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Hamilton v. Ayers

September 18, 2009


Appeal from the United States District Court for the Eastern District of California Oliver W. Wanger, District Judge, Presiding D.C. No. CV-F-90-00363- OWW-P.

The opinion of the court was delivered by: Wardlaw, Circuit Judge



Argued and Submitted January 20, 2009 -- Pasadena, California

Before: Kim McLane Wardlaw, William A. Fletcher, and Richard A. Paez, Circuit Judges.


Michael Allen Hamilton, a California death row inmate, appeals from the district court's denial of his pre-AEDPA petition for a writ of habeas corpus challenging his 1982 conviction and death penalty sentence for multiple counts of first-degree murder. We deny Hamilton's claims for relief as to the guilt phase. However, we conclude that Hamilton's trial counsel was constitutionally ineffective at the penalty phase for failing to investigate and present to the jury the wealth of classic mitigating evidence that was available to him. Accordingly, we reverse and remand for issuance of the writ, unless the State elects to reprosecute the penalty phase.*fn1 Because we grant relief based on the ineffective assistance claim, we do not reach Hamilton's claim of prosecutorial misconduct at the penalty phase.


We recite verbatim the district court's statement of facts, which closely tracks the California Supreme Court's opinion, see People v. Hamilton, 774 P.2d 730, 733-35 (Cal. 1989), and which neither party disputes.

In 1981, Hamilton, his wife Gwendolyn (Gwen) who was pregnant, and their four children, ages six, four, three and one, lived in Bakersfield. In March of that year, the Hamiltons purchased life insurance policies, $175,000 on Hamilton and $100,000 on Gwen, paying the initial premium for coverage until June. When they did not pay the second quarterly payment on time, the agent personally collected the payment from Hamilton, extending the policy into September. When the third premium was not received, the agent again visited the Hamiltons on October 17, collecting payment for two months from Gwen, extending the policies into November.

In September, Hamilton began an extramarital relationship with Brenda Burns. In October, he called his sister Carolyn Hamilton to ask if she knew anyone who would do something illegal for money. Later he told Carolyn he wanted someone to kill Gwen and offered her $20,000 from the insurance on Gwen's life if she would help find someone to do the killing. Hamilton told both Carolyn and his brother-in-law Lyle Palmer that he had a girlfriend, but if he left or divorced Gwen he wouldn't have his kids. Brenda's sister Sharon Burns also testified that Hamilton told her he didn't like the way Gwen was in bed, sexually, and he wanted to divorce her so he could live with Brenda.

Carolyn first asked another sister, Victoria (Vicki) Hamilton, who agreed to kill Gwen for $10,000 of the insurance money. However, Vicki moved to Texas a few days later. Carolyn then approached Gilbert Garay, a prior acquaintance she met when both worked as security guards for Porterville Private Patrol. Gilbert agreed to kill Gwen for $10,000.

On October 31, Hamilton and Brenda Burns went to K-Mart in Bakersfield and purchased a single-shot 12-gauge shotgun. Hamilton said he left his identification in the car, so Brenda purchased the gun and shells with money furnished by Hamilton.

That evening Hamilton, Gwen, and their children drove to Porterville to take their kids trick-or-treating with Carolyn's son. While accompanying the children trick-or-treating, Hamilton, Carolyn and Gilbert discussed plans for the murder. Hamilton told Carolyn he would start to drive his family home, but then stop on Highway 65 claiming one tire was flat, so that Carolyn and Gilbert could drive by and shoot Gwen. Carolyn and Gilbert left in Carolyn's truck a few minutes after Hamilton. As planned, Carolyn and Gilbert found Hamilton crouched down by the tire with Gwen standing beside him holding a flashlight. Although Carolyn drove by three to four times, Gilbert never pulled the trigger, so they eventually returned to Porterville.

