FINDINGS & RECOMMENDATIONS
Petitioner is a state prisoner proceeding through counsel with a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges a judgment of conviction entered against him on November 18, 2004 in the Sacramento County Superior Court on two counts of attempted murder with personal use of a firearm. He seeks federal habeas relief on the following grounds: (1) the prosecutor violated his right to a fair trial in failing to disclose exculpatory evidence to the defense; (2) his trial counsel rendered ineffective assistance; (3) the trial court's failure to bifurcate trial on gang enhancement allegations violated his right to a fair trial; and (4) the Antiterrorism and Effective Death Penalty Act of 1996 is unconstitutional. Upon careful consideration of the record and the applicable law, the undersigned will recommend that petitioner's application for habeas corpus relief be denied.
PROCEDURAL AND FACTUAL BACKGROUND
In its unpublished memorandum and opinion affirming petitioner's judgment of conviction on appeal*fn1 , the California Court of Appeal for the Third Appellate District provided the following factual summary:
Defendant Yong Lor appeals after a jury convicted him of two counts of attempted murder and found true gang and personal firearm use enhancements. He argues: (1) the gang enhancement is not supported by the evidence; (2) the court should have granted his motion to bifurcate trial of the gang enhancement; and (3) insufficient evidence was adduced to establish that he acted with the intent to kill or express malice required to sustain the attempted murder convictions. The first contention has merit; the remaining two do not. Accordingly, we will strike the gang enhancement and affirm the judgment as modified.
FACTS AND PROCEDURAL BACKGROUND
Defendant is a member of a gang known as the Asian Family Gangsters (AFG), which is part of the Hmong Nation Society (HNS), a gang based in the northern area of Sacramento. A rival gang, the Masters of Destruction (MOD), and an associated gang calling itself the Young Mafia Society (YMS), consider the southern area of Sacramento to be their territory. During the summer of 2001, the rival gangs were at war, with at least a dozen shootings between them.
On July 18, 2001, defendant, armed with a loaded weapon, drove into the Meadowview area of southern Sacramento. He accosted T.V., a 15-year-old boy who was a member of the YMS. T.V. had a loaded .32 caliber semiautomatic handgun in his pocket, and was carrying a pit bull puppy to show his friend who was waiting at the market of a nearby gas station. Using gang parlance, defendant asked T.V. about his gang membership. Not recognizing defendant, T.V. denied being a gang member, but asked defendant "where are you from." Defendant responded with the letter "H," which signified both his membership in the HNS and an aggressive intent, since he was confronting T.V. in MOD territory.
T.V. ignored defendant's response and proceeded to the market, where he met Zang Her, also a MOD member, and Her's wife, Helen. Upon arriving, he put the puppy down, turned in defendant's direction, raised his arms in the air and said, "What's up?" The gesture and words were intended to force defendant either to return and fight T.V., or to leave.
Upon seeing the gesture of engagement, defendant turned his car around and drove directly toward T.V. and his two companions. Defendant stuck his gun outside the driver's side window, stopped the car about 20 to 36 feet from T.V., and fired at least a dozen shots at T.V. and Her. Several shots were aimed at T.V.'s head.
T.V. returned fire. After several rounds hit the side of defendant's car, defendant sped away.
T.V. was shot in the hand and elbow. Her was shot in the buttocks. The puppy was also injured.
Defendant's car was found later that night at an apartment complex in North Sacramento. It had three bullet holes in the driver's side door, which had been recently taped and painted. Defendant was arrested in Wisconsin several months later. The arresting officer told defendant that he was being arrested on a California warrant involving a homicide case. Defendant asked, "Did the guy die?" Defendant testified that he was the victim of an unprovoked assault. He explained that he was in the Meadowview area because he had just finished taking his five-year-old stepdaughter to visit his sister. While stopped at an intersection, he heard his car's glass shatter, and believed he was being attacked. Shielding the child from the assault, defendant returned fire with a gun he kept under the front seat. Then he stepped on the gas. Defendant admitted he used to be a member of HNS, but denied being an active member on the day of the shootings.
Lor, 2007 WL 1874424, at **1-2.
