claim, “the petitioner must
show that (1) the testimony (or evidence) was actually false,
(2) the prosecution knew or should have known that the testi-
mony [or evidence] was actually false, and (3) that the false
testimony [or evidence] was material.” United States v. Zuno-
Arce, 339 F.3d 886, 889 (9th Cir. 2003). False evidence is
material “if there is any reasonable likelihood that the false
[evidence] could have affected the judgment of the jury.”
Bagley, 473 U.S. at 678 (internal citation and quotation marks
omitted). We find that McLoren did not testify falsely, and,
as such, his statements do not factor into the materiality anal-
ysis which follows our discussion of prosecutorial miscon-
duct.

There are two parts to petitioners’ claim. First, that the tes-
timony of the State’s principal witness, McLoren, was false.
Second, the manner in which Deputy District Attorney
5472 HEIN v. SULLIVAN
Michael Latin (“Latin” or “DDA Latin”), who shared trial
duties with Semow, questioned McLoren was misleading and
could be characterized as presenting false evidence. Regard-
ing Latin’s line of questioning, petitioners especially take
issue with his failure to specifically ask McLoren about the
July 10 letter.

As to McLoren’s testimony, although a few of McLoren’s
statements at trial were incomplete, the critical point of
McLoren’s testimony, to wit, that he could still be prosecuted
for marijuana possession or sale, was true. To the extent that
McLoren failed to mention the July 10 letter, his testimony,
viewed in its entirety, conveyed to the jury an accurate picture
of his legal situation (i.e., that, although he would probably
not be prosecuted, he was not given transactional immunity).
Similarly, Napue imposed no duty on Latin to clarify
McLoren’s answers to open-ended questions about his will-
ingness to be a witness or to specifically question him about
the July 10 letter.

On appeal, as they did below, petitioners highlight seven
statements of McLoren that they claim were false.8 Because
8
The district court, in its unpublished opinion adopting the magistrate
judge’s report and recommendation, held that certain statements made by
McLoren were false (but immaterial), but it is unclear what, exactly, the
magistrate judge found false. First, the magistrate judge set forth the seven
statements that petitioners challenged, then found that McLoren’s intima-
tions that he did not receive immunity were “clearly false.” This suggests
that the magistrate judge found false a number of instances where
McLoren cited motivations to testify other than use immunity. Holland,
No. CV-04-3407-SJO(MLG), slip op. at 36. Yet, to support his falsity
determination, the magistrate judge cited only two pages of the transcript
which contained two statements petitioners argued were false: that
McLoren believed that what he told Detectives Tauson and Neumann
could be used against him and that he received no assurances about prose-
cution from his attorney. For many of the reasons discussed infra, the
magistrate judge’s finding of falsity on these two statements is unsustain-
able; McLoren’s interview with Detectives Tauson and Neumann in which
the detectives assured him that he was not the priority for prosecution in
 HEIN v. SULLIVAN 5473
McLoren was given only use immunity and was never specifi-
cally asked whether his trial testimony or the statements he
gave to the authorities after July 10, 1995, could have been
used against him, none of these statements were false.

According to petitioners, McLoren testified falsely by
asserting that: (1) he still faced potential prosecution and (2)
he was willing to testify even though some of his testimony
would incriminate him.

First, on cross by Lansing, Hein’s trial counsel, McLoren
testified about what Detectives Tauson and Neumann told him
about their intentions to prosecute him:

[Lansing]: And at that time they basically
told you that they weren’t going to
prosecute you if you admitted sell-
ing, if you admitted —

[McLoren]: They said they didn’t have an
interest in prosecuting me.

[Lansing]: And what did you take that to
mean?

[McLoren]: That I wasn’t the priority.

a robbery-murder case predated the July 10 letter which granted McLoren
immunity, and, since McLoren was given only use immunity, he was still
subject to prosecution.
The magistrate judge then concluded that McLoren’s “general denial of
any immunity agreement, when coupled with the prosecutor’s emphasis
upon his altruistic motivation for testifying, can be characterized for pur-
poses of this analysis as false evidence.” Id. at 37. Assuming the magis-
trate judge found falsity throughout the other five statements petitioners
challenged, his finding is incorrect. McLoren was asked why he decided
to be candid with Semow, not whether his post-immunity statements could
have been used against him. His answers thus do not amount to “general
denial[s]” of immunity.
5474 HEIN v. SULLIVAN
[Lansing]: That you wouldn’t be prosecuted;
is that right?

