                    FOR PUBLICATION
  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

BLUFFORD HAYES, JR.,                      
               Petitioner-Appellant,             No. 99-99030
                 v.                                D.C. No.
JILL BROWN, Warden of the                       CV-92-00603-
California State Prison at San                      GGH P
Quentin,*                                         OPINION
              Respondent-Appellee.
                                          
         Appeal from the United States District Court
            for the Eastern District of California
           David F. Levi, District Judge, Presiding

                   Argued June 6, 2002
                 Submitted June 14, 2002
                  Filed August 26, 2002
      Opinion Vacated and Rehearing En Banc Granted
                     August 26, 2004
             Argued and Re-submitted En Banc
                     October 12, 2004

                       Filed March 7, 2005

       Before: Mary M. Schroeder, Chief Judge, and
  Andrew J. Kleinfeld, Sidney R. Thomas, Susan P. Graber,
       Kim McLane Wardlaw, William A. Fletcher,
  Raymond C. Fisher, Ronald M. Gould, Richard A. Paez,
   Richard C. Tallman, and Jay S. Bybee, Circuit Judges.

  *Pursuant to Fed. R. Civ. P. 43(c)(2), we sua sponte substitute Jill
Brown for Jeanne Woodward as the respondent in this action.

                                2753
2754                 HAYES v. BROWN
                Opinion by Judge Thomas;
 Partial Concurrence and Partial Dissent by Judge Tallman
                        HAYES v. BROWN                      2757


                          COUNSEL

David A. Senior, McBreen & Senior, Los Angeles, California,
argued the cause for the petitioner-appellant; Kathleen T.
Saenz, McBreen & Senior, Los Angeles, California, was on
the briefs.

Mathew Chan, Deputy Attorney General, Sacramento, Cali-
fornia, argued the cause for the repondent-appellee; Bill
Lockyer, Attorney General, Robert Anderson, Chief Assistant
Attorney General, Jo Graves, Senior Assistant Attorney Gen-
eral, Arnold O. Overoye, Senior Assistant Attorney General,
Ward A. Campbell, Supervising Deputy Attorney General,
and Carlos A. Martinez, Supervising Deputy Attorney Gen-
eral, were on the brief.


                          OPINION

THOMAS, Circuit Judge:

   In this case, we consider whether a prosecutor’s knowing
presentation of false evidence and failure to correct the record
violate a criminal defendant’s due process rights. We con-
clude that such actions violate due process, and we therefore
reverse the district court’s denial of the petition for a writ of
habeas corpus.

                                I

   This case concerns the 1980 murder of Vinod “Pete” Patel
by Blufford Hayes, Jr. Patel was the resident hotel manager
of the Rice Motel in Stockton, California. Hayes was staying
2758                   HAYES v. BROWN
in Room 15 of the motel with his sister, Barbara Lord. Hayes
once resided at the motel himself, but had been evicted when
he stopped paying rent. Several days before Patel’s death,
Patel had asked the police to arrest Hayes for trespassing
because he had broken into his former room. Officers found
Hayes in his former room with fresh needle marks on his arm;
he admitted to breaking in, but said he intended to pay rent
as soon as he could. The police arrested him for trespassing
and for being under the influence of a controlled substance.

   Hayes returned to the Rice Motel on New Year’s Eve,
December 31, 1979, to visit his sister in her room. Hayes tes-
tified that, as of New Year’s Eve, he had been awake for three
days, had injected heroin and Ritalin, and had consumed a
large amount of brandy. On the morning of New Year’s Day,
Lord left for work, leaving Hayes alone in the motel room. At
trial, Lord testified that her bathroom sink had been leaking
for some time. She had told Patel about the leak, but he had
not fixed it. Lord testified that she saw Patel as she left for
work on the morning of New Year’s Day, and that she may
have mentioned the leak to him again.

   At around 9:30 a.m., Bearla Mae Wyatt, who lived next
door to Lord in Room 16, went to the motel’s office to get
some fresh towels. In the office, Wyatt encountered Hayes
and Patel. Hayes was telling Patel that there was a problem
with the bathroom sink in Room 15 and that he wanted Patel
to come and fix it. Patel did not understand Hayes’s explana-
tion and invited Hayes to demonstrate what he meant in
Patel’s own living quarters, which adjoined the office.
Because Patel was occupied, Wyatt left; when she returned 10
to 15 minutes later, Hayes and Patel were coming out of
Patel’s bathroom area. Wyatt heard Patel tell Hayes that he
would “be down at the room later on.”

  Hayes testified that, after his discussion with Patel at the
motel office, Hayes returned to Room 15, went to a store to
buy a bottle of wine, returned to the motel room, drank some
                       HAYES v. BROWN                      2759
wine, and went to sleep. According to Hayes, the next thing
he recalled was being awakened by someone slapping him
and saying something that he could not understand. He
claimed that he struck back and thereafter realized it was
Patel. Hayes testified that, as he was getting off the bed, he
noticed that Patel had a knife. Hayes said he struggled with
Patel, forced Patel to drop the knife, and then picked the knife
up himself.

   Hayes testified that he thereafter tried to stop the manager
from grabbing a butcher knife that was on top of the dresser,
and ended up stabbing Patel on the arm and chest. According
to Hayes, Patel backed away into the bathroom and made a
loud noise. Patel then walked out and collapsed on the floor.
Hayes said he then picked up the butcher knife from the floor
and put it in a dresser drawer to put it outside Patel’s reach.
He also picked up a bottle of wine and placed it into the same
drawer. Hayes righted a chair that had been knocked over and
picked up a pouch and vest from the floor and put them on the
bed. He then unwound two wire coat hangers and bound
Patel’s hands and feet while Patel was still alive. Hayes
explained that he did not want to have to hurt Patel anymore
and was afraid of what Patel might do if he got up.

   A short time later, Hayes went to the motel room shared by
Andrew “A.J.” James and his girlfriend, Michele Gebert.
Hayes had known both James and Gebert for many years.
Hayes told them he wanted James to give him a ride. Hayes
testified that he told James that he had had to “down” some-
one. James said that he did not believe Hayes, and left the
room to see for himself. Gebert testified that she commented
to Hayes about the possibility of Patel calling the police, and
Hayes allegedly replied that “[Patel] would not say anything
to anybody.” Hayes testified that he looked out the door of
James and Gebert’s apartment and saw James, not in Hayes’s
room, but at the motel office. According to his testimony,
Hayes then went to the office, where he saw James taking car-
tons of cigarettes. Hayes testified that, at James’s request, he
2760                   HAYES v. BROWN
also carried two boxes himself. Hayes and James left together
in James’s car.

   Wyatt testified that, about thirty minutes after she saw
Hayes and Patel in the motel office, by which time she had
returned to her room, she looked out her window and saw
Hayes carrying a box across the motel parking lot to a car.
She noticed that James was standing at the side of the car. A
few moments later, she looked out the window again and saw
James carrying something out of his room. She could not
recall what James was carrying, but it “seemed like he was
moving out” because there was a lot of movement back and
forth.

   According to James, when Hayes arrived at James’s room,
James woke up, went to the bathroom, and left with Hayes.
James testified that the two went to James’s car. There, James
noticed that two boxes of cigarettes, each containing thirty
cartons, were in the car. The location of the boxes is unclear.
At one point, James testified that the boxes of cigarettes were
in the trunk. At other times, James testified that the boxes
were in the back seat. According to James, Hayes asked
James if he knew where to get rid of the cigarettes, but James
said he did not. James kept one carton for himself, however.

