                  FOR PUBLICATION
  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

JESSE GONZALEZ,                        
               Petitioner-Appellant,
                                              No. 08-99025
                 v.
ROBERT WONG, Warden of                         D.C. No.
                                           2:95-CV-02345-JVS
California State Prison at San
                                               OPINION
Quentin,
              Respondent-Appellee.
                                       
        Appeal from the United States District Court
           for the Central District of California
          Lourdes G. Baird and James V. Selna,
                 District Judges, Presiding

                  Argued and Submitted
          January 10, 2011—Pasadena, California

                  Filed December 7, 2011

 Before: Diarmuid F. O’Scannlain, William A. Fletcher, and
             Richard R. Clifton, Circuit Judges.

                  Opinion by Judge Clifton;
         Partial Concurrence and Partial Dissent by
                     Judge W. Fletcher;
           Partial Dissent by Judge O’Scannlain




                            20683
                            GONZALEZ v. WONG                           20687




                               COUNSEL

Robert Berke, Santa Monica, California; Mark E. Overland
(argued), Scheper Kim & Overland LLP, Los Angeles, Cali-
fornia, for the petitioner-appellant.

Joseph P. Lee, Deputy Attorney General, Los Angeles, Cali-
fornia, for the respondent-appellee.


                                OPINION

CLIFTON, Circuit Judge:

   Jesse Gonzales1 was convicted in a California state court of
first degree murder, with a finding of the special circumstance
of killing a law enforcement officer engaged in the lawful
pursuit of his duties, and was sentenced to death. The Califor-
  1
   It appears that Gonzales’s name is spelled wrong in the case caption.
This error dates back to his trial and is reflected in the caption of the Cali-
fornia Supreme Court’s decision as well. People v. Gonzalez, 800 P.2d
1159 (Cal. 1990). In order to avoid confusion we have retained the errone-
ous spelling in the caption, but have correctly spelled Gonzales’s name in
the opinion.
20688                 GONZALEZ v. WONG
nia Supreme Court affirmed the conviction and sentence and
denied Gonzales’s petition for post-conviction relief. People
v. Gonzalez, 800 P.2d 1159 (Cal. 1990). The district court
denied his petition for habeas corpus under 28 U.S.C. § 2254,
and he appeals that denial to us.

   Gonzales’s appeal requires us to consider and apply the
decision of the United States Supreme Court earlier this year
in Cullen v. Pinholster, ___ U.S. ___, 131 S. Ct. 1388 (2011).
In that decision, the Court held that in reviewing the petition
of a state prisoner for habeas relief under the Antiterrorism
and Effective Death Penalty Act (“AEDPA”) when the pris-
oner petitions for review of a claim adjudicated in the state
courts on the merits under 28 U.S.C. § 2254(d)(1), a federal
court may consider only the record that was before the state
court when it adjudicated the claim.

   One of the arguments made by Gonzales to the California
Supreme Court and rejected by that court was that the prose-
cutor failed to turn over exculpatory material as required
under Brady v. Maryland, 373 U.S. 83 (1963), and related
cases. The argument specifically referred to information con-
cerning one prosecution witness, a jailhouse informant named
William Acker. Acker testified during the guilt and penalty
phases of Gonzales’s trial that Gonzales had admitted that he
intentionally killed the deputy sheriff, in effect confessing to
Acker that he was guilty of the crime and special circum-
stance alleged. Some material regarding Acker was turned
over by the prosecutor to Gonzales’s defense counsel prior to
trial, but other material, concerning Acker’s mental state and
credibility, was not. Despite diligent effort by Gonzales, some
of the documents that were not turned over did not become
known to Gonzales until they were obtained during the fed-
eral habeas proceeding in district court, after the state court
had rendered its decision. Those materials were not, therefore,
part of the state court record.
                           GONZALEZ v. WONG                           20689
   Under Pinholster, we may not consider those later-
discovered materials in reviewing Gonzales’s federal habeas
claim. Because it appears to us that those materials strengthen
Gonzales’s Brady claim to the point that his argument would
be potentially meritorious — that is, that a reasonable state
court might be persuaded to grant relief on that claim — it is
not appropriate for us to ignore those materials. We remand
that portion of the case2 to district court with instructions to
stay the proceeding in order to give Gonzales an opportunity
to return to state court and present his claim with the benefit
of the materials that were not available and not part of the
record at the time of the California Supreme Court decision.
By that process, we seek to satisfy the intent of AEDPA, as
discussed in Pinholster, 131 S. Ct. at 1398, that habeas claims
of state prisoners be channeled in the first instance to state
court.

   We are not persuaded by the other arguments presented by
Gonzales. Thus, we affirm the judgment of the district court
as to most issues, but vacate the part of the judgment that
denied the Brady claim (and related ineffective assistance of
counsel claim, see note 2) and remand that claim to the dis-
trict court with instructions to stay proceedings to permit
Gonzales to present the claim to the California Supreme
Court.
  2
    In addition to the Brady claim, we also remand to the district court with
similar instructions as to one of several ineffective assistance of counsel
claims asserted by Gonzales, that being a claim that his counsel was inef-
fective for not earlier obtaining the materials that arguably would have
impeached Acker. As we explain below, at 20698 note 7, that particular
ineffective assistance claim substantially overlaps with the Brady claim.
For clarity, we will generally not discuss or refer to that ineffective assis-
tance claim separately, but when we refer to our disposition of the Brady
claim we include that ineffective assistance claim as well.
20690                  GONZALEZ v. WONG
I.   Background

   Eleven plain-clothed sheriff deputies arrived in three
unmarked vehicles at the home of Gonzales’s parents in La
Puente to execute a search warrant on the evening of May 29,
1979. The search warrant was based on an undercover narcot-
ics purchase made several days earlier from Gonzales’s cou-
sin at the residence. Four of the deputies approached the front
door and one of them knocked and stated “Los Angeles Sher-
iff’s Department. We have a search warrant. Open the door.”
Several seconds later the knock and announce was repeated.

   The deputies heard what sounded like running and, fearing
that narcotic evidence was being destroyed, they attempted to
enter the house forcefully. Deputy Robert Esquivel eventually
kicked in the door and his momentum carried him into the
entryway. Esquivel saw Gonzales standing at the end of the
hallway with a shotgun pointed at the front door. The shotgun
blast missed Esquivel but hit Deputy Jack Williams who
entered the house behind him. Williams died as a result of the
shotgun wound. Gonzales was shot and apprehended by the
deputies.

  Gonzales was charged with first degree murder with the
special circumstance of killing a peace officer who was
engaged in the lawful pursuit of his duties. His trial was bifur-
cated into two phases, a guilt phase and a penalty phase. Each
phase was tried before a different jury.

  During the guilt phase, the facts of the shooting, as
described above, were not disputed by the defense. Gon-
zales’s defense was that he had not heard the officers’
announcements and instead believed the officers were mem-
bers of a rival gang, known as the Bassetts, coming to kill him
and his cousin. The central question at trial was Gonzales’s
understanding and intent at the time of the shooting.

   The prosecution presented significant evidence showing
that Gonzales could not have believed that the officers were
                      GONZALEZ v. WONG                    20691
gang members. All of the surviving deputies who were by the
front door testified as to the manner of the entry and the
shooting. In particular, they testified that while they were
dressed in casual clothing, all of them, including the officer
who was killed, had their badges either affixed to their jackets
or in their hands. They also testified that they twice
announced that they were police before entering the home.
Additionally, an officer with expertise in gang-related crime
testified that La Puente was no longer an area of high gang
activity. He testified that almost all gang violence consisted
of drive-by shootings, conduct very different from the actions
of the officers serving the warrant. He also described the typi-
cal gang warrior as a Latino teenager and gave reasons why
the officers, all of whom were in their 30’s and, with the
exception of Esquivel, were white, could not have been mis-
taken for gang warriors. Thus, the prosecution argued, Gon-
zales must have known that he was shooting at law
enforcement officers, not rival gang members.

   In addition, the prosecution presented evidence to support
the contention that Gonzales not only knew he was shooting
at officers but that he knew in advance that the police were
coming and planned on using the raid as an opportunity to kill
a police officer. This theory was based almost entirely on the
testimony of William Acker, another prisoner held in the
same jail as Gonzales. Acker testified that while in jail, Gon-
zales admitted to knowing that the men were officers because
he had received a phone call informing him of the raid, and
further that he planned to “bag a cop” when the officers
served the warrant. Acker also testified that Gonzales had
planned in advance to say that he believed the officers were
Bassett members.

   Gonzales sought to counter the prosecution’s evidence. He
attempted to show that he reasonably could have believed the
officers were gang members. He presented evidence of other
gang-related violence in La Puente. He relied on the testi-
mony of two officers with whom he spoke shortly after the
20692                     GONZALEZ v. WONG
shooting. Both officers testified that Gonzales told them he
had believed the officers were Bassetts.3 To explain why it
was reasonable for Gonzales to believe that the Bassetts
would storm his house to kill him, Gonzales sought to estab-
lish that he had been a former leader of the La Puente gang,
rivals of the Bassetts.

   Gonzales testified in his own defense. His testimony was
that he was inside the house when he heard the cars pull into
the driveway. He went to the window but did not recognize
the men. He testified that he focused on a Latino male who
he said was the front seat passenger in one of the cars. He
stated that he believed that the men were Bassetts. He denied
seeing badges or hearing the announcements.

   While Gonzales denied knowingly killing a police officer,
his testimony about the shooting was inconsistent with the
facts as described by all of the officers who testified. Among
the many inconsistencies was that he insisted that Esquivel,
the only Latino officer, was sitting in the front passenger seat.
  3
    Deputy Mace testified that while en route to the hospital, Gonzales said
that he had believed that the men trying to enter his home were members
of the Bassett gang and that he did not know they were police officers
until he had been shot. The testimony of Sergeant Verdugo, who investi-
gated the murder with his partner Sergeant Overlease, was somewhat less
clear. Verdugo testified about what Gonzales said during an interview at
the hospital early the following morning. Gonzales described the incident
as a “freak accident.” He initially stated that he was watering the lawn
until he saw the “cops coming” and ran into the house. The record is
unclear whether Gonzales recognized the men as “cops” when he saw
them approaching the house, or whether his description of them as cops
to Verdugo was based on his learning by the time of the interview that the
men were police. The record is also unclear on what was said next.
Verdugo testified at trial that Gonzales stated that he was confused.
According to Verdugo’s report of the conversation, Gonzales said that the
officers were confused. It is undisputed that Gonzales then stated that he
had been watering the lawn, but was inside with his infant son when he
heard the cars arrive. He heard pounding and yelling at the door, but could
not hear what was said. Gonzales reiterated to Verdugo that he believed
the men were Bassett members.
                      GONZALEZ v. WONG                    20693
All of the officers stated that Esquivel was driving one of the
cars. Gonzales also denied that the cars he saw were the ones
the officers had identified as their vehicles.

   The defense also sought to counter Acker’s testimony.
Gonzales testified that he had never admitted to Acker that he
knew the men were police officers. James Nobel, a prisoner
who was housed in the cell between Acker and Gonzales, tes-
tified that he never saw Gonzales speak with Acker. Nobel
also testified that Gonzales had asked him to read aloud the
police reports of the incidents because Gonzales was illiterate.
Both Gonzales and Nobel said that Acker could have over-
heard Nobel reading the police reports, which the defense
argued explained how Acker knew specific facts about the
shooting.