Hamilton phoned Carolyn about an hour later to ask what happened. Carolyn made excuses and Hamilton said they would come back to Porterville the next day. The next day, Hamilton phoned Carolyn to say he would pretend to have lost his wallet while changing the tire. Hamilton and Gwen would stop at the same place on the pretext of looking for his wallet. Carolyn and Gilbert would follow them and shoot Gwen as previously planned.

That evening, Hamilton and his family again visited Carolyn, his mother and stepfather, Jacqueline (Jackie) and Sam Piper, in Porterville. Carolyn and Gilbert followed Hamilton about a half-hour after he left, and found him and Gwen at the same place, looking for the "lost" wallet. Carolyn and Gilbert drove by several times, but again Gilbert did not shoot. Hamilton was mad when he called Carolyn about an hour later, and she made more excuses.

The following day Hamilton called Carolyn with a new plan. As part of this plan, Carolyn called Gwen and told her that Hamilton's wallet had been found. Hamilton and Gwen for the first time left their children with Gwen's sister, who also lived in Bakersfield, and drove a white pickup truck to Porterville. When they arrived, Hamilton surreptitiously gave Carolyn his wallet, so she could return it to him in front of the family. Hamilton and Carolyn went to pick up Gilbert, and Carolyn and Gilbert told Hamilton they weren't going to shoot Gwen. Hamilton said he would do it. Hamilton said he would be hitchhiking, and instructed Carolyn and Gilbert to pick him up and take him back to his pickup.

This time everything went according to the new plan. Carolyn gave Hamilton an icepick, which he used to jab a hole in one of his pickup's tires. Hamilton stopped the pickup along the highway because one tire was going flat. He left Gwen in the truck and walked along the highway, ostensibly to find a place where he could phone for help. Carolyn and Gilbert picked him up in Carolyn's truck and drove him to a phone booth, where Hamilton called his mother and asked her to come help him. Mrs. Piper said she could not come until Carolyn returned with the truck. Carolyn and Gilbert then drove Hamilton back to where Gwen was waiting in the pickup. Hamilton took the shotgun, walked over to the pickup, and shot Gwen. He returned to the truck and demanded another shell. After reloading, he went back and shot Gwen again.

Gilbert drove back to the phone booth where they left Hamilton. Carolyn returned home with the truck after she dropped Gilbert off at a friend's house. Carolyn called Hamilton back at the phone booth and said their mother and stepfather were on the way. The Pipers drove Carolyn's truck to pick up Hamilton at the phone booth, and then to where Hamilton "discovered" that Gwen had been killed.

An autopsy revealed the cause of Gwen's death was shotgun wounds to the throat and chest, fired at close range. The fetus was viable and died from anoxia caused by Gwen's death.

Hamilton first told the police that Gwen had been killed while he was hitch-hiking [sic] to the phone booth. The next day, however, he said that she was killed by a Canadian whom he refused to identify. Eventually Vicki told the police of the plan to kill Gwen. With Vicki's consent, the police taped two phone calls between her and Carolyn. Carolyn and Gilbert each confessed when they were arrested, and were each charged with two counts of first degree murder with special circumstances. Both Carolyn and Gilbert agreed to plead guilty to second degree murder with a dangerous-weapon enhancement, and be sentenced to 16 years to life, in return for their testimony against Hamilton at trial. Carolyn and Gil- bert both testified at trial, identifying Hamilton as Gwen's killer.

At trial, the defense attempted to show that Gilbert might have been the actual killer. Lilly Bardsley, the clerk from K-Mart who testified for the prosecution that she sold the shotgun to Brenda and Hamilton, was recalled by the defense and testified instead that she sold the gun to Brenda's sister Sharon, who was accompanied by both Hamilton and Gilbert. Sharon, also recalled by the prosecution in rebuttal, denied purchasing the shotgun. The ATF form filled out at the time the gun was purchased was signed with Brenda's name, and the prosecutor presented expert testimony that the signature was in Brenda's, not Sharon's, handwriting. Vicki testified that when she first talked to Carolyn after the murder, she assumed Gilbert was the shooter. Another defense witness testified that prior to Gwen's murder, Hamilton told her he suspected Vicki and her boyfriend, Stephen Fitz-herbert (who was Canadian), were planning to kill him. Hamilton stated, "Well, you know my family, if they want anything bad enough, they'll kill for it." Hamilton did not testify.