After petitioner's judgment of conviction was affirmed by the California Court of Appeal, he filed a petition for review in the California Supreme Court, claiming that the trial court's denial of his motion to bifurcate the trial of the gang enhancements from the trial of the underlying charges violated his federal right to due process, and that his attempted murder conviction was not supported by sufficient evidence. (Resp't's Lod. Doc. 6.) That petition for review was summarily denied. (Resp't's Lod. Doc. 7.)
Petitioner subsequently filed a petition for writ of habeas corpus in the Sacramento County Superior Court, claiming that he received ineffective assistance of trial counsel, that the trial court erred in failing to bifurcate the trial of the gang enhancements from the trial on the underlying charges, and that the prosecutor committed misconduct in withholding exculpatory evidence from the defense. (Resp't's Lod. Doc. 8.) That habeas petition was denied in a reasoned decision dated February 28, 2008. (Id.) Petitioner then filed petitions for writ of habeas corpus in the California Court of Appeal and California Supreme Court, raising the same claims as presented to the Sacramento County Superior Court. (Resp't's Lod. Docs. 9, 10.) Those state habeas petitions were summarily denied. (Id.)
The habeas petition pending before this court was filed on December 8, 2008. Respondent filed an answer on February 9, 2009, and petitioner filed a traverse on May 6, 2009. On May 11, 2009, petitioner filed a request for an evidentiary hearing on his claims of ineffective assistance of counsel and prosecutorial misconduct. (Doc. No. 29.)
On July 27, 2010, this court appointed counsel for petitioner. (Doc. No. 36.) On October 12, 2010, after two status conferences, the court issued an order allowing petitioner to file a second motion for evidentiary hearing and/or discovery. (Doc. No. 46.) Pursuant to that order, petitioner filed a motion for discovery and an evidentiary hearing on October 29, 2010. (Doc. No. 47.) On January 10, 2011, after a hearing, this court granted petitioner's October 29, 2010 motion, in part, and ordered that a limited evidentiary hearing would be held on his claims of prosecutorial misconduct and ineffective assistance of counsel. (Doc. No. 52.) On March 31, 2011, respondent's motion for reconsideration of the January 10, 2011 order was denied by the then-assigned district judge. (Doc. No. 61.)
On April 4, 2011, the Supreme Court decided the case of Cullen v. Pinholster, ___ U.S. ___, 131 S. Ct. 1388 (2011). On April 7, 2011, this court issued an order advising the parties that, in light of the decision in Pinholster, the court intended to sua sponte reconsider its January 10, 2011 order granting a limited evidentiary hearing in this case. The court directed the parties to file briefing addressing the impact of the decision in Pinholster on petitioner's request for an evidentiary hearing. (Doc. No. 62.) On May 7, 2012, after receiving the parties' responsive briefs, this court issued another order granting petitioner an evidentiary hearing on his claims of ineffective assistance of counsel and prosecutorial misconduct. (Doc. No. 71.) An evidentiary hearing was then held pursuant to that order on January 28, 2013.
I. Standards of Review Applicable to Habeas Corpus Claims An application for a writ of habeas corpus by a person in custody under a judgment of a state court can be granted only for violations of the Constitution or laws of the United States. 28 U.S.C. § 2254(a). A federal writ is not available for alleged error in the interpretation or application of state law. See Wilson v. Corcoran, 562 U.S.___, ___, 131 S. Ct. 13, 16 (2010); Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); Park v. California, 202 F.3d 1146, 1149 (9th Cir. 2000).
Title 28 U.S.C. § 2254(d) sets forth the following standards for granting federal habeas corpus relief:
An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim -
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.
For purposes of applying § 2254(d)(1), "clearly established federal law" consists of holdings of the United States Supreme Court at the time of the state court decision. Stanley v. Cullen, 633 F.3d 852, 859 (9th Cir. 2011) (citing Williams v. Taylor, 529 U.S. 362, 405-06 (2000)). Nonetheless, "circuit court precedent may be persuasive in determining what law is clearly established and whether a state court applied that law unreasonably." Stanley, 633 F.3d at 859 (quoting Maxwell v. Roe, 606 F.3d 561, 567 (9th Cir. 2010)).
