Petitioner's motion for an evidentiary hearing and to expand the record came on for hearing before the court on September 21, 2011. Assistant Federal Defender Allison Claire and Attorney Robert Bloom appeared for petitioner. Deputy Attorney Generals Glenn Pruden and Bruce Ortega appeared for respondent. For the reasons set forth below, after considering the briefs and the arguments of counsel, and good cause appearing, the court grants petitioner's motion to expand the record and grants in part petitioner's motion for an evidentiary hearing.
A. Facts Presented at Trial*fn1
Early on the morning of August 17, 1980, Charles Gardner, an inmate at the California Medical Facility, Vacaville, walked down a first-floor corridor as his fellow inmates lounged against the walls on both sides. He emerged with 11 stab wounds that would shortly prove to be fatal. Nevertheless, he was able to grab a knife that an assailant had left on the floor. In pursuit of [inmate] Menefield, Gardner ran or staggered some distance up a flight of stairs to the second floor, where he plunged the knife into the chest of a prison guard, Officer Patch. Patch died within the hour at the prison clinic, Gardner shortly afterward.
Two issues dominated the trial: the identity of Gardner's murderer or murderers, and Gardner's mental state when he attacked Patch.
The prosecution sought to prove defendant killed Gardner. It offered evidence to support two scenarios, both based on a theory that Gardner was killed in a gang dispute. One possibility was that defendant and Menefield planned to kill Gardner as part of a conflict among members of the Black Guerrilla Family (BGF), a prison gang. Gardner was the protege of Ruben Williams, the Vacaville BGF leader, with whom defendant disagreed over gang tactics. However, there was evidence that cast doubt on this possibility: defendant may have obtained the prison-made knife with which he stabbed Gardner from Williams himself. The other possibility was that defendant stabbed Gardner because he had called him a "punk nigger" in the prison yard and thereby showed disrespect to a fellow BGF member. "Punk" is prison jargon for a passive homosexual. There was testimony that the term is a serious insult to many inmates, and was intolerable to defendant.
Inmates testified they saw defendant stab Gardner repeatedly and saw Menefield restrain Gardner when he tried to escape. After the incident, witness Cade was sent to maximum security for fighting with another inmate and spoke with defendant, who was being held there as a suspect. Cade testified defendant told him that he had done the deed. Cade further testified that defendant said Gardner wanted to withdraw from the BGF and had threatened another inmate, and that Williams had ordered a "move on him" if Gardner posed a threat to the inmate. According to Cade, defendant also said that after he attacked Gardner defendant ran to the third floor. Another inmate testified that he heard Menefield and defendant argue about the assault after it took place. According to that inmate, defendant asked, "Why didn't you pick up the knife?" Menefield assertedly replied, "Because I was running right behind you up the stairs." Inmate Long testified that he saw defendant stab Gardner and then run up to the third floor.
In response, defendant introduced evidence that the prosecution's key witnesses-inmates Long, Hayes, Cade, and Rooks-had won benefits from the state that gave them a motive to lie. Defendant also contended that witnesses had been housed together and had had a chance to reconcile their testimony.
Defendant did not testify at the guilt phase. He sought to prove that he was on the third floor when Gardner was stabbed. There was evidence that he had been seen at that location just after an alarm had sounded as a result of the attack and that it was impossible for him to have made his way there from the first floor in time. For its part, the prosecution introduced evidence that an agile person could run from the first floor to certain key locations in seconds and walk briskly to defendant's cell in less than one minute, and that defendant could have done so unseen.
Defendant also sought to prove that the stabbing of Gardner was not the proximate cause of his death: there was evidence that Gardner was relatively well physically on arrival at the prison clinic and died as a result of incompetent medical care.
As for Patch's killing, there was evidence that Gardner, though failing rapidly, pursued Menefield up the stairs to the second floor. Prison guards hearing the commotion rushed toward the two, seizing Menefield and, in the case of Patch, trying to secure Gardner. Gardner then stabbed Patch.
The prosecution presented expert testimony to support its theory that Gardner fell rapidly into shock from loss of blood after his stabbing and became an unconscious agent of defendant. Prison workers described Gardner as a well-behaved inmate with no innate desire to attack a guard. Defendant introduced evidence that Gardner intended to stab Patch to exact revenge on his keepers, whom he hated, and that when he attacked Patch he was physically capable of thinking for himself and merely took advantage of the opportunity presented by having a knife in hand.
In aggravation, the People introduced evidence of prior violent criminal activity and a prior felony conviction. In 1970, on his 17th birthday, defendant shot and killed a high school security guard, Obidee Cowart, and was convicted of first degree murder.
There was also evidence of continuing BGF membership found in defendant's cell at Soledad Prison, including a note addressed to defendant in Menefield's handwriting saying that a possible witness to Gardner's stabbing would have to be killed. Further, defendant had stabbed three inmates besides Gardner and had been caught with the paraphernalia of violence in prison.
Defendant testified at the penalty phase. In mitigation, he presented evidence bearing on background and character. He grew up virtually without social and emotional support. He was the eldest of five siblings, each of whom had a different father. His mother, an abusive alcoholic, was 15 when she gave birth to him; she never lived with defendant's father. When she drank she would neglect the children; she and the man she lived with for 13 years would burn and stab each other in front of them. Defendant would steal food for his siblings when his mother's welfare money went to buy alcohol. Defendant grew up in a dreary section of the Watts neighborhood in Los Angeles; when he was 12, his family moved to a notoriously dangerous housing project.
Defendant testified that he had not intended to kill Cowart but had acted instinctively in self-defense after the latter had pulled a gun on him. He also stated that he fell out with the BGF over its practice of assaulting people who disobeyed its rules or policies. For that reason, he said, the gang tried twice to have him killed. He learned that an inmate named Lynch had ordered a BGF attack on him, and stabbed him in revenge. He wanted to escape the BGF but had to maintain an appearance of continued adherence lest he be killed for trying to quit. He could not completely disassociate himself from the BGF until he was sent to Tehachapi Correctional Institution, a transfer he earned by good behavior. He testified that he had earned a high school equivalency degree and had taken college correspondence courses.
In 1983, a jury found petitioner guilty of all charges: the first degree murders of Charles Gardner and Officer Patch; conspiracy to commit murder; assault by a life prisoner resulting in death; and possession of a weapon by an inmate. (RT 7922-30.*fn2 ) The jury also found true special circumstance allegations that petitioner had previously been convicted of first degree murder, that he had committed multiple murders, and that he had lain in wait to kill Mr. Gardner. (Id.) He was sentenced to death for the murder of Mr. Gardner, and to life imprisonment without possibility of parole for Officer Patch's killing. (RT 10,233-36.) His co-defendant, Archie Menefield, was found guilty in a joint trial of similar charges stemming from the same incident, and was sentenced to life imprisonment without possibility of parole. (RT 7922-30; 10,236-37.)
In 1992, the California Supreme Court reversed the convictions as to Officer Patch and set aside the multiple murder special circumstance. The California Supreme Court affirmed in all other respects. People v. Roberts, 2 Cal. 4th 271 (1992).
In 1995, petitioner filed his first federal habeas petition in this court. (Dkt. No. 86.) In 1998, after a determination that the petition included unexhausted claims, petitioner filed a fully exhausted petition and the case was stayed while he litigated his unexhausted claims in the California Supreme Court. (Dkt. Nos. 202, 203, 205.) In August of 1999, the California Supreme Court issued an order to show cause in the state habeas proceeding. The state Supreme Court ordered respondent to address: (1) whether the prosecutor knowingly offered perjured testimony; and (2) whether trial counsel was ineffective for failing to impeach prosecution witnesses with evidence from a corrections officer that the east grille gate to the third floor at CMF-Vacaville was not locked at all times. (Dkt. No. 412-1, ex. A.) Thereafter, in March of 2000, the California Supreme Court ordered a reference hearing on the following issues:
1. What, if any, testimony did the prosecutor at petitioner's trial induce, or attempt to induce, from inmate witnesses? And if any, from which inmates? Did the inmate witnesses discuss their testimony among themselves before trial? Did the inmate witnesses' trial testimony vary from what they actually saw or heard? And specifically in addition (but without necessarily limiting the findings of fact to answering the following questions):
a. Did Raybon Long hear petitioner discuss Gardner's stabbing before it occurred? Did Long see petitioner stab Gardner? Did Long see petitioner run to the third floor after stabbing Gardner?
b. Did Richard Yacotis hear petitioner discussing the stabbing afterward? What is the truth of the claims made in Yacotis's purported August 12, 1982, letter to defense counsel?
c. Did the trial testimony of Ryland T. Cade, Robert Hayes, or David Calvin, Jr., vary from what they actually saw or heard?
d. Did Leslie H. Rooks see petitioner carrying a knife just before the stabbing? After the stabbing, when and where did Rooks first see petitioner?
e. Were attempts made to persuade George Frederick Payne to testify falsely at trial?
2. What evidence was available to defense counsel that the east grille gate on the third floor at the California Medical Facility, Vacaville, was locked or open at the time of the stabbing? What additional evidence, if any, would further investigation have produced on this point? What circumstances would have weighed against investigating the existence of or presenting any such evidence? What evidence rebutting any such evidence would have been available to the prosecution following its own investigation? Was the east grille gate open or locked at the time of the stabbing? If it was locked, could petitioner nonetheless have gone up the stairs and to his cell immediately after the stabbing?