The jury found Hamilton guilty as charged, and found true the charged special circumstances of intentional murder for financial gain, and two counts of multiple murder. The penalty trial was brief. The prosecutor presented documentary evidence that ten years previously Hamilton was convicted of grand theft. Defense counsel called Hamilton's mother, who testified that as a child Hamilton had been removed from the family home because of abusive conduct by his father, and placed in a series of foster homes. Hamilton requested permission to read a statement telling the penalty jury he was not guilty, but for unspecified reasons beyond his control he was not permitted to testify or present exonerating evidence, and asking the jury to "return with the penalty described by law for the crime that you have me guilty of." Defense counsel objected, and the court refused to permit Hamilton to read the statement. After approximately four hours, the jury returned a verdict imposing the death penalty.

Hamilton v. Ayers, 458 F. Supp. 2d 1075, 1086-89 (E.D. Cal. 2006) (citations omitted).

On direct appeal, the California Supreme Court modified the judgment to set aside one of the multiple-murder special circumstances but otherwise affirmed Hamilton's conviction and sentence, Hamilton, 774 P.2d at 758, and denied his petition for rehearing. The U.S. Supreme Court denied certiorari. Hamilton v. California, 494 U.S. 1039 (1990).

In June 1991, Hamilton filed a habeas petition in the United States District Court for the Eastern District of California. The district court instructed him to exhaust his state court remedies. Hamilton then filed a habeas petition in the California Supreme Court in July 1994. Following a two-day evidentiary hearing on an allegation of juror misconduct, the California Supreme Court found that no misconduct had occurred, and summarily rejected Hamilton's other claims. In re Hamilton, 975 P.2d 600 (Cal. 1999).

Hamilton filed an amended federal habeas petition in 2000. He requested an evidentiary hearing, which the district court granted only as to the issue of ineffective assistance of counsel at the penalty phase. A two-day hearing was held in December 2003, and reopened in September 2004. On October 30, 2006, the district court denied Hamilton's habeas petition in full. Hamilton, 458 F. Supp. 2d at 1152. Hamilton timely appeals from the district court's denial of his habeas petition.*fn2


The district court had jurisdiction to entertain Hamilton's habeas petition under 28 U.S.C. § 2254. We have jurisdiction over Hamilton's appeal under 28 U.S.C. § 2253.

Because Hamilton's first federal habeas petition was filed before the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), pre-AEDPA standards apply to his claims. See Correll v. Ryan, 539 F.3d 938, 941-42 (9th Cir. 2008). We review de novo the district court's denial of habeas relief, Raley v. Ylst, 470 F.3d 792, 799 (9th Cir. 2006), but review for clear error the district court's factual findings, Frierson v. Woodford, 463 F.3d 982, 988 (9th Cir. 2006). "Although less deference to state court factual findings is required under the pre-AEDPA law . . ., such factual findings are nonetheless entitled to a presumption of correctness unless they are not fairly supported by the record." Silva v. Woodford, 279 F.3d 825, 835 (9th Cir. 2002) (citing to 28 U.S.C. § 2254(d)(8)) (internal quotation marks omitted).

We also review de novo "mixed questions of law and fact, whether decided by the district court or the state courts." Jackson v. Brown, 513 F.3d 1057, 1069 (9th Cir. 2008) (Brady/Napue claim); see Fields v. Brown, 503 F.3d 755, 770 (9th Cir. 2007) (en banc) (juror bias claim); Frierson, 463 F.3d at 988 (ineffective assistance of counsel claim).