   James testified that Hayes told him in the car that Hayes
had “offed” the motel manager. When James expressed his
disbelief, Hayes explained that the manager had awakened
him and had “swung on him” so Hayes “did the do with him.”
James also testified that Hayes further advised James that he
“tore” up the office looking for money. James drove Hayes to
Hayes’s mother’s house, helped unload the cigarettes, and
then drove straight back to the motel, where he noticed that
the door of the motel’s office was open. He left in the car with
Gebert, and they drove around for several hours discussing
what to do. James was afraid to go to the police because he
“had cases at the time.” Gebert eventually called the police,
                        HAYES v. BROWN                      2761
and Gebert and James later went to the police station to be
interviewed.

   When Lord returned to Room 15 that afternoon, she found
Patel’s dead body lying on the floor. His hands and feet were
bound with coat hangers. Patel had suffered at least twenty-
two cutting and stabbing wounds, including eight stab wounds
to the front of his chest. Six stab wounds penetrated the chest
cavity, any one of which could have been fatal. The wounds
to Patel’s left hand and forearm were determined to be “de-
fensive wounds,” which the coroner defined as “wounds
incurred by the victim as he is trying to ward off the attacker.”

   At the crime scene, the police located a butcher’s knife
inside a dresser drawer. Inside the bathroom, the police found
“splattered” blood on “quite a few spots.” There were also
signs of struggle inside the bathroom, as reflected by a top-
pled plastic trash can and damage to the door frame of the
shower. Outside the bathroom, the only blood observed was
a pool under Patel’s body, and stains on some items on the
bed. There was no overturned furniture in the room, according
to a police officer who viewed the scene. The police also dis-
covered a light blue, long-sleeved shirt and a dark blue vest,
both stained with blood. Hayes and Patel had the same blood
type, and the blood on the clothing was consistent with this
type. The motel’s office and Patel’s adjoining living quarters
appeared to have been ransacked. The office cash box, which
generally held $40 to $50, was found empty.

   Hayes was arrested in Oregon, and tried before a San Joa-
quin County, California, jury. The prosecution flew James,
who had left California, back from Florida for the trial, with
the promise that he could return to Florida after testifying.
James had a criminal history, having been convicted of petty
theft, grand theft, and receiving stolen property. At the time
he testified, he also had pending in California three charges
of felony theft with a prior conviction, and a charge of being
under the influence of heroin. Before trial, the prosecutor had
2762                   HAYES v. BROWN
reached an agreement with James’s attorney to grant transac-
tional immunity for the Patel killing and to dismiss the other
pending unrelated felony charges against James. However, the
State wished to keep the promise to dismiss the felony
charges away from the trial judge and jury. Therefore, the
prosecutor extracted a promise from James’s attorney that he
would not tell James about the deal. The idea was that James
would be able to testify that there was no deal in place, with-
out perjuring himself, because James would not personally be
informed of the arrangement.

   The jury convicted Hayes of first-degree murder (Cal.
Penal Code § 187), burglary, and robbery, and it found true
the two special circumstances of robbery-murder and
burglary-murder. Cal. Penal Code § 190.2(a)(17)(A)&(G). On
November 25, 1981, the same jury returned a verdict impos-
ing a death sentence.

   After he testified, James returned to Florida with an air-
plane ticket paid for by the prosecution, even though the Cali-
fornia felony charges were still pending, and he had not been
arraigned. Shortly thereafter, the State dismissed all felony
charges against James.

   Hayes appealed from the conviction and sentence to the
California Supreme Court, which reversed the conviction and
sentence for robbery, and the robbery-murder special circum-
stance, but otherwise affirmed the judgment, including the
imposition of the death penalty. People v. Hayes, 802 P.2d
376 (Cal. Sup. Ct. 1990).

  In June 1993, Hayes filed a federal petition for a writ of
habeas corpus consisting of 61 claims. The district court dis-
missed 38 unexhausted claims, without prejudice, and ordered
Hayes to present the claims to the California Supreme Court.
Hayes filed those claims, and five additional claims, in a sec-
ond petition for writ of habeas corpus in the California
Supreme Court. That court denied all relief.
                       HAYES v. BROWN                        2763
   Hayes then filed a first amended petition in federal court on
August 28, 1995, asserting 65 claims. The State of California
moved to dismiss some of the claims on the ground that they
were denied by the California Supreme Court on procedural
grounds, thereby barring federal review. The motion was
denied. A four-day evidentiary hearing was conducted on
Hayes’s allegedly unconstitutional absence from the entire
penalty phase of the trial, and a separate two-day evidentiary
hearing was conducted regarding the alleged ineffective assis-
tance of counsel regarding a plea-bargain offer.

   Both parties moved for summary judgment on the merits,
and the magistrate judge recommended that the State’s motion
for summary judgment be granted as to all claims and that the
habeas petition be denied. After de novo review, the district
court filed an order specifically addressing some of Hayes’s
claims, adopting the magistrate judge’s findings and recom-
mendations in full, and denying the petition. The district court
granted Hayes a certificate of appealability for the arguments
he makes on appeal. A divided panel of our Court issued an
opinion affirming the district court’s grant of summary judg-
ment. A majority of the non-recused, active judges of this
Court voted to rehear the appeal en banc.

  Hayes filed his 28 U.S.C. § 2254 petition for a writ of
habeas corpus before the enactment of the Antiterrorism and
Effective Death Penalty Act of 1996 (“AEDPA”). Therefore,
our review is governed by pre-AEDPA standards. See, e.g.,
Lindh v. Murphy, 521 U.S. 320, 326 (1997); Karis v. Calde-
ron, 283 F.3d 1117, 1126 n.1 (9th Cir. 2002).

    On habeas review, state court judgments of convic-
    tion and sentence carry a presumption of finality and
    legality and may be set aside only when a state pris-
    oner carries his burden of proving that [his] deten-
    tion violates the fundamental liberties of the person,
    safeguarded against state action by the Federal Con-
    stitution.
2764                    HAYES v. BROWN
McKenzie v. McCormick, 27 F.3d 1415, 1418 (9th Cir. 1994)
(citation and quotation marks omitted).

                                II

   The Supreme Court has long emphasized “the special role
played by the American prosecutor in the search for truth in
criminal trials.” Strickler v. Greene, 527 U.S. 263, 281
(1999). As we observed in Commonwealth of The Northern
Mariana Islands v. Mendiola, 976 F.2d 475, 486 (9th Cir.
1992) (citations omitted), overruled on other grounds by
George v. Camacho, 119 F.3d 1393 (9th Cir. 1997) (en banc):

    The prosecuting attorney represents a sovereign
    whose obligation is to govern impartially and whose
    interest in a particular case is not necessarily to win,
    but to do justice. . . . It is the sworn duty of the pros-
    ecutor to assure that the defendant has a fair and
    impartial trial.

   [1] One of the bedrock principles of our democracy, “im-
plicit in any concept of ordered liberty,” is that the State may
not use false evidence to obtain a criminal conviction. Napue
v. Illinois, 360 U.S. 264, 269 (1959) (internal citation omit-
ted). Deliberate deception of a judge and jury is “inconsistent
with the rudimentary demands of justice.” Mooney v. Holo-
han, 294 U.S. 103, 112 (1935). Thus, “a conviction obtained
through use of false evidence, known to be such by represen-
tatives of the State, must fall under the Fourteenth Amend-
ment.” Napue, 360 U.S. at 269 (citations omitted). “Indeed, if
it is established that the government knowingly permitted the
introduction of false testimony reversal is ‘virtually automat-
ic.’ ” United States v. Wallach, 935 F.2d 445, 456 (2d Cir.
1991) (quoting United States v. Stofsky, 527 F.2d 237, 243
(2d Cir. 1975)).