From May 26, 2000 to January 18, 2001, Solano County Superior Court Judge Taft held an evidentiary hearing.*fn3 The California Supreme Court later summarized the evidence presented at the reference hearing before Judge Taft as follows:
Long, who testified at trial that he saw petitioner stab Gardner, but later recanted that testimony, and then recanted his recantation, was called as petitioner's witness but stated that, affected by the illicit use of drugs, he remembered little of what had happened 20 years before. On the advice of his counsel, he invoked the privilege against self-incrimination and did not testify.
Cade reaffirmed his trial testimony that he saw petitioner stab Gardner. He acknowledged that he, Long and Hayes had discussed the case before trial when they were incarcerated in the same unit, but denied they had "compared stories." Rather, Cade stated they all were nervous and reluctant to testify and just gave each other "moral support."
Yacotis, who testified at trial that, after the crimes, he heard petitioner discuss the killings with Menefield, but later recanted that testimony, stood by his recantation, testifying that Long and the other inmate witnesses conspired to win benefits for themselves in exchange for false testimony at petitioner's trial and reasserting that the prosecutor and his investigators had exhorted him to testify falsely at trial. Yacotis stated that the conversation he described at trial between petitioner and Menefield in the segregation unit in 1980, in which one asked the other, "Why didn't you pick up the knife?" never occurred. Yacotis reiterated that petitioner and Menefield were not housed near each other in the segregation wing.
Ruben Lavert Howard, an inmate at the Chino state prison, testified at the reference hearing that he had heard Long, Rooks, and Calvin discuss petitioner's case. Regarding the stabbings, "one of them said that Larry didn't do it, but he was in the hallway and another guy said something about, 'I'm going to try to get a date out of it,'" meaning a parole date. "They . . . said that Larry was in the hallway and that he didn't have nothing to do with the actual . . . crime . . . ."
Howard testified that Rooks, Calvin, and Long all said petitioner did not commit the crime and was being framed. Long later repeated that assertion. Howard further testified that he alerted his or petitioner's family to the conspirators' plans and asked them to tell the defense lawyers, but nothing happened as a result of whatever efforts, if any, they undertook.
Arthur Givens (spelled "Gibens" at trial) testified that at Chino, Long told him some people were trying to align their story about the Gardner stabbing to win release from prison, and he was scared the jury would find out they were lying.
Calvin reaffirmed his trial testimony that he saw Menefield and another unidentified prisoner, but not petitioner, stab Gardner. He also testified that after the incident, he was in a segregation wing cell adjoining petitioner's cell for six months, and petitioner never discussed the incident there. Calvin testified that he was doing "short time" at the time of the stabbings-he was due for parole in one and one-half years-so the investigators had little to offer him as an inducement in exchange for his testimony.
As regards prosecutorial misconduct, Payne testified that Horton told him that it would be worthwhile monetarily if he would testify petitioner ran to the third floor. Similarly, Kirk offered Payne money to testify that he saw petitioner and Menefield running up the stairs and down the hall. Payne refused. Payne further testified that the third floor grille gate was "mostly locked," but added that he "rarely went up to the third floor." On cross-examination, Payne stated that Kirk may not have explicitly offered him money for his testimony, but offered him some type of assistance or benefit in exchange for his testimony.
In re Roberts, 29 Cal. 4th 726, 738-39 (2003).
On May 23, 2001, Judge Taft issued written findings following the reference hearing.*fn4 Therein Judge Taft found: (1) Leslie Rooks and David Calvin did not "fabricate" "any identifiable portion of their [trial] testimony;" (2) while Raybon Long invoked the Fifth Amendment and did not testify, his "trial testimony should not be treated as believable;" (3) Richard Yacotis's testimony at the reference hearing that he lied at trial was believable; (4) Ryland Cade's "trial testimony was not truthful and varied from what he actually heard and saw;" (5) "[p]petitioner presented nothing that would indicate that [Robert] Hayes' trial testimony was false;" (6) Mr. Calvin's trial testimony did not vary from what he saw or heard; (7) Mr. Rooks' trial testimony was "credible;" and (8) George Payne lied at the reference hearing when he testified that he was induced to testify falsely. With respect to the ineffective assistance of counsel claim regarding the east grille gate, Judge Taft found that defense counsel "did not overlook any potential evidence that would have tended to show that the grille gate was locked at the time of the stabbings" and that "the third floor east grille gate was in fact open at the time of the stabbings." Finally, Judge Taft found that prosecutors had not induced the inmate witnesses to testify falsely.
In its subsequent decision denying petitioner's habeas corpus petition, the California Supreme Court disagreed with Judge Taft's findings regarding the trial testimony of inmates Long and Cade. In re Roberts, 29 Cal. 4th 726, 742-44 (2003). The California Supreme Court also found the recantation of Richard Yacotis insufficiently material to warrant habeas relief. Id. at 743. Justice Kennard and Chief Justice George dissented from the decision. They would have accepted the referee's findings and granted habeas relief because "[w]ithout the false testimony, there is a reasonable probability the jury would not have convicted petitioner of Gardner's killing." Id. at 747.
On July 15, 2003, petitioner filed a second amended federal habeas petition with this court. (Dkt. No. 248.) Petitioner filed the present motion for an evidentiary hearing and to expand the record in December of 2010. (Dkt. No. 369.)*fn5 Petitioner filed numerous exhibits in support of his motion. (Dkt. Nos. 370-393.) In addition, petitioner submitted some exhibits from the reference hearing under seal along with some new exhibits and moved for an order that they all remain under seal.*fn6 (Dkt. No. 394.) Respondent opposed the motion for an evidentiary hearing. (Dkt. No. 412.) On August 30, petitioner filed a reply. (Dkt. No. 418.)
Because petitioner's original federal habeas petition was filed in 1995, it is governed by the law in existence before passage of the 1996 Anti-terrorism and Effective Death Penalty Act ("AEDPA"), which changed standards and procedures for considering cases under 28 U.S.C. § 2254.*fn7 See Lindh v. Murphy, 521 U.S. 320, 322-23 (1997); Smith v. Mahoney, 611 F.3d 978, 995 (9th Cir. 2010).
A. Standards Governing Motion for an Evidentiary Hearing
A federal court is required to hold an evidentiary hearing where petitioner presents a colorable claim for relief and one of following standards is met:
We hold that a federal court must grant an evidentiary hearing to a habeas applicant under the following circumstances: If (1) the merits of the factual dispute were not resolved in the state hearing; (2) the state factual determination is not fairly supported by the record as a whole; (3) the fact-finding procedure employed by the state court was not adequate to afford a full and fair hearing; (4) there is a substantial allegation of newly discovered evidence; (5) the material facts were not adequately developed at the state-court hearing; or (6) for any reason it appears that the state trier of fact did not afford the habeas applicant a full and fair hearing.
To show a "colorable claim," petitioner is "'required to allege specific facts which, if true, would entitle him to relief.'" Earp v. Ornoski, 431 F.3d 1158, 1167 n. 4 (9th Cir. 2005) (quoting Ortiz v. Stewart, 149 F.3d 923, 934 (9th Cir.1998)). Petitioner need not prove his claim in order to be entitled to an evidentiary hearing. Rather, alleging a "colorable" claim is a "low bar." Id. at 1170. Thus, in Earp, the Ninth Circuit held the petitioner had made out several "colorable claims" because if his alleged facts proved true, "he may well have" successful constitutional claims. Id. at 1171.
Even where an evidentiary hearing is not mandatory, this court has discretion to hold one. Townsend, 372 U.S. at 318; Hillery v. Pulley, 533 F. Supp. 1189, 1204 (E.D. Cal. 1982) ("even where not otherwise mandated, the federal court has the discretion to hold an evidentiary hearing particularly where material issues of fact are in dispute"). "Factors relevant to the District Court's discretionary determination include the existence of a factual dispute, the strength of the proffered evidence, the thoroughness of prior proceedings, and the nature of the state court determination." Pagan, 984 F.2d at 64 (citations omitted). Moreover, "[t]he attachment of the presumption of correctness to a particular finding of fact does not deprive the federal district court of the discretion to hold an evidentiary hearing." Knaubert v. Goldsmith, 791 F.2d 722, 727 n. 3 (9th Cir. 1986) (emphasis in original). See also Richmond v. Ricketts, 774 F.2d 957, 962 (9th Cir. 1985); Pagan, 984 F.2d at 64. The fact that the state court held a hearing also does not deprive the federal court of the discretion to hold an evidentiary hearing on the same claim. See Guidry v. Dretke, 397 F.3d 306, 323-24 (5th Cir. 2005).
B. Standards Governing Motion to Expand the Record
Contrary to the argument advanced by respondent here, prior to the AEDPA, expansion of the record was not controlled by the same standards governing the holding of an evidentiary hearing. Rather, Habeas Rule 7 permitted expansion of the record with relevant materials. In this regard, it is well-established that a "judge can direct expansion of the record to include any appropriate materials that 'enable the judge to dispose of some habeas petitions not dismissed on the pleadings, without the time and expense required for an evidentiary hearing.'" Blackledge v. Allison, 431 U.S. 63, 82 (1977). The standard is simply whether the materials sought to be added to the record are "relevant to the determination of the merits of the petition." Rule 7, Rules Governing § 2254 Cases; see also Vasquez v. Hillery, 474 U.S. 254, 258 (1986); McDougall v. Dixon, 921 F.2d 518, 532 (4th Cir. 1990).