A. Guilt Phase Claims

1. Juror Bias

Hamilton challenges his conviction on grounds of juror bias and misconduct. His allegations stem from a declaration prepared by investigators from the California Appellate Project ("CAP") in 1994, which juror Geneva Gholston signed. The 1994 declaration stated that (1) before trial, Gholston discussed with a neighbor Hamilton's "ridiculous" story that a Canadian had murdered his wife, and the two agreed that Hamilton was guilty; (2) Gholston "prayed" to sit on Hamilton's jury after the spirit of her deceased Uncle Frank, who had been a bank robber and killer, exhorted her to atone for his wrongs; (3) during trial, Gholston saw the "skinnier" of Hamilton's sisters watching her from a car in the alley behind Gholston's home, which prompted Gholston to request increased police patrols; and (4) Gholston collected newspaper articles about Hamilton during the trial. In re Hamilton, 975 P.2d at 605-06, 617 n.21. "None of these matters had been brought to the attention of [the] court or counsel at petitioner's trial." Id. at 605.

Responding to the 1994 declaration, the California Supreme Court ordered the Director of Corrections to show cause why Hamilton's conviction and death sentence "should not be vacated on grounds that Juror Geneva Gholston was actually biased and/or incompetent when sworn as a juror, and that she committed prejudicial misconduct by concealing her bias during the jury selection process." Id. at 605. In 1996, at the instigation of the California Attorney General, Gholston submitted a second declaration, which stated that (1) the CAP investigators did not identify themselves as working on behalf of Hamilton; (2) they did not record or take notes of their interview with Gholston; (3) Gholston did not read or receive a copy of the 1994 declaration; (4) the 1994 declaration was wrong in several material respects, particularly with regard to Uncle Frank; and (5) the encounter in the alley did not affect her participation as a juror. Id. at 605-06.

Confronted with these conflicting declarations, the California Supreme Court ordered an evidentiary hearing, which took place in November 1997. At the hearing, Gholston, one of the CAP investigators, and others testified extensively over two full days. Id. at 606-12 (summarizing testimony). Reviewing the evidence presented at the 1997 hearing, the state court referee concluded that (1) petitioner has failed to show by a preponderance of evidence that Gholston either harbored or concealed pretrial bias, (2) any inaccurate responses by Gholston on voir dire were inadvertent, not deliberate, and (3) if Gholston saw petitioner's sister in the alley behind Gholston's home during the trial, the experience did not cause Gholston to prejudge petitioner's case.

Id. at 612. The California Supreme Court adopted the refer-ee's findings and denied Hamilton's habeas petition. See id. at 615-21.

Hamilton challenges each of these determinations, arguing primarily that the referee's findings were erroneous. Generally, we review de novo the district court's denial of preAEDPA claims of implied bias in habeas petitions, "because implied bias is a mixed question of law and fact." Fields, 503 F.3d at 770. To justify a new trial based on a claim of juror bias, Hamilton must demonstrate that a dishonest answer was given on voir dire to a material question and that the correct response would have provided a valid basis for a challenge for cause, see McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548, 556 (1984), or that his right to an impartial jury, guaranteed by the Sixth and Fourteenth Amendments, was otherwise violated by actual or implied juror bias, see Fields, 503 F.3d at 766-68; see also Morgan v. Illinois, 504 U.S. 719, 726-27 (1992); Remmer v. United States, 347 U.S. 227, 229 (1954). Hamilton must also surmount the "presumption of correctness" that we afford to the state courts' factual conclusions regarding the possibility of prejudicial misconduct. 28 U.S.C. § 2254(e)(1); see Thompson v. Keohane, 516 U.S. 99, 111 (1995) (noting requirement that presumptive weight be accorded to a trial court's resolution of factual issues, including juror impartiality, because the resolution of such issues "depends heavily on the trial court's appraisal of witness credibility and demeanor"). For the reasons that follow, we affirm the district court's rejection of these claims.