   The defense also sought to impeach Acker. During cross
examination, Acker admitted that he had previously pled
guilty to a charge of murder and that he had provided evi-
dence against his own wife concerning that murder. He denied
being a police informant or giving information in other cases.
He testified that he hoped giving the information would help
him get transferred to an out-of-state prison because he
believed he would be killed by gangs if he remained in Cali-
fornia. He insisted, though, that he was testifying because “it
was a step in the right direction” and would help him get bal-
ance in his life. Acker admitted that he could lie if he wanted
to, but insisted that he was not lying about Gonzales’s state-
ments.

   Gonzales was convicted of first degree murder and the spe-
cial circumstance of killing a police officer engaged in the
lawful pursuit of his duties. The case then moved to the pen-
alty phase. The state sought the death penalty. The first pen-
alty phase trial resulted in a hung jury. The penalty phase was
retried before a different jury.
20694                     GONZALEZ v. WONG
   The state’s penalty phase case was aimed at establishing
aggravating factors that would outweigh any mitigating fac-
tors offered by Gonzales.4 The primary aggravating factor
offered by the state was the aggravated nature of the killing,
which the state sought to establish by proving that Gonzales
was aware of the police raid and had planned out the killing
of the officer, including his Bassett excuse. The focal point of
the state’s case during the penalty phase was Acker’s testi-
mony that Gonzales had confessed to Acker all the key facts
that the state argued made Gonzales’s crime worthy of the
death penalty.

   During the penalty phase, the defense continued to main-
tain that Gonzales had believed the officers were gang mem-
bers. However, faced with an existing guilty verdict on the
charge of premeditated murder, the defense argued in the
alternative that Gonzales did not know about the raid in
advance and that therefore the crime was not so heinous and
did not warrant the death penalty. For example, evidence was
presented that Gonzales had gone to work that day and had
not been waiting around for the officers. Gonzales did not tes-
tify again during the penalty phase, and no character evidence
was presented on his behalf. The second penalty phase jury
imposed the death penalty. The trial judge denied a motion for
a retrial and a motion to modify the sentence.

  Gonzales appealed his conviction and brought a petition for
post-conviction relief to the California Supreme Court. The
court considered both the appeal and the habeas petition at the
same time. Gonzales’s habeas petition claimed, among other
  4
    Under the 1978 California death penalty statute, in effect at the time
of Gonzales’s crime and applied at his trial, the guilt phase jury first had
to find the defendant guilty of first degree murder and one of the enumer-
ated special circumstances. If that requirement was met, the penalty phase
jury was instructed to consider aggravating and mitigating circumstances
and to impose the death penalty if it concluded that the aggravating cir-
cumstances outweighed the mitigating circumstances. See Cal. Penal Code
§ 190.3 (1978).
                          GONZALEZ v. WONG                          20695
things, ineffective assistance of counsel based on his trial
counsel’s failure to investigate and present positive character
evidence. The California Supreme Court appointed a referee,
a Superior Court judge, to review evidence and make factual
findings as to what character evidence could have been
uncovered by Gonzales’s counsel and what evidence the pros-
ecution may have presented in rebuttal.

   At the referee hearing, Gonzales’s trial counsel, Ralph
Bencagey, testified about his investigation. He testified that
he conducted it on his own and that he interviewed people
from the neighborhood. He did not conduct an investigation
into Gonzales’s health or school records and did not have
Gonzales tested for mental health impairments.

   Gonzales also presented character witnesses at the referee
hearing who testified that Gonzales was a kind individual who
had a loving and caring relationship with his children as well
as other children. Some also testified that he was a “slow”
child and had never learned to read. However, several of these
witnesses had limited interactions with Gonzales, and none
were aware of his involvement with gangs. Two of the wit-
nesses also described the tragic death of Gonzales’s twin sis-
ters in a train accident and the subsequent impact the tragedy
had on Gonzales and his family. The referee made factual
findings and filed a report with the California Supreme Court.

  While Gonzales’s case was pending before the California
Supreme Court, a scandal erupted regarding false testimony
by jailhouse informants in Los Angeles. Leslie White, a jail-
house informant, revealed that he and other informants in the
Los Angeles County jail had fabricated confessions during the
period from 1979 through 1988.5 An investigation into the use
   5
     Our court recently dealt with a case involving another informant from
this period. See Maxwell v. Roe, 628 F.3d 486 (9th Cir. 2010). Our col-
league, Judge Stephen Trott, who previously served as a Los Angeles
Assistant District Attorney, has written and lectured extensively about the
problems inherent in prosecutors’ use of jailhouse informants. See Stephen
S. Trott, Words of Warning for Prosecutors Using Criminals as Witnesses,
47 Hastings L.J. 1381, 1394 (1996).
20696                  GONZALEZ v. WONG
of jailhouse informants by prosecutors found significant prob-
lems. While Acker was never officially identified as a jail-
house informant during the investigation, the revelations of
how jailhouse informants had fabricated confessions led Gon-
zales’s lawyers to seek additional discovery regarding Acker.
Gonzales filed discovery motions which were heard by the
judge who had presided over his trial. The trial court granted
the request for further discovery, but the State sought a writ
of mandamus from the California Supreme Court to overturn
the discovery order. That issue was consolidated with Gon-
zales’s habeas petition and direct appeal.

   The California Supreme Court upheld Gonzales’s convic-
tion and death sentence and rejected his claims for habeas
relief. Gonzalez, 800 P.2d 1159. On the discovery issue, the
court held that the trial court could not authorize the discovery
sought by Gonzales because it no longer had jurisdiction over
the case. It also declined to grant the discovery requests under
its direct appeal or habeas jurisdiction. Id. at 1256-61. The
court stated, though, that “we expect and assume that if the
People’s lawyers have such information in this or any other
case, they will disclose it promptly and fully.” Id. at 1261. No
such information was voluntarily disclosed to Gonzales.

   Gonzales filed a petition for habeas corpus in federal court.
The district court denied Gonzales’s request for an evidentiary
hearing on most of the claims, but it granted discovery on the
claim that Gonzales’s trial counsel failed to investigate and
the state failed to disclose evidence that Acker was a govern-
ment agent. This discovery did not unearth evidence that
Acker was a government agent, but it did uncover impeach-
ment evidence about Acker that had not been provided to the
defense prior to the trial. Specifically, the state turned over six
psychological reports prepared by prison psychologists on
Acker while he had been incarcerated in California prisons
between 1972 and 1979. These reports, discussed in more
detail below, indicated that Acker had a severe personality
disorder, was mentally unstable, possibly schizophrenic, and
                           GONZALEZ v. WONG                          20697
had repeatedly lied and faked attempting suicide in order to
obtain transfers to other facilities.

   Based on this new evidence Gonzales moved for reconsid-
eration of the denial of an evidentiary hearing on his ineffec-
tive assistance of counsel and Brady claims. The district court
denied the request, holding that while the newly discovered
evidence “strengthened some of the elements” of these
claims, it did not establish materiality. The court subsequently
denied Gonzales’s other claims.

   Gonzales sought and received a certificate of appealability
from the district court under 28 U.S.C. § 22536 and brought
this appeal.

II.   Discussion

   The provisions of AEDPA apply to Gonzales’s petition
because it was filed on September 20, 1996, after AEDPA’s
effective date. Under AEDPA, a federal court may not grant
the writ based on any claim that was adjudicated on the merits
by a state court unless the state court decision “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 . . . 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). The district court’s
denial of a petition for a writ of habeas corpus is reviewed de
novo. Lambert v. Blodgett, 393 F.3d 943, 964 (9th Cir. 2004).
  6
   Gonzales failed to request a certificate of appealability on his claim of
ineffective assistance of counsel based on the failure to investigate and
present character evidence during the penalty phase. Gonzales claims to
have inadvertently omitted this claim from his request and has asked this
panel to grant one for it. Because the claim substantially overlaps with
another claim which was certified, we conclude that the failure to request
certification was an inadvertent mistake and grant the request for a certifi-
cate of appealability on this claim.
20698                      GONZALEZ v. WONG
   Gonzales has raised numerous claims in his habeas petition,
some of which relate to the guilt phase, some to the penalty
phase, and some to both. We begin by addressing his Brady
claim, which he asserts as to both phases. It is the only claim
on which we remand this case to the district court. We then
address his other claims, which we conclude are not meritori-
ous.

A.        Brady Claim7

     1.    Procedural History

   Gonzales’s state habeas petition raised a Brady claim based
on allegations that the state failed to turn over evidence about
Acker’s criminal history. His argument was based on an inac-
curate criminal history printout given to Gonzales’s counsel.
It showed Acker was serving a sentence of life without parole,
when in fact he was sentenced to life with the possibility of
  7
    Gonzales has also raised an ineffective assistance of counsel claim
based on his counsel’s failure to discover the impeachment evidence. The
analysis of materiality for ineffective assistance of counsel is the same as
the analysis of prejudice for Brady, see United States v. Bagley, 473 U.S.
667, 682 (1985), so our Brady prejudice analysis applies directly to this
ineffective assistance of counsel claim. The district court rejected this
ineffective assistance claim on the same ground that it rejected the Brady
claim: the additional evidence was not material under Brady or prejudicial
under Strickland. It is not clear to us that this ineffective assistance claim
adds anything to Gonzales’s Brady claim, but out of caution we resolve
this ineffective assistance claim in the same way as the Brady claim. It is
remanded to the district court with the same instruction to stay and abey,
in order to give the state court the first opportunity to resolve the claim
in light of the late-disclosed materials. In order to avoid confusion with the
other ineffective assistance claims asserted by Gonzales, as to which we
affirm the district court’s dismissal, we will not separately discuss this
ineffective assistance claim in this decision and will treat it as included
within our discussion of the Brady claim.
   By this action, we do not suggest any determination by us with regard
to whether counsel’s performance was so unprofessional as to satisfy the
other prong under Strickland. In order to give the state court a fair oppor-
tunity to consider the issue, we will not take it up ourselves now.
                       GONZALEZ v. WONG                    20699
parole. The criminal history also omitted several burglary
convictions. Gonzales argued that the state’s failure to correct
these errors constituted a Brady violation. In addition, Gon-
zales argued that the state failed to inform him that Acker was
providing information to the police in other criminal cases.
The California Supreme Court rejected this claim, concluding
that there was no prejudice because “these additional details
do not paint a significantly different picture of Acker’s char-
acter and motives than appears on the record.” Gonzalez, 800
P.2d at 1193.

  As noted above, Gonzales sought additional discovery
about Acker from the state during the pendency of his state
appeal. The state trial court granted Gonzales this discovery,
but the California Supreme Court overturned the discovery
order. This effectively ended Gonzales’s ability to pursue
additional Brady claims in state court.

   Gonzales’s initial federal habeas petition raised a Brady
claim based on the same withheld evidence that was the sub-
ject of his state petition. The district court held that Gonzales
suffered no prejudice from the withholding of the material
and denied the request for an evidentiary hearing. When addi-
tional suppressed evidence was uncovered, Gonzales twice
moved for re-consideration of his Brady claim. The district
court twice denied the request, concluding that while the
newly discovered evidence “strengthened some of the ele-
ments” of these claims, it did not establish materiality. The
court based its conclusion on its belief that Acker was ade-
quately impeached and his testimony was corroborated by
other evidence. Notably, the district court concluded that “[a]t
the guilt phase, and to a lesser degree at the penalty phase,
this was not a case where it is likely the jury had to believe
Acker’s testimony in order to believe the prosecution’s theo-
ry.”
20700                     GONZALEZ v. WONG
  2.    Cullen v. Pinholster

   After we heard oral arguments in this case, the Supreme
Court filed its decision in Cullen v. Pinholster, 131 S. Ct.
1388 (2011).8 We ordered and received supplemental briefs
from the parties regarding the impact of that decision. Two
elements of Pinholster are of particular importance for the
case before us.