   [2] In addition, the state violates a criminal defendant’s
right to due process of law when, although not soliciting false
                        HAYES v. BROWN                        2765
evidence, it allows false evidence to go uncorrected when it
appears. See Alcorta v. Texas, 355 U.S. 28 (1957); Pyle v.
Kansas, 317 U.S. 213 (1942).

                               A

   In this case, the State knowingly presented false evidence
to the jury and made false representations to the trial judge as
to whether the State had agreed not to prosecute James on his
pending felony charges. James’s attorney testified in federal
court that there had been a deal between himself and then-
Deputy District Attorney Terrence Van Oss. The district court
specifically found:

    The record amply supports the magistrate judge’s
    finding that Van Oss and James’ attorney reached an
    agreement addressing the felony charges prior to
    Hayes’ first preliminary hearing on February 7,
    1980.

   The district judge noted that, in a file entry dated February
7, 1980, James’s attorney wrote:

    Van Oss s[ai]d [he] didn’t want to make [a] deal on
    this case on [the] record, but will guarantee that
    [James’] O.R. [own recognizance release] will be
    reinstated. He wants to keep case felony for now so
    if [James] splits they can extradite. After Hayes over,
    [James] can P[lead] G[uilty] to misd[emeanor] for
    straight prob[ation] — no jail.

(Material in brackets supplied by district court.)

   The district court noted that “[s]ubsequent entries state that
‘the case will be disposed of after Hayes trial’ and ‘case to be
dismissed on 12/15/81.’ ” The district court also found that,
“[i]n an evidentiary hearing in another case, Van Oss testified
2766                    HAYES v. BROWN
that he had no basis for disputing these notes, conceding at
one point that he ‘must have told him.’ ”

   In his Report and Recommendation, the magistrate judge
stated:

    [T]he court finds that the prosecutor [ ] tacitly admit-
    ted in an evidentiary hearing in another case that he
    had made some type of agreement with James’ law-
    yer for the 1980 arrests at or about the time that
    James appeared at his arraignment.

   This finding is amply supported by the record. Although
felony charges against James were pending, the State assisted
him in moving to San Diego. James later moved to Florida.
The government paid for his airplane transportation from
Florida to California to testify in the Hayes trial. James freely
traveled to California, apparently without fear that he would
be placed in custody on the pending felony charges. The notes
from James’s attorney indicate that a court appearance on his
charges was scheduled for October 20, 1981, but was contin-
ued until November 17, 1981. James testified at the Hayes
trial on October 29, 1981. The jury returned a guilt-phase ver-
dict on November 16, 1981. The next day, the chief prosecu-
tor in the Hayes trial, Terrence Van Oss, appeared at the
continued arraignment scheduled for James. The transcript of
the hearing reflects there was a discussion off the record with
the judge, after which the arraignment was continued until
December 15, 1981. James’s counsel’s notes on November
17, 1981, said that “case to be dism[issed] on 12/15/81. We
need not appear.” The jury returned its verdict of punishment
by death on November 25, 1981. On December 15, 1981, the
charges against James were dismissed, and the State paid for
James’s safe return to Florida by air.

   In addition to the fact of the deal, the record also supports
the finding that a key part of the agreement was to keep James
in the dark, so that he could testify that there was no deal
                       HAYES v. BROWN                       2767
without perjuring himself. James’s attorney wrote in his notes
of the conversation about the deal:

    D.A. rec. O.R. [own recognizance] on this. Van Oss
    is guy to see. This guy is a witness against Blufford
    Hayes on the 187 p.c. at the Rice Motel on 1-1-80.
    THIS IS SECRET INFO!! Don’t tell the client, or let
    the word out, or this guy will be a goner!!

(Emphasis in original.)

   After making this arrangement, the State misled the trial
judge. In preliminary proceedings, defense counsel inquired
“whether any negotiated settlement has been made in return
for his [James’s] testimony.” To that, the prosecutor
responded:

    There has been absolutely no negotiations whatso-
    ever in regard to his testimony. No promises, no dis-
    cussions about this other offense at all.

Upon further inquiry by the trial judge about “whether there
has been any negotiations,” the prosecutor replied:

    That was asked of Mr. James at the time of the pre-
    liminary examination and he testified that there had
    been absolutely no promises and no discussions in
    regard to any pending charges and that is the status
    of the case. There has been no discussions in regard
    to any pending charges.

   When James testified, the prosecutor elicited the following
testimony:

    Q. All right. Other than these things that you have
    told us about, have you been made any promises?
    Have you been offered anything? Has any pressure
2768                   HAYES v. BROWN
    been put on you? Has anything been done to make
    you testify here?

    A.   No.

   After defense counsel probed in cross-examination the lack
of activity in prosecuting James, with James responding that
the charges were still pending, the prosecutor elicited the fol-
lowing testimony from James on redirect:

    Q. You and I have discussed the fact that you have
    other charges pending; isn’t that correct?

    A.   Right.

    Q. Okay. And you would tell the jury what if any-
    thing of any deals or any promises or anything else
    has been made in regards to this charge?

    A. No. There are still pending, you know . . . . You
    know, I didn’t get no — you know, like they try to
    make it sound like a deal or something. It wasn’t like
    that, man. I just don’t want no involvement, you
    know.

   In closing, the prosecutor emphasized the truthfulness of
the State’s witnesses, stating:

    The implication is that somehow all the prosecu-
    tion’s witnesses are lying and the only person that is
    telling the truth in this case is the defendant. I ask
    you, is that reasonable? Is that the sort of reason the
    Court is asking you to use when it tells you that you
    must use the standard of reasonable doubt in this
    case? That somehow everybody is lying, but the
    defendant?

    That’s not the reason and that’s not the standard of
    proof in this case. Andrew James may be a very bad
                        HAYES v. BROWN                       2769
    man, he may have a bad past, he is not a murderer
    as the defendant is in this case.

   [3] Thus, the record is clear that: (1) before the Hayes trial,
the State had made a deal with James’s attorney for the dis-
missal of pending felony charges after his testimony; (2) the
State specifically represented to the trial judge that there was
no such deal; (3) the State elicited sworn testimony from
James at trial that there was no such deal, both on direct and
re-direct examination; and (4) the State failed to correct the
record at trial to reflect the truth.

   [4] The State’s actions violated Hayes’s constitutional
rights first under Napue, by presenting false evidence to the
jury and, second, under Alcorta and Pyle, by failing to correct
the record following the presentation of false evidence.

                                B

   The State contends that there was no Napue violation
because James did not commit perjury. According to the
State, Napue renders unconstitutional only acts of perjury.
Therefore, the State reasons, because James was ignorant of
the deal, he did not commit perjury and the State did not run
afoul of Napue. In short, the State contends that it is constitu-
tionally permissible for it knowingly to present false evidence
to a jury in order to obtain a conviction, as long as the witness
used to transmit the false information is kept unaware of the
truth.

