                                                                                FILED
                            NOT FOR PUBLICATION                                  DEC 28 2010

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



                             FOR THE NINTH CIRCUIT


DARRYL STEVENSON, Jr.,                            No. 09-15081

              Petitioner - Appellant,             D.C. No. 1:07-cv-00515-ALA

  v.
                                                  MEMORANDUM*
JAMES A. YATES, Warden,

              Respondent - Appellee.


                   Appeal from the United States District Court
                        for the Eastern District of California
                 Arthur L. Alarcon, Senior Circuit Judge, Presiding

                     Argued and Submitted November 29, 2010
                             San Francisco, California

Before: SCHROEDER, THOMAS, and GOULD, Circuit Judges.

       Darryl Stevenson, Jr., a California state prisoner, appeals the district court’s

denial of his 28 U.S.C. § 2254 habeas corpus petition challenging his jury

conviction of murder with a firearm based on aiding and abetting.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      Petitioner was the driver of the truck from which, on the passenger’s side,

were fired the shots that killed Burnest Williams. The prosecutor did not turn over

an audio tape and transcript of the Fresno Police Department’s interview of Kelly

Reaves until after trial. Reaves was one of the main witnesses at trial. The court

denied petitioner’s motion for new trial finding there was nothing materially

exculpatory in the tape.

      Evidence is considered 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.” United States v. Bagley, 473 U.S. 667, 682 (1985);

see also Kyles v. Whitley, 514 U.S. 419, 432-34 (1995). Reaves’ statements are

hard to follow. There was an inconsistency between Reaves’ testimony and the

tape transcript: at trial Reaves testified the truck came straight at Williams while

Reaves’ interview transcript reflects he saw there was a “turn.” Petitioner argues

this corroborates his testimony that he was trying to get away. But the statement

does not indicate a “u-turn” and the trial court observed it could also be read in

another way, i.e. a turn to facilitate the shooting. The tape was not clearly

exculpatory. Petitioner failed to show that there was a reasonable probability that

Reaves’ statements during police questioning would have changed the result.

Furthermore, because the California Court of Appeal’s analysis was not an


                                           2
objectively unreasonable application of Bagley, we must defer to its finding that

the evidence was not material. 28 U.S.C. § 2254(d).

      Petitioner also claims ineffective assistance of counsel, but the

representation of petitioner’s trial attorney was vigorous and did not fall “below an

objective standard of reasonableness.” Roe v. Flores-Ortega, 528 U.S. 470, 476-

77 (2000) (quoting Strickland v. Washington, 466 U.S. 668, 688 (1984) (internal

quotation marks omitted)).

      AFFIRMED.




                                          3
                                                                   FILED
Stevenson v. Yates, No. 09-15081
                                                                    DEC 28 2010
GOULD, J., dissenting:
                                                                MOLLY C. DWYER, CLERK
                                                                 U.S. COURT OF APPEALS

      I respectfully dissent. I would hold that the state’s failure to disclose

exculpatory evidence constituted a Brady violation sufficiently clear to warrant

relief under the AEDPA.1 See Brady v. Maryland, 373 U.S. 83 (1963). Stevenson

is entitled to a new trial at which his counsel would be free to argue the

significance of the audiotape and transcript of the police interview of Kelly

Reaves, who was an important trial witness.

      Stevenson was convicted of aiding and abetting a murder. He was driving a

truck when his passenger, John Shepheard, shot the victim, Burnest Williams. The

shooting by Shepheard was obviously intentional and aimed at killing the victim.

The crux of the issue for the state court jury was whether, as the driver of the

vehicle, Stevenson had intended to place the car in the vicinity of the victim to

facilitate Shepheard’s shooting of Burnest. Stevenson was convicted after trial

testimony including that of Kelly Reaves, for the prosecution, in which Reaves

indicated that Stevenson had driven his car directly at the victim, and indeed had

struck the victim with the car. After the jury had convicted Stevenson, the


      1
             Because I would grant relief under Brady, I do not reach the issue of
ineffective assistance of counsel.

                                          1
prosecution tendered a belatedly discovered audiotape, recorded shortly after the

incident, which contained an interview of Reaves by the police. Stevenson sought

a new trial, contending that the audiotape was exculpatory information that should

have been produced before trial by the prosecution. The tape was found after trial

by a policeman who was cleaning out his desk: there was no suggestion of

intentional, bad faith non-production. But Brady doesn’t require intentional

withholding of information. See Strickler v. Greene, 527 U.S. 263, 288 (1999)