   [1] First, Pinholster specifically held that “review under
§ 2254(d)(1) is limited to the record that was before the state
court that adjudicated the claim on the merits.” Pinholster,
131 S. Ct. at 1398.

   [2] Second, in announcing that holding, Pinholster empha-
sized that, under AEDPA, the state courts are to bear primary
responsibility for adjudicating habeas claims brought by state
prisoners. In the Court’s words, AEDPA “demonstrate[d]
Congress’ intent to channel prisoners’ claims first to the state
courts. . . . ‘The federal habeas scheme leaves primary respon-
sibility with the state courts.’ ” Id. at 1398-99, (quoting
Woodford v. Visciotti, 537 U.S. 19, 27 (2002) (per curiam)).

  The Acker psychological reports were not part of the record
when the California Supreme Court rendered its decision
because they were not obtained by Gonzales until later, while
   8
     Recently we followed Pinholster in denying a habeas petitioner’s
request for an evidentiary hearing relating to an ineffective assistance of
counsel claim involving new evidence not presented to the state court. See
Stokley v. Ryan, ___ F.3d ___, 2011 WL 4436268 (9th Cir. Sep. 26, 2011).
We concluded that we did not have to determine whether Pinholster
applied in that case, however, because the petitioner’s claim failed either
way. Id. at *4. The present case poses a different situation, however, as
the only relief sought by the petitioner in Stokley was for an evidentiary
hearing. Id. at *6. Further, we found that the petitioner in Stokley did not
present a colorable ineffective assistance of counsel claim, id. at *6-11,
whereas the new evidence of psychological reports presented by Gonzales
could make a colorable Brady claim.
                      GONZALEZ v. WONG                    20701
he was pursing his federal habeas petition in district court. A
Brady claim was made before the state court, but it was nar-
rower because Gonzales was not aware at the time of the psy-
chological reports that had been withheld. As we discuss in
detail below, we have concluded that the Acker psychological
reports might have been helpful to Gonzales’s defense. Before
discussing those reports, however, it is necessary to determine
what consideration, if any, we can properly give to them in
light of Pinholster.

   Gonzales argues that Pinholster’s limitation of our review
to the record before the state court does not apply to his Brady
claim based on the psychological reports because it is a “new
claim,” not decided on the merits by the California Supreme
Court. In Pinholster the Court referenced but declined to draw
the dividing line between a “new claim” and a claim decided
on the merits by the state court and subject to review under
§ 2254(d). Justice Sotomayor’s dissent in Pinholster ques-
tioned how the Court’s holding would apply to a hypothetical
situation somewhat similar to the one before us: a petitioner
who diligently pursued a Brady claim in state court is denied
relief on the grounds that the withheld evidence presented in
the Brady claim was not material, but subsequently is able to
force production of additional undisclosed exculpatory evi-
dence. Pinholster, 131 S. Ct. at 1417-18 (Sotomayor, J., dis-
senting). The majority opinion written by Justice Thomas
responded to Justice Sotomayor’s concern by noting that “Jus-
tice Sotomayor’s hypothetical involving new evidence of
withheld exculpatory witness statements may well present a
new claim,” but stated that it did “not decide where to draw
the line between new claims and claims adjudicated on the
merits.” Id. at 1401 n.10 (internal citation omitted).

   [3] Under the circumstances, we conclude that Pinholster
applies here and prevents us from considering the new evi-
dence in reviewing Gonzales’s Brady claim under § 2254(d).
Gonzales raised and the state court explicitly rejected a Brady
claim regarding information about Acker. Moreover, the sug-
20702                 GONZALEZ v. WONG
gestion that Gonzales has presented a “new claim” inherently
invites questions regarding exhaustion. In light of Pinholster’s
emphasis on the primary responsibility of the state court, we
conclude that the new evidence needs to be presented to the
state court before it can be considered by us on habeas review
of the state court’s decision.

   That does not mean that we can or should disregard the
new evidence, however. We cannot fault Gonzales for a lack
of diligence with respect to the withheld reports. Responsibil-
ity for the late appearance of those documents lies with the
state. Despite discovery requests by Gonzales’s trial counsel
and the inherent obligation of the prosecutor to turn over
exculpatory material, these reports were withheld. Gonzales
made further discovery requests while pursuing post-
conviction relief in state court, but the California Supreme
Court granted the State’s request to set aside the trial court’s
order permitting the discovery. That court did so while
expressing its expectation that prosecutors would voluntarily
and promptly turn over any such evidence, but that expecta-
tion was not fulfilled. For us simply to ignore the materials
that did not emerge until the federal habeas proceedings
would be to reward the prosecutor for withholding them.

   [4] As discussed below, we conclude that if the new evi-
dence were considered, Gonzales could make a colorable or
potentially meritorious Brady claim, meaning that a reason-
able state court could conclude that the withholding of the
psychological reports constituted a Brady violation at the guilt
phase, the penalty phase, or both. Because the claim is not
clearly meritless, we do not believe dismissal of Gonzales’s
Brady claim is the appropriate result.

   [5] We conclude that the appropriate course for us at this
point is to remand to the district court with instructions that
it stay and abey the habeas proceedings to allow Gonzales to
present to state court his Brady claim including the
subsequently-disclosed materials. In effect, we follow the
                        GONZALEZ v. WONG                       20703
suggestion offered by Justice Breyer in his concurring opinion
in Pinholster that a petitioner “can always return to state court
presenting new evidence not previously presented. If the state
court again denies relief, he might be able to return to federal
court to make claims related to the latest rejection.” See Pin-
holster, 131 S. Ct. at 1412 (Breyer, J., concurring).9

   The stay and abey process is the same process that may be
employed when a petitioner files a petition containing unex-
hausted claims. In Rhines v. Weber, 544 U.S. 269, 278 (2005),
the Court instructed that “if the petitioner had good cause for
his failure to exhaust, his unexhausted claims are potentially
meritorious, and there is no indication that the petitioner
engaged in intentionally dilatory litigation tactics . . . the dis-
trict court should stay, rather than dismiss” the petition. Here,
Gonzales had good cause for not presenting the new evidence
to the state court, has not engaged in intentional dilatory liti-
gation tactics, and, as is explained below, has a potentially
meritorious claim.

   This course provides the state court with the first opportu-
nity to resolve this claim. It also protects Gonzales’s interest
in obtaining federal review of his claim. As in the case of
unexhausted claims that meet the Rhines requirements, Gon-
zales’s “interest in obtaining federal review of his claims out-
weighs the competing interests in finality and speedy
resolution of federal petitions.” Id. Once the state court has
spoken on this claim, Gonzales may, if necessary, return to
district court and reactivate the federal proceedings.

   We now turn to a discussion of the new materials. Our dis-
cussion below is only to demonstrate why we conclude that
Gonzales has a colorable or potentially meritorious Brady
claim such that a reasonable state court could find a Brady
  9
   The separate opinion of Judge O’Scannlain, dissenting in part, dis-
agrees with this portion of our decision in this case. The majority’s
response to the partial dissent appears below, at 20734-36.
20704                  GONZALEZ v. WONG
violation. We do not decide whether there was a Brady viola-
tion. That determination is for the California Supreme Court
to make in the first instance.

  3.    A Potentially Meritorious Brady Claim

    “The prosecution’s affirmative duty to disclose evidence
favorable to a defendant can trace its origins to early 20th-
century strictures against misrepresentation” by prosecutors.
Kyles v. Whitley, 514 U.S. 419, 432 (1995). As the Supreme
Court recognized in 1935, a prosecutor is “the representative
not of an ordinary party to a controversy, but of a sovereignty
. . . whose interest, therefore, in a criminal prosecution is not
that it shall win a case, but that justice shall be done.” Berger
v. United States, 295 U.S. 78, 88 (1935). In subsequent deci-
sions, most notably Brady, the Court has consistently “under-
scored the ‘special role played by the American prosecutor in
the search for truth in criminal trials.’ ” Banks v. Dretke, 540
U.S. 668, 696 (2004) (quoting Strickler v. Greene, 527 U.S.
263, 281 (1999)).

   The Supreme Court has also repeatedly reaffirmed that
Brady is one of the central bulwarks against injustice in our
criminal justice system. The Court has stressed the central
premise of Brady; even though an individual prosecutor may
win a conviction, society as a whole loses when that convic-
tion is wrong. Our system, therefore, places a “duty [on prose-
cutors] to refrain from improper methods calculated to
produce a wrongful conviction.” Cone v. Bell, ___ U.S. ___,
129 S. Ct. 1769, 1782 (2009) (quoting Berger, 295 U.S. at
88). Principal among a prosecutor’s duties is to provide a
defendant with all material exculpatory and impeachment evi-
dence prior to trial. This obligation recognizes the significant
advantage the state has over an individual defendant in
regards to gathering information and seeks to level the play-
ing field. We expect our government to fight fair and not deny
a defendant evidence that could exculpate him or ameliorate
the penalty he faces. Only by giving a defendant this evidence
                       GONZALEZ v. WONG                    20705
can the government ensure that “justice is done its citizens in
the courts.” Brady, 373 U.S. at 87.

   The elements of a claim for a Brady violation are that
“[t]he evidence at issue must be favorable to the accused,
either because it is exculpatory, or because it is impeaching;
that evidence must have been suppressed by the State, either
willfully or inadvertently; and prejudice must have ensued.”
Strickler, 527 U.S. at 281-82. The state does not appear to
contest the first two elements, so we discuss these only briefly
before turning to the issue of materiality, which the state does
contest.

    a.   Favorable to the Accused

   In United States v. Bagley, the Supreme Court recognized
that “[i]mpeachment evidence . . . as well as exculpatory evi-
dence, falls within the Brady rule,” because it is “favorable to
an accused.” 473 U.S. 667, 676 (1985). There is a colorable
argument that the psychological reports could have been used
to impeach Acker. Impeaching Acker was important for Gon-
zales’s defense in both phases. Gonzales can, therefore, make
a colorable argument that the withheld evidence was favor-
able to him.

    b.   Evidence was Suppressed

   Gonzales can also make a colorable argument that the evi-
dence was suppressed. Brady does not require a showing that
the state willfully or intentionally suppressed the evidence;
even inadvertent suppression will satisfy this prong of the test.
See Brady, 373 U.S. at 87 (suppression of evidence by prose-
cution violates due process “irrespective of the good faith or
bad faith of the prosecution”). The psychological reports were
in the possession of the prosecutor’s office prior to the trial.
Even if they had not been, a prosecutor has a duty under
Brady to “learn of any exculpatory evidence known to others
acting on the government’s behalf.” Carriger v. Stewart, 132
20706                     GONZALEZ v. WONG
F.3d 463, 479-80 (9th Cir. 1997) (en banc) (prosecutor vio-
lated Brady when he did not turn over witness’s prison
records); see also Strickler, 527 U.S. at 275 n.12.

       c.   Materiality

   Suppressed evidence is material if “the favorable evidence
could reasonably be taken to put the whole case in such a dif-
ferent light as to undermine confidence in the verdict.” Kyles,
514 U.S. at 435. In other words, the petitioner does not need
to prove that a different result would have occurred, just that
there is “a reasonable probability of a different result.” Id. at
434 (internal quotation marks omitted). “The 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 result-
ing in a verdict worthy of confidence.” Id. We conclude that
a reasonable state court could conclude that there was a rea-
sonable probability of a different result if the information con-
tained in the psychological reports had been available to the
defense and presented to the juries.