  [5] The State is wrong. Napue, by its terms, addresses the
presentation of false evidence, not just subornation of perjury.
As Chief Justice Warren wrote:

    [I]t is established that a conviction obtained through
    use of false evidence, known to be such by represen-
    tatives of the State, must fall under the Fourteenth
    Amendment.
2770                        HAYES v. BROWN
360 U.S. at 269 (citations omitted). In describing the rule, the
Court itself discussed the use of “false evidence, including
false testimony. . . .” Id. There is nothing in Napue, its pre-
decessors, or its progeny, to suggest that the Constitution pro-
tects defendants only against the knowing use of perjured
testimony. Due process protects defendants against the know-
ing use of any false evidence by the State, whether it be by
document, testimony, or any other form of admissible evi-
dence. See Phillips v. Woodford, 267 F.3d 966, 984-85 (9th
Cir. 2001) (“It is well settled that the presentation of false evi-
dence violates due process.”) (citing Napue, 360 U.S. at 269).

   Further, contrary to the State’s theory, that the witness was
tricked into lying on the witness stand by the State does not,
in any fashion, insulate the State from conforming its conduct
to the requirements of due process. As our court noted in
Northern Mariana Islands v. Bowie, 243 F.3d 1109, 1114 (9th
Cir. 2001): “Few things are more repugnant to the constitu-
tional expectations of our criminal system than covert perjury
. . . .” It is reprehensible for the State to seek refuge in the
claim that a witness did not commit perjury, when the witness
unknowingly presents false testimony at the behest of the
State. “This saves [the witness] from perjury, but it does not
make his testimony truthful.” Willhoite v. Vasquez, 921 F.2d
247, 251 (9th Cir. 1990) (Trott, J., concurring). The fact that
the witness is not complicit in the falsehood is what gives the
false testimony the ring of truth, and makes it all the more
likely to affect the judgment of the jury. That the witness is
unaware of the falsehood of his testimony makes it more dan-
gerous, not less so.1

  [6] There is nothing redemptive about the sovereign’s con-
spiring to deceive a judge and jury to obtain a tainted convic-
  1
   We assume for purposes of our analysis that James was, in fact,
unaware of the secret deal. But we note the distinct risk that, in preparing
James for his testimony, James’s counsel — who did know about the deal
— might have influenced the content of that testimony, deliberately or not.
                           HAYES v. BROWN                           2771
tion. This is, as Judge Trott put it, “a pernicious scheme
without any redeeming features.” Id. Napue forbids the know-
ing presentation of false evidence by the State in a criminal
trial, whether through direct presentation or through covert
subornation of perjury.2

   [7] Further, the argument that the presentation of false testi-
mony, carefully orchestrated to avoid perjury, does not offend
the Constitution flies in the face of Alcorta and Pyle because
those cases create an affirmative duty on the part of the prose-
cution to correct false testimony at trial, even when the testi-
mony is unsolicited. There is no exception under Alcorta and
Pyle for solicited false testimony. The State’s knowing pre-
sentation of false evidence and failure to correct the record at
Hayes’s trial violated the Fourteenth Amendment.

                                    C

   [8] The State argues that the constitutional prohibition
against the knowing presentation of false evidence, as distin-
guished from the prohibition against suborning perjury, is a
new rule of constitutional procedure that cannot be applied to
this case under Teague v. Lane, 489 U.S. 288 (1989). Subject
to a few exceptions, Teague holds that, “[u]nless they fall
within an exception to the general rule, new constitutional
rules of criminal procedure will not be applicable to those
cases which have become final before the new rules are
announced.” Id. at 310.

   The threshold question in a Teague analysis is whether the
rule that the petitioner seeks to apply is a substantive rule or
a procedural rule, because “Teague by its terms applies only
to procedural rules.” Bousley v. United States, 523 U.S. 614,
620 (1998). If the rule is procedural, the court then conducts
a three-step analysis to determine whether Teague bars its
  2
   To the extent that any of our prior case law, including Willhoite, sug-
gests otherwise, those cases are overruled.
2772                    HAYES v. BROWN
application. See O’Dell v. Netherland, 521 U.S. 151, 156-57
(1997). First, the reviewing court “must ascertain the date on
which the defendant’s conviction and sentence became final
for Teague purposes.” Caspari v. Bohlen, 510 U.S. 383, 390
(1994). Second, the court must survey “the legal landscape as
it then existed,” Graham v. Collins, 506 U.S. 461, 468 (1993),
to determine whether existing precedent compelled a finding
that the rule at issue “was required by the Constitution.” Lam-
brix v. Singletary, 520 U.S. 518, 527 (1997) (internal quota-
tion marks and citations omitted). If existing precedent
already required application of the rules, the Teague bar does
not apply. However, if the procedure at issue is considered a
new rule for Teague purposes, the court must proceed to the
third step and determine whether either of the two announced
exceptions applies. Teague, 489 U.S. at 307. The presumption
against retroactivity is overcome only if the new rule prohibits
“a certain category of punishment for a class of defendants
because of their status or offense,” Penry v. Lynaugh, 492
U.S. 302, 330 (1989), abrogated on other grounds by Atkins
v. Virginia, 536 U.S. 304 (2002), or presents a new “water-
shed rule[ ] of criminal procedure” that enhances accuracy
and alters our understanding of bedrock procedural elements
essential to the fairness of a particular conviction. Teague,
489 U.S. at 311 (citations omitted).

   [9] Thus, we must first ask whether the prohibition against
the knowing presentation of false evidence is substantive or
procedural law. For Teague purposes, a new rule is one of
“procedure” if it affects the operation of the criminal trial pro-
cess, and a new rule is one of “substance” if it alters the scope
or modifies the applicability of a substantive criminal statute.
Bousley, 523 U.S. at 620. The prohibition on the use of false
evidence by the State at trial is clearly a procedural rule; it
affects the operation of the criminal trial process, but does not
affect the scope of a substantive criminal statute.

  Because the rule is procedural, we proceed to the three-step
analysis to determine whether the rule was “new.” We begin
                        HAYES v. BROWN                      2773
by ascertaining the date on which Hayes’s conviction became
final. Caspari, 510 U.S. at 390. In 1990, the California
Supreme Court upheld Hayes’s conviction in relevant part.
People v. Hayes, 802 P.2d 376 (Cal. 1990). The United States
Supreme Court denied Hayes’s petition for a writ of certiorari
on November 12, 1991. Hayes v. California, 502 U.S. 958
(1991). Thus, Hayes’s conviction became final on that date.
See Griffith v. Kentucky, 479 U.S. 314, 321 n.6 (1987) (“By
‘final,’ we mean a case in which a judgment of conviction has
been rendered, the availability of appeal exhausted, and the
time for a petition for certiorari elapsed or a petition for cer-
tiorari finally denied.”) (citations omitted).

   Next, we survey “the legal landscape as it then existed,”
Graham, 506 U.S. at 468, to determine whether existing pre-
cedent compelled a finding that the rule at issue “was required
by the Constitution.” Lambrix, 520 U.S. at 527. The sugges-
tion by the State that, as of 1991, the Constitution did not pro-
hibit the government from knowingly presenting false
evidence to obtain a criminal conviction is somewhat star-
tling. There is nothing new at all about this constitutional pro-
tection. We have already noted that Napue, decided nearly a
half century ago, specifically addressed “false evidence,” and
was not limited to barring the subornation of perjury. Alcorta
and Pyle, which require the State to correct false facts intro-
duced as evidence at trial, were decided in 1957 and 1942,
respectively. Indeed, as we stated in Bowie:

    Because of the gravity of depriving a person of lib-
    erty on the basis of false testimony, the Supreme
    Court and the United States Courts of Appeal have
    fashioned over the years a workable set of precise
    rules designed not only to remedy egregious wrongs
    that have already occurred, but also prophylactically
    to prevent damaging false testimony from happening
    in the first place.

