Appeal from the United States District Court for the Northern District of California Claudia Wilken, District Judge, Presiding D.C. No. 4:02-CV-01704-CW.
The opinion of the court was delivered by: B. Fletcher, Circuit Judge
Argued and Submitted September 1, 2009 -- San Francisco, California
Before: Betty B. Fletcher and Andrew J. Kleinfeld, Circuit Judges, and Kevin Thomas Duffy,*fn1 District Judge.
Petitioner-Appellant Felix Solorio Valdovinos appeals from the district court's denial of his amended habeas corpus petition challenging his jury conviction of first degree murder. He contends that the government withheld potentially exculpa-tory evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963), and that his trial counsel's performance fell below the level required under Strickland v. Washington, 466 U.S. 668 (1984). Because a reasonable probability exists that the undis-closed Brady material could have altered the result of the proceeding, we reverse in part and remand with instructions to the district court to issue a writ of habeas corpus.
On December 1, 1998, a jury convicted Valdovinos of the first degree murder of Nelson Caballero. On May 11, 1998, Caballero was shot outside a San Jose nightclub. The shooter fired two shots from a.380 caliber semi-automatic handgun, hitting Caballero once in the stomach and once in the head. The murder investigation ultimately led to the arrest of Valdovinos in Oregon in June 1998.
At trial, the prosecution relied heavily on eyewitness testimony implicating Valdovinos in the killing. The prosecution called as eyewitnesses four of Caballero's acquaintances who were present at the shooting. Three of these witnesses identified Valdovinos as the shooter at both the preliminary hearing and trial.
One witness, Joaquin Diaz, testified that the shooter wore a black cowboy hat and a black leather jacket, and had a mustache. Diaz stated that the gunman was approximately the same height as Diaz, who stood five feet, six inches. Diaz also testified that one of the shooter's companions wore cowboy garb and a hat, but was taller than Diaz, and that a third man talking to Caballero at the time of the shooting did not wear any cowboy apparel and was Diaz's height.
Tracy Castro and Kyong "Say" Miranda also witnessed the shooting outside the club. At trial, Castro testified that, as she exited the club that night, she observed a man wearing a white cowboy hat, jeans, and a black waist-length jacket shoot Caballero in the stomach and then in the temple. Castro also testified that the shooter was six feet tall. After the shooting, Castro saw the shooter leave with another person in a gray car.
Miranda testified at trial that the shooter was a Hispanic male wearing a light tan straw cowboy hat, a short leather jacket, and jeans. She said he was tall and slender and had a mustache, and that he drove away in a gray car with a male passenger.
Caballero's girlfriend, Blanca Torres, told the police the shooter wore a black hat, a dark jacket, was a bit muscular, and had a mustache.
Diaz, Castro, and Miranda all identified Valdovinos as the shooter at both the preliminary hearing and trial. Torres could not identify the shooter.
During the course of the investigation, Detective Ernesto Alcantar presented two of the eyewitnesses each with two photographic lineups. A few days after the shooting, Detective Alcantar showed Castro and Diaz each a photo lineup of six Hispanic males with mustaches and short to medium black hair. At that time, Castro did not identify Valdovinos but selected another photograph. Diaz chose the photo of Valdovinos but said he was not certain of the identification.
Several months later, in advance of the preliminary hearing, Detective Alcantar showed Castro and Diaz each a second photographic lineup using a different photograph of Valdovinos. Again, Diaz chose Valdovinos's photo but said he was not sure and Castro identified someone other than Valdovinos.
At the preliminary hearing, Valdovinos's defense attorney, in the presence of the prosecutor and Detective Alcantar, requested a blackboard preliminary hearing, in which a screen prevents the witnesses from seeing the defendant.*fn2 Defense counsel made the request based on a review of police reports indicating the witnesses had never seen a lineup or photo lineup. Neither the prosecutor nor Detective Alcantar informed the court or defense counsel that the witnesses already had seen photo lineups including Valdovinos's photo, or that Diaz tentatively had identified Valdovinos's photo whereas Castro had chosen different photographs. The court denied the defense attorney's request.
Defense counsel did not learn of the photo lineups until cross-examination of Diaz during trial. Detective Alcantar later testified he had administered two separate photo lineups.
Upon learning of the non-disclosure of the previous photographic lineups, defense counsel moved for a dismissal. The trial court determined that the non-disclosure of the photo lineups fell within the purview of Brady v. Maryland, 373 U.S. 83 (1963). However, the court denied the motion to dismiss because it found that the prosecution did not intentionally conceal the exculpatory evidence and therefore did not act in bad faith. The court read a corrective jury instruction and offered defense counsel a continuance, which counsel did not take.
Also at trial, the prosecution read into the record the preliminary hearing testimony of Aurelio Lopez and his unsworn statement to the police. Lopez and another man, Isidro Garcia, both of whom resided with Valdovinos, were at the club on the night of the shooting. Lopez was scheduled to testify for the prosecution at trial, but could not be located once the trial started. Defense counsel objected to the court declaring Lopez unavailable and permitting the introduction of his preliminary hearing testimony, but did not object to the admission of Lopez's out-of-court statement.
As part of the investigation, Detective Alcantar and Police Sergeant Pete Ramirez visited Valdovinos's apartment. Valdovinos was not home, but Lopez and Garcia were present. The police received consent to search the apartment and found an ounce of methamphetamine and a nine millimeter gun in Lopez's bedroom. They arrested Lopez on an outstanding warrant for drug and gun possession. Police never brought new gun and drug possession charges against Lopez.
The same day, the detectives interviewed Lopez and Garcia at the police station. When they asked Lopez if he had seen Valdovinos with a weapon on the night of the shooting, Lopez said he did but did not know what kind. When questioned further, Lopez stated that the weapon was a gun. Lopez later contradicted this statement while testifying at the preliminary hearing.
At trial, Garcia testified that many people at the nightclub on the night of the shooting were dressed similarly, and that both Valdovinos and Lopez wore hats and black jackets. Garcia was wearing a black leather jacket, black pants, and boots, but no hat. Garcia testified that he and Lopez were exiting the club when Caballero was shot. Garcia said he had heard two shots and had seen Caballero on the ground.
At the preliminary hearing, Lopez admitted that he told Detective Alcantar that he had seen Valdovinos with a gun, but testified that his statements to Detective Alcantar were not truthful. Lopez explained that he was afraid that he himself might be a suspect and told Detective Alcantar what he wanted to hear. Detective Alcantar did not include a photograph of Lopez in either lineup, but testified at trial that Lopez was similar in size and stature to Valdovinos.
At trial, Detective Alcantar testified that Sergeant Ramirez had found methamphetamine and a gun in Lopez's bedroom when police arrested Lopez. This testimony was the first time defense counsel had heard of the methamphetamine and gun found in Lopez's bedroom.
Again, based on the untimely disclosure of favorable evidence, Valdovinos's defense counsel moved for a mistrial, arguing that Lopez's possession of the gun and drugs could have been used to impeach his testimony at the preliminary hearing and that, without this evidence, counsel had been unable to cross-examine Lopez effectively at the preliminary hearing. The court denied the request for a mistrial, finding that the prejudicial impact of the ...