Respondent alleges that much of the new evidence presented by petitioner for the first time in this federal habeas proceeding renders his claims unexhausted. Respondent also complains that petitioner has "sandbagged" the state by waiting until he arrived in federal court to present his evidence in support of his claims to relief. This "sandbagging" argument ignores the long-recognized difficulties habeas petitioners in California face in proving their claims in state court. State habeas petitioners often receive very limited investigative funding from the state court. See R. Sanger, Comparison of the Illinois Commission Report on Capital Punishment with the Capital Punishment System in California, 44 Santa Clara L. Rev. 101, 140-41 & App. (2003) ("[T]he California Supreme Court limits funds available to the defense on direct appeal and habeas corpus proceedings. The funds available are not sufficient for expensive procedures or complex cases.") (footnote omitted). Further, prior to 2003, and at the time petitioner's state habeas petition was pending, a state habeas petitioner did not have access to discovery unless the court issued an order to show cause. People v. Gonzalez, 51 Cal. 3d 1179, 1258 (1990) (a habeas petition which does not state a prima facie case for relief "must be summarily denied, and it creates no cause or proceeding which would confer discovery jurisdiction."); People v. Ainsworth, 217 Cal. App. 3d 247 (1990). In this case, the California Supreme Court issued an order to show cause on only a limited number of petitioner's many claims. (Dkt. No. 412-1, Ex. A.) Moreover, petitioner was provided access to some of this evidence only after numerous attempts to obtain it from prosecutors and respondent's counsel. In any event, respondent's "sandbagging" argument is not relevant to this court's reasons, set forth below, for granting portions of petitioner's motions for an evidentiary hearing and to expand the record. Respondent's concern in this regard was addressed by the United States Supreme Court in Keeney and, as discussed above, this court is not bound by the Keeney cause and prejudice test unless it is considering granting an evidentiary hearing under Townsend's fifth factor. See Jones v. Wood, 114 F.3d 1002, 1012 (9th Cir. 1997).
Here, respondent's exhaustion arguments are not supported by the applicable standards for determining whether claims are exhausted. State courts must be given the first opportunity to consider and address a state prisoner's habeas corpus claims. See Rhines v. Weber, 544 U.S. 269, 273-74 (2005) (citing Rose v. Lundy, 455 U.S. 509, 518-19 (1982)); Scott v. Schriro, 567 F.3d 573, 583 (9th Cir. 2009) ("All exhaustion requires is that the state courts have the opportunity to remedy an error, not that they actually took advantage of the opportunity."); King v. Ryan, 564 F.3d 1133 (9th Cir. 2009) ("Habeas petitioners have long been required to adjudicate their claims in state court - that is, 'exhaust' them - before seeking relief in federal court."); Farmer v. Baldwin, 497 F.3d 1050, 1053 (9th Cir. 2007) ("This so-called 'exhaustion requirement' is intended to afford 'the state courts a meaningful opportunity to consider allegations of legal error' before a federal habeas court may review a prisoner's claims.") (quoting Vasquez v. Hillery, 474 U.S. 254, 257 (1986)). In general, a federal court will not grant a state prisoner's application for a writ of habeas corpus unless "the applicant has exhausted the remedies available in the courts of the State." 28 U.S.C. § 2254(b)(1). A state will not be deemed to have waived exhaustion unless the state, through counsel, expressly waives the requirement. 28 U.S.C. § 2254(b)(3).
A petitioner satisfies the exhaustion requirement by fairly presenting to the highest state court all federal claims before presenting the claims to the federal court. See Baldwin v. Reese, 541 U.S. 27, 29 (2004); Duncan v. Henry, 513 U.S. 364, 365 (1995); Picard v. Connor, 404 U.S. 270, 276 (1971); Wooten v. Kirkland, 540 F.3d 1019, 1025 (9th Cir. 2008). A federal claim is fairly presented if the petitioner has described the operative facts and the federal legal theory upon which his claim is based. See Wooten, 540 F.3d at 1025 ("Fair presentation requires that a state's highest court has 'a fair opportunity to consider . . . and to correct [the] asserted constitutional defect.'"); Lounsbury v. Thompson, 374 F.3d 785, 787 (9th Cir. 2004) (same) (quoting Picard, 404 U.S. at 276)); Weaver v. Thompson, 197 F.3d 359, 364 (9th Cir. 1999). This requires petitioner to have "characterized the claims he raised in state proceedings specificallyas federal claims." Castillo v. McFadden, 399 F.3d 993, 999 (9th Cir. 2005) (emphasis in original) (internal citation omitted). "In short, the petitioner must have either referenced specific provisions of the federal constitution or cited to federal or state cases involving the legal standard for a federal constitutional violation. Mere 'general appeals to broad constitutional principles, such as due process, equal protection, and the right to a fair trial,' do not establish exhaustion." Id. (quoting Hiivala v. Wood, 195 F.3d 1098, 1106 (9th Cir. 1999)). Thus, a claim is unexhausted where the petitioner did not fairly present the factual or legal basis for the claim to the state court. See Picard v. Connor, 404 U.S. at 275. "[I]t is not enough . . . that a somewhat similar state-law claim was made." Anderson v. Harless, 459 U.S. 4, 6 (1982). As a rule, the "mere similarity of claims is insufficient to exhaust." Duncan, 513 U.S. at 365-66.
On the other hand, "new factual allegations do not ordinarily render a claim unexhausted." Beatty v. Stewart, 303 F.3d 975, 989 (9th Cir. 2002). A claim is unexhausted only if new factual allegations "fundamentally alter the legal claim already considered by the state courts."Vasquez v. Hillery, 474 U.S. 254, 260 (1986). See also Beatty, 303 F.3d at 989-90; Weaver, 197 F.3d at 364. It is not necessary that "every piece of evidence" supporting federal claims have been presented to the state court. Chacon v. Wood, 36 F.3d 1459, 1469 n.9 (9th Cir. 1994) (emphasis in original). See also Davis v. Silva, 511 F.3d 1005, 1009 (9th Cir. 2008). Rather, the introduction of new evidence affects the fair presentation requirement only when it "substantially improves the evidentiary basis" for petitioner's claims. Aiken v. Spalding, 841 F.2d 881, 883 (9th Cir. 1988). New factual allegations that are merely cumulative of those presented to the state court do not transform the claim and thus do not require exhaustion. Hillery v. Pulley, 533 F. Supp. 1189, 1200-02 (E.D. Cal. 1982), aff'd, 733 F.2d 644 (9th Cir. 1984), aff'd, 474 U.S. 254 (1986). See also Weaver, 197 F.3d at 364 (acknowledging that although the "precise factual predicate" for a claim had changed after the evidentiary hearing in federal court, the claim remained rooted in the same incident and was therefore exhausted).
Thus, exhaustion does not require that every piece of evidence supporting the federal claim be presented to the highest state court. Davis, 511 F.3d at 1009. Rather, "to exhaust the factual basis of the claim, the petitioner must only provide the state court with the operative facts, that is, all of the facts necessary to give application to the constitutional principle upon which [the petitioner] relies." Id. (internal quotation marks omitted). Accordingly,"fair presentation" requires only that claims be alleged with as much particularity as is practicable under the circumstances. See Kim v. Villalobos, 799 F.2d 1317, 1320 (9th Cir. 1986).
As noted, it appears that respondent misconstrues the purpose of the exhaustion requirement as explained under the above authorities. The state court must merely have been given a fair opportunity to rule on petitioner's claims. That does not mean the claim presented to the state court must in every respect be the same as the claim presented in federal court. Correll v. Stewart, 137 F.3d 1404, 1414 (9th Cir. 1998) ("'claim exhaustion' does not equate to 'evidence exhaustion'"). Were that the case, many aspects of federal habeas law would be null. The pre-AEDPA statute and rules clearly contemplated the possibility of new factual development in federal court. See 28 U.S.C. § 2254(e) (evidentiary hearings); Rule 6, Rules Governing § 2254 Cases (discovery). Further, this court recognizes that requiring a petitioner to present every factual basis for his claim in state court ignores the reality that state court procedures often do not permit full fact-finding. If the petitioner presented the legal basis for the claim but was unable to make a substantial factual showing because state court procedures did not permit such fact-finding, then the state court has had a sufficient opportunity to rule on the merits of the claim and the exhaustion requirement is satisfied. See Weaver, 197 F.3d at 364-65; Miller, 677 F.2d at 1084 n.9.
In any event, respondent has not shown petitioner's new evidence fundamentally alters the claims that he presented to the state courts. Accordingly, the undersigned rejects the argument that any of petitioner's claims for federal habeas relief are unexhausted.
IV. Motion for an Evidentiary Hearing
Petitioner seeks an evidentiary hearing on claims 1, 7, 15 ,16, 29, 30, 42, and 43 of his second amended petition. This court will exercise its discretion to grant a hearing on all or portions of each of these claims. Petitioner has shown aspects of each of these claims are colorable, involve disputed material issues of fact, and were not satisfactorily resolved by the state court.
A. Prosecutorial Misconduct and False Testimony - Claim 1
Petitioner alleges pervasive prosecutorial misconduct violated his rights under the Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments. He argues that the prosecution committed multiple acts of misconduct by, among other things: (a) suppressing exculpatory evidence, including witnesses' complete rap sheets, witnesses' prior statements, consideration given for witnesses' testimony, and the mental health history of inmate witness Cade; (b) suborning perjury; and (c) presenting evidence prosecutors knew or should have known was false. In addition, petitioner alleges that his conviction was obtained based on false testimony in violation of his right to due process.*fn9
As described above, the California Supreme Court ordered a reference hearing on two aspects of this claim, that the prosecutor knowingly presented false evidence and that petitioner's conviction was based on false testimony. The California Supreme Court agreed with its appointed referee that the prosecutor did not knowingly present false evidence. In re Roberts, 29 Cal. 4th at 740-41. However, a majority of the court refused to adopt the referee's findings regarding the lack of truthfulness of the trial testimony given by inmate witnesses Long and Cade. Id. at 742-44. Justice Kennard and Chief Justice George dissented on this issue, indicating that they would have adopted the referee's findings and granted petitioner habeas relief because his conviction was obtained based on false testimony. Id. at 747.