   We reach this conclusion by undertaking a two-step
inquiry. First, we ask whether a reasonable state court could
conclude that there was a reasonable probability that the new
evidence would have changed the way in which the jurors
viewed Acker’s testimony. We determine that a state court
could so conclude. We then ask whether a reasonable state
court could conclude that there was a reasonable probability
that this change would have resulted in a different verdict dur-
ing either or both phases. We conclude that given Acker’s
role in both phases, there is a potentially meritorious claim
that there was a reasonable probability of a different verdict
at one or both phases.10
  10
    We recognize that it was probably true, as the district court suggested,
that Acker’s testimony held greater importance in the penalty phase than
in the guilt phase. We need not decide here whether the evidence was
actually material in one or both of the trials, as that conclusion should be
made in the first instance by the state court.
                      GONZALEZ v. WONG                   20707
      i.   Jurors’ view of Acker

   [6] Our inquiry into how the jurors viewed Acker is pri-
marily focused on how the withheld evidence could have pro-
vided additional or alternative means of impeachment. There
is a colorable argument that a factfinder would have found the
information about Acker contained in these reports disturbing,
and that it would have been difficult for anyone, let alone a
reasonable factfinder, to trust the witness described in these
reports. The reports were prepared by psychologists employed
by the State. They characterized Acker as predatory, manipu-
lative, and unscrupulous, and they detailed his past lies and
manipulations. See Benn v. Lambert, 283 F.3d 1040, 1055
(9th Cir. 2002) (evidence that witness “had regularly lied” and
“was untrustworthy and deceptive” would have “severely
undermined his credibility.”).

   Perhaps the most severe examples of Acker’s manipulative
and deceptive behavior were the three occasions when he
faked committing suicide in order to obtain prison transfers or
otherwise influence his placement within the prison system. A
1972 Psychiatric Evaluation reported that Acker admitted that
he had faked suicide at the Norwalk Receiving Center in order
to be placed in the hospital, from which it would be easier to
escape. A 1973 Psychiatric Evaluation reported an attempted
hanging, which Acker stated “was only a gesture designed to
prevent his egress from CMC East,” the hospital in which he
had been placed. Finally, a 1974 report described another fake
suicide attempt in April or May of 1974, which Acker said he
faked because “he wanted out” of the facility.

   Beyond the fake suicide attempts, the reports specifically
described Acker’s other manipulative behavior. One of the
psychiatrists reported that Acker asked, “how much money
would it take to give me a good report.’ ” Another psychiatrist
described Acker as “the type of an individual who was con-
stantly testing me.” The 1979 diagnostic study prepared for
Acker’s sentencing for his murder conviction concluded that
20708                    GONZALEZ v. WONG
he was “intelligent, manipulative, unscrupulous” and “capable
of any measure of brutality in the service of achieving what
he wants to do.”

   In addition to showing Acker to have a history of lying and
manipulative behavior, the reports could be viewed to cast
significant doubt on what Acker stated was his primary moti-
vation for testifying against Gonzales. Acker repeatedly said
that he was testifying because of a desire to turn his life
around and do the right thing. The psychological reports
showed that Acker had previously lied about reforming his
life. The psychological report from 1972 stated that Acker
told the psychologist he had turned his life around because he
had “undergone a religious experience.” After making these
statements and being released from prison, he committed first
degree murder and numerous robberies.11 A subsequent social
evaluation of Acker noted that he had been “offered therapy
in the past and has used it as a tool to get out of prison early
and has not attempted to use it as a tool to change his own
behavior.”

   A reasonable state court could conclude that these prior
statements would have enabled Gonzales to show that Acker’s
professed reason for testifying was false. A court could also
conclude that Gonzales would have then been able to focus
the jurors on Acker’s “continuing interest in obtaining [the
state’s] favor” and that as a result “they might well have dis-
trusted [Acker’s] testimony, and insofar as it was uncorrobo-
rated, disregarded it.” Banks, 540 U.S. at 701; see also On Lee
v. United States, 343 U.S. 747, 757 (1952) (noting that testi-
mony from witness receiving benefits from government “may
raise serious questions of credibility”).

  [7] The reports also indicated that Acker had schizophre-
  11
    The reports would also have shown that Acker was in fact a career
criminal who first interacted with the law at age 8, and since the age of
14 had spent all but fourteen months incarcerated.
                      GONZALEZ v. WONG                   20709
nia, which a reasonable state court could determine would
have raised serious questions in the factfinder’s mind about
Acker’s competency to perceive accurately and testify truth-
fully. As early as 1974, Acker was diagnosed with
“[s]chizophrenia, chronic, undifferentiated type.” In 1975, he
was diagnosed with “[s]chizophrenia, residual type.” A 1977
report noted that Acker was “mentally unstable” and had “a
severe personality disorder, and he has previously been diag-
nosed as schizophrenic.” Courts have long recognized the
impeachment value of evidence that a government witness has
a “severe illness, such as schizophrenia, that dramatically
impaired [his] ability to perceive and tell the truth.” United
States v. Butt, 955 F.2d 77, 82-83 (1st Cir. 1992) (“For over
forty years, federal courts have permitted the impeachment of
government witnesses based on their mental condition at the
time of the events testified to.”). A reasonable state court
could conclude that an assessment that Acker had not only
lied in the past but had a mental condition that made him
prone to lying could have affected the jury’s evaluation of his
credibility.

   Finally, a state court could conclude that the psychiatric
reports would have provided an opportunity to impeach Acker
by showing that the state’s own expert employees had repeat-
edly expressed doubts about Acker’s credibility, truthfulness,
and competency. See Silva v. Brown, 416 F.3d 980, 988 (9th
Cir. 2005) (requirement witness not have psychological evalu-
ation was evidence of “potentially devastating fact that the
state itself doubted [the witness’s] mental competency”);
Benn, 283 F.3d at 1055 (evidence that police doubted veracity
of informant because of past lies was material Brady evi-
dence).

   The state argues, and the district court concluded, that
regardless of the impeachment value of this evidence, it was
nevertheless not material because Acker was already suffi-
ciently impeached. Defense counsel did present some
impeachment evidence, but courts have repeatedly held that
20710                  GONZALEZ v. WONG
withheld impeachment evidence does not become immaterial
merely because there is some other impeachment of the wit-
ness at trial. Where the withheld evidence opens up new ave-
nues for impeachment, it can be argued that it is still material.
See Banks, 540 U.S. at 702 (rejecting argument that since wit-
ness was otherwise impeached withheld impeachment evi-
dence was immaterial); United States v. Kohring, 637 F.3d
895, 905-06 (9th Cir. 2011) (even though witness was
impeached on memory problems, evidence of alleged sexual
misconduct and suborning perjury was not cumulative
because it “would have added an entirely new dimension to
the jury’s assessment of [the witness]” such that “ ‘there is a
reasonable probability that the withheld evidence would have
altered at least one juror’s assessment [of the evidence]’ ”
(quoting United States v. Price, 566 F.3d 900, 914 (9th Cir.
2009))); Horton v. Mayle, 408 F.3d 570, 580 (9th Cir. 2005)
(“[T]hat the jury had other reasons to disbelieve [the witness]
does not render the suppressed [impeachment evidence]
immaterial.”); Benn, 283 F.3d at 1055 (“The mere fact that a
prosecution witness has a prior record, even when combined
with other impeachment evidence that a defendant introduces,
does not render otherwise critical impeachment evidence
cumulative.”).

   While cumulative impeachment evidence might have been
immaterial, a reasonable state court could determine that the
psychology reports “ ‘provided the defense with a new and
different ground of impeachment’ ” and as such were not
cumulative. Silva, 416 F.3d at 989 (quoting Benn, 283 F.3d at
1056.) In Silva, the court recognized that even though the wit-
ness was impeached on his forthrightness, the withheld evi-
dence, in that case a plea deal which prohibited the witness
from undergoing a psychiatric evaluation prior to trial, was
not cumulative because it related to his reliability. In Car-
riger, the district court had ruled that an informant’s prison
records, which described him as repeatedly lying, having a
sociopathic personality, and being manipulative were immate-
rial for Brady purposes because the jury was made aware of
                       GONZALEZ v. WONG                    20711
his burglary conviction and plea deal. 132 F.3d at 480-82.
Recognizing that the withheld evidence opened a new avenue
of impeachment, we reversed because “the government can-
not satisfy its Brady obligation to disclose exculpatory evi-
dence by making some evidence available and claiming the
rest would be cumulative.” Id. at 481

   During both phases defense counsel did attempt to impeach
Acker by his conviction for murder, his desire to be trans-
ferred to an out-of-state prison, previous cases where Acker
had testified about jailhouse confessions, and his statement
that he could lie when he wanted to, although he denied doing
so in this case. None of the evidence presented at trial actually
demonstrated Acker had lied in the past or that he was known
to be manipulative and deceptive. See Benn, 283 F.3d at 1055
(evidence that informant had lied in the past was non-
cumulative impeachment evidence). It is one thing for a wit-
ness to admit that he could lie; everyone can lie. Evidence of
Acker’s past lies, deception, and manipulation would have
provided hard evidence, different from that already presented,
to support Gonzales’s argument that Acker was lying.

   In addition, Gonzales has a colorable argument that the new
evidence would have opened up other unexplored opportuni-
ties for impeachment. A reasonable state court could deter-
mine that none of the impeachment at trial touched on
Acker’s competency to perceive and tell the truth, which rea-
sonably could have been put at issue by evidence that Acker
was schizophrenic. Similarly, there is a colorable argument
that none of the impeachment evidence available to Gonzales
at trial allowed him to cast doubt on Acker’s purported desire
to turn his life around or demonstrate that the state had previ-
ously expressed doubts about Acker’s veracity and compe-
tency.

  Finally, Gonzales has a colorable argument that the jury
believed Acker despite the impeachment evidence presented
to them. This argument could rest in part on the fact that
20712                  GONZALEZ v. WONG
Acker was an important witness for the government, espe-
cially during the penalty phase, and that “[i]n cases in which
the witness is central to the prosecution’s case, the defen-
dant’s conviction indicates that in all likelihood the impeach-
ment evidence introduced at trial was insufficient to persuade
a jury that the witness lacked credibility.” Benn, 283 F.3d at
1055.

   There is also documentary evidence that a reasonable state
court could conclude supports the argument that the jury
believed Acker. In a memo written after the first penalty
phase trial resulted in a hung jury, the prosecutor stated that
he spoke with the first penalty phase jurors and that most of
them, including all of the women, found Acker’s testimony
convincing. Acker’s testimony and defense counsel’s cross
examination were essentially the same in all three trials.
Given that the cited jurors in the first penalty trial found
Acker credible, this memo could be viewed to provide some
evidence that the jurors in the other trials did as well.

   [8] In light of the manner in which Acker was described in
these reports and the potential new avenues of impeachment
opened by these descriptions, we conclude that a reasonable
state court could determine that a jury would have doubted
Acker’s veracity, motive for testifying, and competency if
presented with the evidence in the psychological reports.

        ii.   A Different Outcome

   [9] We next consider whether there is a colorable argument
that there is a reasonable probability that the additional
impeachment of Acker through the psychological reports
would have led to a different outcome at either the guilt or
penalty phase. We conclude that a reasonable state court
could decide that Acker’s importance to the prosecution’s
cases was significant enough that additional impeachment of
him reasonably could have changed the outcome.
                       GONZALEZ v. WONG                    20713
   [10] Acker’s testimony amounted to a confession by Gon-
zales to first degree premeditated murder of a police officer,
both the crime he was charged with and the facts the state
argued warranted sentencing him to death. As the Supreme
Court has noted “[a] confession is like no other evidence.
Indeed, ‘the defendant’s own confession is probably the most
probative and damaging evidence that can be admitted against
him.’ ” Arizona v. Fulminante, 499 U.S. 279, 296 (1991)
(quoting Bruton v. United States, 391 U.S. 123, 139-40 (1968)
(White, J., dissenting)); see also Maxwell, 628 F.3d at 507-08
(informant was “the ‘make-or-break witness’ ” and his testi-
mony about defendant’s jailhouse confession was the “center-
piece of the prosecution’s case”). While there was other
circumstantial evidence, Acker’s testimony was the only
direct evidence establishing that Gonzales had a premeditated
plan to kill a police officer.

