                                                                          FILED
                           NOT FOR PUBLICATION                            DEC 03 2014

                                                                       MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                      U.S. COURT OF APPEALS



                           FOR THE NINTH CIRCUIT


ROBERT RICHARD JONES,                           No. 12-35318

              Petitioner - Appellant,           D.C. No. 1:09-cv-00132-MHW

     v.
                                                MEMORANDUM*
JASON ELLIS, Warden,

              Respondent - Appellee.


                   Appeal from the United States District Court
                             for the District of Idaho
                  Mikel H. Williams, Magistrate Judge, Presiding

                         Submitted November 17, 2014**
                                Portland, Oregon

Before: CLIFTON, M. SMITH, and HURWITZ, Circuit Judges.




 *
      This disposition is not appropriate for publication and is not precedent except
as provided by 9th Cir. R. 36-3.
 **
      After examining the appellant’s brief and the appellate record, the panel
unanimously concludes that oral argument would not materially assist the
determination of this appeal. See Fed. R. App. P. 34(f).
      Robert Richard Jones appeals the district court’s dismissal of his 28 U.S.C. §

2254 petition for a writ of habeas corpus. We have jurisdiction under 28 U.S.C. §§

1291 and 2253,1 and affirm.

      1. We review the last reasoned state court decision, see Van Lynn v. Farmon,

347 F.3d 735, 738 (9th Cir. 2003), to determine if it was either “contrary to, or

involved an unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States,” 28 U.S.C. § 2254(d)(1), or

“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) (2). “This is a difficult

to meet and highly deferential standard for evaluating state-court rulings, which

demands that state-court decisions be given the benefit of the doubt.” Cullen v.

Pinholster, 131 S. Ct. 1388, 1398 (2011) (internal quotation marks and citations

omitted).

      2. The Idaho Court of Appeals’ rejection of Jones’ claim under Napue v.

Illinois, 360 U.S. 264 (1959), was not unreasonable. A conviction may not be

obtained “through use of false evidence, known to be such by representatives of the

State . . . . The same result obtains when the State, although not soliciting false

1
       With the parties’ consent, a magistrate judge conducted all proceedings below.
See 28 U.S.C. § 636(c)(1); see also 28 U.S.C. § 636(c)(3) (providing for appellate
jurisdiction).

                                          2
evidence, allows it to go uncorrected when it appears.” Id. at 269 (internal citations

omitted). Jones argued that the rule in Napue was violated because a prosecution

witness lied when testifying that he had not finalized a deal with prosecutors. But the

record confirms that the witness had not yet finalized a deal with the prosecutors.

      3. The Idaho court’s rejection of Jones’ claim under Brady v. Maryland, 373

U.S. 83 (1963), also was not unreasonable. The “suppression by the prosecution of

evidence favorable to an accused upon request violates due process where the

evidence is material either to guilt or to punishment.” Id. at 87. Suppressed evidence

is material if “‘there is a reasonable probability that, had the evidence been disclosed

to the defense, the result of the proceeding would have been different.’” Strickler v.

Greene, 527 U.S. 263, 280 (1999) (quoting United States v. Bagley, 473 U.S. 667, 682

(1985)). Although the information about the witness’s parole hearing should have

been disclosed, see Giglio v. United States, 405 U.S. 150, 154-55 (1972), the Idaho

court was not unreasonable in concluding that there was no reasonable probability that

disclosure would have changed the outcome.

      4. The Idaho Court of Appeals was also not unreasonable in denying Jones’

ineffective assistance of counsel claim. A defendant asserting ineffective assistance

of counsel must show both that “counsel made errors so serious that counsel was not

functioning as the ‘counsel’ guaranteed . . . by the Sixth Amendment,” and “that the


                                           3
deficient performance prejudiced the defense. This requires showing that counsel’s

errors were so serious as to deprive the defendant of a fair trial, a trial whose result is

reliable.” Strickland v. Washington, 466 U.S. 668, 687 (1984). Without both, “it

cannot be said that the conviction . . . resulted from a breakdown in the adversary

process that renders the result unreliable.” Id. The Idaho court reasonably concluded

that Jones failed to show that counsel was deficient in cross-examining the

prosecution’s witness or that a different examination would likely have changed the

result.2

       AFFIRMED.




2
      The respondent’s motion to strike Jones’ Excerpts of Record Volume III is
granted. “Save in unusual circumstances,” this court considers “only the district court
record on appeal.” Lowry v. Barnhart, 329 F.3d 1019, 1024 (9th Cir. 2003).

                                            4