[McLoren]: Not that I wouldn’t be, that I prob-
ably wouldn’t be. They reserved
the option.

[Lansing]: But they suggested to you that that
probably wasn’t going to happen;
is that correct?

[McLoren]: Yes.

Lansing revisited the issue on re-cross:

[Lansing]: Was it your state of mind that the
things you told Detective Neu-
mann and Detective Tauson would
not be used against you?

[McLoren]: No.

[Lansing]: You hired a lawyer; is that cor-
rect?

[McLoren]: Yes.

....

[Lansing]: And did that lawyer give you any
assurances in terms of whether
you would be prosecuted or not?

[McLoren]: No, not really.

[Lansing]: And have you been prosecuted?

[McLoren]: No.
 HEIN v. SULLIVAN 5475
[6] As an initial matter, McLoren’s testimony regarding his
understanding that his statements to Detectives Tauson and
Neumann could have been used against him was clearly not
false. Because McLoren had not been given any immunity at
the time of the interview with the detectives on May 26, 1995,
this question is irrelevant to the issue of whether he gave false
testimony about the July 10 letter.

[7] Next, McLoren’s testimony about whether he faced
potential prosecution was not false because he was given only
use immunity. The plain language of the July 10 letter sup-
ports this conclusion. The agreement explicitly promised
McLoren that “nothing he tells [Semow] or the investigating
officers about marijuana will be used in any way against him.”9
Although McLoren understood and admitted at trial that
charges for marijuana dealing were unlikely, the prosecution
did not promise that it would never prosecute McLoren for it.
Therefore, McLoren accurately testified that the State “re-
served the option” to prosecute him and there is no basis for
saying that he was lying when he testified that his lawyer
never assured that he would not be prosecuted.
9
Despite the plain language of the July 10 letter, petitioners argue that
McLoren actually received transactional immunity because the California
statute regarding immunity did not recognize use immunity until it was
amended in 1996. The magistrate judge declined to address this argument.
Petitioners appear to be mistaken that use immunity was not recognized
before 1996 in California. See People v. Badgett, 10 Cal. 4th 330, 363
(1995) (finding that trial testimony given pursuant to an agreement grant-
ing use immunity was not coerced). Furthermore, the statute they rely on,
section 1324 of the California Penal Code, addresses only immunity for
judicially compelled testimony. See Griego v. Superior Court, 95 Cal.
Rptr. 2d 351, 354 (Cal. Ct. App. 2000) (finding that section 1324 applies
only when a witness is judicially compelled to testify in “felony proceed-
ings or investigations before the court or the grand jury”). We do not read
People v. Brunner, 108 Cal. Rptr. 501 (Cal. Ct. App. 1973), as broadly as
petitioners do for the contrary position. Therefore, it appears that McLoren
was, in fact, granted use immunity and still could have been prosecuted.
In any event, we are discussing McLoren’s understanding and not the state
of the law.
5476 HEIN v. SULLIVAN
Petitioners next allege that McLoren’s testimony citing
altruistic reasons for being candid with DDA Semow was
false. Several times, on direct and redirect, McLoren was
asked, with varying specificity, what had spurred him to be
more forthcoming with DDA Semow than when initially
questioned by Detectives Tauson and Neumann.

On direct examination, McLoren testified that he under-
stood, from representations made by Detective Tauson at the
hospital, that the State did not want to prosecute him for mari-
juana. McLoren was then asked:

[Latin]: Since that initial interview with
Detectives Neumann and Tauson,
when questioned by either law
enforcement officers or district
attorneys, have you ever made any
effort to hide the fact that you pos-
sessed or sold marijuana?

[McLoren]: No.

....

[Latin]: Are there any other reasons other
than what Detective Tauson told
you at the hospital that caused you
to no longer want to hide the fact
that you had marijuana?

....

[McLoren]: Yes. My grandma told me just to
take the drug charge and just bust
them.

Later, while McLoren was still on direct, the following
exchange occurred:
 HEIN v. SULLIVAN 5477
[Latin]: As you sit here and testify in this
court, do you feel inhibited or
deterred in any way from talking
about your prior dealings with
marijuana?

....

[McLoren]: No. I feel fine talking about it.

[Latin]: Why? Can you explain why?

[McLoren]: Because it is something that I have
to do.

[Latin]: Why?

[McLoren]: Because I want to get these guys
that stabbed me and killed my best
friend.

Then, on redirect, after he was asked why he felt ready to
talk to the authorities about marijuana, the following
exchange occurred:

[Latin]: What brought that about?