236 F.3d at 1087.
2774                   HAYES v. BROWN
   The rule originated with Mooney in 1935, which held that
a criminal defendant is denied due process when the “state has
contrived a conviction through the pretense of a trial which in
truth is but used as a means of depriving a defendant of liberty
through a deliberate deception of court and jury by the presen-
tation of testimony known to be perjured.” 294 U.S. at 112.
Seven years later, in Pyle, the Supreme Court expanded this
rule to encompass not only “perjured testimony, knowingly
used by the State,” but also “the deliberate suppression by
those same authorities of evidence favorable to [the criminal
defendant].” 317 U.S. at 216.

   Alcorta, decided in 1957, involved a case quite similar to
the one at bar. In that case, the Court was confronted with a
prosecutor who, on direct examination, knowingly allowed a
witness to create a false impression. 355 U.S. at 29-30. The
prosecutor had instructed the witness not to volunteer what
the prosecutor thought might be damaging information and
then sat mute while the witness committed perjury. Id. at 31.
In granting Alcorta’s petition for a writ of habeas corpus, the
Court held that the false impression given to the jury by the
prosecutor and the State violated Alcorta’s right to due pro-
cess. Id.

   Napue, which we have discussed, was decided two years
later. Napue quoted with approval a decision from the New
York Court of Appeals involving false testimony from a wit-
ness who had been given substantial consideration for his tes-
timony, in which that court stated: “ ‘A lie is a lie, no matter
what its subject, and, if it is in any way relevant to the case,
the district attorney has the responsibility and duty to correct
what he knows to be false and elicit the truth.’ ” 360 U.S. 264,
269-70 (1959) (quoting People v. Savvides, 136 N.E.2d 853,
854-55 (N.Y. Ct. App. 1956)).

   In United States v. Bagley, 473 U.S. 667, 678 (1985), the
Supreme Court noted the “well-established rule that ‘a con-
viction obtained by the knowing use of perjured testimony is
                        HAYES v. BROWN                      2775
fundamentally unfair, and must be set aside if there is any rea-
sonable likelihood that the false testimony could have affected
the judgment of the jury.’ ” (Citation omitted).

   [10] Thus, the rule has been clear for decades: a criminal
defendant is denied due process of law when a prosecutor
either knowingly presents false evidence or fails to correct the
record to reflect the true facts when unsolicited false evidence
is introduced at trial. We need not proceed to the remainder
of the Teague analysis. There being nothing new about this
rule, it does not implicate Teague.

                               III

                               A

   [11] That constitutional error occurred does not end our
analysis. Neither Napue nor Acorta creates a per se rule of
reversal. Because the error was not structural, we must assess
whether the constitutional violation was material. See United
States v. Zuno-Arce, 339 F.3d 886, 889 (9th Cir. 2003) (“To
prevail on a claim based on Mooney-Napue, the 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.”) (citations omitted).

   In assessing materiality under Napue, we determine
whether there is “ ‘any reasonable likelihood that the false tes-
timony could have affected the judgment of the jury;’ ” if so,
then “the conviction must be set aside.” Belmontes v. Wood-
ford, 350 F.3d 861, 881 (9th Cir. 2003) (quoting United States
v. Agurs, 427 U.S. 97, 103 (1976)). Under this materiality
standard, “ ‘[t]he question is not whether the defendant 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 confi-
dence.’ ” Hall v. Director of Corrections, 343 F.3d 976, 983-
2776                    HAYES v. BROWN
84 (9th Cir. 2003) (per curiam) (quoting Kyles v. Whitley, 514
U.S. 419, 434 (1995)).

   Even though this case comes to us on habeas review, we do
not conduct an additional harmless error analysis under
Brecht v. Abrahamson, 507 U.S. 619 (1993), which asks
whether the error “ ‘had substantial and injurious effect or
influence in determining the jury’s verdict.’ ” Id. at 623 (cita-
tion omitted). When the Supreme Court has declared a materi-
ality standard, as it has for this type of constitutional error,
there is no need to conduct a separate harmless error analysis.
As the Supreme Court explained in Kyles, when considering
a similar question about applying the Bagley disclosure
requirements, the required finding of materiality necessarily
compels the conclusion that the error was not harmless. 514
U.S. at 435.

   Application of the Agurs “any reasonable likelihood” stan-
dard necessarily forecloses a Brecht harmless error analysis.
The Supreme Court noted in Kyles that, in Agurs, the Court
had expressly considered and rejected the harmless error stan-
dard established in Kotteakos v. United States, 328 U.S. 750,
776 (1946), which formed the basis for the standard enunci-
ated in Brecht. Therefore, the Court reasoned in Kyles, for all
errors that derived from the Agurs materiality standard, there
was no need to conduct a separate Brecht analysis. Kyles, 514
U.S. at 436. Thus, for example, because the prejudice analysis
in Strickland v. Washington, 466 U.S. 668 (1984), derived
from the Agurs materiality standard, federal courts do not
conduct a separate Brecht analysis in ineffective assistance of
counsel claims. Kyles, 514 U.S. at 436; see also Pirtle v. Mor-
gan, 313 F.3d 1160, 1169 (9th Cir. 2002); Avila v. Galaza,
297 F.3d 911, 918 n.7 (9th Cir. 2002); Jackson v. Calderon,
211 F.3d 1148, 1154 n.2 (9th Cir. 2000).

   Applying the same logic, we concluded in Belmontes that
the Agurs standard applies to Napue claims. 350 F.3d at 881.
Thus, once we have determined whether the Napue error was
                            HAYES v. BROWN                             2777
material under the Agurs standard, we do not conduct a sepa-
rate Brecht examination. The materiality analysis is complete
in itself; there is no need for a separate harmless error review.

                                     B

    The remaining question in this case is whether there is “any
reasonable likelihood that the false testimony could have
affected the judgment of the jury.” Belmontes, 350 F.3d at
881-82. The jury convicted Hayes of the charge of first-
degree murder under a felony murder theory, finding Hayes
“guilty of a violation of Section 187 of the Penal Code of the
State of California, to-wit: murder, in the first degree, com-
mitted while the defendant was engaged in the commission of
. . . a burglary.”3 The jury found true the special circumstance
that Hayes committed a murder while “engaged in the com-
mission of, or the immediate flight after committing burglary,
a felony.”4

   [12] To convict Hayes of felony murder, the jury had to
decide whether Hayes murdered Patel “as a result of the com-
mission of” a burglary. Thus, a pivotal question before the
jury was whether Hayes had formed the intent to burglarize
the office before killing Patel. The State’s theory was that
Hayes had lured Patel into the motel room for the purpose of
murdering him so that Hayes could burglarize the motel’s
  3
     The jury received two first degree murder instructions. The jury was
first instructed that “[a]ll murder which is perpetrated by any kind of will-
ful, deliberate and premeditated killing with express malice aforethought
is murder of the first degree.” The jury was also instructed as to felony
murder, as follows: “The unlawful killing of a human being, whether
intentional, unintentional or accidental, which occurs as a result of the
commission of the crimes of robbery and/or burglary and where there was
in the mind of the perpetrator the specific intent to commit such crime, is
murder of the first degree.”
   4
     The jury also found that Hayes committed murder during the commis-
sion of a robbery. However, the California Supreme Court overturned the
robbery-murder conviction and the robbery special circumstance.
2778                    HAYES v. BROWN
office. Hayes’s theory was that a spontaneous fight occurred
when Patel arrived at the motel room. Hayes contended that
James was the one who initiated the office burglary after
Hayes had come over to James’s room to get a ride away from
the motel after the killing.