a) Implied or Concealed Bias

i. Pretrial Conversations

[1] Gholston omitted from her voir dire responses any mention of a pretrial conversation she had with a neighbor regarding Hamilton's suggestion that a Canadian had murdered his wife. In answering the voir dire questions, however, Gholston acknowledged her basic familiarity with the circumstances of the crime. In fact, when asked whether the material she had read caused her to form an opinion regarding the guilt or innocence of the defendant, she answered: "No, it really didn't." Moreover, the record confirms that "Gholston's omissions on voir dire were inadvertent, not intentional," and that "even if Gholston's voir dire answers understated her pretrial awareness and impressions about the case, particularly with respect to petitioner's claim of a Canadian killer, her omissions did not lead to the seating of a biased juror." In re Hamilton, 975 P.2d at 616.

ii. Newspaper Clippings

[2] Gholston testified at the 1997 hearing that while her husband clipped some newspaper articles to be saved for her sister, she did not personally make any clippings. The Califor- nia Supreme Court noted that the referee did not make a finding regarding whether Gholston actually clipped any articles during the trial, but concluded that even if such misconduct had occurred, "any presumption of prejudice is rebutted" because the "clippings contained mere neutral and evenhanded accounts of the trial." Id. at 617 n.21. We agree. Moreover, as the California Supreme Court observed, "[n]o strong inference of bias arises simply because a juror failed to resist the temptation to read news articles," and "[t]here is no evidence that Gholston discussed these articles with other jurors or otherwise employed them in her deliberations." Id. Therefore, the clippings do not support a claim of implied or concealed bias.

iii. Uncle Frank

Gholston testified at the 1997 hearing that as she was considering how to get out of serving on the Hamilton jury, she experienced a clearing of conscience, or a clearing of the mind, that led her to conclude that she should not fabricate an excuse to avoid jury service. In her own words: "it was just my mind cleared up and I said well, I have no excuse." At another point, Gholston testified that Uncle Frank may have caused her to have this clearing of conscience, but she also stated that he never spoke to her and she never felt his presence. Any potential inconsistency in this testimony is easily resolved through the possibilities that Gholston attributed her clearing of mind to Uncle Frank after she experienced it, or that thinking about her uncle triggered her clearing of mind. Accordingly, the record fairly supports the California Supreme Court's finding that Gholston "experienced no direct encounter with her Uncle Frank's spirit," and that the fact that she in some sense "felt the uncle's presence, and was thereby reassured to serve and to render her verdicts, did not cause her to prejudge the case." Id. at 618.

iv. The 1994 Declaration

The referee did not resolve the question of whether Gholston actually reviewed and approved the 1994 declaration pre- pared by the CAP investigators, although the referee did determine, and the California Supreme Court agreed, that the declaration's "extreme statements" regarding Uncle Frank did not "accurately convey the experience Gholston was trying to describe." Id.

[3] Hamilton argues that the enthusiasm with which Gholston repudiated all signatures and initials attributed to her, even those from the 1996 declaration prepared by the California Attorney General, as well as her extreme position that she never even saw the 1994 declaration, indicates willful deceptiveness on Gholston's part. The scope of Gholston's repudiation may have been excessive, but her vehemence at the 1997 hearing does not necessarily lead to the conclusion that all of her testimony should be discredited. Further, while the testimony of CAP investigator Scarlet Nerad did conflict with Gholston's testimony, the record demonstrates why the referee credited Gholston's testimony over Nerad's. Specifically, the 1997 hearing transcript supports the conclusions that (1) Gholston did not understand the purpose of the investigators' 1994 visits; (2) Gholston did not pay attention to what she was signing; and (3) Gholston's 1997 testimony about her experiences in 1994 and during Hamilton's trial was generally reliable, though tinged at times by exaggerated, overemphatic denials.

