FILED
NOT FOR PUBLICATION
JUN 17 2021
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARK ANTHONY KENNEDY, No. 19-15704
Petitioner-Appellant, D.C. No. 4:16-cv-01686-YGR
v.
MEMORANDUM*
RON BROOMFIELD,
Respondent-Appellee.
Appeal from the United States District Court
for the Northern District of California
Yvonne Gonzalez Rogers, District Judge, Presiding
Submitted June 15, 2021**
San Francisco, California
Before: SCHROEDER, M. SMITH, and VANDYKE, Circuit Judges.
Mark Kennedy, a California state prisoner, appeals the district court’s denial
of his 28 U.S.C. § 2254 petition challenging his convictions for assault, battery and
false imprisonment. The case arose out of an altercation involving Kennedy,
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Emmalyn Munjar, and Lester Chow. An earlier trial had resulted in mistrial as to
these charges.
We granted a certificate of appealability on only the claim of prosecutorial
misconduct. Kennedy alleges the prosecutor knowingly presented false testimony
by Munjar in violation of his due process rights clearly established in Napue v.
Illinois, 360 U.S. 264, 269 (1959). The state court ruled that, apart from the few
instances in which Munjar’s testimony was controverted by telephone records,
there was no knowing presentation of false evidence. The state court held that the
prosecutor fulfilled his duties to point out known inconsistencies to the jury, that
the defense counsel also made these inconsistencies clear, and that Munjar’s false
testimony did not materially prejudice Kennedy. The district court held the state
court decision was reasonable.
There were undoubtedly inconsistencies among Munjar’s statements to
police, her testimony at the preliminary hearing, her testimony at the first trial, and
her testimony in the second. The prosecutor adequately pointed them out to the
jury, however, and even observed that she was “not a credible person when it
comes to this particular event because she’s told so many different versions of
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what happened.” The prosecutor did not withhold critical information from the
jury bearing on the witness’s credibility, as was the case in Napue.
This court must uphold the state court decision unless it is contrary to or
involves an unreasonable application of law clearly established by the Supreme
Court, or involves an unreasonable determination of facts. 28 U.S.C. § 2254(d).
The district court correctly ruled that this petitioner cannot meet that standard, and
we agree with the district court’s analysis of this claim when it concluded that the
decision of the California Court of Appeal was eminently reasonable.
AFFIRMED.
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