   [13] Thus, by any measure, James was a key witness.
Indeed, there is little doubt that James’s testimony was the
centerpiece of the prosecution’s case. Nearly all of the other
evidence against Hayes was circumstantial. James was the
only witness who testified that Hayes confessed to the murder
and the burglary. The importance of this testimony cannot be
understated. As the Supreme Court has observed: “A confes-
sion is like no other evidence. Indeed, ‘the defendant’s own
confession is probably the most probative and damaging evi-
dence that can be admitted against him.’ ” Arizona v. Fulmi-
nante, 499 U.S. 279, 296 (1991) (quoting Bruton v. United
States, 391 U.S. 123, 139-40 (1968) (White, J., dissenting)).

   [14] Most importantly, James’s testimony was critical to
the State’s burglary case, which was essential to both the first-
degree murder conviction and the sentence. James testified
that he went directly to his car without going to the office,
that he did not participate in the burglary, and that the stolen
property had already been placed in the car by Hayes. Hayes
testified that he told James that he had killed Patel, that James
went to investigate, and that Hayes next saw James burglariz-
ing the office. Hayes’s version of events was partially corrob-
orated by another occupant of the motel, Bearla May Wyatt,
who testified that she saw James carrying things to Hayes’s
car, “like he was moving out of an apartment.” The only wit-
ness other than James who testified that Hayes had spoken
about a burglary was James’s girlfriend, Michele Gebert.
However, she provided contradictory and confusing testi-
mony, first denying on direct examination that Hayes had said
anything about burglarizing the office, then testifying on redi-
rect that he had. Most of Gebert’s information came from
James, and she provided her version of events only after she
                        HAYES v. BROWN                      2779
and James had discussed it for many hours, deciding what to
do.

   The importance of James’s testimony was underscored by
the prosecution in its closing argument, as it was in the
defense closing. As defense counsel put it: “In this case, you
can only conclude that Blufford committed a robbery or a bur-
glary if you believe Andrew James beyond a reasonable
doubt.”

   In sum, James’s testimony and credibility were crucial to
the State’s case. Without it, there was only circumstantial evi-
dence of the burglary, and only inference as to whether Hayes
killed Patel “as a result of the commission of” a burglary.
That, coupled with the testimony about James’s moving items
to the car, easily “could have affected the judgment of the
jury.” Belmontes, 350 F.3d at 881 (citation and internal quota-
tion marks omitted). Thus, under Napue and Alcorta, the false
evidence presented was material to both the murder convic-
tion and the imposition of the death penalty, and the habeas
petition must be granted.

   That the false evidence presented by the State dealt only
with credibility does not change the materiality calculus. Not-
ing that “[i]t is of no consequence that the falsehood bore
upon the witness’ credibility rather than directly upon defen-
dant’s guilt,” 360 U.S. at 269 (internal quotation marks omit-
ted), the Supreme Court stated in Napue:

    The principle that a State may not knowingly use
    false evidence, including false testimony, to obtain a
    tainted conviction, implicit in any concept of ordered
    liberty, does not cease to apply merely because the
    false testimony goes only to the credibility of the
    witness. The jury’s estimate of the truthfulness and
    reliability of a given witness may well be determina-
    tive of guilt or innocence, and it is upon such subtle
    factors as the possible interest of the witness in testi-
2780                    HAYES v. BROWN
    fying falsely that a defendant’s life or liberty may
    depend.

Id. In Giglio v. United States, 405 U.S. 150 (1972), the
Supreme Court reversed a conviction for Mooney-Napue error
because the State had failed to disclose a promise made to its
key witness that he would not be prosecuted if he testified for
the government. Id. at 154-55.

   It also does not matter that James was subject to impeach-
ment on the basis of his transactional immunity, drug addic-
tion, and criminal record. As the Supreme Court noted in
Napue:

    [W]e do not believe that the fact that the jury was
    apprised of other grounds for believing that the wit-
    ness . . . may have had an interest in testifying
    against petitioner turned what was otherwise a
    tainted trial into a fair one.

360 U.S. at 270. For the jury’s determination of James’s cred-
ibility, James’s past criminal record and drug history were of
little import, given that Gebert, Hayes, and James were all
drug users with clouded histories. James’s credibility was
measured in comparison to his peers. James’s transactional
immunity was of no value because there was never any dan-
ger or suggestion that James would be charged in connection
with this case. Unbeknownst to the jury, what was critical to
James was immunity from prosecution for the pending felony
charges. That was the factor that had made James reluctant to
talk to the police in the first instance. Although James was not
expressly told of the deal, it is quite evident that James should
have known that something was afoot, because it was other-
wise not logical for him to agree to be flown from Florida vol-
untarily into a jurisdiction in which he was facing outstanding
charges. Yet, thanks to the careful machinations of the prose-
cution, James could deny the existence of any deal.
                       HAYES v. BROWN                      2781
   The disclosure of an additional, secret deal would not have
been merely cumulative impeachment. It would have demon-
strated that the State was going to great lengths to give James
a powerful incentive to testify favorably, to the point of let-
ting him go free on unrelated felony charges. Presumably, the
importance to the State’s case of James’s testimony is what
initially led the prosecution to make the secret deal; likewise,
the importance to James’s credibility of his false testimony
regarding the absence of a deal is what led the prosecution to
endeavor to keep that deal secret. Thus, the State achieved the
desired effect of artificially bolstering James’s credibility
without taking the more overtly unconstitutional step: having
James testify affirmatively, but falsely, that there was no deal
protecting him from prosecution of other crimes.

   If the jury had been informed of the critical deal, James’s
credibility would have been affected. The jury was not per-
mitted to assess whether James had an expectation of favor-
able treatment that could have affected his testimony because
the State affirmatively placed false evidence before the jury
that there was no deal. See Campbell v. Reed, 594 F.2d 4, 7
(4th Cir. 1979) (noting that the fact that the defendant “was
not aware of the exact terms of the plea agreement only
increases the significance, for purposes of assessing credibil-
ity, of his expectation of favorable treatment”).

   [15] James would not have testified without the secret deal
in place, because he was out of subpoena range and would not
have been available for trial but for his agreement to be flown
in for trial by the prosecution. Without the testimony of
James, an entirely different trial would have occurred. If
James had known of the secret deal and had testified about it,
he would have been subject to impeachment — not only on
the existence of the favorable deal, but also on the State’s
attempts to keep the deal from the jury. The State could not
have falsely buttressed his credibility before the jury. Thus,
the violation of Napue was material.
2782                   HAYES v. BROWN
   The violation of the State’s independent duty under Alcorta
and Pyle was also material, perhaps even more so. To avoid
violating Hayes’s due process rights by allowing false evi-
dence to go uncorrected, the State would have been forced to
disclose to the jury after James testified that James’s testi-
mony concerning the lack of a deal was false; that a secret
deal was in place concerning prosecution for the other crimes;
and that the State had solicited James’s testimony to the con-
trary knowing that he would be providing false evidence.
Such a disclosure would have had a devastating effect on the
credibility of the entire prosecution case. It would have
affected not only the special circumstance verdict, but also the
jury’s ultimate decision to impose the penalty of death. See,
e.g., Silva v. Woodford, 279 F.3d 825, 855 n.25 (9th Cir.
2002) (noting in a capital case that “whatever doubts the jury
may have entertained about [the defendant’s] culpability as a
result of the undermining of [the key witness’s] credibility
may also have affected their assessment of the appropriate
penalty to impose”).