[McLoren]: My lawyer told me I wasn’t going
to be able to get these guys until I
tell the whole truth.

[Latin]: Who did you talk to first . . . ?

[McLoren]: Jeff Semow

....

[Latin]: You didn’t know for sure whether
you could trust Semow?
5478 HEIN v. SULLIVAN
[McLoren]: Yes.

Finally, while still on redirect, McLoren testified:

[Latin]: Do you still feel uncomfortable
talking about [your involvement
with marijuana]?

[McLoren]: Somewhat.

[Latin]: Why are you talking about it any-
how?

[McLoren]: Because it’s more important to get
these guys than drugs.

[8] Contrary to petitioners’ contentions, none of these
statements are false — and certainly not perjurious. McLoren
was asked a series of open-ended questions about why he
decided to be forthcoming on and after July 10, 1995 (e.g.,
“[What reasons] other than what Detective Tauson told you at
the hospital [caused you to come forward]?”; “Can you
explain why [you decided to come forward]?”; “What brought
that about?”; “Why are you talking about it anyhow?”). None
of these questions specifically addressed immunity, and
McLoren’s failure to mention use immunity cannot be
described as false. Assuming that the grant of use immunity
was one reason McLoren decided to speak to Semow, he
never denied receiving it. Instead, he listed alternative reasons
for his willingness to be a witness, none of which are facially
false. Therefore, even if McLoren’s failure to mention that
use immunity played a role in his decision is viewed with
some skepticism, petitioners fail to demonstrate its falsity.

Moreover, because the July 10 letter was addressed to
Sorkin, McLoren’s lawyer, and not to McLoren, and
McLoren’s awareness of it was not established by the state or
district courts, we do not assume McLoren knew of the let-
 HEIN v. SULLIVAN 5479
ter’s existence.10 Although it is possible that Sorkin informed
McLoren about the gist of the letter, the record is silent on
exactly what, if anything, was communicated to McLoren.11

Arguably, the most colorable claim of falsity concerns
McLoren’s statement that his grandmother told him “just to
take the drug charge and just bust” petitioners, but this claim
fails as well. Petitioners do not contend that McLoren’s
grandmother never offered this advice. Rather, they appear to
take issue with McLoren’s testimony because, according to
petitioners, it suggested that McLoren could have exposed
himself to liability by speaking to Semow, which would not
have been true. A broader look at the exchange in which the
statement appeared is instructive. McLoren was asked what,
other than Detective Tauson’s assurance, “caused [him] to no
longer want to hide the fact that [he] had marijuana.” The
question is vague as to time. Thus, if McLoren’s grandmother
offered the advice before July 10, 1995, McLoren could still
have been risking criminal liability. But even assuming the
statement was made after July 10, McLoren’s answer was still
not false because, as noted earlier, his understanding as to the
existence of the July 10 letter has not been established. More-
over, McLoren’s statement did not foreclose or diminish the
possibility that he was granted use immunity. Thus,
McLoren’s testimony was not false.
10
Although immunity agreements are often signed by the person being
granted immunity, McLoren did not sign the July 10 letter.
11
Although Napue prohibits the presentation of false evidence regard-
less of whether the witness is aware of its falsity, the testimony must still
be actually false. See Hayes v. Brown, 399 F.3d 972, 980-82 (9th Cir.
2005) (en banc). In Hayes, the witness testified that he was still subject
to criminal charges even though the prosecutor had made a secret deal
with the witness’s attorney to dismiss the charges and had instructed the
attorney not to notify the witness. Id. at 980. Sitting en banc, we held that,
under those circumstances, the prosecution had presented false evidence.
Id. at 981. Here, by contrast, McLoren was asked why he was willing to
testify — a matter that depended exclusively on his personal knowledge
— not whether he had received use immunity.
5480 HEIN v. SULLIVAN
Finally, petitioners interpret McLoren’s statement that it
was “more important to get these guys than drugs” to mean
that he was willing to risk prosecution for marijuana crimes
if it meant bringing petitioners to justice. However, in the
context of McLoren’s testimony about Detective Tauson’s
representation, a more plausible interpretation of McLoren’s
answer is that McLoren was stating that he was testifying at
trial because the prosecution was concerned only about the
murder and did not care about his relatively minor drug
crimes. This interpretation comports with McLoren’s testi-
mony that he was told that he was not a priority.