   In addition, a state court could conclude that the damage
the suppressed impeachment evidence could cause was “best
understood by taking the word of the prosecutor.” Kyles, 514
U.S. at 444. The prosecutor spent time during his summations
discussing Acker’s testimony and countering the attempted
impeachment of him, and a court could view this as further
support for the proposition that Acker was central to the pros-
ecution’s cases. See Horton, 408 F.3d at 580 (“The prosecu-
tor’s emphasis on the importance of [the witness’s] testimony
bolsters the conclusion that disclosure of the [impeachment
evidence] may have significantly damaged the prosecution’s
case.”). There is also the memo written by the prosecutor after
the hung jury in the first penalty trial, in which the prosecutor
stated that his ability to retry the penalty phase depended on
whether “Acker is available and is willing to testify.” A rea-
sonable state court could view the prosecutor’s arguments and
memo as evidence that Acker was important to the prosecu-
tion’s case, especially in the context of the penalty phase.

  [11] We do not decide here that the new evidence would
have resulted in a different outcome in either phase. It is pos-
20714                      GONZALEZ v. WONG
sible that even without this new evidence the jury did not
believe Acker. It is also conceivable that, based on the other
evidence presented to it, the jury could have concluded that
Gonzales was guilty and deserved the death penalty. How-
ever, in order to establish a Brady violation, Gonzales would
only have to show a “reasonable probability” that the outcome
would have been different. Given the nature of Acker’s testi-
mony, a reasonable state court could conclude that Acker’s
testimony “was the glue that held the prosecution’s case
together,” Horton, 408 F.3d at 579, and that there is a reason-
able probability that further impeachment of Acker could
have resulted in a different outcome.

  4.    Remand to District Court

   [12] Based on the above analysis, we conclude that Gon-
zales could make a potentially meritorious or colorable Brady
claim based on the psychological reports. In order to allow the
state court to consider this Brady claim and to ensure Gon-
zales can seek federal review of the claim if necessary, we
remand the case as to this claim to the district court with
instructions to stay and abey the case pending review of this
claim by the California Supreme Court.12
  12
     While Gonzales’s Brady argument before this court focuses mostly on
the Acker psychological reports, he also argues that the California
Supreme Court erred by denying relief based solely on the evidence that
Gonzales knew about and cited in his argument to that court, such that it
is appropriate for us to grant habeas relief to him at this time. We disagree.
Applying the AEDPA standard, we conclude that the determination of the
California Supreme Court that there was no prejudice, based on the mate-
rial known to it at the time of its decision, was not unreasonable. Gon-
zales’s counsel was able to present evidence that Acker had committed
murder and robbery in the past. The fact that he had committed several
more robberies would not have painted a significantly different picture.
Additionally, even though the criminal history printout indicated that
Acker was not eligible for parole, Gonzales’s counsel still questioned
Acker on whether he hoped that his testimony would help him with the
parole board. We do not resolve whether the cumulative effect of the
materials alleged at the time of the state court decision to have been with-
held and the later-disclosed materials was prejudicial. The California court
may consider that question for itself.
                         GONZALEZ v. WONG                         20715
B.     Ineffective Assistance of Counsel: Character Evidence

   [13] As stated above, we are not persuaded by any of the
other arguments presented by Gonzales. We start with several
claims seeking relief based on ineffective assistance of coun-
sel.

   Gonzales contends that he received ineffective assistance of
counsel during both the guilt and penalty phase because his
attorney failed to investigate or present any character evi-
dence during either phase. In order to establish ineffective
assistance of counsel, a petitioner must prove both deficient
performance by his counsel and prejudice caused by the defi-
ciency. To demonstrate deficient performance Gonzales must
show that counsel’s performance “fell below an objective
standard of reasonableness” based on “the facts of the particu-
lar case [and] viewed as of the time of counsel’s conduct.”
Strickland v. Washington, 466 U.S. 668, 688-90 (1984). In
order to establish prejudice Gonzales “must show that there is
a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.
A reasonable probability is a probability sufficient to under-
mine confidence in the outcome.” Id. at 694. Because failure
to meet either prong is fatal to Gonzales’s claim, there is no
requirement that we “address both components of the inquiry
if the defendant makes an insufficient showing on one.” Id. at
697.

   The California Supreme Court rejected Gonzales’s claims
of ineffective assistance of counsel for failure to present char-
acter evidence. See Gonzalez, 800 P.2d at 1198-99.13 Under
  13
    The California Supreme Court only expressly ruled on this claim in
regards to the penalty phase. However, “[w]here a state court’s decision
is unaccompanied by an explanation, the habeas petitioner’s burden still
must be met by showing there was no reasonable basis for the state court
to deny relief.” Harrington v. Richter, ___ U.S. ___, 131 S. Ct. 770, 784
(2011).
20716                  GONZALEZ v. WONG
AEDPA this conclusion is reviewed only to ensure it is not
contrary to or an unreasonable application of federal law. In
reviewing the California Supreme Court’s ruling we are
guided by the Supreme Court’s instruction that when a peti-
tioner raises a Strickland claim through a habeas petition gov-
erned by the AEDPA, he must surmount two highly
deferential standards. Harrington v. Richter, ___ U.S. ___,
131 S. Ct. 770, 778 (2011) (“Federal habeas courts must
guard against the danger of equating unreasonableness under
Strickland with unreasonableness under § 2254(d).”). “[T]he
question is not whether counsel’s actions were reasonable.
The question is whether there is any reasonable argument that
counsel satisfied Strickland’s deferential standard.” Id.

  1.    Guilt Phase

   To support his claim of ineffective assistance of counsel
during the guilt phase Gonzales points to evidence presented
during the referee hearing conducted at the request of the Cal-
ifornia Supreme Court. At the hearing, witnesses testified that
Gonzales was a loving father who cared about his children,
was attentive to them, and was also caring towards other chil-
dren. He argues that this evidence was relevant because the
parties stipulated that Gonzales’s infant son and another child
were in the house when the shooting occurred. Gonzales
argues that the character evidence would have strengthened
his defense that he was not aware of the raid and was not
planning to kill an officer, because if he had been, he would
have made sure the children were out of the house.

  [14] It was reasonable for the California Supreme Court to
conclude that this claim was meritless because the failure to
present this character evidence was not prejudicial. First, it is
unlikely the witnesses Gonzales might have called would
have been persuasive. Two of the witnesses, Dr. Furth and
Mr. Clancy, had very limited contact with Gonzales. Dr. Furth
admitted to basing her opinion on the few times that Gonzales
had brought his children to her office for medical appoint-
                      GONZALEZ v. WONG                   20717
ments. Mr. Clancy was Gonzales’s middle school teacher and
had seen him only a few times since then. The other wit-
nesses, George Gonzales, Raymond de Jesus, Patricia
Espinoza, and Maria Blanco, were either family or close
friends, making their testimony suspect based on their close
relationship with Gonzales and their admitted desire to help
him avoid the death penalty.

   Most importantly, none of these witnesses were aware of
Gonzales’s gang involvement. Gonzales’s professed fear of a
raid by the Bassetts necessarily highlighted his significant
gang involvement, which would have cast doubt on how well
the proposed witnesses knew him and on their ability to ade-
quately judge his character. Furthermore, the fact that all of
these witnesses would testify that they were unaware of Gon-
zales’s role as a gang leader could have undermined the
defense argument that Gonzales feared attack by the Bassetts,
giving defense counsel a strategic reason for not introducing
this evidence.

   Second, even if the jury were to afford some credibility to
these witnesses, there was evidence which was inconsistent
with these witnesses’ descriptions of Gonzales. Gonzales had
left an unsecured shotgun and shells in the same room as his
infant son. Drug paraphernalia including syringes were also
found lying around the house. The jury could have seen these
facts and Gonzales’s self-described gang history as inconsis-
tent with someone who was purportedly so concerned for the
welfare of the children.

   Third, this character evidence would have provided limited
support for the conclusion that Gonzales did not know about
the raid in advance. According to Gonzales, this evidence
demonstrated that if he knew about the raid in advance and
was planning on killing a police officer, he would have
ensured that the children were not in the home at all. But that
assumed that Gonzales was aware of exactly when the police
officers would arrive and knew when the children needed to
20718                   GONZALEZ v. WONG
be out of the house. The jury also could have thought that
Gonzales merely did not think through his plan, or could have
concluded that having the children in the house was part of
Gonzales’s plan to make the shooting look like an accident.

   Finally, even if the jury did draw Gonzales’s desired infer-
ence from this evidence and concluded based on the presence
of the children that Gonzales did not have advance notice of
the raid, the guilt phase jury could have convicted him even
if they believed he did not have advance notice. The jury
could also have found Gonzales guilty of first degree murder
if they did not believe that Gonzales had advance notice, but
did believe that he knew at the time of the shooting that the
men were officers. If the jury convicted on this basis, the chil-
dren being in the home would have been irrelevant.

  2.    Penalty Phase

   Gonzales raises a similar claim in the context of the penalty
phase, arguing that the failure of his lawyer to investigate and
present character and background evidence during the penalty
phase constituted ineffective assistance of counsel. The Cali-
fornia Supreme Court rejected the claim because it found
there was a valid strategic reason for not presenting character
evidence. Gonzalez, 800 P.2d at 1197-1201. Once again, Gon-
zales must show that the California Supreme Court was
unreasonable in reaching this conclusion. Gonzales cannot
meet this requirement because he cannot show prejudice aris-
ing from the failure to present this evidence. See Wong v. Bel-
montes, ___ U.S. ___, 130 S. Ct. 383, 386 (2009) (prejudice
requires a showing of “a reasonable probability that a compe-
tent attorney, aware of the available mitigating evidence,
would have introduced it at sentencing, and that had the jury
been confronted with this mitigating evidence, there is a rea-
sonable probability that it would have returned with a differ-
ent sentence.”) (internal quotation marks and alterations
omitted)).
                      GONZALEZ v. WONG                    20719
   Gonzales points to two types of character evidence that he
claims his attorney should have discovered and presented.
The first type, already discussed in the context of the guilt
phase, consisted of testimony by family, friends, neighbors,
and a former teacher, all of whom described Gonzales as a
kind person who was respectful of adults and caring towards
children. However, as discussed above, this testimony was
suspect because none of these witnesses were aware of Gon-
zales’s drug and gang history. It is improbable that this evi-
dence would have caused the jury to reach a different
sentence.

   More importantly, introduction of this evidence would have
opened the door to evidence about allegations that Gonzales
was involved in a gang rape in 1972. Gonzales had been
accused of being involved in a gang rape but ultimately only
pled guilty to a charge of misdemeanor battery on the victim’s
friend. Defense counsel was able to limit evidence of this
incident during the penalty phase to a stipulation as to this
conviction. Gonzales’s attorney testified at the referee hearing
that he did not develop or introduce character evidence
because he was worried about the prosecution introducing
additional details about the incident. The referee and the Cali-
fornia Supreme Court found that had Gonzales raised the
issue of his character, the prosecution would have been able
to present the facts underlying the battery conviction.