Respondent makes much of the presumption of correctness due state court findings of fact under 28 U.S.C. § 2254(d). However, as noted above, the federal court is not bound by the presumption of correctness when determining, in its discretion, that an evidentiary hearing is warranted in this pre-AEDPA case. Knaubert, 791 F.2d at 727 n. 3. For several reasons, application of the presumption of correctness is not warranted at this point in these federal habeas proceedings. First, there was disagreement even among the justices of the California Supreme Court regarding the witnesses' credibility. As noted, the five-judge majority disagreed with many of the referee's important findings in this regard. The two dissenting justices agreed with the referee's determination and considered his findings sufficient to warrant the granting of state habeas relief. Second, respondent's counsel's failure to provide petitioner's counsel with discovery in time for preparation for, or presentation at, the state reference hearing renders application of the presumption of correctness not only inappropriate but inequitable.
Respondent also complains that the federal court should not re-hear evidence already presented and ruled on by the state courts. However, it is important to note that at this stage of these proceedings the only question is whether petitioner's claims merit evidentiary development in federal court. This court is not yet determining what evidence will be presented. Nor is this court suggesting that granting an evidentiary hearing on a given claim grants petitioner license to re-present at the evidentiary hearing all of the evidence he has already presented to the state courts.
Below, the court turns back to petitioner's claim 1 and his motion for an evidentiary hearing, addressing each aspect of that claim below.
1. Suppression of Evidence
To establish a due process violation based on the prosecution's
suppression of evidence, a petitioner must show the evidence was
"material either to guilt or punishment, irrespective of the good
faith or bad faith of the prosecution." Brady v. Maryland, 373 U.S.
83, 87 (1963). See also Youngblood v. West Virginia, 547 U.S. 867, 869
(2006) ("A Brady violation occurs when the government fails to
disclose evidence materially favorable to the accused"). The "central
premise" of the Brady decision is that "even though an individual
prosecutor may win a conviction, society as a whole loses when that
conviction is wrong." Gonzalez v. Wong, 667
F.3d 965, 981 (9th Cir. 2011). The duty to disclose favorable
evidence is applicable even though there has been no request by the
accused, United States v. Agurs, 427 U.S. 97, 107 (1976),
encompasses impeachment evidence as well as exculpatory evidence.
United States v. Bagley, 473 U.S. 667, 676 (1985); Gonzalez, 667 F.3d
at 981. "There are three essential components to a Brady claim: (1)
'The evidence at issue must be favorable to the accused, either
because it is exculpatory, or because it is impeaching,' (2) 'that
evidence must have been suppressed by the State,' and (3) 'prejudice
must have ensued.'" Jackson v. Brown, 513 F.3d 1057, 1071 (9th Cir.
2008) (quoting Strickler v. Greene, 527 U.S. 263, 281-82 (1999)). See
also Skinner v. Switzer, ___U.S. ___, 131 S. Ct. 1289, 1300 (2011);
Banks v. Dretke, 540 U.S. 668, 691 (2004); Maxwell
v. Roe, 628 F.3d 486, 509 (9th Cir. 2010). Evidence relevant to
witness credibility falls within the Brady rule where "the
'reliability of a given witness may well be determinative of guilt or
innocence.'" Giglio v. United States, 405 U.S. 150, 154 (1972)
(quoting Napue v. Illinois, 360 U.S. 264, 269 (1959)). See also United
States v. Price, 566 F.3d 900, 907 (9th Cir. 2009) ("[E]vidence that
would impeach a central prosecution witness is indisputably favorable
to the accused."); Killian v. Poole, 282 F.3d 1204, 1210 (9th Cir.
2002) (habeas relief granted where undisclosed letters would have been
valuable to the defense in impeaching "make-or-break" witness'
credibility before the jury); Singh v. Prunty, 142 F.3d 1157, 1161-63
(9th Cir. 1998) (petitioner was entitled to habeas relief where the
prosecution suppressed evidence of agreement to provide benefits to a
key witness in exchange for his testimony, and a reasonable
probability existed that had evidence been disclosed, one or more
members of jury would have viewed the witness's testimony
differently); United States v. Brumel-Alvarez, 991 F.2d 1452, 1461
(9th Cir. 1992) (Information that is required to be disclosed under
Brady "includes "material . . . that bears on the credibility of a
significant witness in the case.") (quoting United States v. Strifler,
F.2d 1197, 1201 (9th Cir. 1988)). The fact that the defense
introduced substantial evidence at trial to impeach a witness's
credibility does not foreclose the consideration of other avenues of
impeachment. "[W]ithheld impeachment evidence does not become
immaterial merely because there is some other impeachment of the
witness at trial." Gonzalez, 667 F.3d at 984. Information of "new
avenues of impeachment" could lead a fact finder to question the
of a witness who has been impeached by other evidence.*fn10
Id. at 984-85.
The standard for determining prejudice under Brady is whether there is a "reasonable probability" that the result of trial would have been different had the evidence been disclosed to the defense. Strickler, 527 U.S. at 289. "The question is not whether petitioner would more likely than not have received a different verdict with the evidence, but whether "in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence." Id. (quoting Kyles v. Whitley, 514 U.S. 419, 434 (1995)). See also Hein v. Sullivan, 601 F.3d 897, 906 (9th Cir. 2010); Silva v. Brown, 416 F.3d 980, 986 (9th Cir. 2005) ("a Brady violation is established where there 'the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict'"). Prejudice is measured by looking at the withheld evidence as a whole, "in the context of the entire record." Maxwell v. Roe, 628 F.3d 486, 512 (9th Cir. 2010) (quoting United States v. Agurs, 427 U.S. 97, 112 (1976)), cert. denied, ___U.S.___, 132 S. Ct. 611 (2012). "The cumulative effect of all undisclosed evidence may violate due process and warrant habeas relief." Id. See also Barker v. Fleming, 423 F.3d 1085, 1094 (9th Cir. 2005). Once the materiality of the suppressed evidence is established, no further harmless error analysis is required. Kyles, 514 U.S. at 435-36; Silva, 416 F.3d at 986.
Petitioner argues the prosecution suppressed the following evidence: (1) information that witness Ryland Cade suffered from severe and long-term mental illness, and other matters related to Cade's credibility; (2) the prior convictions and prior informant activity of witnesses Robert Hayes, Leslie Rooks, and William Acker, as well as the benefits received by each for testifying; (3) information about victim Charles Gardner's mental state and violent character; (4) a statement by inmate witness Alexander Vichi that Mr. Menefield and someone other than petitioner were the actual assailants; and (5) a statement by another inmate witness, possibly Marcus Richardson, that also identified someone other than petitioner as the second assailant of Gardner.
a. Evidence re Ryland Cade
At trial, Ryland Cade testified to the following. The morning of the crime, he saw that petitioner had a prison knife, with something white wrapped around the handle, tucked into his waistband inside his unfastened jacket. (RT 2912:11 - 2913:14; 2995:5-6.) As Mr. Cade walked downstairs to the first floor, he encountered Raybon Long on the stairs..*fn11 (RT 2901:1, 2902:27 - 2903:1.) Mr. Long warned him someone was about to be assaulted. (RT 2903:3-23.) Mr. Cade saw petitioner stab Charles Gardner. (RT 2917:1-7, 2919:9 - 2920:21.) He saw Archie Menefield grab Mr. Gardner by his clothes and pull him down. (RT 2921:16 - 2923:9.) Mr. Cade testified he saw petitioner drop the knife and run up the stairs, followed by Menefield. (RT 2923:23 - 2924:24.)
Mr. Cade also testified at trial that he later got into a fight and was placed in "the hole," a segregated unit, in a cell near petitioner's cell.*fn12 (RT 2943:24 - 2945:6.) While there, petitioner told him that he had killed victim Gardner and then ran to the third floor. (RT 2945:27-28, 3008:18-26.) Cade testified that he did not discuss the case with other inmate witnesses when he was housed at Chino before petitioner's trial. (RT 2953:18 - 2954:27.) Mr. Cade was housed at the Contra Costa County Jail with David Calvin, Raybon Long, and Robert Hayes during petitioner's trial. (RT 3036:7-15.) He testified he also did not discuss his testimony with the other inmate witnesses at that time either. (RT 3036:16-20.)
Cade testified at trial that he asked prosecutor Charles Kirk and Department of Justice Investigator Norman Gard about an early parole date. (RT 3033:16-28.) He testified that he was told they "couldn't" do that. (RT 3034:3-5.) Cade denied that prosecutor Kirk helped make arrangements so that he could be married while in prison. (RT 3035:13-28.) Cade testified that, with regard to his federal imprisonment, the only thing Mr. Kirk had done for him was write a letter on his behalf to the federal authorities. (RT 3115:15 - 3116:1.) This letter was admitted at trial as Exhibit 46. (RT 3115, 4032.)