[9] Turning to Latin’s examination, neither his questions
nor his failure to expand upon McLoren’s answers were
improper and may not have even been deliberate (at least in
the case of his direct examination). As none of McLoren’s
answers to Latin’s open-ended questions were false, Latin had
no duty to clarify McLoren’s answers or to question McLoren
specifically about the use immunity he received. Moreover,
since Latin had reason to believe that the letter was in the
hands of the defense (and clearly was in the case of Miliotti),
he might well have expected defense counsel to raise use
immunity on cross if they thought it appropriate. Accordingly,
we reject petitioners’ claim that the prosecution knowingly
presented false evidence.

c. Prosecutorial Misconduct

Petitioners’ final related claim is that the prosecution made
statements in summation that violated due process. In evaluat-
ing allegations of prosecutorial misconduct, we consider
whether the prosecution’s actions “so infected the trial with
unfairness as to make the resulting conviction a denial of due
process.” Darden, 477 U.S. at 181 (internal quotation marks
omitted) (quoting Donnelly, 416 U.S. at 643). In determining
whether a comment rendered a trial constitutionally unfair,
factors we may consider are whether the comment misstated
the evidence, whether the judge admonished the jury to disre-
 HEIN v. SULLIVAN 5481
gard the comment, whether the comment was invited by
defense counsel in its summation, whether defense counsel
had an adequate opportunity to rebut the comment, the promi-
nence of the comment in the context of the entire trial and the
weight of the evidence. See Darden, 477 U.S. at 182.

There were a number of instances of improper argument
during the prosecution’s summation, some of which were
addressed by the trial court and by the California Court of
Appeals.

First, the prosecution vouched for McLoren’s credibility.
After describing McLoren as a “very powerful and credible
witness,” DDA Semow told the jury on opening summation:

[H]e was painfully honest. He answered every ques-
tion truthfully, no matter how much it cost him in
terms of pain, discomfort, embarrassment and humil-
iation. He is not a model teenager but the model of
a perfect witness.

DDA Latin continued on surrebuttal:

Think about the way you felt while you [sic] he testi-
fied. Didn’t you know in your heart he was telling
the truth? Didn’t you? . . . Think about how honest
he was about some very, very painful things in his
life, some things that were embarrassing, some
things that hold himself out to the public as not a
very good person. He was so honest about it. That’s
the kind of integrity that our system would like to
see.

Next, Latin impugned the character of petitioners’ defense
counsel. After claiming that he did not “appreciate cheap law-
yer tricks,” Latin argued:

[O]ne side presented a very clear and pure picture of
what happened, and the other side did some very
5482 HEIN v. SULLIVAN
dirty things, dishonest. The defense in this case was
dishonest.

Latin also argued that defense counsel pressured a defense
witness, Jason Stout, to change his testimony so that it was
more favorable to petitioners.

Finally, the prosecution made improper comments about
petitioners themselves. For instance, the prosecution com-
pared them to “a pack of wolves” when they stole Moulder’s
wallet, called Micah “a little punk” and addressed Hein
directly, saying: “What a tough guy[ ] you are.”

The trial judge sustained objections to, among other things,
the prosecution’s accusations of dishonesty and allegations of
pressuring Stout. The judge also characterized Latin’s accusa-
tion of dishonesty as “very close . . . to misconduct” and
instructed the jury that there was no evidence that any of the
lawyers in the case committed any wrongdoing. (Defense
counsel did not object to a few of the statements petitioners
now challenge, including Semow’s vouching for McLoren
and Latin’s calling Micah “a little punk.”) Several times dur-
ing summation the judge made generalized instructions that
argument was not evidence.

[10] The statement we find most problematic was not
addressed by the state courts. On surrebuttal summation, Latin
told the jury:

[McLoren] wasn’t like Jason Holland that told the
truth that he wanted to tell, that he chose to tell. He
understood that if you are going to be believed you
better be prepared to come in here and open up your
life no matter whether the questions seem relevant to
what happened or not. And many of these questions
probably didn’t seem relevant. They looked like they
had nothing to do with anything, but he answered
them. And he opened himself up to embarrassment,
 HEIN v. SULLIVAN 5483
scorn, ridicule, contempt and criminal liability, but
he did it because he understood that that is what it
takes to tell the truth and be believed.

