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Dow v. Virga

United States Court of Appeals, Ninth Circuit

September 5, 2013

La Carl Martez Dow, Petitioner-Appellant,
v.
Tim Virga, Warden, Respondent-Appellee.

Argued and Submitted February 14, 2013, San Francisco, California.

Appeal from the United States District Court for the Northern District of California Phyllis J. Hamilton, District Judge, Presiding D.C. No. 4:06-cv-01219-PJH

Marc J. Zilversmit (argued), San Francisco, California, for Petitioner-Appellant.

Glenn R. Pruden, Supervising Deputy Attorney General (argued), Kamala D. Harris, Attorney General of California, Gerald A. Engler, Senior Assistant Attorney General, Gregory A. Ott, Deputy Attorney General, San Francisco, California, for Respondent-Appellee.

Before: Stephen Reinhardt and Milan D. Smith, Jr., Circuit Judges, and James G. Carr, Senior District Judge. [*]

SUMMARY[**]

Habeas Corpus

The panel reversed the district court's denial of a 28 U.S.C. § 2254 habeas corpus petition alleging prosecutorial misconduct when the prosecutor knowingly elicited and then failed to correct false testimony.

During trial, a detective testified that Dow, rather than his attorney, requested that each of the participants in a lineup wear a bandage under his right eye at the location at which petitioner had a small scar under his; the attorney made this request out of concern that the witness might falsely identify petitioner because he was the only participant with a facial scar. The prosecutor argued that petitioner had demonstrated consciousness of guilt by trying to hide his scar to prevent his identification. The panel held that, after the state court found misconduct, it applied a harmlessness standard that is contrary to that required by Napue v. Illinois, 360 U.S. 264 (1959). The panel further held that, had the state court applied the proper standard in rejecting petitioner's claim, it would have unreasonably applied clearly established federal law.

OPINION

STEPHEN REINHARDT JUDGE

La Carl Martez Dow's state court trial for second degree robbery involved textbook prosecutorial misconduct, recognized as such by the California Court of Appeal ("state court"). In the course of the trial, the prosecutor knowingly elicited and then failed to correct false testimony. That testimony, by Detective Oglesby, was that Dow (rather than his attorney) made the request that each of the participants in a lineup wear a bandage under his right eye at the location at which Dow had a small scar under his. Then, based on this evidence, the prosecutor told the jury during closing argument that Dow had demonstrated consciousness of guilt by trying to hide his scar in order to prevent the sole eyewitness from identifying him. Dow contended that the prosecutor's eliciting of false testimony and failure to correct it violated his federal constitutional rights. The state appellate court held that misconduct had occurred. It stated:

We find that misconduct occurred. Although Detective Oglesby testified that defendant made the request to have "the band-aid placed beneath all the participants' right eyes, " the prosecutor was aware that representation of the evidence was erroneous. More importantly, by asserting that defendant was attempting to "hide" his scar, the prosecutor was mischaracterizing the evidence.

The prosecutor's misconduct violates the basic tenet of Napue v. Illinois, which prohibits "soliciting false evidence, " and requires the prosecutor to not "allow[] it to go uncorrected when it appears." 360 U.S. 264, 269 (1959). Nonetheless, the state court upheld Dow's conviction because it found that it was not reasonably likely that, absent the misconduct, Dow would have obtained a more favorable verdict; in other words, it held that the error was harmless.

Dow's claim comes to us on a petition for habeas corpus. Applying the deferential standards of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), we conclude that the state court's decision upholding Dow's conviction was "contrary to" and/or an "unreasonable application" of Supreme Court precedent. Specifically, in rejecting Dow's claim, the state court applied a harmlessness standard that is "contrary to" the harmlessness standard required by Napue v. Illinois. The Napue standard is different from the ordinary harmlessness standard, and is referred to in Napue and its progeny as a "materiality" standard. We so refer to it here. Even were we to presume, as the state urges, that the state court applied the Napue materiality standard when rejecting Dow's claim, its application of that standard would have constituted an "unreasonable application" of clearly established Supreme Court law. As the Napue error is without doubt "material, " we reverse the district court's denial of Dow's petition and remand with instructions to grant the writ of habeas corpus.[1]

FACTS & PROCEDURAL BACKGROUND

I. The Robbery and Investigation

Because our "review is limited to the record that was before the state court that adjudicated the claim on the merits, " Cullen v. Pinholster, 131 S.Ct. 1388, 1398 (2011), we do not look to facts beyond the state court record. We therefore rely upon the California Court of Appeal's statement of facts in People v. Dow, No. A105381 (Cal.Ct.App. Oct. 22, 2004) (unpublished). According to the state court:

One night in November 2002, Felix Sablad was working as a cashier in the convenience store at the Olympian Gas Station in Daly City, California. An individual, later identified by Sablad as Dow, entered the store, approached the cash register, and asked for a certain type of medication that Sablad explained the store did not carry. After walking around the store as if he were looking for something, the perpetrator returned to the register, placed a package of gum on the counter, and briefly engaged Sablad in idle conversation. As Sablad opened the cash register, the perpetrator produced a very small silver handgun and ordered him to hand over the money. Sablad was frightened, but placed the money on the counter with his left hand as he attempted to press the "panic button" at the bottom of the cash register with his right hand. The perpetrator yelled, "what the fuck are you doing, man, " and aimed the gun at Sablad's head. Sablad turned away from the perpetrator and indicated that he should take the money, less than $300, from the register. The perpetrator did so and ran outside.

Sablad pushed the panic buttons on both cash registers and yelled to the assistant manager, "call the police. We were robbed." He then went outside the store and observed the perpetrator driving away. The police arrived shortly thereafter and took a description of the suspect: "an African-American male, dark-skinned, medium build approximately five foot ten inches tall to six feet tall, " 25 to 35 years old, with a "scar somewhere on his face." According to Sablad, the man was "wearing a plain gray sweatshirt and sweat pants and a ball cap." Months later, Sablad told the investigating officers that "he just remembered that the robber was missing a tooth." The police used the security video recording to produce still images of the perpetrator, but these images were not clear enough to show the robbery or to permit the identification of the perpetrator. Other than two partial fingerprints that could not be used for identification, no physical evidence was retrieved from the scene of the crime.

Dow became a suspect in the Olympian Gas Station robbery as a result of his alleged involvement in another robbery. After executing a search warrant at Dow's home, the detective assigned to the case—Detective Oglesby— seized a generic gray sweatsuit that resembled the one worn by the perpetrator in the security video. Over two months after the robbery, Oglesby prepared a photo lineup for Sablad to view that included Dow's photograph among eight others. Sablad selected Dow's photograph as one that "resembles" the robber, although he mentioned, "I can't see the scar on the photo." Several months later, Sablad was shown a live lineup at the district attorney's office using five individuals, including Dow. Dow's lawyer, who was present at the lineup, expressed concern that Sablad might falsely identify Dow because Dow was the only lineup participant with a facial scar. As a result, counsel asked the district attorney's office to ensure that each individual in the lineup wore ...


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