(“[A]n inadvertent nondisclosure has the same impact on the fairness of the

proceedings as deliberate concealment.”). Negligent non-disclosure permits relief

so long as there is a reasonable probability that a pretrial disclosure would have

changed the result. E.g., Banks v. Dretke, 540 U.S. 668, 699 (2004) (“[Defendant]

must show ‘a reasonable probability of a different result.’”) (quoting Kyles v.

Whitley, 514 U.S. 419, 434 (1995)).

      The question before us is whether there is a reasonable probability that the

jury would not have convicted Stevenson of aiding and abetting the murder if the

audiotape of Reaves’s interview had been disclosed prior to trial. Stevenson

argues that Reaves’s testimony at trial differed from Reaves’s statements to police

as recorded on the audiotape. On the audiotape, Reaves appeared to indicate that

Stevenson turned his car to avoid running down the victim; but at trial Reaves

                                          2
testified, and the prosecution emphasized, that Stevenson drove directly at the

victim.

      The key part of the audiotape, for which we, in our record, have only the

transcript, contains this language by Reaves:

             DETECTIVE: [H]ow fast do you think the car was going?

              REAVES: See that’s when . . . I . . . quick . . . it’s like a peel-
      out . . . I don’t know if it was a stick or . . . or . . . you know what I’m
      saying, aut—an automatic. It had power . . . ’cause when he hit . . . from
      me . . . not to . . . you know what I’m saying . . . when he . . . when . . .
      when . . . we seen him with the, you know . . . it looked like he just
      wanted to turn off, you know. Turn into the lane and just take off?
              ....
              . . . [I]f he would have hit us . . . like . . . like this . . . we both
      would have been on the ground. What it is, he turned it . . . and as he
      turned it . . . we hit the . . . where the light and the bumper . . . but see
      that . . . that . . . that truck had a . . . railing on it too. On the front, and
      on the side. You know, the little . . . bar run . . . stepping bar railing? . . .
               ....
              It . . . it got a grill too. It got the front grill . . . like . . . like, and
      then it got the little bars in . . . on the side, where you can step up on . . .
      to the ahm . . . truck. If . . . if he would have hit us front on . . . we . . .
      we’d both been killed. But, when he turned it . . . he would have . . . he
      would have to hit that washing machine I hit, you know what I’m
      saying . . . for him to get up outta there.

Excerpts of R. 2:37–38.

      It is possible one might consider the language of the audiotape to be ambiguous.

Maybe Stevenson turned the truck because he encountered people crowding the street

while he was trying to exit the area, or maybe Stevenson turned the truck to give his

                                                3
passenger a better angle for a shooting. Such matters are in the province of the jury.

In either case, it seems clear from the audiotape transcript that Stevenson turned the

truck, a fact which undermines the prosecution’s theory at trial. See Opening Br. 19

(“Mr. Stevenson drove the car at them. The testimony was it was driven directly at

them. . . . He punched it and went directly at the victims in this case.”) (quoting

Rep.’s Tr. 632:13–17). Whatever I may think about what may happen in some cases

involving street violence or drive-by shootings, this appeal must be decided on the

precise facts of this case. Stevenson was entitled to be presumed innocent, and

Stevenson’s lawyer, if he had received the audiotape, was entitled to present his most

vigorous defense with that audiotape supporting his client’s views. Stevenson himself

testified at trial that his aims were innocent in trying to get out of the area, that he

didn’t know his passenger was going to shoot the victim, and that he had to turn

because the street was blocked by a gathering crowd. As an appellate court, we are

not in a position to make an assessment of whether Stevenson’s view was correct or

the prosecution’s view was correct. That decision was for the jury. In my view,

Stevenson was entitled at trial to have his lawyer armed with the audiotape which at

least arguably contradicted the trial testimony of the state’s key witness and lent some

support to Stevenson’s self-exculpatory testimony.




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