This comment could have been taken to mean that McLoren
exposed himself to prosecution for marijuana dealing by testi-
fying, which, due to use immunity, would not have been true.
However, the comment could also have been taken to mean
that McLoren’s testimony exposed him to charges of perjury
if he lied on the stand. On appeal, the State concedes that the
statement was incorrect. But it is hard to accept that the trial
judge, who had made a number of conscientious evidentiary
rulings and timely admonitions throughout summation,
remained idle while the prosecution presumably deceived the
jury, even though the other rulings had been prompted by
defense counsel. It is probable that the judge found the state-
ment ambiguous as well.

d. Prejudice Resulting from the Brady Violation and
Prosecutorial Misconduct

Accepting that the prosecutors’ comments in summation
were improper and that they failed to disclose the July 10 let-
ter to Jason and Hein, we next consider whether the prosecu-
tion’s conduct prejudiced petitioners. Because we are satisfied
that the trial was fundamentally fair and there was no reason-
able probability that the letter would have affected the verdict,
we reject both petitioners’ Brady and prosecutorial miscon-
duct claims.

[11] It is unclear whether we should employ Brady’s preju-
dice standard to evaluate the cumulative effect of the prosecu-
torial misconduct and the non-disclosure. Although this
circuit has never explicitly used the “reasonable probability”
formulation found in the Brady line of cases to analyze
alleged prosecutorial misconduct, a number of circuits have
concluded that prosecutorial misconduct lends itself to that
standard. E.g., Styron v. Johnson, 262 F.3d 438, 454 (5th Cir.
5484 HEIN v. SULLIVAN
2001); Jones v. Gibson, 206 F.3d 946, 959 (10th Cir. 2000);
Kennedy v. Dugger, 933 F.2d 905, 914 (11th Cir. 1991); cf.
United States ex rel. Shaw v. De Robertis, 755 F.2d 1279,
1281 n.1 (7th Cir. 1985) (“To carry this burden, [a petitioner]
must show that it is at least likely that the misconduct com-
plained of affected the outcome of his trial — i.e., caused the
jury to reach a verdict of guilty when otherwise it might have
reached a verdict of not guilty.”); see generally Strickler v.
Greene, 527 U.S. 263, 298-301 & n.3 (1999) (Souter, J., con-
curring in part and dissenting in part) (tracing the evolution of
the “reasonable probability” formulation and noting the appli-
cability of that and synonymous phrases in a number of con-
texts).

The standard announced in Darden and Donnelly appears
to be similar to the Brady standard. Like the Brady standard,
the touchstone for the Darden/Donnelly standard is the fair-
ness of the trial. See Kyles, 514 U.S. at 434 (“The question is
not whether the defendant would more likely than not have
received a different verdict with the [undisclosed] evidence,
but whether in its absence he received a fair trial, understood
as a trial resulting in a verdict worthy of confidence.”); Dar-
den, 477 U.S. at 181-82 & n.13 (noting that prosecutorial
comments, although deserving of condemnation, did not vio-
late due process because they did not affect the fairness of the
trial). The Darden factors — i.e., the weight of the evidence,
the prominence of the comment in the context of the entire
trial, whether the prosecution misstated the evidence, whether
the judge instructed the jury to disregard the comment,
whether the comment was invited by defense counsel in its
summation and whether defense counsel had an adequate
opportunity to rebut the comment — require courts to place
improper argument in the context of the entire trial to evaluate
whether its damaging effect was mitigated or aggravated. In
essence, what Darden requires reviewing courts to consider
appears to be equivalent to evaluating whether there was a
“reasonable probability” of a different result. Cf. Brooks v.
Kemp, 762 F.2d 1383, 1401 (11th Cir. 1985) (en banc),
 HEIN v. SULLIVAN 5485
vacated on other grounds, 478 U.S. 1016 (1986), reinstated,
809 F.2d 700 (11th Cir. 1987) (per curiam) (noting that “fun-
damental fairness, the same standard adopted in Donnelly, is
the governing principle in reviewing errors of counsel [under
the reasonable probability standard employed by Strickland v.
Washington, 466 U.S. 668 (1984)]”).