The State accurately distinguishes the cases Hamilton offers in support of this claim. In Dyer v. Calderon, we explicitly found not only that "the facts were not properly developed by the state court," but also that the potentially biased juror had "plainly lied" in answering certain questions and that "no rational trier of fact could find otherwise." 151 F.3d 970, 979 (9th Cir. 1998) (en banc). Specifically, the juror stated on voir dire that no member of her family had been the victim of a homicide, when in fact her brother had been murdered. Id. at 972-73. When questioned during trial about this omission, she stated she thought the killing was an accident, although the circumstances of the crime actually confirmed that the killing was deliberate. Id. at 974. Nonetheless, after a brief in camera hearing, the judge concluded the juror was not biased. Id. at 975. We disagreed, finding implied bias where a juror "chose to conceal a very major crime-the killing of her brother in a way that she knew was very similar to the way [the petitioner] was accused of killing his victims." Id. at 982. In contrast to Dyer, California provided Hamilton with a two-day evidentiary hearing on the issue of juror misconduct. Further, Gholston's incomplete voir dire answers were not "plain lies," and Hamilton has failed to demonstrate the necessary "excess of zeal" that led the Dyer panel to infer the impermissible taint of bias. Id.

Similarly, in Green v. White, the allegedly biased juror did not disclose a prior assault conviction. We found it "hard to imagine that [the juror] could have forgotten about the six months he spent in the brig for the past assault, no matter how much time had passed." 232 F.3d 671, 676 (9th Cir. 2000). In contrast, it is not hard to imagine that, several months after briefly discussing the Hamilton murder with a neighbor and reading about it in multiple newspapers, Gholston only recalled her primary source of information.

b) Actual Bias from the "Encounter"

[4] So far as the potential impact on Gholston is concerned, it is irrelevant whether Vicki (the "skinnier" Hamilton sister) and her fiancé were actually parked in the car that Gholston saw in the alley behind her home. Aside from conclusory allegations, Hamilton fails to explain how the supposed encounter engendered bias. In theory, an encounter of this nature could introduce the "kind of unpredictable factor into the jury room that the doctrine of implied bias is meant to keep out." Dyer, 151 F.3d at 982. Nonetheless, Hamilton fails to overcome the presumption of correctness we accord the state's findings on this issue. As the California Supreme Court found:

The episode described by Gholston was brief, isolated, and ambiguous. The people Gholston saw parked in her alley did not approach or speak to her. Gholston mentioned no display of weapons or threatening gestures. According to Gholston, the two individuals simply sat in their car, and they drove away rapidly the instant they realized that Gholston had seen them. By Gholston's own account, "it never occurred to [her]" to report the incident to the trial court. She further insisted she never discussed the incident with other jurors, and there is no contrary evidence.

In re Hamilton, 975 P.2d at 621 (alteration in original). We agree with the California Supreme Court that the "episode affords no basis for relief," id., and affirm the district court's conclusion that Hamilton has not shown, and the record does not reveal, that Gholston was biased against him. Cf. United States v. Armstrong, 654 F.2d 1328, 1333 (9th Cir. 1981) (finding no abuse of discretion in the district court's refusal to declare a mistrial as a result of phone calls received by a juror's husband, where the calls "did not refer to the merits," "did not articulate threats," and were not "identified with either side," and agreeing with the district court that any resulting irregularity did not compromise the "essential fairness of the process").

B. Brady and Napue Claims

[5] Hamilton claims that the prosecution suppressed evidence that "could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict." Kyles v. Whitley, 514 U.S. 419, 435 (1995); see also Brady v. Maryland, 373 U.S. 83 (1963); Napue v. Illinois, 360 U.S. 264 (1959). Specifically, he argues that the prosecution withheld evidence of certain terms of Gilbert's plea agreement and of his personal ties to one of the Sheriff's detectives who investigated the case, Detective Jay Salazar; that the prosecution ordered Gilbert to conform his testimony to a "scripted" statement and pressured him to "round up" alibi witnesses; and that the prosecution withheld evidence of concessions Vicki received in exchange for her testimony. The California Supreme Court summarily rejected Hamilton's Brady and Napue claims, and the district court denied them on the merits. The district court also denied Hamilton's request for an evidentiary hearing on these claims pursuant to Townsend v. Sain, 372 U.S. 293, 312 (1963), overruled on other grounds by Keeney v. Tamayo-Reyes, 504 U.S. 1, 5-6 (1992), and its progeny, see, e.g., Insyxiengmay v. Morgan, 403 F.3d 657, 669-70 (9th Cir. 2005). We agree with the district court.