   [16] Thus, Hayes has satisfied the Napue/Alcorta/Agurs
materiality standard, namely, whether there was any reason-
able likelihood that the presentation of the false testimony or
failure to correct the record once the false evidence was pres-
ented “could have affected the judgment of the jury.” Bel-
montes, 350 F.3d at 881 (citation and internal quotation marks
omitted). The due process violations have undermined our
confidence in the verdict. Because the constitutional error was
material, we must reverse the district court and direct the
court to grant Hayes’s petition for a writ of habeas corpus.

                              IV

   In closing, we must observe that this case is not merely
about a peculiar circumstance. As we have noted, this is not
the first time we have been confronted in recent years with
schemes to place false or distorted evidence before a jury. Our
criminal justice system depends on the integrity of the attor-
                        HAYES v. BROWN                       2783
neys who present their cases to the jury. When even a single
conviction is obtained through perjurious or deceptive means,
the entire foundation of our system of justice is weakened.

  As we stated in Bowie:

    The authentic majesty in our Constitution derives in
    large measure from the rule of law — principle and
    process instead of person. Conceived in the shadow
    of an abusive and unanswerable tyrant who rejected
    all authority save his own, our ancestors wisely
    birthed a government not of leaders, but of servants
    of the law. Nowhere in the Constitution or in the
    Declaration of Independence, nor for that matter in
    the Federalist or in any other writing of the Founding
    Fathers, can one find a single utterance that could
    justify a decision by any oath-beholden servant of
    the law to look the other way when confronted by
    the real possibility of being complicit in the wrong-
    ful use of false evidence to secure a conviction in
    court.

236 F.3d at 1096.

  We reverse the judgment of the district court, and remand
with instructions to grant the petition for a writ of habeas cor-
pus.

  REVERSED AND REMANDED.



TALLMAN, Circuit Judge, with whom KLEINFELD,
GOULD, and BYBEE, Circuit Judges, join, concurring in part
and dissenting in part:

  I concur in Parts I, II-A, II-B, and III-A of Judge Thomas’s
opinion for the court. There are few things more repugnant to
2784                       HAYES v. BROWN
the fundamental notions of fairness embodied in due process
than a prosecutor allowing false evidence to go uncorrected
when it appears. Napue v. Illinois, 360 U.S. 264, 269 (1959).
In their solemn constitutional obligation “as [ ] representa-
tive[s] of the government to protect the integrity of the court
and the criminal justice system,” Northern Mariana Islands v.
Bowie, 243 F.3d 1109, 1122 (9th Cir. 2001), prosecutors have
a “special duty commensurate with [their] unique power, to
assure that defendants receive fair trials.” United States v.
LaPage, 231 F.3d 488, 492 (9th Cir. 2000). The majority
appropriately rejects the State’s argument that Napue and its
progeny prohibit only perjury. The prosecutor’s failure to cor-
rect the misimpression left on the jury and the court as to the
full scope of the deal offered to secure the testimony of
Andrew James, even though the witness himself was ignorant
of all benefits he would realize from his cooperation, is as
objectionable to due process as perjury.

   However, in considering all of the evidence presented to
this jury in determining Hayes’s guilt, I respectfully disagree
with the court’s conclusion that there was a reasonable likeli-
hood that the information the prosecutor withheld from James
and the court could have affected the jury’s verdict. In con-
cluding otherwise, the majority misapplies the test for materi-
ality and ignores the substantial evidence introduced at trial
otherwise impeaching James’s credibility. I fear that by
reducing the threshold of what is reasonably likely to affect
a juror’s judgment the majority has effectively endorsed a per
se reversal rule. Therefore, I dissent from Part III-B.1
  1
   I express no opinion as to the majority’s opinion in Part II-C. Because
I would hold that there was no reasonable likelihood that knowledge of a
more favorable deal for James could have affected the jury’s judgment,
there is no need to consider whether this is a new rule of constitutional
procedure that cannot be applied under Teague v. Lane, 489 U.S. 288
(1989).
                        HAYES v. BROWN                       2785
                               I.

   Despite the majority’s unqualified claim that “if it is estab-
lished that the government knowingly permitted the introduc-
tion of false testimony reversal is ‘virtually automatic,’ ” Maj.
Op. at 2764 (citing United States v. Wallach, 935 F.2d 445,
456 (2d Cir. 1991)), the Supreme Court has expressly directed
otherwise:

    We do not [ ] automatically require a new trial when-
    ever “a combing of the prosecutors’ files after the
    trial has disclosed evidence possibly useful to the
    defense but not likely to have changed the verdict[.]”
    . . . A new trial is required if “the false testimony
    could . . . in any reasonable likelihood have affected
    the judgment of the jury[.]”

Giglio v. United States, 405 U.S. 150, 154 (1972) (citing
Napue, 360 U.S. at 271). Thus, it is not enough to simply find
constitutional error. Instead, contrary to the evidence before
us in this record, even where testimony is demonstrably false,
we are required to determine the materiality of the false evi-
dence at issue by considering all of the evidence and deter-
mining whether there was a reasonable likelihood that the
false testimony could have affected the jury’s judgment.
Giglio, 405 U.S. at 154; LaPage, 231 F.3d at 491.

   I disagree with the majority’s characterization of the mate-
riality standard as an inquiry requiring the court to consider,
not whether the verdict would have been different, but
whether the trial was fair and the verdict worthy of confi-
dence. The majority’s citation to Hall v. Director of Correc-
tions, 343 F.3d 976, 983-84 (9th Cir. 2003) (Tallman, J.
dissenting) is unavailing. In explaining the materiality stan-
dard in a case involving false evidence, the Hall majority
improperly plucked the materiality standard from Kyles v.
Whitley, 514 U.S. 419, 434 (1995), an appeal involving a
prosecutor’s alleged failure to disclose potentially exculpatory
2786                    HAYES v. BROWN
evidence. The standards, though similar, are not the same.
See, e.g., United States v. Agurs, 427 U.S. 97, 103 (1976)
(distinguishing the tests for materiality in cases alleging con-
stitutional violation for the use of false evidence and cases
involving the failure to disclose exculpatory evidence).

   The proper standard, and the one set forth by the Supreme
Court, requires us to determine whether, in the context of all
the evidence, there was a reasonable likelihood that the false
testimony could have affected the jury’s judgment. Giglio,
405 U.S. at 154; see also LaPage, 231 F.3d at 491. Employ-
ing that standard, we must use caution in trying to peer inside
the minds of jurors who had the distinct benefit of hearing all
the testimony and seeing the evidence first-hand.

                               II.

   To label the testimony of James “false” is a misnomer on
these facts. Because James was never told of the secret side
deal, James did not testify falsely when he declared that his
prior felony charges were still pending and he truthfully testi-
fied that he was unaware of any deals or promises made in
exchange for his testimony. What offends due process is not
James’s testimony, but the prosecution’s failure to correct that
which the prosecutor knew to be false: James’s unwittingly
untrue statement that he had no deal regarding his pending
felony charges. Napue, 360 U.S. at 269. The majority reasons
that the prosecutor’s failure to correct James’s testimony kept
from the jury impeachment evidence that it might have con-
sidered in weighing James’s credibility. But, there is no link
here between the prosecutor’s misconduct and its effect on
what James knew at the time he testified about the murder and
theft by Hayes. To claim, as the majority does, that there is
a reasonable likelihood that James’s testimony, in which he
truthfully swore he was unaware of any deal, affected the
jury’s judgment also ignores the substantial amount of
impeachment evidence adeptly employed by the defense at
trial to impugn James’s credibility. It also ignores the fact that
                       HAYES v. BROWN                      2787
the witness himself was unaware of a benefit the law cautions
us to suspect might lead a potentially biased witness to testify
untruthfully.

