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Hein v. Sullivan

April 12, 2010


Appeal from the United States District Court for the Central District of California S. James Otero, District Judge, Presiding, D.C. Nos. CV-04-03502-SJO, CV-04-03491-SJO, CV-04-03416-SJO & CV-04-03407-SJO(MLG).

The opinion of the court was delivered by: Trager, District Judge


Argued and Submitted October 7, 2009 -- Pasadena, California

Before: Andrew J. Kleinfeld and Richard C. Tallman, Circuit Judges, and David G. Trager,*fn1 District Judge.


In 1996, Brandon Hein, Micah Holland, Jason Holland*fn2 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. Petitioners' 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 attempted robbery was the only plausible theory for the instigation 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 disclosure 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.


After a joint trial, a jury found petitioners guilty of attempted robbery, burglary and felony-murder. The prosecution's theory was that a fight between petitioners on one side and McLoren and Farris on the other had ensued after petitioners 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 petitioners 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


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 makeshift 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 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 marijuana 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 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 immediately after. McLoren's mother was inside and asked what happened. 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 breathing." 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 commenced the homicide investigation. All four members of the Holland group were ultimately charged.


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 several 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 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.


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 stabbing, 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 Homicide Detectives Robert Tauson and William Neumann. McLoren denied ever having sold marijuana even though he received assurances from Detective Tauson that the authorities had no interest in prosecuting him. However, McLoren did admit keeping some marijuana for personal use. Consistent 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 "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 prosecution 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 petitioners 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, grabbing 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 recognized as a wheel locking device known as "The Club." Petitioners 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 circumstance*fn3 and appealed. The California Court of Appeals denied all of petitioners' claims except Miliotti's claim that insufficient evidence supported the special circumstance finding against him. Hein, 104 Cal. Rptr. 2d at 92. The court accordingly reduced his murder conviction to second degree. Id. at 95. He was resentenced to fifteen years to life plus four years. Regarding petitioners' claims of prosecutorial misconduct, the court found that the prosecution "contravened the trial court order excluding gang evidence" and made statements which were "unnecessary, 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 comments 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 summarily 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 recommendation, 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,*fn4 Miliotti is serving a sentence of nineteen years to life and Jason is serving a sentence of life without parole.


Petitioners raise five claims on appeal: (1) suppression of evidence in violation of Brady, (2) presentation of false testimony, (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.

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 testimony. 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 criminal liability without defense counsel pointing out their impropriety. 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 misconduct challenges individually to determine, respectively, whether the prosecution failed to disclose the July 10 letter, presented false evidence or made improper argument in summation. Although we find that the prosecution did not present false evidence, we agree with petitioners that the prosecution 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 prejudice*fn5 and encompass overlapping considerations, we analyze their effect on petitioners' convictions collectively and conclude that, to the extent the prosecution 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.*fn6 "The government 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 impeachment 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 different," 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 ...

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