   While there was some evidence presented at the referee
hearing that the rape victim would have denied that Gonzales
had raped her, Gonzales still pled guilty to battery on the vic-
tim’s friend. Therefore, the best Gonzales could have hoped
for was a showing that he was not one of the rapists but did
batter the victim’s friend, and at worst the jury could have
believed that Gonzales was involved in or assisted in allowing
the rape. Given how weak the mitigating character evidence
was, it was not unreasonable for the California Supreme Court
to conclude that Gonzales’s counsel had a valid strategic rea-
son for not introducing the character evidence so as to avoid
20720                  GONZALEZ v. WONG
the details of this incident. See Burger v. Kemp, 483 U.S. 776,
791 (1987) (concern about prior convictions was valid reason
not to introduce character evidence); Siripongs v. Calderon,
133 F.3d 732, 736-37 (9th Cir. 1998) (same).

   The second type of evidence was information about Gon-
zales’s life history. The bulk of this testimony portrayed Gon-
zales’s family as a stable lower-class family. The only
potentially helpful information was that two of Gonzales’s
sisters died in a train accident when he was younger and that
after this accident Gonzales’s parents neglected the remaining
children. This testimony came from Gonzales’s aunt. Addi-
tionally, the defendant’s brother testified that there was a
change in the family after the death of his sisters. While it is
unclear what these witnesses meant, it is conceivable that this
evidence could have been presented to the jury to induce sym-
pathy for Gonzales, and its introduction would not have
opened the door to the gang rape evidence.

   While this evidence could have been introduced, it was not
the kind of evidence that would have made a sentencer “con-
clude[ ] that the balance of aggravating and mitigating cir-
cumstances did not warrant death.” Strickland, 466 U.S. at
695. Generally Gonzales appears to have come from a stable
family. While Gonzales’s aunt used the word “neglect,” it
does not appear that she means that the children were aban-
doned or abused. Furthermore, Gonzales was already sixteen
when the accident occurred so it is questionable how much
any neglect would have affected him. Additionally, there was
no evidence of the kinds of abuse which other courts have
found sufficiently material to warrant relief. See, e.g., Wiggins
v. Smith, 539 U.S. 510, 535 (2003) (evidence of abuse at
hands of alcoholic absentee mother and “physical torment,
sexual molestation, and repeated rape” while in foster care);
Boyde v. Brown, 404 F.3d 1159, 1180 (9th Cir. 2005) (coun-
sel was deficient for failing to investigate and present evi-
dence of physical and sexual abuse by parents). While the
death of his sisters was undoubtedly tragic and the shock may
                      GONZALEZ v. WONG                   20721
have caused Gonzales’s parents to be inattentive to him, this
evidence was not sufficient to engender enough sympathy to
overcome the aggravating circumstances of the murder.

   [15] We conclude that the state court did not unreasonably
determine that there was not a reasonable probability that had
this evidence been presented to the jury the result would have
been different. Since Gonzales failed to establish that the
alleged deficiency by his counsel caused him prejudice, these
ineffective assistance of counsel claims fail.

C.   Ineffective Assistance of Counsel: Mental Impairment
     Evidence

   Gonzales also alleges that his counsel was deficient
because he failed to investigate and present evidence at the
guilt and penalty phases that Gonzales had a mental impair-
ment that would have affected his judgment at the time of the
shooting. Gonzales points to a medical opinion by Dr. Stein,
a doctor retained by Gonzales’s habeas counsel, which stated
that Gonzales has a mental impairment which “would make
it extremely difficult for him to choose between alternatives
within a short period or to size up options available to him.”
Dr. Stein also opined that “[e]ven if Gonzales had heard the
police officers announce themselves, it is highly likely he
would have still tended to distort or misperceive the events
and have been unable to grasp the correct response.” Id. Gon-
zales asserts that this mental impairment evidence would have
explained why, once he believed the men were Bassetts, he
was unable to process the evidence that they were in fact offi-
cers.

   The California Supreme Court rejected this claim because
Gonzales had not shown that his counsel was deficient. In
doing so it first determined that federal law contained “no
blanket obligation to investigate possible ‘mental’ defenses.”
Gonzalez, 800 P.2d at 1195. Rather, an attorney only needs to
investigate mental health defenses if there are “facts known to
20722                 GONZALEZ v. WONG
counsel from which he reasonably should have suspected that
a meritorious defense was available.” Id. It then made a fac-
tual determination that counsel was not aware of any evidence
that would have made “the possibility of convincing ‘mental’
evidence . . . reasonably apparent to a competent attorney.”
Id. In reviewing this conclusion we once again ask only
“whether there is any reasonable argument that counsel satis-
fied Strickland’s deferential standard.” Richter, 131 S. Ct. at
778. Here, there are reasonable arguments that counsel was
not deficient. Because Gonzales has failed to satisfy his bur-
den under the deficiency prong, there is no need to address the
prejudice prong.

   First, the California Supreme Court’s determination that
there is “no blanket obligation to investigate possible ‘mental’
defenses, even in a capital case” was not an unreasonable
application of federal law. Strickland explicitly addresses
counsel’s duty to investigate, instructing that “counsel has a
duty to make reasonable investigations or to make a reason-
able decision that makes particular investigations unneces-
sary.” 466 U.S. at 691 (emphasis added); see also Wiggins,
539 U.S. at 527 (“[A] court must consider not only the quan-
tum of evidence already known to counsel, but also whether
the known evidence would lead a reasonable attorney to
investigate further.”); Douglas v. Woodford, 316 F.3d 1079,
1085 (9th Cir. 2003) (“Trial counsel has a duty to investigate
a defendant’s mental state if there is evidence to suggest that
the defendant is impaired.”). There is no clear Supreme Court
case law always requiring a mental health investigation at the
guilt or penalty phase. See Pinholster, 131 S. Ct. at 1406-07
(“Strickland itself rejected the notion that the same investiga-
tion will be required in every case.”). The Court has generally
eschewed blanket rules in the context of ineffective counsel.
Strickland, 466 U.S. at 696 (“Most important, in adjudicating
a claim of actual ineffectiveness of counsel, a court should
keep in mind that the principles we have stated do not estab-
lish mechanical rules.”).
                      GONZALEZ v. WONG                   20723
   Second, the California Supreme Court’s determination that
counsel would not have been aware that a mental health
investigation would lead to “materially favorable evidence,”
Gonzalez, 800 P.2d at 1195, was a reasonable factual determi-
nation. The only facts that Gonzales suggested should have
put his counsel on notice was the fact that Gonzales was illit-
erate and that he had been sick as a child. The California
Supreme Court requested a response from defense counsel as
to why he failed to conduct a mental health investigation, and
he explained that Gonzales “seemed normal and alert, and he
participated knowledgeably in strategy discussions.” Id. at
1194. In regards to Gonzales’s illiteracy, counsel stated “he
attached little significance to defendant’s illiteracy, because
poor reading skills are common in low-income communities
for reasons unrelated to mental ability.” Id. The California
Supreme Court found counsel’s responses uncontroverted and
dispositive.

   As Strickland requires, the California Supreme Court
“evaluate[d] the conduct from the counsel’s perspective at the
time” and then “judge[d] the reasonableness of counsel’s
challenged conduct on the facts of the particular case, viewed
as of the time of counsel’s conduct.” 466 U.S. at 689-90.
Given that “counsel is strongly presumed to have rendered
adequate assistance,” id. at 690, the California Supreme Court
was not unreasonable in accepting counsel’s statement that
from his perspective there was nothing unusual about Gon-
zales’s illiteracy, in combination with other facts he knew
about Gonzales, that would have required him to seek a men-
tal health evaluation.

   [16] Nor has Gonzales adequately explained why his illit-
eracy would have necessarily put his counsel on notice that a
mental impairment defense would be fruitful. The fact that
Gonzales appeared normal and alert and was able to partici-
pate in strategy discussions would have been much more rele-
vant in considering whether to pursue a mental impairment
investigation. We find nothing unreasonable with the state
20724                      GONZALEZ v. WONG
court’s conclusion that defense counsel did not have reason to
believe that a mental health investigation would have been fruit-
ful.14

D.     Ineffective Assistance of Counsel: Evidence that Acker
       was a Government Agent

   Gonzales also argues that his counsel was ineffective for
failing to investigate and present evidence that William Acker
was a government agent. Inherent in this claim is the assump-
tion that Acker was a government agent. However, despite
having pursued this claim for close to thirty years, Gonzales
has never been able to provide evidence to support his asser-
tion that Acker was acting as a government agent. As the Cal-
ifornia Supreme Court correctly noted, “[a]bsent evidence of
direct motivation by the police or a prior ‘working relation-
ship’ between Acker and the authorities,” there is no basis for
concluding Acker was a government agent. Gonzalez, 800
P.2d at 1193.

  Even after the discovery authorized by the district court,
nothing in the record suggested that Acker had an established
  14
     We also note that while Gonzales has presented this argument as one
about a mental impairment investigation, it is actually an argument that
counsel did not think of a potential avenue for supporting the defense’s
theory that Gonzales believed the officers were gang members. Just
because counsel did not come up with all potential ways to prove the case
does not make the counsel’s performance ineffective. See Richter, 131 S.
Ct. at 789 (“Counsel was entitled to formulate a strategy that was reason-
able at the time and to balance limited resources in accord with effective
trial tactics and strategies.”); see also Strickland, 466 U.S. at 689 (“There
are countless ways to provide effective assistance in any given case. Even
the best criminal defense attorneys would not defend a particular client in
the same way.”); Chandler v. United States, 218 F.3d 1305, 1316 n. 16
(11th Cir. 2000) (“No lawyer can be expected to have considered all of the
ways. If a defense lawyer pursued course A, it is immaterial that some
other reasonable courses of defense (that the lawyer did not think of at all)
existed and that the lawyer’s pursuit of course A was not a deliberate
choice between course A, course B, and so on.”).
                           GONZALEZ v. WONG                          20725
relationship with the police prior to his conversations with
Gonzales. Gonzales points to the fact that Acker also testified
about jailhouse confessions in other murder cases and argues
that it cannot be mere coincidence that Acker was placed next
to several murder suspects who all purportedly confessed to
him. He also suggests that there was something unusual going
on because Acker was referred for a probation evaluation
even though he should not have been eligible for probation on
his murder conviction.

   [17] Conjecture and coincidences cannot stand in the stead
of actual evidence that Acker was a government agent, how-
ever, particularly given the high standard of deference given
to the state court’s conclusion. We agree with the district
court that “petitioner has not presented, and cannot come up
with, clear and convincing evidence to controvert, or rebut the
presumption of correctness applicable to, the state court’s
finding that Acker did not act as law enforcement’s agent in
petitioner’s case.” Because there is no evidence that Acker
was a government agent, there is no basis to find that the con-
clusion reached by the California Supreme Court on this
claim was factually or legally unreasonable.

E.     Ineffective Assistance of Counsel: Lingering Doubt

   Gonzales next argues that his counsel provided ineffective
assistance during the penalty phase because his counsel failed
to understand and explain to the jury the one mitigating factor
he presented to the jury, “lingering doubt.”15 Lingering doubt
  15
     The California Supreme Court did not explicitly address this argument
as an ineffective assistance of counsel argument. It did reject an argument
that the jury was misled to ignore any lingering doubt in the penalty phase
through either counsels’ arguments or the jury instructions. This is, in
essence, a conclusion that either counsel was not deficient or that any defi-
ciency was immaterial. Gonzalez, 800 P.2d at 1189. It also rejected several
unspecified ineffective assistance claims, which the court describes as
including “incompetently fail[ing] to . . . present mitigating penalty evi-
20726                     GONZALEZ v. WONG
was a valid mitigating factor recognized by the California
Supreme Court in People v. Terry, 390 P.2d 381, 387 (Cal.
1964). Lingering doubt is some doubt regarding the defen-
dant’s guilt for the crime of conviction, less than reasonable
doubt but preventing absolute certainty, which mitigates
against imposing the death penalty.

