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finding that, because inmates did not allege any injury and did not have any expectation of privacy in their cells or right to be present during search, "[t]he search may include looking through personal property including legal materials"
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This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA9 Rule 36-3 regarding use of unpublished opinions)
Argued and Submitted June 16, 1999.
Appeal from the United States District Court for the Arizona, Richard M. Bilby, Chief Judge, Presiding.
Before SCHROEDER, B. FLETCHER, and HALL, Circuit Judges.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by 9th Cir. R. 36-3.
Dennis Patrick Keys ("Keys"), an Arizona state prisoner originally sentenced to concurrent life sentences, seeks habeas relief on two grounds: (1) the prosecution failed to turn over Brady material that would have impeached a key prosecution witness; and (2) his sentence is so disproportionate as to violate the Eighth Amendment. We reject these arguments and affirm.
DISCUSSION
The relevant facts are familiar to both Keys and the respondents. The parties agree that Keys properly raised and exhausted in state court the claims raised by his petition, and thus that the district court properly reached the merits. The issues raised by Keys here were certified for appeal by the district court. See 28 U.S.C. § 2253(c). We have jurisdiction pursuant to 28 U.S.C. § 2253(a) and review the district court's denial of Keys' petition for habeas corpus de novo. See King v. Brown, 8 F.3d 1403, 1408 (9th Cir.1993).
Because Keys filed his petition after the enactment of Antiterrorism and Effective Death Penalty Act ("AEDPA") on April 24, 1996, its "highly deferential standard for evaluating state court rulings" applies. See Lindh v. Murphy, 521 U.S. 320, 326 (1997); see also Jeffries v. Wood, 114 F.3d 1484, 1499 (9th Cir.1997). Under the AEDPA, a habeas petition must be denied unless the state court adjudication:
(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.
28 U.S.C. § 2254(d). Neither party challenges the state court's determination of the relevant facts, and thus the question raised in this appeal is limited to whether the state court adjudication "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law." 28 U .S.C. § 2254(d)(1).
A. The Brady claim
Several years after his conviction, Keys discovered that the prosecution had withheld certain information that would have undermined the credibility of a central prosecution witness, Carl Grossman ("Grossman"). Keys argues that the prosecution's failure to disclose this impeaching information violated his due process rights under Brady v. Maryland, 373 U.S. 83 (1963), and its progeny. The state responds by arguing that the undisclosed impeachment evidence was not material.
The legal standards governing the prosecution's constitutional obligation to disclose impeachment evidence has been extensively developed by Supreme Court precedents. See, e.g., Kyles v. Whitley, 514 U.S. 419 (1995); United States v. Bagley, 473 U.S. 667 (1985); Giglio v. United States, 405 U.S. 150 (1972). Keys' claim comes comfortably within the bounds of this "clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1).
In Brady v. Maryland, 373 U.S. 83 (1963), the Supreme Court announced that due process requires that the prosecution disclose all material exculpatory evidence in its possession to the defendant. This principle has been extended to include evidence impeaching the testimony of a government witness when the reliability of the witness may be determinative of a criminal defendant's guilt or innocence. See Giglio, 405 U.S. at 154. The state here does not dispute that relevant impeachment evidence regarding Grossman was not disclosed, and that Grossman was a key prosecution witness.
A new trial, however, is warranted only if the undisclosed evidence is material. See id. Evidence is material only "if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." Kyles, 514 U.S. at 433-34. The determination of materiality must be made on the basis of the entire record, considering all the undisclosed evidence collectively. See id. at 436.
Some years after his conviction, Keys became aware that the prosecution had failed to disclose certain impeachment information relating to Grossman. This information came to light after the prosecution disclosed it in another, unrelated case involving Grossman, and consisted of three items: (1) information regarding a November 1988 investigation of Grossman by the Arizona Department of Public Safety ("DPS"); (2) information regarding a February 1987 DPS investigation of Grossman; and (3) a 1985 letter from Grossman's father, advising DPS against employing Grossman as a confidential informant.