A state court decision is "contrary to" clearly established federal law if it applies a rule contradicting a holding of the Supreme Court or reaches a result different from Supreme Court precedent on "materially indistinguishable" facts. Price v. Vincent, 538 U.S. 634, 640 (2003). Under the "unreasonable application" clause of § 2254(d)(1), a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from the Supreme Court's decisions, but unreasonably applies that principle to the facts of the prisoner's case.*fn2
Lockyer v. Andrade, 538 U.S. 63, 75 (2003); Williams, 529 U.S. at 413; Chia v. Cambra, 360 F.3d 997, 1002 (9th Cir. 2004). In this regard, a federal habeas court "may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Williams, 529 U.S. at 412. See also Schriro v. Landrigan, 550 U.S. 465, 473 (2007); Lockyer, 538 U.S. at 75 (it is "not enough that a federal habeas court, in its independent review of the legal question, is left with a 'firm conviction' that the state court was 'erroneous.'"). "A state court's determination that a claim lacks merit precludes federal habeas relief so long as 'fairminded jurists could disagree' on the correctness of the state court's decision." Harrington v. Richter, 562 U.S.___,___,131 S. Ct. 770, 786 (2011) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). Accordingly, "[a]s a condition for obtaining habeas corpus from a federal court, a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Richter,131 S. Ct. at 786-87.
If the state court's decision does not meet the criteria set forth in § 2254(d), a reviewing court must conduct a de novo review of a habeas petitioner's claims. Delgadillo v. Woodford, 527 F.3d 919, 925 (9th Cir. 2008); see also Frantz v. Hazey, 533 F.3d 724, 735 (9th Cir. 2008) (en banc) ("[I]t is now clear both that we may not grant habeas relief simply because of § 2254(d)(1) error and that, if there is such error, we must decide the habeas petition by considering de novo the constitutional issues raised.").
The court looks to the last reasoned state court decision as the basis for the state court judgment. Stanley, 633 F.3d at 859; Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004). If the last reasoned state court decision adopts or substantially incorporates the reasoning from a previous state court decision, this court may consider both decisions to ascertain the reasoning of the last decision. Edwards v. Lamarque, 475 F.3d 1121, 1126 (9th Cir. 2007) (en banc). "When a federal claim has been presented to a state court and the state court has denied relief, it may be presumed that the state court adjudicated the claim on the merits in the absence of any indication or state-law procedural principles to the contrary." Richter, 131 S. Ct. at 784-85. This presumption may be overcome by a showing "there is reason to think some other explanation for the state court's decision is more likely." Id. at 785 (citing Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991)). Similarly, when a state court decision on a petitioner's claims rejects some claims but does not expressly address a federal claim, a federal habeas court must presume, subject to rebuttal, that the federal claim was adjudicated on the merits. Johnson v. Williams, ___ U.S. ___, ___, 133 S. Ct. 1088, 1091 (2013).
Where the state court reaches a decision on the merits but provides no reasoning to support its conclusion, a federal habeas court independently reviews the record to determine whether habeas corpus relief is available under § 2254(d). Stanley, 633 F.3d at 860; Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003). "Independent review of the record is not de novo review of the constitutional issue, but rather, the only method by which we can determine whether a silent state court decision is objectively unreasonable." Himes, 336 F.3d at 853. Where no reasoned decision is available, the habeas petitioner still has the burden of "showing there was no reasonable basis for the state court to deny relief." Richter, 131 S. Ct. at 784.
When it is clear, however, that a state court has not reached the merits of a petitioner's claim, the deferential standard set forth in 28 U.S.C. § 2254(d) does not apply and a federal habeas court must review the claim de novo. Stanley, 633 F.3d at 860; Reynoso v. Giurbino, 462 F.3d 1099, 1109 (9th Cir. 2006); Nulph v. Cook, 333 F.3d 1052, 1056 (9th Cir. 2003).