   Critically, James testified that the State had given him
immunity from all crimes related to Patel’s murder — a fact
the majority completely discounts. There is no question the
jury heard that James was testifying as part of a deal with the
prosecution. That the deal also included future dismissal of
different conduct is immaterial. The prosecution’s undis-
closed agreement to provide James additional immunity is, at
best, merely cumulative of evidence suggesting that James
already had ample motive to color his testimony against
Hayes. Cf. United States v. Cooper, 173 F.3d 1192, 1203 (9th
Cir. 1999) (additional item of impeachment evidence could
not have damaged witness much more and there was ample
evidence of defendant’s guilt without the witness’s testi-
mony); United States v. Marashi, 913 F.2d 724, 732-33 (9th
Cir. 1990) (notes containing cumulative impeachment evi-
dence were not material).

   Evidence that James had any kind of deal is relevant only
to demonstrate that he had a motivation for testifying
adversely against Hayes. However, any motivation James
may have had to testify differently for the prosecution
because the pending felony charges against him would later
be dismissed was nullified because he did not know of that
term of the deal. The testimony James offered simply could
not have been influenced by a deal he knew nothing about.
Thus, the wafer-thin likelihood that the jury would have been
affected by James’s uncorrected statement vanishes alto-
gether. Instead, the majority punishes the State for the due
process violation without any regard to its lack of effect on
the credibility of James’s actual testimony.

  The majority reasons that “the fact that the jury was
apprised of other grounds for believing that the witness [ ]
may have had an interest in testifying against petitioner [does
2788                       HAYES v. BROWN
not turn] what was otherwise a tainted trial into a fair one.”
Napue, 360 U.S. at 270. This, however, is not a case of “other
grounds.” It is simply invalidating an otherwise credible ver-
dict based on prosecutorial misconduct alone. The jury knew
that James had accepted a generous deal from prosecutors
giving him transactional immunity for the Patel murder and
burglary in return for his testimony. James’s deal for immu-
nity from prosecution for his other pending felonies is not
“other grounds,” but the very same grounds for questioning
his motive to color the truth when he agreed to testify against
Hayes: a substantial prosecutorial concession to secure
James’s testimony. Not only is this duplicative of grounds
already used to call James’s credibility into question, and thus
not “other grounds” within the meaning of Napue, but it
added nothing to the jury’s assessment of James’s credibility
since he himself was unaware of it.

   James’s testimony, moreover, was far from pristine for rea-
sons unrelated to further prosecutorial immunity. Specifically,
James testified that he had received money, airline tickets,
and other aid from the State in exchange for his testimony. He
also admitted that he was still facing unresolved criminal
charges that had been pending against him for the previous
two years, and that he had also been convicted of petty theft,
grand theft, and receiving stolen property. Yet, with all this
evidence unquestionably undermining James’s credibility, the
majority insists that had jurors heard that James also would
later receive a dismissal of the pending felony charges — in
addition to his truthful testimony that he received immunity
for all crimes related to Patel’s murder — there is a reason-
able likelihood that their judgment could have been affected.
I cannot agree with the court’s conclusion that this redundant
evidence of his motive to testify against Hayes was the straw
which broke an already crippled camel’s back.2
  2
   The majority’s assertion that James’s credibility was measured against
the credibility of his peers is unsupported by any of the evidence. Addi-
                             HAYES v. BROWN                             2789
   The majority’s conclusion characterizes James as a “key
witness,” without whom Hayes could not have been con-
victed. That conclusion, however, ignores Michelle Gebert’s
testimony, corroborating James’s story, that Hayes told her
that he had robbed Patel, and that Hayes assured her that Patel
would not say anything to the police. It also ignores identical
modus operandi evidence from James Cross, who testified
that Hayes had previously beaten him, demanded money, and
tied his hands and feet with coat hangers — just as Hayes had
done to Patel. It ignores the fact that after binding Cross,
Hayes took additional money from Cross’s pockets and then
sent his girlfriend to Cross’s room to look for more money.

   The court also departs from and misapplies the materiality
inquiry required by Giglio. The court’s analysis goes critically
astray by considering the effect on the jury, not of James’s
actual testimony, but of excluding his entire testimony.
Instead of considering what effect James’s truthful testimony
could have had on the jury, the majority concludes that with-
out James’s testimony and credibility, it is reasonably likely
that the remaining circumstantial evidence, resulting in a
weaker inference of burglary-murder, could have affected the
jury’s judgment. See, e.g., Maj. Op. at 2781 (“Without the tes-
timony of James, an entirely different trial would have
occurred.”); see id. at 2779 (“Without [James’s testimony and
credibility], there was only circumstantial evidence of the bur-
glary[.]”).

   That is simply not the test for materiality. Giglio, 405 U.S.
at 154 (“A new trial is required if ‘the false testimony could

tionally, there is absolutely no evidence in the record that James’s transac-
tional immunity was valueless in impugning his credibility. In making
these inferential leaps that purport to delve into the minds of jurors sitting
in the courtroom over twenty years ago, the majority does here that which
it should not — substitute its own judgments for that of the jury by mak-
ing express but unsubstantiated assumptions about the jury’s consideration
of the evidence.
2790                   HAYES v. BROWN
. . . in any reasonable likelihood have affected the judgment
of the jury[.]’ ”) (quoting Napue, 360 U.S. at 271). We must
only consider the marginal effect that the testimony would
have had on the jury’s verdict, if given fully and completely;
not, as the majority proposes, consider the effect that exclu-
sion of James’s entire testimony would have had on the jury.
Id.; see also LaPage, 231 F.3d at 491. No rational juror, con-
sidering the baggage James carried to the witness stand,
would have based his or her verdict entirely on what James
said. There was ample other evidence to permit the jury to
convict Hayes of the heinous crime for which he faces death.
Considered in total, the case against Hayes is far stronger than
the majority is willing to admit.

   Curiously, the court also postures its analysis as if James’s
testimony would have suddenly become completely incredible
if he had testified that he also had a leniency deal for his
pending felony charges. Even without revelation of the secret
deal, James’s credibility had already been called into substan-
tial question in several ways. Yet, we cannot now say whether
jurors disregarded James’s testimony and relied on Gebert’s
testimony that Hayes told her he had robbed Patel, or whether
they believed James’s story because it was corroborated by
Gebert, the autopsy, and the physical evidence at the crime
scene. An appellate judge’s place is not in the jury box, post
hoc. We must only consider whether it is reasonably likely
that this marginal addition to the evidence could have affected
the judgment of the jury. I am satisfied on this record it could
not.

   Though the prosecutor violated Hayes’s due process rights
by failing to correct the misimpression left by the unwitting,
but truthful testimony of Andrew James, because the majority
ignores all of the evidence considered by the jury and misap-
plies the test for materiality, I respectfully dissent from the
court’s conclusion that Hayes is automatically entitled to a
new trial for a crime he committed more than 20 years ago.