  Defense counsel did try to create lingering doubt by pre-
senting evidence during the penalty phase to support the the-
ory that Gonzales had mistakenly believed the police were
gang members. However, in his opening and closing state-
ments, defense counsel made confusing statements that sug-
gested that the jury could not consider whether they had doubt
about Gonzales’s guilt. While counsel’s performance might
have been less than stellar, his statements about lingering
doubt did not have a material adverse effect on the penalty
phase.

   The prosecutor focused his case for aggravation almost
exclusively on one aggravating factor, “the aggravated nature
of the crime.” The state sought to establish this factor by
proving that Gonzales knew about the raid in advance and
planned to use the raid as an opportunity to “bag a cop.” In
his opening statement during the penalty phase trial that pro-
duced the death sentence verdict, the prosecutor told the jury
that “the evidence will show that the defendant planned to kill
a cop. Not that it was thought of lightly, that it was just a
split-second situation, spontaneous, but he planned to kill a
cop. Something to the effect he was going to bag a cop.” Dur-

dence” and making “tactical errors at the penalty phase affect[ing] the bal-
ance of aggravation.” Id. at 1202. Gonzales exhausted the issue because
his petition before the California Supreme Court clearly raised this issue
as one of ineffective assistance of counsel. California Amended Petition
at 65-6. “Where a state court’s decision is unaccompanied by an explana-
tion, the habeas petitioner’s burden still must be met by showing there was
no reasonable basis for the state court to deny relief.” Richter, 131 S. Ct.
at 784.
                      GONZALEZ v. WONG                    20727
ing his summation the prosecutor reiterated that the murder
deserved the death penalty because Gonzales “planned to kill
a cop during a raid,” had “a detailed Bassett story to show
how he was going to cover it up,” and was “standing there
with a shotgun, lying in wait.” The prosecution’s penalty
phase case rested on proving the “bag a cop” theory.

   [18] Having reached the conclusion that Gonzales’s crime
warranted the death penalty, the jury necessarily found that
the aggravating circumstances outweighed the mitigating
ones. Given the prosecutor’s arguments, it is highly likely that
they concluded there was a premeditated plan to “bag a cop.”
Having reached this conclusion, they also necessarily rejected
the argument that would have created lingering doubt, that
Gonzales mistakenly believed the officers were gang mem-
bers. Therefore, it was not unreasonable for the California
Supreme Court to conclude that any deficiency in defense
counsel’s lingering doubt argument was immaterial.

F.   Prosecutorial Misconduct: False Testimony by Acker

   Gonzales also claims that the prosecution used false testi-
mony by Acker. Gonzales alleges that Acker lied about his
reasons for testifying against Gonzales. It is clearly estab-
lished law that “a State may not knowingly use false evi-
dence, including false testimony, to obtain a tainted
conviction . . . .” Napue v. Illinois, 360 U.S. 264, 269 (1959).
The California Supreme Court applied this law and rejected
this claim. It concluded that while there may have been incon-
sistencies in Acker’s testimony, “one cannot state a prima
facie case of perjury or concealment simply by showing
inconsistencies in the witness’s testimony.” Gonzalez, 800
P.2d at 1194. The California Supreme Court also rejected
Gonzales’s contention that Acker perjured himself at the guilt
trial by not mentioning that the state had paid for him to have
one of his tattoos removed. The court noted that “any infer-
ence that Acker had received benefits for his cooperation in
this and other cases by the time of the second penalty trial
20728                 GONZALEZ v. WONG
does not establish that his contrary guilt phase testimony was
false when given.” Id. at 1174. Given the evidence before the
court, this conclusion was reasonable.

  The exact nature of Gonzales’s claim before this court is
not entirely clear, but it appears to be that the California
Supreme Court denied this claim without allowing him the
opportunity to engage in the discovery necessary to support it.
However, Gonzales was given the opportunity to conduct dis-
covery into this claim by the district court and failed to
uncover any evidence demonstrating the prosecutors know-
ingly allowed Acker to lie during his testimony. Once again,
conjecture and coincidence cannot win the day, particularly
given the deference due the state court’s conclusions. Absent
such evidence, there is no reason to question the California
Supreme Court’s conclusion that the claim is meritless.

G.   Hicks Claims

   [19] Gonzales next claims that his federal due process
rights were violated by statements made by the prosecutor
during his closing argument for the penalty phase. Gonzales
points to three types of statements: instructing the jurors that
they should not consider sympathy, discussing the jury’s dis-
cretion to impose the death penalty if it found the aggravating
circumstances outweighed the mitigating circumstances, and
suggesting the absence of a mitigating circumstance be treated
as an aggravating circumstance.

   Gonzales is unable to point to any clearly established fed-
eral law from the Supreme Court that establishes any of these
statements as a deprivation of due process under federal law,
as required by the AEDPA. Instead, Gonzales has argued that
the prosecutor’s statements were in violation of state law and
that in making these statements the prosecutor violated his
constitutional right to have the jury exercise its discretion in
the manner authorized by state law. He derives this principle
from Hicks v. Oklahoma, 447 U.S. 343 (1980), which held
                       GONZALEZ v. WONG                    20729
that if a state guaranteed a defendant the right to have a jury
decide his sentence, it was unconstitutional to deny him re-
sentencing by a jury after the statute under which he was sen-
tenced was deemed unconstitutional. The Court stated that:

    Where, however, a State has provided for the impo-
    sition of criminal punishment in the discretion of the
    trial jury, it is not correct to say that the defendant’s
    interest in the exercise of that discretion is merely a
    matter of state procedural law. The defendant in such
    a case has a substantial and legitimate expectation
    that he will be deprived of his liberty only to the
    extent determined by the jury in the exercise of its
    statutory discretion.

Id at 346.

   Gonzales reads Hicks too broadly. See Chambers v. Bower-
sox, 157 F.3d 560, 565 (8th Cir. 1998) (distinguishing Hicks
and “reject[ing] the notion that every trial error, even every
trial error occurring during the sentencing phase of a capital
case, gives rise to a claim under the Due Process Clause”). In
Hicks the defendant was denied his state law right to have a
jury decide his punishment, which implicated issues of funda-
mental fairness. Hicks was not concerned with how a jury
exercised its discretion. Here, regardless of the prosecutor’s
statements, the decision to impose death was still made, as
required by state law, by a jury in the “exercise of its statutory
discretion.”

   Moreover, Gonzales’s argument also fails because it relies
on the erroneous conclusion that he was denied a right guar-
anteed to him by state law. See Ross v. Oklahoma, 487 U.S.
81, 91 (1988) (rejecting Hicks challenge because defendant
“received all that was due under [state] law”). Gonzales raised
each of these claims as independent state law claims before
the California Supreme Court. That court found no violation
of state law in any of the prosecutor’s statements. See
20730                 GONZALEZ v. WONG
McSherry v. Block, 880 F.2d 1049, 1052 (9th Cir. 1989) (“We
are bound by th[e] state court’s construction of its own penal
statute.”).

   Finally, even if there was error, it was not enough to estab-
lish a denial of due process. That requires a showing of a
denial of “that fundamental fairness essential to the very con-
cept of justice.” Lisenba v. California, 314 U.S. 219, 236
(1941). This is not a case where “the prosecutor[‘s] comments
‘so infected the trial with unfairness as to make the resulting
conviction a denial of due process.’ ” Darden v. Wainwright,
477 U.S. 168, 181 (1986) (quoting Donnelly v. DeChristo-
foro, 416 U.S. 637, 643 (1974)).

H.      Bouie Claim

   [20] Gonzales next claims a violation of his due process
rights under Bouie v. City of Columbia, 378 U.S. 347, 353
(1964). In Bouie the Court applied the underlying concept of
the ex post facto clause of the Constitution, which on its face
only applies to legislative acts, to the judiciary. It held that
just as the ex post facto clause prohibits punishing an individ-
ual under a law that was not in effect at the time of the per-
son’s actions, the due process clause protects against
“unforeseeable judicial enlargement of a criminal statute.” Id.
In other words, a court cannot reinterpret a criminal statute in
an unforeseeable manner so that it criminalizes additional
conduct and then apply that novel interpretation retroactively.
We have considered Gonzales’s Bouie claim and conclude
that there was no due process violation.

   Gonzales’s claim arises out of the manner in which the jury
was instructed on the special circumstance of which he was
convicted: killing a peace officer engaged in the lawful per-
formance of his duties. The trial court modified the instruction
on the special circumstance so that the jury was instructed that
a police officer serving a search warrant was engaged in the
                           GONZALEZ v. WONG                          20731
performance of his duties.16 Gonzales did not object to this
instruction during trial, but in his direct appeal to the Califor-
nia Supreme Court he argued that the modification violated
established California law. He contended that under Califor-
nia law an officer serving a facially valid, but actually invalid
warrant was not engaged in the lawful performance of his
duties and that the validity of the warrant was a question for
the jury to decide. He argued the court erred by telling the
jury that an officer serving a search warrant was automatically
engaged in the performance of his duties, because in doing so
it prevented the jury from making its own determination about
the warrant’s validity.

   Gonzales’s argument relied on the California Supreme
Court’s holding in People v. Curtis, 450 P.2d 33 (Cal. 1969),
that in order to be convicted of a crime with an element
involving physical force against an officer the jury had to find
that the officer was lawfully engaged in his duties. A footnote
in Curtis suggested that an officer serving an invalid warrant
was not lawfully performing his duties. Id. at 37 n.4. How-
ever, the court had never explicitly held that an officer was
not engaged in the performance of his duties if he was serving
a facial valid but actually invalid warrant.

   The California Supreme Court rejected Gonzales’s argu-
ment, and held for the first time, over a dissent, that “if a war-
rant is valid on its face, an officer carrying out its command
to search or arrest is lawfully engaged in duty . . . even if the
facts disclosed to the magistrate in support of the warrant
were not legally sufficient to establish probable cause.” Gon-
zalez, 800 P.2d at 1177. Because federal courts will not con-
sider issues of state law as part of habeas review, Gonzales
  16
     The instruction in question, with the modification in brackets, defined
“performance of his duties” as “any lawful act of conduct while engaging
in the maintenance of the peace and security of the community or in the
investigation or prevention of a crime; [to wit, the serving of a search war-
rant].”
20732                  GONZALEZ v. WONG
attempted to repackage this claim as a violation of federal due
process. He argued that Curtis was the law at the time of his
crime and that the California Supreme Court’s decision in his
appeal was an unforeseeable enlargement of a criminal statute
that was retroactively applied to him in violation of due pro-
cess as established in Bouie.

   There are several problems with Gonzales’s Bouie argu-
ment. First, the California Supreme Court’s decision in Gon-
zalez was not unforeseeable. In fact, we think it unlikely that
the court would have reached any other conclusion. To do so
would have sanctioned violence against law enforcement offi-
cers who believed they were lawfully performing their jobs.
Curtis, which dealt with an officer making an unlawful arrest
and using excessive force, was clearly directed at denying
officers who were knowingly engaging in unlawful exercises
of police power the extra protection of criminal statutes like
the special circumstance at issue here. The dicta in the foot-
note, while suggesting that a warrant must be actually valid,
is a broad, general statement which was not controlling law.