Defense counsel questioned Mr. Cade about his inconsistent prior statements he had made in three interviews with correctional officers and the prosecutor and during his testimony at petitioner's preliminary hearing. (See, e.g., RT 3006-3008(re Aug. 25, 1980 interview with Officers Horton and Hartman); 3009 (re prelim. hrg. testimony); 3015-3017 (re Apr. 16, 1981 interview with prosecutor Kirk); 3053-3054 (re Sept. 5, 1980 interview with Horton and Hartman); 3072-3077 (re all three interviews and prelim hrg. testimony).)
At the reference hearing ordered by the California Supreme Court, Mr. Cade testified he was incarcerated in 1980 after being convicted of two murders. (RH RT 804-805.) Cade testified that he did in fact talk with inmates Calvin, Long, Hayes and Rooks about the case when they were all housed in the Contra Costa County Jail. (RH RT 1123:1 - 1124:1.) Cade asserted his Fifth Amendment privilege and refused to answer questions about whether he had been truthful in his trial testimony about the presence of Raybon Long at the crime scene. (RH RT 1127:2-22.) Cade also refused to answer questions about the crime. (RH RT 1165-1170.) However, Cade later testified that he saw petitioner and then Archie Menefield run up the stairs. (RH RT 1223:10-26, 1224:10-18.) He also testified he did not remember seeing anyone else on the stairway. (RH RT 1223:25-27.*fn13 ) Cade testified later that he believed Long was near the mail room when Charles Gardner was attacked. (RH RT 1247:16-18.) Cade admitted that he had testified for the prosecution in a prior case. (RH RT 1179:1-8.) Cade recalled asking prosecutor Kirk for an early release. (RH RT 1183:18 - 1184:7.)
Mr. Cade also testified at the reference hearing that he has been under the care of a psychiatrist since 1976. (RH RT 1227:18-20.) At one point, he was sent to a mental hospital to be evaluated for competency to stand trial. (RH RT 805:15-20.) He took medication on and off when he was at CMF. (RH RT 1227:21-22.) When he was not taking his prescribed medication, he sometimes heard voices. (RH RT 1227:28 - 1228:1, 24.) In the April 16, 1981 interview with prosecutor Kirk, Cade stated, "All my life I've been on medicine and I woke up. I've been off medication for two weeks, and I feel like a brand new man, like I've been reborn in a lot of ways because it made me feel good that I don't take medicine. It should make me a normal person again." (RH RT 1238:18-25.)
Mr. Cade eventually testified at the reference hearing that he saw petitioner stab Charles Gardner. (RH RT 1313:26 - 1314:1.)
Petitioner argues that prosecutor Kirk suppressed and failed to provide to the defense substantial information regarding Mr. Cade's mental illness, prescribed medications, criminal history, and the benefits he received for testifying at petitioner's trial.
ii. Suppression of Mental Health Evidence
At the time of petitioner's trial, mental health evidence regarding a witness, particularly evidence of severe mental illness such as psychoses, may have been admissible to impeach the witness. See People v. Reber, 177 Cal. App. 3d 523, 530 (1986) ("Certain types of mental disorders are highly probative on the issue of a witness' credibility. For example, the veracity of one afflicted with a psychosis such as paranoid schizophrenia may be impaired by distortions in his ability to perceive and recall events; a schizophrenic who suffers delusions and hallucinations may have difficulty distinguishing fact from fantasy.") Mental health evidence is the sort of potentially impeaching evidence that a prosecutor is required to provide the defense under Brady. See Gonzalez, 667 F.3d at 983 ("Courts have long recognized the impeachment value of evidence that a government witness has a severe illness, such as schizophrenia, that dramatically impaired [his] ability to perceive and tell the truth."); see also Wilson v. Beard, 589 F.3d 651, 665 (3rd Cir. 2009); East v. Johnson, 123 F.3d 235, 238 (5th Cir. 1997); cf., Benn v. Lambert, 283 F.3d 1040, 1056 (9th Cir. 2002) (Brady requires evidence of a witness's drug use should have been revealed to defense because it was relevant to impeach the witness's "ability to recollect or perceive the events."). Even though a witness may be impeached at trial with evidence of his criminal record and history as an informant, new evidence of the same witness's mental illness would not be cumulative and could cause the fact finder to question the witness's "competency to perceive and tell the truth." Gonzalez, 667 F.3d at 984.
Petitioner argues the following evidence from Mr. Cade's CDC file regarding Cade's mental health was not provided to the defense until the reference hearing: (1) a summary of the probation officer's report regarding Cade's Los Angeles County murder case which describes the court's finding of his mental incompetence; (2) a CMF psychiatric intake report dated February 2, 1978 indicating Cade had received psychiatric treatment in Louisiana, had a history of alcohol abuse, had suffered a severe head injury at age 16, and has received a diagnosis of "organic brain syndrome;" (3) a CDC intake report dated January 31, 1978 reflecting that Cade had a history of blackouts, and alcohol and drug abuse; (4) a psychiatric evaluation dated March 27, 1979 which listed Cade's diagnosis as "schizo-affective schizophrenia," listed abuse Cade had inflicted upon himself and concluded that "psychotic content persists;" (5) a March 8, 1978 report of a transfer from Chino to CMF because Cade was psychotic; (6) an April 1, 1980 psychiatric evaluation which gave a diagnosis of "borderline personality disorder;" (7) a November 13, 1980 report indicating that Cade had a "psychotic history" and was supposed to be taking the anti-psychotic drug Navane; (8) a document dated February 7, 1978, which indicated Cade was then taking the anti-psychotic drug Stelazine; (9) an parole document from April of 1978 stating that Cade had a "serious mental disorder;" and (10) a January 1978 pre-sentence report which stated that Cade used cocaine daily, suffered from blackouts and had been in a mental hospital in Louisiana; (Reference Hearing Exhibit ("RH Ex.") GGG, filed under seal per March 28, 2012 order.*fn14
In addition, petitioner presents the reports of two psychiatrists who found Mr. Cade incompetent to stand trial in 1977 and the Los Angeles County Superior Court opinion finding Cade incompetent. (Exs. 2 and 3 to State Pet., lodged here in Ex. 27 to Answer; see Dkt. No. 263.)
One of the most obvious, and damning, indications that prosecutor Kirk knew of Mr. Cade's mental illness and purposefully kept it from the defense, is Cade's rap sheet. Information on the copy of that rap sheet produced to the defense by the prosecution was redacted. (Dkt. No. 391-4, RH Ex. II.) Petitioner has submitted to this court an unredacted version of what appears to be the identical rap sheet. (Ex. 203 to Mtn. for Evi. Hrg., filed under seal per March 28, 2012 order, at p. AGO-5708, .) Petitioner states he obtained a copy of the unredacted version through federal discovery of prosecutor Kirk's case file. (Dkt. No. 369 at 63:17-20 & n. 86.) A comparison of the two shows that someone redacted the word "INSANE" / next to an entry regarding Cade's Los Angeles murder case.*fn15 In addition, Cade's location in a prison mental health hospital, was also redacted, as was Cade's murder conviction itself. Other direct indications that prosecutor Kirk knew about Cade's mental health history include Cade's statement to Kirk that "All my life I've been on medication. . . ." (Ex. 203 to Mtn. for Evi. Hrg., filed under seal per March 28, 2012 order, at p. AGO-5691.)
Prosecutor Kirk testified at the reference hearing that he revealed the rap sheets to the trial judge in camera. (RH RT 1675:12-18.) According to Mr. Kirk, the trial judge instructed him regarding what information from Cade's rap sheets needed to be disclosed to the defense "and I did that." (RH RT 1675:28 - 1676:1.) Kirk further testified that Cade's mental problems "had nothing to do with credibility" and that the prosecution was not required to produce to the defense all felony records of all prosecution witnesses.*fn16 (RH RT 1676:19 - 1677:2, 1679:8-9.) It should be noted that there is no record before this court corroborating Kirk's claim that the trial court directed him to suppress certain information about the witnesses' criminal records.
Petitioner's mental health expert, Dr. Tucker, testified at the reference hearing that the medical records showed Mr. Cade was supposed to be taking the psychiatric drug Navane at the time of the crime. (RH RT 2629:1-7.) According to petitioner, the prosecution witnesses' medications list provided to the defense before trial did not list Navane as one of Cade's prescribed medications. Dr. Tucker testified that Navane controls hallucinations and delusions and reduces thought disorders. (RH RT 2629-31.) From his review of the records, Dr. Tucker concluded that Cade suffers from a "severe psychotic disorder." (RH RT 2631:22-24.) Dr. Tucker testified that while he could not be certain due to the passage of time, he felt it was likely Cade's mental illness impaired his perception of events at the time of the crime for which petitioner was convicted. (RH RT 2636:3-16; RH Ex. FFF, submitted for filing under seal,*fn17 at 5.)
