FILED
NOT FOR PUBLICATION
DEC 23 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 15-15439
Plaintiff-Appellee, D.C. Nos. 2:12-cv-00196-PMP
2:06-cr-00234-GMN-GWF-2
v.
JONATHAN LEON TOLIVER, AKA K- MEMORANDUM*
Boose,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Nevada
Philip M. Pro, District Judge, Presiding
Argued and Submitted November 17, 2016
San Francisco, California
Before: SCHROEDER, WARDLAW, and OWENS, Circuit Judges.
Jonathan Toliver appeals the district court’s denial of his 28 U.S.C. § 2255
motion. At trial, only one witness identified Toliver as being at the crime scene
when the crime occurred. In a declaration, which was not before the trial court or
before this court in the earlier direct appeal, see United States v. Toliver, 380 F.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
App’x 570 (9th Cir. 2010) (unpublished), the lone witness’ mother casts doubts on
her son’s credibility. The district court failed to hold an evidentiary hearing to
consider whether Toliver was prevented from learning about the witness’s mother
before or during trial because the government failed to timely disclose other
evidence that could have led to her. See United States v. Browne, 829 F.2d 760,
765–66 (9th Cir. 1987) (explaining that impeachment evidence must be disclosed
at a time when it is of value to the defendant). This was an abuse of discretion.
See United States v. McMullen, 98 F.3d 1155, 1157 (9th Cir. 1996). We therefore
remand to the district court to consider possible prosecutorial misconduct in light
of the mother’s declaration.
We do not reach Toliver’s claim that his counts of conviction based on 18
U.S.C. § 924(c) are now invalid under Johnson v. United States, 135 S. Ct. 2551
(2015). The government concedes that the district court may hear the Johnson
claim. Accordingly, we deny Toliver’s motion for supplemental briefing and
remand to the district court to consider the Johnson claim, pending this court’s
disposition of a similar issue in United States v. Begay, No. 14-10080, which may
affect Toliver’s conviction.
The district court did not err in denying Toliver’s remaining grounds for
relief. Toliver’s claim that the government presented a false theory to convict him
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is procedurally defaulted. See Massaro v. United States, 538 U.S. 500, 504 (2003).
At the time of his direct appeal, Toliver had the opportunity to argue that the
organization to which he belonged, “Squad Up,” was not an “enterprise engaged in
racketeering activity” for the purposes of 18 U.S.C. § 1959(a), the Violent Crimes
in Aid of Racketeering Activity (“VICAR”) statute . Procedural default also bars
Toliver’s other prosecutorial misconduct claims, in which Toliver argues that the
government intimidated possible witnesses and failed to disclose impeachment
evidence, and knowingly presented a false theory of guilt. Toliver cannot show
cause and prejudice for any of these claims. See Massaro, 538 U.S. at 504.
Law of the case doctrine bars Toliver’s claim that the trial court’s VICAR
jury instructions contained directed verdict language. See United States v. Jingles,
702 F.3d 494, 499 (9th Cir. 2012). Toliver presented a substantively identical
claim on direct appeal that we rejected. Toliver, 380 F. App’x at 573. Toliver has
not shown any clear error in our earlier conclusion that, read as a whole, the jury
instructions were sufficient to guide deliberations.
Lastly, the district court did not err in denying Toliver’s claim that he
received ineffective assistance of counsel. The district court held a full evidentiary
hearing on this matter, and the record supports a finding that the defense counsel’s
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performance was not deficient. See Strickland v. Washington, 466 U.S. 668, 687
(1984).
The parties shall bear their own costs on appeal.
AFFIRMED in part, REVERSED in part, and REMANDED.
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