[12] Although it seems doubtful that Darden would
impose a lower burden on petitioners than Brady does, we do
not need to resolve the question here.12 Instead we use the
framework announced in Jackson v. Brown, 513 F.3d 1057
12
The magistrate judge below and the State on appeal addressed the pos-
sibility of Latin’s “criminal liability” statement forming the basis of a false
evidence claim. The materiality standard for false evidence is less burden-
some on petitioners than that for Brady. See United States v. Agurs, 427
U.S. 97, 103-04 (1976); Benn v. Lambert, 283 F.3d 1058 n.12 (9th Cir.
2002) (recognizing that the Supreme Court employs a stricter standard of
materiality for Brady claims than for false testimony claims). According
to the Supreme Court, this is because false evidence claims “involve pro-
secutorial misconduct, but more importantly because they involve a cor-
ruption of the truth-seeking function of the trial process.” Agurs, 427 U.S.
at 103-04. Since part of the reason false evidence claims are less burden-
some is the involvement of prosecutorial misconduct, one could argue that
Darden misconduct claims should themselves also be subject to that stan-
dard. Cf. Brooks, 762 F.2d at 1402 n.26 (“[T]here may be cases where the
prosecutor’s intentional conduct rises to a level equivalent to a knowing
use of false evidence.”). But that is unlikely in this case for a number of
reasons. Argument in summation is hardly equivalent to evidence in its
impact on a jury. See Donnelly, 416 U.S. at 646-47 (“The consistent and
repeated misrepresentation of a dramatic exhibit in evidence may pro-
foundly impress a jury and may have a significant impact on the jury’s
deliberations. Isolated passages of a prosecutor’s argument, billed in
advance to the jury as a matter of opinion not of evidence, do not reach
the same proportions.” (internal quotation marks omitted)). Summation
consists of opinion, advocacy and appeals to justice. Juries are routinely
instructed to view summation in that light, and we have no reason to pre-
sume that the jury in this case, having been so instructed, viewed it other-
wise. In sum, the improper argument in this case did not present the same
threat to the truth-seeking function of the trial process as false evidence
would have. It is, thus, inappropriate to treat it as submission of false evi-
dence.
5486 HEIN v. SULLIVAN
(9th Cir. 2008), which was created for analyzing combined
Brady and Napue challenges. In Jackson, we reasoned that,
although instances of non-disclosure and false evidence must
be evaluated collectively, the difference between the material-
ity standards used for weighing their potential prejudice com-
pelled us to consider the materiality of the false evidence
alone before combining it with non-disclosure. Jackson, 513
F.3d at 1076. Thus, under Jackson’s framework, instances of
false evidence are analyzed first under Napue’s materiality
standard, and, if those errors are not material standing alone,
false evidence is then considered together with non-
disclosure, and both are analyzed under Brady’s more
demanding standard. Id. Assuming, arguendo, that Darden’s
standard is less demanding than Brady’s, we first analyze the
prosecutorial misconduct challenges to assess whether they
alone so infected the trial with unfairness as to make the
resulting conviction a denial of due process. If the prosecu-
tion’s comments alone do not meet this standard, we analyze
them together with the non-disclosure of the July 10 letter to
determine whether there is a reasonable probability that with-
out those violations the result of the proceeding would have
been different. In doing so, we concentrate on the touchstone
of Brady’s materiality standard: that, even with the trial
errors, petitioners received “a trial resulting in a verdict wor-
thy of confidence.” Kyles, 514 U.S. at 434.

[13] Here, two key factors illustrate that the prosecution’s
summation, when viewed in the context of the entire record,
did not render the trial fundamentally unfair. See Darden, 477
U.S. at 182-83. First, in context, much of the potential preju-
dice of the prosecution’s comments was mitigated. The trial
court sustained a number of objections and gave timely cau-
tionary instructions to the jury, including general instructions
about the hortative nature of summation. Moreover, the com-
ments were made in the course of several days of summation
after a two-month trial. Regarding Latin’s statement about
McLoren’s “criminal liability,” which appeared in one para-
graph of a summation that took up eighty-four pages of the
 HEIN v. SULLIVAN 5487
transcript, the comment was ambiguous and, to the extent it
was given its more damaging interpretation, it is likely that
the comment did not have much impact. McLoren had told
the jury that he was not the State’s priority, from which it
could conclude that he faced little risk of criminal charges.
Moreover, Latin’s statement was ambiguous, and we do not
presume that the jury ascribed to it its most damaging mean-
ing. See Donnelly, 416 U.S. at 647 (“[A] court should not
lightly infer that a prosecutor intends an ambiguous remark to
have its most damaging meaning or that a jury, sitting through
lengthy exhortation, will draw that meaning from the plethora
of less damaging interpretations.”). Even if the jury gave the
statement its more damaging interpretation, the statement
would have bolstered McLoren’s testimony only a negligible
amount, which would not have helped the prosecution’s case
much anyway since McLoren had little incentive to lie.13
Finally, the comment did not pervade the proceedings and
was not emphasized.