There are three components to a Brady violation: (1) exculpatory or impeaching evidence favorable to the accused; (2) suppressed by the State; (3) resulting in prejudice. Strickler v. Greene, 527 U.S. 263, 281-82 (1999). To establish prejudice under Brady, Hamilton must demonstrate a " 'reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.' " Id. at 280 (quoting United States v. Bagley, 473 U.S. 667, 682 (1985)). In contrast, where the prosecution presents or fails to correct false evidence in violation of Napue, we assess whether there is " 'any reasonable likelihood that the false testimony could have affected the judgment of the jury.' " Jackson, 513 F.3d at 1078 (quoting Hayes v. Brown, 399 F.3d 972, 985 (9th Cir. 2005) (en banc)). "The materiality of suppressed evidence is 'considered collectively, not item by item.' " Id. at 1071 (quoting Kyles, 514 U.S. at 436).*fn3 Even viewed collectively, however, the suppressed evidence at issue does not reveal a reasonable probability that the result of Hamilton's trial would have been different. Indeed, compared to the overwhelming evidence of Hamilton's guilt, the allegedly suppressed evidence is relatively insignificant.

First, the jury received ample evidence of the connections between Gilbert's family and Detective Salazar. The significance of any additional evidence regarding these connections appears minimal and is unlikely to have altered the jury's assessment of the evidence.

Second, the State convincingly explains that Gilbert was not forced to conform his testimony to a "scripted" statement. The prosecution's treatment of Gilbert subsequent to Lilly Bardsley's identification of him as the third participant in the purchase of the shotgun at K-Mart appears consistent with a general and unsurprising concern that Gilbert might not have testified truthfully. Indeed, had Gilbert been unable to confirm his whereabouts on the Halloween evening the shotgun was purchased, the prosecution may well have been justified in withdrawing the plea agreement, which was conditioned on Gilbert's honest and truthful testimony at trial. Because Gil-bert explained the conditions of his plea agreement in open court, it is clear that everyone, including the jury, knew full well that if Gilbert had lied on the stand, he would have violated the terms of his deal. Thus, as soon as Bardsley identified Gilbert and thereby controverted his testimony, it would have been apparent that Gilbert's plea agreement was imperiled. Defense counsel's failure to examine Gilbert on this issue cannot be attributed to the prosecution. Moreover, this situation is markedly distinct from Smith v. Baldwin, in which the "prosecutor informed [a witness] that if he insisted on testifying in accordance with his recantations, the state would seek to set aside his plea agreement in this case, subjecting [him] to capital murder charges." 510 F.3d 1127, 1136 (9th Cir. 2007) (en banc). Unlike the witness in Smith, Gilbert never attempted to recant his testimony. On the contrary, after Bardsley testified that Gilbert was present at the shotgun purchase, he simply produced alibi witnesses to confirm his consistent statement that he spent the late afternoon and evening trick-or-treating.*fn4

Third, given that Gilbert faced the death penalty in the absence of his plea agreement, the prosecution's facilitation of Gilbert's release on bond during the trial appears insignificant. Moreover, Gilbert's testimony that his release on bail was not part of the plea agreement appears consistent with the statement in his declaration that "the prosecutor said he would not object to the court setting bail, and I accepted the plea bargain." After all, the court made the ultimate decision regard- ing bail, not the prosecution. Regardless, this additional inducement could not have affected the jury's scrutiny of Gilbert's testimony, given what the jury already knew about Gilbert's involvement in the murders and the other inducements he received to testify. Even assuming the prosecution's failure to correct this testimony at ...

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