II. Petitioner's Claims*fn3
A. Prosecutorial Misconduct: Brady Claim
Petitioner's first claim is that his due process rights under Brady v. Maryland, 373 U.S. 83 (1963) were violated when the prosecutor failed to produce exculpatory evidence to the defense. (Doc. No. 1 at 7.)*fn4 As noted above, petitioner was charged with and convicted of attempted murder with use of a firearm. Petitioner alleges that the victim, Andy Vang, was also arrested and charged with assault with a firearm in connection with this very incident, and may have been convicted of that crime. (Id. at 7-8.) Petitioner argues that the prosecutor should have provided this evidence to the defense and/or elicited the information from Andy Vang and Detective Kang, the prosecution's gang expert, when they testified at petitioner's trial. (Id.) Petitioner contends that this evidence was relevant to his self-defense theory presented at his trial and would have been valuable impeachment evidence against both the victim, Vang, and Detective Kang. (Id. at 8-9.) Petitioner notes that Det. Kang was called as a witness by the prosecution but was not asked about the assault charge filed against Vang. (Id. at 8.)
Petitioner argues that information that Andy Vang was arrested and charged with assault in connection with this incident "transcends being merely 'impeachment evidence' as it goes directly to the very heart of this case; who initiated the violence." (Id. at 7-8.) He argues that the fact the prosecuting authorities had enough evidence to charge Vang with assault raises a significant question with regard to the identity of the aggressor in this case and, if it had been divulged, could have given rise to a reasonable doubt as to petitioner's guilt. Put another way, petitioner argues that the prosecutor's failure to fully disclose the facts surrounding the assault charges brought against Andy Vang in connection with this same incident "adversely impacted" the presentation of his defense based upon a theory of self-defense because "had he been able to show that the alleged victim had been charged, arrested, possibly convicted of being the initiator of the violence there is substantially more than a mere probability of a different outcome." (Id. at 9.)
Petitioner also claims that evidence regarding the charges brought against Vang, including the evidence relied on to support those charges, was relevant to impeach the credibility of Det. Kang, who "spent more time on the witness stand than anybody in Petitioner's case, never mentioned that he had arrested Vang on the P.C. 245(a)(1) and never mentioned to the court or jury that Vang had been charged with that offense." (Id. at 8.) According to petitioner, because this undisclosed evidence was relevant to impeach Det. Kang's credibility, it is irrelevant in determining whether petitioner's due process rights were violated by the non-disclosure whether Vang was actually convicted of the assault. (Id.)
In support of these arguments, petitioner has filed with this court a copy of a California Law Enforcement Tracking System (CLETS) database printout, also known as a "rap sheet," pertaining to Andy Vang. (Id. at 85, 88.) Although difficult to decipher, the first and second pages of this document when read together appear to reflect that on September 21, 2001, in case No. #01F06166, Vang was charged with (and eventually convicted of) illegal possession of a concealed weapon and "assault with firearm on person." (Id.) The first entry on the second page reflects that on November 2, 2001, also in case No. #01F06166, Vang was convicted of those same two charges. (Id. at 88.) The third entry reflects that also on November 2, 2001, again in case No. #01F06166, Vang was convicted of illegal possession of a concealed weapon, but that the charge of "assault with firearm on person" was "dismissed." (Id.) Finally, the rap sheet indicates that on his felony conviction Vang was sentenced to 7 years probation with the condition that he serve 180 days in the county jail. (Id.)
It is not clear from the face of this CLETS printout whether the charge brought against Vang of assault with a firearm on a person was eventually dismissed before petitioner's trial commenced, or whether Vang was ultimately convicted of that offense. (Id.) However, petitioner argues that regardless of whether Vang was actually convicted of the assault charge, the fact the prosecution withheld the information that Vang was charged with assault in connection with the incident over which petitioner was convicted constitutes a Brady violation. Petitioner asks:
Should Petitioner have been permitted a fair opportunity to impeach the witnesses, Andy Vang and Detective Kang? Was he afforded that right given that the State suppressed the evidence of Vang's prosecution for ASSAULT WITH FIREARM ON PERSON directly related to this case? If the prosecution itself had "reasonable doubt" about who initiated the gunfire -- as is irrefutably proven by its charging of Vang for ASSAULT WITH FIREARM ON PERSON -- weren't the trial court, jury, and defendant entitled to know that?