These materials plainly constitute impeaching evidence. Grossman's credibility, however, was extensively attacked by defense counsel at trial. Grossman admitted to being a long-time paid informant, and that his primary motivation for working in that capacity was monetary. During cross-examination, he admitted that his work as an informant required him to lie extensively, and that he never paid taxes on his informant earnings. Grossman also admitted to having been convicted of marijuana possession, and to occasional drug use after becoming an informant. Defense counsel repeatedly asked if he had skimmed cocaine from the amounts found in Keys' apartment, or if he had planted the drugs there, both of which Grossman emphatically denied. In cross-examining other prosecution witnesses, defense counsel made much of the fact that the quantities of cocaine seized were "light," implying that Grossman had skimmed from them. Defense counsel also pointed out a number of inconsistencies between Grossman's recollections and those of the DPS officers. Both the prosecution and defense addressed Grossman's credibility in their closing arguments. The prosecution admitted that Grossman was not a savory witness, and that his testimony varied in minor respects from that of the DPS officers. Defense counsel devoted much of her closing argument to attacking Grossman's credibility, and pointed out that the prosecution's case as to the first count, relating to the initial one ounce buy, depended entirely on Grossman's testimony.
The state courts apparently failed to apply the relevant constitutional principles set out in Brady and its progeny. Where the state court fails to apply the applicable clearly established federal law, this court is left to do the analysis in the first instance, and compare outcomes. See MacFarlane v. Walter, No. 97-35725, 1999 WL 371564, at *7 (9th Cir. June 9, 1999) (applyingde novo review where state court failed to apply the controlling Supreme Court precedent). In this case, the three pieces of undisclosed impeachment evidence identified by Keys are simply not enough to raise "a reasonable probability that ... the result of the proceeding would have been different." Kyles, 514 U.S. at 433-34. Grossman's credibility was attacked by Keys' attorney at trial in a number of ways. There is no doubt that the jury was given plenty of reason to doubt his honesty, his motives, and his overall character. Nevertheless, his account of Keys was corroborated when Keys agreed to sell Officer Wade five ounces of cocaine, and again when five ounces were discovered in his apartment on July 27. The undisclosed evidence was, in essence, cumulative; it did not undermine Grossman's credibility in any new or decisive way. If the jury did not disbelieve Grossman based on the evidence they had at their disposal, it is unlikely that the additional evidence would have made the difference. Put another way, considering the record as a whole, it is not "reasonably probable" that the undisclosed evidence would change the outcome of the trial. Accordingly, the undisclosed evidence is not "material" within the meaning of Brady, and the prosecution's failure to disclose it did not violate Keys' due process rights.
B. The Eighth Amendment claim
Keys was convicted of one count of selling narcotics, and of one count of possession of narcotics with the intent to sell. Because he was on parole at the time of the offenses, Keys' sentence was subject to an Arizona mandatory sentence enhancement statute, A.R.S. § 13-604.02 (1990). Pursuant to this mandatory sentencing statute, Keys received two concurrent life sentences without chance of parole, to begin immediately after any prior sentences had been served. On January 4, 1996, however, the Governor of Arizona commuted Keys' two life sentences to 22.25 years.
It is clear that the 22.25 year sentence here is not so excessive as to constitute a cruel and unusual punishment in violation of the Eighth Amendment. See Harmelin v. Michigan, 501 U.S. 957 (1991) (holding that a sentence of life without the possibility of parole for possession of 672 grams of cocaine did not violate the Eighth Amendment); Hutto v. Davis, 454 U.S. 370 (1982) (holding that consecutive 20-year sentences for possession with intent to distribute and distribution of 9 ounces of marijuana did not violate the Eighth Amendment). The state court adjudication of Keys' Eighth Amendment claim thus was neither contrary to, nor an unreasonable application of, clearly established federal law.
CONCLUSION
The district court's decision is AFFIRMED.