The referee, Judge Taft, refused to make a finding regarding Cade's mental state at the time of the crime or the time of petitioner's trial. (Ex. 74 to Answer at 8; see Dkt. No. 263.) However, the referee did review Dr. Tucker's opinions and found that Cade's testimony at the reference hearing was "evasive and often at variance with prior testimony." (Id.) The referee also noted that the California Supreme Court had already found that Cade's trial testimony had been thoroughly impeached. (Id.) Based on these considerations, the referee found that Cade's trial testimony was untruthful. (Id.) The majority of the California Supreme Court rejected the referee's finding in this regard because "it was not based upon new evidence that had not been presented to the jury, but upon Cade's demeanor while testifying at the reference hearing and essentially repeating his trial testimony." 29 Cal. 4th at 744. In fact, however, it does not appear that Judge Taft so limited the bases for his finding that Cade's trial testimony was untruthful. While Judge Taft declined to make a specific finding regarding Cade's mental state, it appears that he nonetheless considered the mental state evidence in determining that Cade had not been truthful at trial. Moreover, the evidence presented at the reference hearing, along with new evidence presented to this court, raises a significant question regarding the reliability of Cade's testimony at petitioner's trial. Further, that evidence raises serious questions about what prosecutor Kirk knew or should have known about the reliability of Cade's testimony which he presented at petitioner's trial.
iii. Suppression of Other Information re Cade
Petitioner also argues the prosecution suppressed both evidence of Cade's criminal history and of benefits Cade requested and received. Both of these categories of information fall well within the ambit of Brady. See Jackson v. Brown, 513 F.3d 1057, 1070-71 (9th Cir. 2008) (benefits provided to witness constitute Brady material); Benn, 283 F.3d at 1048-49 (same as to witness's prior informant activity and lies to law enforcement); Carriger v. Stewart, 132 F.3d 463, 479-82 (9th Cir. 1997) (en banc) (witness's criminal record, history of false statements to law enforcement and history of blaming others for his misdeeds found to constitute Brady material); United States v. Shaffer, 789 F.2d 682, 690 (9th Cir. 1986) ("facts which imply an agreement" must be disclosed to the defense); In re Pratt, 69 Cal. App. 4th 1294, 1310-11 (1999) (same as to witness's prior informant activity).
Petitioner argues the prosecution suppressed the following non-mental health related evidence reflected in Cade's criminal history: (1) a July 1980 report in Cade's CDC file from the United States Attorney for the District of South Carolina containing information that Cade had assisted the prosecution of a case there but had been untruthful; (2) documents regarding a 1975 stabbing incident in Louisiana; (3) a pre-sentence report from Cade's Los Angeles case in which, among other things, Cade is described as "untruthful" and "unreliable;" and (4) Cade's Los Angeles and South Carolina murder convictions. (Exs. 203 at p. AGO-5708 and 204 at C0066, filed under seal per March 28, 2012 order; Ex. 205 (L.A. case), submitted for filing under seal; Dkt. No. 372-1, Ex. 206 (S. C. case); RH Ex. GGG, filed under seal per March 28, 2012 order, at 173, 11, 137, 44-46, 73.) As described above, the prosecution redacted Cade's 1979 Los Angeles County murder conviction from the rap sheet produced to the defense. In addition, Cade's January 1980 murder conviction in federal court in South Carolina was not disclosed to petitioner's defense. In fact, a prosecution filing at trial specifically represented that Cade had "NO CONVICTIONS AVAILABLE FOR IMPEACHMENT." (Dkt. No. 392-1, RH Ex. KK.) Yet, petitioner has presented proof to this court of both of Cade's felony convictions.
(Ex. 205 to Mtn. for Evi. Hrg., submitted for filing under seal; Dkt. No. 372-1, Ex. 206 to Mtn. for Evi. Hrg., at 7-8.) Petitioner asserts that both of these convictions would have been admissible to impeach Cade's credibility under California Penal Code § 788. The California Supreme Court has held that the prosecution witnesses' prior felonies should have been revealed to the defense in this case. Roberts, 2 Cal. 4th at 308.
Petitioner also claims the prosecution suppressed the following evidence regarding benefits possibly conferred on Cade in exchange for testifying at petitioner's trial: (1) a September 23, 1981 letter from Cade to Department of Justice Investigator Norman Gard asking that prosecutor Kirk write "the letter" to the federal parole board to help Cade "get out"*fn18 ; (2) notes regarding "marriage forms for Cade" (Dkt. No. 372-2, Ex. 208 to Mtn. for Evi. Hrg.); (3) Cade's September 30, 1981 letter to Gard asking for help in obtaining his girlfriend's release from custody (Dkt. No. 372-3, Ex. 209 to Mtn. for Evi. Hrg.); (4) Cade's February 18, 1982 letter to prosecutor Kirk asking if he had "checked on the camps" and asking Kirk to thank Officer Hartman "for the gifts" (id.); (5) Cade's March 9, 1982 letter to DOJ investigator Gard asking for money (id.); (6) Cade's August 18, 1982 letter to Gard which Cade signed "Your Slave" (id.); and (7) information that prosecutors arranged for Cade to have a tattoo removed while incarcerated.*fn19 (Ex. 207, filed under seal per March 28, 2012 order; Ex. 104, submitted for filing under seal; Dkt. No. 248 at 77-78, 172-173).
Finally, petitioner argues that prosecutors in his case suppressed the statements of two different inmates to the effect that Cade was not even at the scene of the incident. (Dkt. Nos. 371-4 and 371-5, Exs. 201 and 202 to Mtn. for Evi. Hrg.)
b. Suppression of Other Evidence
Petitioner also alleges prosecutors failed to turn over information which would have impeached the credibility of three other prosecution witnesses. In addition, he argues the prosecution suppressed evidence of victim Gardner's mental state and violent character, and evidence that inmate Alexander Vichi had identified someone besides petitioner as the other assailant.*fn20
Robert Hayes was one of the three inmate witnesses who testified at trial that he saw petitioner stab Gardner. (RT 2270:13-18.) Mr. Hayes testified for the prosecution as follows. Early on the morning of the crime, Mr. Hayes was working at his job as a clerk in the prison medical clinic. (RT 2228:17-18, 2233:6 - 2234:3.) Petitioner came by the clinic. (RT 2234:12-20.) Petitioner asked Hayes if alcohol could remove fingerprints and blood. (RT 2245:14 - 2246:4.) Hayes testified he saw petitioner attempting to wrap a prison-made knife with an ace bandage. (RT 2292:7 - 2293:20.) Petitioner then asked for some paper tape. (RT 2246:11-21.) Paper tape is white. (RT 2294:25-26.) Petitioner went into a back room where the paper tape is kept and Hayes saw him wrapping tape around the knife. (RT 2248:14 - 2250:5.) When Hayes questioned petitioner about the knife, petitioner told him he could not let Gardner get away with disrespecting him. (RT 2251:10-14.) Hayes testified he looked into the hallway from the window of the clinic and saw petitioner stab Charles Gardner. (RT 2270:5 - 2272:7.) Hayes did not discuss the case with other inmate witnesses when he was housed at Chino or at the Contra Costa County Jail before trial. (RT 2299:22 - 2300:9.)
Mr. Hayes died before the reference hearing. (Ex. 74 to Answer at 8; see Dkt. No. 263.) Petitioner claims the prosecution suppressed evidence of Hayes' prior conviction by giving the defense the date of that conviction as January 1981, rather than the correct date of January 1982. The prosecution did not provide the defense with all of Hayes' prior convictions. Reference Hearing Exhibit MM is the prosecution's list of Hayes' prior felony convictions which was provided to the defense at trial. (Dkt. No. 392-3.) That list omits a felony forgery conviction which Hayes suffered in Mississippi. (Dkt. No. 373-5 and 374-1, Exs. 216 and 217 to Mtn. for Evi. Hrg.) It also omits a series of burglaries of which Hayes was convicted that were committed when he was released shortly after Gardner's killing.*fn21 (Dkt. Nos. 373-5 and 374-3, Exs. 216 and 219 to Mtn. for Evi. Hrg.) In addition, near the end of the reference hearing petitioner was for the first time provided with two letters Hayes wrote to prosecutors. The first, dated January 27, 1982, is directed to Department of Justice Investigator Norman Gard. (Dkt. No. 374-4, Ex. 220 to Mtn. for Evi. Hrg.*fn22 ) Therein, in Hayes indicates he had prior conversations with Agent Gard in which they discussed Hayes' then upcoming sentence and arrangements that had been made to house him at Chino. (Id.) In addition, the letter reflects that Hayes was acting as an informant with respect to a number of prisoners. (Id.) The second letter, dated September 24, 1982, is addressed to prosecutor Kirk. (Id.) Therein, Hayes refers to a meeting with Kirk in which they discussed witness protection programs. (Id.) Hayes also mentions in the second letter that Kirk said he would write a letter to the Board of Prison Terms on Hayes' behalf. (Id.) Both of these letters, and the meetings of Hayes with prosecutor Kirk and Agent Gard, were not revealed to the defense.
Leslie Rooks testified at petitioner's trial as follows. On the morning of the stabbing he saw petitioner with a knife. (RT 2040:11-12, 2042:6-7, 2064:7 - 2065:3.) Mr. Rooks saw petitioner on the third floor immediately after the alarm sounded. (RT 2043:5-27.) Petitioner was dressed in his underwear. (Id.) When Rooks had seen him earlier, petitioner had been wearing a jacket and pants. (RT 2043:28 - 2044:11.) In connection with his cooperation with authorities Rooks had received a letter from prosecutor Kirk to his parole authorities, thirty dollars in his inmate trust account, placement in protective custody, and help in transferring to a facility of his choice consistent with his security considerations. (RT 2054:8-21.)
In 1995, Mr. Rooks signed a declaration stating that he did not see petitioner with a knife that morning and that petitioner was with him on the third floor at the time the alarm sounded. (Ex. 27 to State Pet., lodged here in Ex. 28 to Answer; see Dkt. No. 263.) Petitioner asserts that Rooks "reaffirmed" these two statements in his testimony at the reference hearing. (Dkt. No. 248 at 178:9-14.) However, petitioner does not provide citations to the reference hearing transcript to support this assertion. The court did locate Mr. Rooks' reference hearing testimony in which he stated that he remembered petitioner was with him on the third floor when the alarm went off. (RH RT 101:1-9.) In the Answer, respondent points to Rooks' testimony at the reference hearing that he saw petitioner with a knife on the morning before the stabbing and that he testified truthfully at trial. (RH RT 107:2-13, 324:27-28.) The referee found that Rooks' trial testimony was credible. (Ex. 74 to Answer, at 9; see Dkt. No. 263.)