In sum, petitioner claims that the prosecutor violated the dictates of Brady in failing to disclose evidence of the actual charges brought against Andy Vang in connection with the incident for which petitioner stood trial. He argues that this evidence would have been material to his defense that he was not the aggressor but rather the victim, would have undermined the prosecution theory that Vang was not the aggressor, and also would have impacted the credibility of both witnesses Vang and Det. Kang. Petitioner states that he was unaware of the charges brought against Vang until after his trial was over. (Doc. Nos. 1 at 8; 63 at 3.)
As set forth above, petitioner raised his Brady claim in a petition for writ of habeas corpus filed in the Sacramento County Superior Court. There, he claimed that the prosecutor violated his constitutional rights by failing to turn over to the defense exculpatory material regarding the charges brought against Vang in connection with this case, including the disposition of those charges. (Resp't's Lod. Doc. 8, Pet. for Writ of Habeas Corpus at 34-40.) The Superior Court rejected petitioner's arguments, reasoning as follows:
THE BRADY CLAIM IS WITHOUT MERIT A petitioner seeking relief by way of habeas corpus has the burden of stating a prima facie case entitled him to relief. (In re Bower (1985) 38 Cal.3d 865, 872.) A petition for writ of habeas corpus should attach as exhibits all reasonably available documentary evidence or affidavits supporting the claim. (People v. Duvall (1995) 9 Cal.4th 464, 474.) The prosecution has the duty to disclose any material exculpatory evidence to the defense. (Pen. Code, § 1054.1(e); Brady v. Maryland (1963) 373 U.S. 83.) Petitioner claims that the prosecutor failed to disclose evidence that the victim in Petitioner's case, Andy Vang, was convicted of assault with a deadly weapon in violation of Penal Code section 245(a)(1). He attaches as "proof" a copy of Vang's CLETS rap sheet showing that Vang was "convicted." A person's rap sheet is not evidence. It is inadmissible hearsay. (See Evid. Code § 1200.) Although Vang was arrested for a violation of Penal Code section 245(a)(1) and was charged with that offense, the charge was dismissed. Therefore, Petitioner has not shown that there was any material exculpatory evidence that the prosecutor failed to disclose. (Id., Superior Court decision at "Page 2 of 6.")*fn5
Petitioner's allegations before this court raise two separate but related claims. First, petitioner claims that the prosecutor committed misconduct under Brady in failing to disclose evidence that Andy Vang was convicted of assault with a deadly weapon in connection with the shooting for which petitioner was convicted. Second, petitioner claims that, whether or not Vang was convicted, the prosecutor committed misconduct under Brady in failing to disclose to the defense that Andy Vang had been charged with assault with a deadly weapon in connection with this case.
In the May 7, 2012 order setting an evidentiary hearing, this court found that the Sacramento County Superior Court's decision on petitioner's claim that the prosecutor committed a Brady violation in failing to disclose that Andy Vang was convicted of assault in connection with this case was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceedings, and was therefore not entitled to deference pursuant to 28 U.S.C. § 2254(d)(2). (Doc. No. 71 at 17-19.) In light of that previously made ruling, this court must decide this aspect of petitioner's Brady claim de novo. Stanley, 633 F.3d at 860; Frantz, 533 F.3d at 735.
This court also determined in the May 7, 2012 order that petitioner's claim that the prosecutor committed misconduct in failing to disclose to the defense that Andy Vang had been charged with assault in connection with this case was not considered or addressed on the merits by the Sacramento County Superior Court in its decision on petitioner's habeas claims. (Doc. No. 71 at 20-21.) After the May 7, 2012 order was issued, the United States Supreme Court held that where a state court issues an opinion that addresses some issues but does not expressly address the federal claim in question, the federal habeas court must presume, subject to rebuttal, that the federal claim was adjudicated on the merits. Johnson, 133 S. Ct. at 1091. Petitioner has not attempted to rebut the presumption that the Sacramento County Superior Court considered, but rejected, his claim that the prosecutor committed misconduct in failing to disclose to the defense that Vang had been charged with assault with a deadly weapon in connection with this case. Accordingly, this court will, as it now must, assume that the Superior Court rejected that claim on the merits, and will analyze it pursuant to the standards set forth in 28 U.S.C. § 2254(d). Johnson, 133 S. Ct. at 1094 ("we see no reason why the Richter presumption should not also apply when a state-court opinion addresses some but not all of a defendant's claims.").