[14] Second, in light of the other evidence received over
the course of two months of trial, the prosecution offered the
only believable theory for why the fight began in the first
place, i.e., that it had been instigated by Micah’s attempted
robbery of McLoren’s drugs. Petitioners never offered a plau-
sible alternative to this theory. Additionally, the prosecution’s
version of events was corroborated by petitioners’ theft of
Moulder’s wallet to show why the group also intended to rob
McLoren. In contrast, petitioners’ argument here is what
defense counsel argued in summation at trial, to wit, that peti-
tioners had entered McLoren’s grandparents’ property to buy
marijuana and that a fight had spontaneously erupted with no
words exchanged between petitioners and McLoren. Although
13
Even if one could somehow argue that the statement was an instance
of false evidence — and, thus, that the less-demanding Napue standard
applied — the statement would still not be prejudicial. For the same rea-
sons cited above, there is no reasonable likelihood that the statement could
have affected the judgment of the jury.
5488 HEIN v. SULLIVAN
the prosecution’s case relied on McLoren’s testimony, peti-
tioners’ inability to advance any plausible theory for why the
fight began cannot be disregarded. Accordingly, petitioners
do not demonstrate that the prosecutors’ improper comments
affected the fairness of petitioners’ trial. See Darden, 477
U.S. at 181 n.13.

We next consider whether the combined instances of non-
disclosure and improper argument deprived petitioners of a
fair trial, meaning “a trial resulting in a verdict worthy of con-
fidence.” Kyles, 514 U.S. at 434. As explained above, the fact
that the prosecution advanced the only plausible theory for the
instigation of the fight undercuts any claim of prejudice.

The non-disclosure of the July 10 letter does not affect this
conclusion. The use immunity letter was not the potent
impeachment evidence petitioners make it out to be. McLoren
received no benefit — such as dropped charges or transac-
tional immunity — from the prosecution for testifying. The
grant of use immunity left McLoren in the same position he
was in before speaking with Semow. Petitioners attempt to
assign more importance to the letter by suggesting that there
was an unspoken (or unwritten) understanding that McLoren
would not be prosecuted, but there is no support in the record
for this assertion.14
14
Petitioners, pointing to the in camera, ex parte hearing at which
Semow recollected his July 10, 1995, meeting with Sorkin, claim that
Sorkin was seeking transactional immunity for McLoren. At the hearing,
Semow said that “one of the reasons for this interview was to see if Mr.
McLoren would testify without transactional immunity.” The July 10 letter
indicates that Semow achieved this goal. Thus, this statement provides no
support for petitioners’ contention that McLoren received transactional
immunity. Even if there were such an understanding, McLoren admitted
at trial that Detectives Tauson and Neumann had already told him that he
was not the priority and was not likely to be charged. These representa-
tions reflected an undramatic revelation: that the State was much more
interested in building a murder prosecution against petitioners than against
McLoren for marijuana dealing. McLoren testified to that understanding
to the jury.
 HEIN v. SULLIVAN 5489
Another reason use immunity had only very limited
impeachment value relates specifically to the substance of
McLoren’s testimony. As we stressed in our discussion of
petitioners’ false evidence claim, McLoren never denied
receiving use immunity. Importantly, he was never asked
whether his statements to the prosecution and at trial could
have been used against him. Moreover, because McLoren was
given only use immunity, his statements that he could still
have been prosecuted were also not false. Even if defense
counsel had confronted McLoren with the prosecution’s grant
of use immunity, none of McLoren’s testimony would have
been exposed as untruthful. Accordingly, the combined effect
of the prosecution’s arguments and the non-disclosure of the
July 10 letter did not deprive petitioners of a fair trial.

(2)

Cumulative Error

Petitioners’ next claim is that “the cumulative effect of
multiple errors” prejudiced them. Jackson, 513 F.3d at 1085
(internal quotation marks omitted) (quoting Whelchel v.
Washington, 232 F.3d 1197, 1212 (9th Cir. 2000)). As with
petitioners’ prosecutorial misconduct claims, we consider
whether the cumulative error “so infected the trial with unfair-
ness as to make the resulting conviction a denial of due pro-
cess.” Donnelly, 416 U.S. at 643.

[15] For many of the reasons set forth in our preceding dis-
cussion of prejudice, the alleged errors, when considered
together, do not render the trial constitutionally flawed. The
trial was long and hard-fought. The closing arguments were
contentious, but the trial court sustained reasonable objections
and admonished the prosecution on more than one occasion.
The court advised the jury that the prosecution’s questions
regarding Jason’s alleged gang membership and its statements
impugning petitioners and their counsel were not evidence.
The court also gave general instructions that arguments made
5490 HEIN v. SULLIVAN
in summation were not evidence, thereby reducing the poten-
tial harm done by the prosecution’s vouching for McLoren.
Additionally, the prosecution’s “criminal liability” statement
was ambiguous and, in any event, occupied only a brief
moment in summation at the end of a long trial and had little
risk of rendering the entire trial unfair.