Petitioner states that the prosecution failed to turn over Mr. Rooks' rap sheet, which would have shown that his commitment offense of murder was extremely brutal. (Dkt. No. 248 at 152 n. 119.) In addition, prosecutors failed to reveal that Rooks had previously served as an informant. (Dkt. No. 204, Ex. 14 to First Am. Pet.; Ex. 226, filed under seal per March 28, 2012 order, at p. RK931.) Petitioner argues prosecutors failed to disclose monetary benefits given to Rooks. (RH Ex. Z, lodged here as Ex. 97 to Answer, see Dkt. No. 273; Dkt. No. 393-1, RH Ex. WW.*fn23 ) In Exhibits 226, 228, and 229 to his motion, petitioner presents evidence of prosecutor Kirk's efforts over the years to assist Mr. Rooks in obtaining parole. (Dkt. No. 375-5, Ex. 229; Ex. 226, filed under seal per March 28, 2012 order; Ex. 228, submitted for filing under seal.)*fn24
William Acker testified at the penalty phase of petitioner's trial that petitioner stabbed him in 1973. (RT 9424:3-8.) Acker's testimony was supported by the testimony of correctional officers who reported at the time of the incident that petitioner likely was the perpetrator of that stabbing. (RT 9441 - 9459.) Petitioner claims the prosecution failed to turn over Mr. Acker's rap sheet and failed to notify the defense of Acker's prior informant activity. (Dkt. No. 248 at 152:3-4; Dkt. No. 369 at 18:11-12.) Petitioner presents information about Acker's two guilty pleas in cases in which he testified against his wife. (Dkt. No. 376-4, Ex. 235 to Mtn. for Evi. Hrg.; Ex. 234, submitted for filing under seal.) Petitioner also presents evidence of Acker's involvement as an informant in the death penalty case of Jesse Gonzalez. (Dkt. Nos. 376-5 and 377-1, Exs. 236 and 237 to Mtn. for Evi. Hrg.) Acker testified at Gonzalez's trial in 1980 that he had served as an informant in other cases as well. (Ex. 236 at 13-15, 61-63.)
On December 7, 2011, petitioner filed a Notice of Supplemental Authority regarding Acker. (Dkt. No. 420.) Therein petitioner cites the recent Ninth Circuit decision in Mr. Gonzalez's capital habeas case. Gonzalez v. Wong, 667 F.3d 965 (9th Cir. 2011). Mr. Acker was the primary prosecution witness against Gonzalez at both the guilt and penalty phases of that case. The Ninth Circuit held that the prosecution suppressed evidence of Acker's mental illness (schizophrenia) and history of lying and manipulating. Id. at 981. Even though the Gonzalez defense had introduced evidence of Acker's murder conviction and history of acting as an informant at trial, the Ninth Circuit found the new evidence of his mental illness was a sufficient basis on which to conclude that petitioner Gonzalez had made a colorable showing that he could succeed on his Brady claim. Id. at 981-86.
At trial, the prosecution's theory was that Charles Gardner was
ambushed by petitioner and Archie Menefield. According to petitioner,
one defense theory was that the fight was spontaneous.*fn25
Petitioner argues evidence relating to the victim's violent
and volatile nature would therefore have been relevant at the guilt
phase of his trial. In addition, petitioner claims the information
would have been admissible at the penalty phase of his trial under
California Penal Code § 190.3(e) ("Whether or not the victim was a
participant in the defendant's homicidal conduct or consented to the
homicidal act."). (Dkt. No. 369 at 19 n. 22.)
Petitioner alleges the prosecution withheld documents showing Mr. Gardner conspired to stab an inmate named Harmon in 1979 and was placed in segregation as a result. (Dkt. No. 248 at 110:24 - 111:7.) Exhibit 19 to the First Amended Petition is a letter from inmate Wilbert Cross to an associate superintendent at CMF in which he appeals his and Charles Gardner's placement in isolation pending an investigation into a stabbing. (Dkt. No. 204.) Exhibit 20 is a report by Lt. Hartman which states that both Cross and Gardner were released from administrative segregation even though officers believed they were probably involved in the stabbing of Harmon "in a conspiratorial status." (Id.) That report recommended that the appeal letter be placed in the CDC files of both inmates. Petitioner argues that the trial testimony of Officer Tipton that Gardner had no CDC form 115 disciplinary reports after January 1977 was therefore false or, at the very least, misleading.*fn26 (RT 1792:7-13.)
In 1995, inmate Alexander Vichi signed a declaration stating that he saw two inmates hitting another inmate on the morning of the stabbing. He saw the thinner assailant, who had "unusual ears," drop a knife and run up the stairs. He saw this man brought to the first floor in handcuffs right after the assault. He recalled the second assailant was wearing a Muslim type cap. Mr. Vichi stated that he was questioned by officers after the incident and identified the two men from photographs. (Ex. 41 to State Pet., lodged here in Ex. 28 to Answer.)
At the reference hearing, Mr. Vichi testified similarly. (RH RT 1372-74.) Petitioner does not explain, however, why he believes Vichi's reference hearing testimony reflects that he identified Archie Menefield and someone other than petitioner as the assailants. Vichi testified at that hearing that no one in the courtroom looked familiar to him. (RH RT 1374:15-22.) However, he also indicated he might not remember what the assailants looked like.
In this regard, Vichi stated simply, "Twenty years is a long time." (RH RT 1374:18.)
c. Conclusion re Suppression of Evidence Claim
Petitioner has proffered sufficient evidence to support a colorable claim that the prosecution suppressed material evidence regarding the credibility of witnesses Ryland Cade, Robert Hayes, and Leslie Rooks. Petitioner has also presented sufficient evidence that prosecutors suppressed evidence that Charles Gardner was involved in a prison stabbing. While Gardner was not convicted of that stabbing, information that officers suspected he was involved in the stabbing arguably could have been introduced to counter the prosecution's evidence that Gardner had been non-violent in the three years before his death. However, given the paucity of evidence presented, the court finds petitioner has not made a colorable argument that the prosecution suppressed any evidence regarding Alexander Vichi.*fn27
2. Presentation of False Testimony
Petitioner claims prosecutor Charles Kirk presented at trial the false testimony of Ryland Cade, Raybon Long, Leslie Rooks, Richard Yacotis, and Robert Hayes. That testimony was significant. Long, Cade and Hayes were the only three witnesses to testify they saw petitioner stab Gardner. Yacotis testified that petitioner made incriminating statements after the killings. Rooks testified he saw petitioner with a knife shortly before the stabbing.
A violation of a defendant's constitutional rights occurs if the government knowingly uses false evidence in obtaining a conviction. Giglio v. United States, 405 U.S. 150, 153-54 (1971); Napue, 360 U.S. at 269; see also United States v. Agurs, 427 U.S. 97, 103 (1976) (""[T]he Court has consistently held that a conviction obtained by the knowing use of perjured testimony is fundamentally unfair."); Morales v. Woodford, 388 F.3d 1159, 1179 (9th Cir. 2004) ("The due process requirement voids a conviction where the false evidence is 'known to be such by representatives of the State.'") (quoting Napue, 360 U.S. at 269) It is clearly established that "a conviction obtained by the knowing use of perjured testimony must be set aside if there is any reasonable likelihood that the false testimony could have affected the jury's verdict." United States v. Bagley, 473 U.S. 667, 680 n.9 (1985). See also Maxwell v. Rose, 628 F.3d 486, 506 (9th Cir. 2010); Killian v. Poole, 282 F.3d 1204, 1209-10 (9th Cir. 2002) (habeas relief was to be granted where "there is a reasonable probability that, without all the perjury, the result of the proceeding would have been different.") Due process is violated in such circumstances regardless of whether the false testimony was obtained through the active conduct of the prosecutor, Hysler v. Florida, 315 U.S. 411 (1942); Mooney v. Holohan, 294 U.S. 1033 (1935), or was unsolicited. Napue, 360 U.S. at 269 ("[t]he same result obtains when the State, although not soliciting false evidence, allows it to go uncorrected when it appears"). This rule applies even where the false testimony goes only to the credibility of the witness. Napue, 360 U.S. at 269; Mancuso v Olivarez, 292 F. 3d 939, 957 (9th Cir. 2002).
"To establish a Napue claim, a petitioner must show that '(1) the testimony (or evidence) was actually false, (2) the prosecution knew or should have known that the testimony was actually false, and (3) . . . the false testimony was material.'" Towery v. Schriro, 641 F.3d 300, 308 (9th Cir. 2010) (quoting United States v. Zuno--Arce, 339 F.3d 886, 889 (9th Cir.2003)), cert. denied, ___U.S.___, 132 S. Ct. 159 (2011). See also United States v. Polizzi, 801 F.2d 1543, 1549-50 (9th Cir. 1986); United States v. Juno-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." Hein v. Sullivan, 601 F.3d 897, 908 (9th Cir. 2010) (quoting Bagley, 473 U.S. at 678). Mere speculation regarding these factors is insufficient to meet petitioner's burden. United States v. Aichele, 941 F.2d 761, 766 (9th Cir. 1991).