The United States Supreme Court has held "that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." Brady, 373 U.S. at 87. 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 evidence favorable to the defense is applicable even though there has been no request by the accused, United States v. Agurs, 427 U.S. 97, 107 (1976), and 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 components of a Brady violation: "[t]he evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; the evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued." 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). In order to establish prejudice, a petitioner must demonstrate that "'there is a reasonable probability' that the result of the trial would have been different if the suppressed documents had 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'")
Information that is required to be disclosed under Brady "includes "material . . . that bears on the credibility of a significant witness in the case." United States v. Brumel-Alvarez, 991 F.2d 1452, 1461 (9th Cir. 1992) (quoting United States v. Strifler, 851 F.2d 1197, 1201 (9th Cir. 1988)). See also 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). In determining whether the suppression of impeachment evidence is sufficiently prejudicial to rise to the level of a Brady violation, a reviewing court must analyze the totality of the undisclosed evidence "in the context of the entire record," Agurs, 427 U.S. at 112, because "[t]he cumulative effect of all the undisclosed evidence may violate due process and warrant habeas relief under AEDPA." Maxwell, 628 F.3d at 512 (citing Barker v. Fleming, 423 F.3d 1085, 1094 (9th Cir. 2005)). "Whether the suppressed evidence was material must be considered collectively, not item by item." Maxwell, 628 F.3d at 509. 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.
However, "[w]here the defendant is aware of the essential facts enabling him to take advantage of any exculpatory evidence, the Government does not commit a Brady violation by not bringing the evidence to the attention of the defense." United States v. Brown, 582 F.2d 197, 200 (2d Cir. 1978). See also United States v. Alvarez, 86 F.3d 901, 905 (9th Cir. 1996) (when Brady material concerns impeachment evidence against a government witness, Brady error is avoided so long as the defendant can present the evidence to the jury and can fully cross-examine the witness); United States v. Dupuy, 760 F.2d 1492, 1501 n.5 (9th Cir. 1985) (citing Brown with approval); United States v. Griggs, 713 F.2d 672, 674 (11th Cir. 1983) ("Where defendants . . . had within their knowledge the information by which they could have ascertained the supposed Brady material, there is no suppression by the government").
At the January 28, 2013 evidentiary hearing, petitioner's trial counsel was asked whether he was aware that Andy Vang had been charged with assault in connection with the same incident for which petitioner was eventually convicted. (Doc. No. 98 (hereinafter Transcript), at 6.) Counsel responded,
To the best of my recollection, I can't tell you yes or no to that. It certainly would not have surprised me, or shocked me. I do know this, he was not convicted. (Id. at 7.) However, counsel stated that he "would have been given the rap sheet that's required under Brady v. Maryland and 1054 of the Penal Code from the prosecution is likely what I would have relied upon." (Id. at 8.) Petitioner's trial counsel testified that he understood that the "final outcome" of Vang's case was "possession of a weapon and that there was no prosecution, or the charges were dismissed as far as [assault]." (Id.) Later during the evidentiary hearing, petitioner's trial counsel testified that he was aware at the time of petitioner's trial that "there wasn't a conviction on behalf of Mr. Vang for this incident," but that "there was a [conviction for] possession."*fn6 (Id. at 12.)
Petitioner's trial counsel also testified that, even if he knew that Andy Vang had been charged with assault in connection with the incident for which petitioner was on trial, he would not have cross-examined Vang or Detective Kang regarding that subject. (Id. at 21.) Petitioner's trial counsel explained that he did not want to "bolster the credibility of the prosecution's case by having the jury know that they were both arrested and that the district attorney reviewed the files of both and determined that Mr. Vang was credible, and Mr. Lor was not." (Id. at 21-22.) In other words, ...