[16] Similarly, the undisclosed evidence was not material.
McLoren testified both that he understood that he was not the
priority and that he was told by the police that the State had
no interest in prosecuting him. Moreover, if one were to
accept petitioners’ argument that they were on the property
merely to buy drugs, then, as noted, the reason for the fight
makes little sense. Therefore, any trial errors, to the extent
they existed, did not prejudice petitioners.

(3)

Ineffective Assistance of Counsel

Finally, Miliotti contends that he received ineffective assis-
tance of counsel when his trial counsel, Leftwich, who had a
copy of the use immunity letter at the time of trial, failed to
cross-examine McLoren with it.15 We reject Miliotti’s claim.

Claims of ineffective assistance of counsel are governed by
Strickland, which requires a petitioner to demonstrate: (1)
“that counsel’s performance was deficient” and (2) “that the
deficient performance prejudiced the defense.” 466 U.S. at
687. As Miliotti must satisfy both prongs in order to prevail
under Strickland, we may dispose of his claim if he fails to
satisfy either prong of the two-part test. Id. at 697.
15
Miliotti also faults Leftwich for failing to impeach McLoren on his
statement to the police that petitioners had tried to steal his electronics,
failing to impeach him on his arrest for marijuana use in August 1995,
failing to introduce evidence of previous burglaries of the fort and failing
to introduce a lack of any fingerprint evidence.
 HEIN v. SULLIVAN 5491
[17] Turning first to the “performance prong,” Miliotti
“must show that counsel’s representation fell below an objec-
tive standard of reasonableness.” Id. at 688. Courts must be
“highly deferential” to counsel’s performance such that “the
defendant must overcome the presumption that, under the cir-
cumstances, the challenged action might be considered sound
trial strategy.” Id. at 689 (internal quotation marks omitted).

[18] Miliotti cannot rebut the presumption that Leftwich’s
failure to confront McLoren with the July 10 letter was sound
trial strategy. As explained earlier, there was little, if any-
thing, to be gained by questioning McLoren about having
been granted use testimony. Rather than pursuing a fruitless
attempt to impeach McLoren with the use immunity letter,
Leftwich instead focused on the inconsistencies in McLoren’s
description of Millioti’s actions. McLoren admitted that he
did not recall whether Miliotti was involved in the fight and
testified inconsistently about whether Miliotti had even
entered the fort, where the entirety of the fight took place. It
also emerged during trial that McLoren had initially named
Velardo — who never entered the property — as the fourth
attacker when he was questioned by the police, a fact that
Leftwich focused on in summation. Leftwich’s strategy bore
fruit when the California Court of Appeals concluded that
Miliotti was not a major participant in the attempted robbery
and reduced his conviction to second degree murder, finding
that “the evidence is persuasive that Miliotti did not enter the
fort, but merely stood in the doorway during the activities
inside the fort.” Hein, 104 Cal. Rptr. 2d at 92, 95. Leftwich’s
performance was, thus, not deficient for failing to raise the
use immunity letter.

Even if Miliotti satisfied the first prong, he must still estab-
lish prejudice by “show[ing] that there is a reasonable proba-
bility that, but for counsel’s unprofessional errors, the result
of the proceeding would have been different.” Strickland, 466
U.S. at 694. This is the same standard used to determine the
materiality of suppressed evidence under Brady. See Bagley,
5492 HEIN v. SULLIVAN
473 U.S. at 682; Benn, 283 F.3d at 1053 (“[W]e analyze all
of the suppressed evidence together, using the same type of
analysis that we employ to determine prejudice in ineffective
assistance of counsel cases.”). Because petitioners’ case was
weak and McLoren admitted that he was probably not going
to be prosecuted and never denied having received immunity,
Miliotti was not prejudiced by counsel’s failure to impeach
McLoren with the use immunity letter. Miliotti’s other allega-
tions of ineffective assistance of counsel are without merit.

CONCLUSION

Under our independent review of the record, we determine
that petitioners’ state convictions did not violate the Constitu-
tion or laws of the United States. It was therefore not objec-
tively unreasonable for the California Supreme Court to deny
petitioners’ state habeas petitions. We affirm the district
court’s denial of habeas relief.

AFFIRMED.