The California Supreme Court ruled on petitioner's claim that his conviction was based on false testimony. In its analysis, the court referred only to the statutory right under California law to habeas relief based on the introduction of "'[f]alse evidence that is substantially material or probative on the issue of guilt or punishment.'" Id. at 741-42 (quoting Cal. Penal Code § 1473). Of course, petitioner's claim here must rest on the federal constitution, not state law. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (federal writ not available for state law error). Respondent argues there is no entitlement to federal habeas relief based on the use of false testimony absent prosecutorial misconduct. While the cases cited by respondent may suggest as much, they do not specifically so hold. See Murtishaw v. Woodford, 255 F.3d 926, 959 (9th Cir. 2001) (finding petitioner not entitled to habeas relief while noting that petitioner had presented no evidence that the prosecution knew the challenged testimony was false); Carothers v. Rhay, 594 F.2d 225, 229 (9th Cir. 1979); Pavao v. Cardwell, 583 F.2d 1075, 1077 (9th Cir. 1978). Petitioner, in turn, cites several Ninth Circuit decisions which support his argument that a conviction resting on false testimony, without any evidence of prosecutorial misconduct in presenting the testimony, may still result in a violation of due process. See Maxwell v. Roe, 628 F.3d 486, 499-500 (9th Cir. 2010) ("[A] defendant's due process rights were violated . . . when it was revealed that false evidence brought about a defendant's conviction."), cert. denied, ___U.S.___, 132 S. Ct. 611 (2012); Killian v. Poole, 282 F.3d 1204, 1208 (9th Cir. 2002) ("we assume without deciding that the prosecutor neither knew nor should have known of Masse's perjury about his deal. Thus our analysis of the perjury presented at Killian's trial must determine whether 'there is a reasonable probability that [without all the perjury] the result of the proceeding would have been different.'"); Hall v. Director of Corrections, 343 F.3d 976, 981-82 (9th Cir. 2003). This legal issue need not be resolved at this point of these proceedings. For purposes of the pending motion, this court finds petitioner has made a sufficient showing that a conviction based on false testimony states a federal claim.
The referee found that Ryland Cade's trial testimony was false. (Ex. 74 to Answer at 7-8, see Dkt. No. 263.) However, the referee declined to find that Mr. Cade's false testimony was "knowingly induced by Kirk or the investigators." As petitioner points out, the referee did not make a finding regarding whether prosecutors should have known that the challenged testimony was false. Petitioner claims prosecutor Kirk knew or should have known Cade's testimony was false because he knew that Cade was so mentally ill that his version of the events was unreliable. Petitioner also argues that Cade was subjected to suggestive interviewing techniques, that members the prosecution team coached his story, and that he was purposely housed at Chino and then the Contra Costa County Jail with the other testifying inmates so they could coordinate their trial testimony. Petitioner's showing regarding the falsity of Cade's testimony and regarding the mental health evidence prosecutor Kirk knew of and suppressed is described above.
According to petitioner, during Mr. Cade's August 25, 1980 interview with officers after the stabbing, he was "coerced and led" into changing his original story that he had not witnessed the stabbing. (Dkt. No. 248 at 135:4-8; Dkt. No. 204, Ex. 8 to First Am. Pet., at pp. 11404-11426 (interview transcript).) Officers Horton and Hartman also threatened Cade. (Dkt. No. 248 at 135:8-9.) In addition, the officers showed Cade a diagram which placed him at a certain location. (Dkt. No. 204, Ex. 8 to First Am. Pet., at 11403.) They apparently told Cade that Archie Menefield had placed Cade there. (Dkt. No. 248 at 135:19-20.) The prosecution did not reveal the use of the diagram to the defense until after Cade had testified at trial. (RT 6540:16-18.) According to petitioner, that discussion between officers and Cade also does not appear in the transcript of Cade's August 25, 1980 interview.
In addition, petitioner claims that during the April 1981 interview of Mr. Cade by prosecutor Kirk and Agent Gard, Cade was coached to change his position about where Charles Gardner was stabbed. (Dkt. No. 248 at 136:17-20; Dkt. No. 204, Ex. 10 to First Am Pet., at 11444-11529.)*fn28 Petitioner alleges that interview transcript reflects that prosecutor Kirk gave Cade information to help him "remember" the stabbing. (Dkt. No. 248 at 136:20-22.)
Raybon Long was one of only three witnesses to testify at trial that he saw petitioner stab Charles Gardner. He testified that on the day before the stabbing, he heard petitioner arguing with BGF leader Ruben Williams. (RT 2592:2-3, 2594:4-13.) Mr. Long also heard petitioner tell victim Gardner that if he took sides with Williams, he would die with him. (RT 2595:28 - 2596:9, 2598:17 - 2599:1.) On the day of the stabbing, Long saw petitioner wake Archie Menefield, give him a knife, and tell him Williams was on the first floor. (RT 2601:7-22, 2628:25 - 2629:13, 2655:6-15, 2783:15-26.) He also overheard petitioner ask a group of inmates whether one of them would be willing to pick up the knives after the stabbing. (RT 2602:1-28.) Long testified he saw petitioner stab Gardner with a knife with "a white handle on it like hospital kind of tape." (RT 2616:23 - 2619:2.) He saw Menefield hold Gardner down during the stabbing. (RT 2621:4-28.) Long did not see Menefield with a knife during the stabbing. (RT 2622:5-10.) He saw petitioner drop the knife and, followed by Menefield, run up to the third floor. (RT 2622:16 - 2623:11.) He saw Menefield on the second floor throw a "white-handled knife" out of a window. (RT 2628:9 - 2629:23, 2782:27 - 2783:19.) He saw Gardner pick up the knife petitioner dropped and run up the stairs. (RT 2631:12 - 2632:2.)
Mr. Long testified that he was housed at Chino along with witnesses Calvin, Hayes, Cade, and Rooks after the stabbing. (RT 2718:15-18.) He also testified that "we never discussed the case amongst one another." (RT 2718:20, 2846:3-4.)
During cross-examination, and to some extent on re-direct examination at petitioner's trial, Mr. Long admitted lying during the preliminary hearing and during interviews conducted by the prosecutors.*fn29 (RT 2641:12-19, 2674:16 - 2675:13, 2677:22 - 2678:3, 2682:4-25, 2725:2-24, 2772:2 - 2777:22, 2834:11-18.) In particular, he admitted lying about his BGF membership and testified that he never told interviewers, until shortly before he appeared as a witness at trial, that he had seen Archie Menefield with a knife and had seen Menefield grab Charles Gardner. (RT 2643:16 - 2644:20, 2778:1-6, 2848:5-28.)
At trial, Mr. Long testified that in exchange for his testimony, he had received placement in protective custody, the opportunity to choose his placement "subject to his custodial status," a letter from prosecutor Kirk to his custodian regarding Long's cooperation,*fn30 thirty or forty dollars to compensate for lost work, and, as described by prosecutor Kirk, "the possibility that we might at some time look at . . . reduction [of] sentence." (RT 2647:14 - 2649:26.) Long denied ever telling anyone that he testified in order to get early release. (RT 2719:1-3.) He also denied that he knew he would be placed in a witness protection program and denied telling anyone he was going to have dental work done. (RT 2719:4 - 2720:3.)
In 1995, Mr. Long signed a declaration in which he stated: (1) he saw who assaulted Gardner but did "not wish to state who was involved in the incident because I am concerned that there will be retaliation against me;" (2) Cade and Hayes could not have seen the assault; (3) after the assault, prison investigators threatened him if he did not cooperate with them; (4) his testimony that petitioner killed Gardner was false; and (5) prosecutors encouraged him and the others housed at Chino before trial to "get the story straight." (Dkt. No. 249, Ex. A1 to Second Am. Pet.)
However, in 1999, Mr. Long signed a second declaration in which he refuted important parts of his 1995 declaration. (Dkt. No. 249, Ex. A5 to Second Am. Pet.) In his 1999 declaration Long recanted his 1995 statement that the prosecution team coerced him to lie at petitioner's trial. He concluded: "What I said during the course of my testimony during the trial was the truth. Larry Roberts stabbed Charles Gardner." (Id.)
At the reference hearing, Long stated as follows:
Now, just to save a whole lot of people a lot of time, in order for me to stand up or sit here and deny or confirm what is said over here and -- or deny what's confirmed or said over there would mean beyond a shadow of a doubt that I am perjuring myself, regardless at the bottom of each one of those statements it said at the bottom that I signed this under the penalty of perjury.
So considering the two statements, I have already perjured myself, so to keep myself from being perjured any further, look, as everybody knows, this happened a number of years ago, right?
THE COURT: October 6th, 2000.
THE WITNESS: There you go. That's twenty years, four months and five, six days, something up in there. It's a long time ago. My memory is not as good as it once was, okay? When I told the defense one thing and then told the District Attorney and them another, that's what I thought at the time, okay?
Half the stuff that went on at that time, I don't even remember half of it now, so if anybody tries to stand up and ask me anything about what's going on or what happened in the past, I'm telling you, half of it I won't even remember.
Since I've been on the streets, I've used and experimented with a number of drugs. Half of it I won't remember what I said then. We have to let it go then. I can't change my past, can't change what was said, good or bad, but I can't perjure myself any further; and asked any questions, that's what I would be doing.
To deny what I told you is the truth or admit what I told you is the truth is perjury. Same thing over there; so if anybody can tell me how I cannot keep from doing that in this courtroom, I'm with it.
THE COURT: Well I've read Mr. Long's declarations and they do seem ...