   Even if we thought the California Supreme Court’s deci-
sion was unforeseeable, we do not believe that Bouie is appli-
cable here. Bouie dealt with the reinterpretation of a criminal
statute such that conduct that at the time would not be crimi-
nal was later held, after the fact, to be criminal under the stat-
ute. In Bouie, the South Carolina Supreme Court reinterpreted
a trespassing statute that had previously been interpreted to
only criminalize unlawful entry to, in addition, also criminal-
ize remaining on property after being asked to leave. It then
retroactively applied that new interpretation to civil rights
demonstrators who had been charged with trespassing
because they had refused to leave a restaurant where they
were holding a sit-in. The Supreme Court held this interpreta-
tion to violate the due process clause because at the time the
defendants acted their conduct was not criminal and they had
no notice that their actions were illegal. Bouie, 378 U.S. at
362
                          GONZALEZ v. WONG                          20733
   Applying Bouie here would not further the principle under-
lying that decision. The theory behind Bouie was that judicial
enlargement of a criminal statute, like an ex post facto law,
fails to give a defendant adequate notice that his conduct is
criminal. Id. at 350 (discussing principle that “a criminal stat-
ute must give fair warning of the conduct that it makes a
crime”). Here the court’s ruling had nothing to do with the
defendant’s actions, but instead had to do with the victim’s
status. An individual who sees an officer serving a warrant
would not ordinarily know at the time that the warrant was
not valid. There is no suggestion that Gonzales knew that the
search warrant was invalid or was justified in resisting it on
that basis by shooting the officer attempting to serve it. Prior
to Gonzalez, someone who shot an officer in the process of
serving a warrant had notice that he may be subject to the
death penalty. Bouie’s concern with fair notice to the defen-
dant is inapplicable here.

   Finally, even if we found Bouie applicable here, the alleged
error was harmless. On habeas review the “substantial and
injurious effect” standard applies to determine whether a con-
stitutional error was harmless. Fry v. Pliler, 551 U.S. 112, 121
(2007). Gonzales challenged the validity of the warrant on
appeal and the California Supreme Court held that “[b]y any
applicable standard, the warrant was valid.” Gonzalez, 800
P.2d at 1169. During the trial Gonzales never contended that
the warrant was invalid and never introduced any evidence
that would have cast doubt on its validity.17 Based on the evi-
dence presented at trial, there was no basis for the jury to con-
  17
     Justice Mosk stated in his Gonzalez dissent that Gonzales presented
evidence and argument that the police acted unlawfully when they broke
into the residence to execute the warrant. Gonzalez, 800 P.2d at 1210
(Mosk, J., dissenting). However Justice Mosk was not discussing the
validity of the search warrant, but rather the means of entry, which is not
at issue in this appeal. Furthermore Justice Mosk appears to have been
mistaken; we can find no evidence that during trial the defense argued the
officers’ entry into the house was unlawful. In fact defense counsel stated
that he was not going to challenge that the officers knocked and
announced themselves. Gonzales also evidently raised some arguments
before the district court that the warrant was invalid, such “as differing
heights and times between the warrant affidavit and the underlying arrest
report.” Assuming, arguendo, that these alleged deficiencies could make
the warrant invalid, these arguments were not made at trial.
20734                  GONZALEZ v. WONG
clude the officers were not acting pursuant to their official
duties. Therefore, there is no reason to believe the changed
language affected the outcome of the trial. Since any error
would have been harmless, Gonzales’s Bouie argument would
fail regardless of its legal merit.

III.    Response to Partial Dissent

   The partial dissent disagrees with the portion of our deci-
sion that remands the Brady claim based on the psychological
reports to the district court with instructions to stay the habeas
proceedings until Gonzales has had an opportunity to present
this new evidence to the California Supreme Court. Disagree-
ment is expressed on both factual and legal grounds.

   Factually, the partial dissent disputes our assessment of the
impact of the psychiatric reports withheld from defense coun-
sel, concluding that “[a]t most, these reports suggest that
Acker has an antisocial personality and that he tries to manip-
ulate the prison system to obtain transfers to his preferred
place of detention.” Partial Dissent, at 20770. That character-
ization appears to us to be a substantial understatement, as
demonstrated by the description of those reports set out
above, at 20706-09. We also disagree with the partial dis-
sent’s view that the withheld documents were not material
because Acker had already been sufficiently impeached, as
discussed at 20709-12. For the reasons discussed in more
detail at 20712-14, we conclude there was a reasonable possi-
bility that the verdict might have been different if the evi-
dence had not been withheld.

   The disagreement as to law is more significant. The partial
dissent describes our decision as “an end run around Pinhol-
ster’s holding from (1) a hypothetical problem cited in its dis-
sent, (2) a hypothetical solution posed in a concurrence, (3) a
footnote in the majority opinion responding to both, and (4)
an incredibly broad definition of the word ‘claim.’ ” Partial
Dissent, at 20734.
                       GONZALEZ v. WONG                    20735
   The last comment is especially puzzling, because we do not
adopt a “broad” definition of the word “claim.” We conclude
that Gonzales had not presented a new “claim” distinct from
claim already presented and rejected by the California
Supreme Court, see above at 20701-02, though at a time when
that court was not aware of the psychiatric reports withheld
from the defense. Judge Fletcher’s separate concurring opin-
ion raises the suggestion that this argument could be identi-
fied as a “new claim,” but that is not a conclusion of the
majority opinion.

   More broadly, the partial dissent reads Pinholster to say
something which the majority of the Court explicitly declined
to say. The discussion which the partial dissent describes as
“hypothetical” appears to us to concern precisely the situation
presented to us in this case: “new evidence of withheld excul-
patory witness statements.” Pinholster, 131 S. Ct. at 1401
n.10. If there were compelling evidence of that nature, the
partial dissent would apparently have us disregard it, nonethe-
less..

   The partial dissent does not fault petitioner for failing to
discover the withheld information or for failing to include it
in his previous petition to the California Supreme Court, and
properly so. Gonzales can’t be blamed for not knowing or
presenting to the state court what was withheld from him.

   The only fault found by the partial dissent is that, in its
view, by not immediately requesting a stay and seeking to
return to state court after learning of the psychological reports
in 2003, Gonzales “engaged in intentionally dilatory litigation
tactics.” Partial Dissent at 20776. But prior to the announce-
ment of the Court’s decision in Pinholster earlier this year,
there did not appear to be any barrier to Gonzales pursuing his
argument in federal court. Pinholster reversed a decision of
this court, and the law in this circuit prior to that reversal did
not require or even suggest that Gonzales should have done
what the partial dissent castigates him for not doing. By the
20736                 GONZALEZ v. WONG
time of the Court’s decision in Pinholster was announced,
Gonzales’s appeal had already been submitted to our panel for
decision, so at that point there was nothing else for him to do.

   Staying the proceeding in federal court to give Gonzales an
opportunity to present the previously withheld material to the
California Supreme Court is a sensible solution to the prob-
lem posed by this case. Indeed, we note that even the State,
in supplemental briefing after oral argument of this case, sug-
gested that we should return the case to state court to let it
decide on the significance of the withheld information. That
suggestion appears reasonable to us.

   We doubt that the stay and abey process will have to be
employed very often, because Pinholster is now the recog-
nized law, and because there should not be many such
instances of withheld exculpatory witness statements not dis-
covered until years later, after state court proceedings have
concluded. But to disregard that evidence in the situation
presented by this case would be to reward the prosecution for
successfully withholding the evidence in the first place. We
cannot accept such an unjust and illogical result, and we do
not believe that is what the law requires.

IV.     Conclusion

   We affirm all of the district court’s rulings on all of the
non-Brady claims. However, because we believe that with the
new evidence of the psychological reports Gonzales could
make a colorable Brady claim, we remand to the district court
on this claim (along with the related ineffective assistance
claim) with instructions to stay the habeas proceedings until
Gonzales has had an opportunity to present this new evidence
to the California Supreme Court.

  AFFIRMED in PART; REVERSED and REMANDED
in PART.
                       GONZALEZ v. WONG                    20737
W.   FLETCHER, Circuit Judge, concurring in part:

  I concur fully in Judge Clifton’s analysis of Gonzales’s
non-Brady claims.

   I also concur in the decision to remand to the district court
with directions to stay and abey Gonzales’s federal habeas
petition in order to allow him to present to the California state
courts his claim under Brady v. Maryland, 373 U.S. 83
(1963), based on the evidence he has obtained during discov-
ery in his federal habeas proceedings. However, I believe that
we have the authority, in the circumstances of this case, con-
sistent with the Supreme Court’s decision in Cullen v. Pinhol-
ster, 131 S. Ct. 1388 (2011), to decide petitioner’s Brady
claim now, without first seeking the view of the California
courts. I would prefer to exercise that authority.

            I.   General Application of Pinholster

   The Supreme Court held in Pinholster that in a habeas case
governed by 28 U.S.C. § 2254(d)(1) we generally cannot con-
sider evidence that was not before the state court. Pinholster,
131 S. Ct. at 1398. A question Pinholster does not answer is
what federal courts should do when confronted with such evi-
dence. I agree with Judge Clifton that we may treat such evi-
dence in the same way we treat unexhausted claims.

   In Rhines v. Weber, 544 U.S. 269 (2005), the Supreme
Court held that when a habeas petitioner files a so-called
“mixed” habeas petition — a petition that includes both
exhausted and unexhausted claims — a district court abuses
its discretion in certain circumstances when it decides not to
stay and abey the petition to allow the petitioner to present the
unexhausted claims in state court. Specifically, a district court
should stay and abey such a mixed petition if “the petitioner
had good cause for his failure to exhaust, his unexhausted
claims are potentially meritorious, and there is no indication
that the petitioner engaged in intentionally dilatory litigation
20738                   GONZALEZ v. WONG
tactics.” Id. at 278. The Court reasoned that if district courts
did not stay and abey such mixed petitions, the one-year stat-
ute of limitations in AEDPA would bar petitioners from
obtaining federal review of the unexhausted claims. See id. at
275. Restricting the stay and abeyance procedure to situations
where petitioners have good cause for failure to exhaust, have
potentially meritorious claims, and have not engaged in dila-
tory tactics, protects “AEDPA’s objective of encouraging
finality.” Id. at 277.

   The same reasoning applies here. If a habeas petitioner dis-
covers new evidence supporting a claim of a constitutional
violation after he has filed a federal habeas petition, and the
district court adjudicates that claim without the benefit of the
new evidence, then the ban on second or successive petitions
in 28 U.S.C. § 2244 will usually bar the petitioner from ever
having his full claim adjudicated in federal court. I agree with
Judge Clifton that, so long as the petitioner had good cause
for his failure to discover the evidence while before the state
court, the claim based on the new evidence is potentially mer-
itorious, and there is no indication that the petitioner engaged
in intentionally dilatory litigation tactics, the district court
should stay and abey the claim supported by the new evidence
to allow the petitioner to present that evidence to the state
court. I also agree with the application of Rhines to the facts
of this case.

  If this were an application of Pinholster to an ordinary
case, I would simply agree with Judge Clifton’s opinion and
not write separately.

        II.   General Rule of Pinholster Does Not Apply

   This, however, is not an ordinary case. The facts of this
case are so extreme that the federal courts have the power,
consistent with Pinholster, to consider the Brady material
now, without first requiring Gonzales to seek the view of the
state courts.
                      GONZALEZ v. WONG                   20739
   The prosecutors actively suppressed evidence concerning
William Acker, the witness who gave the only evidence of the
state’s primary aggravating factor at Gonzales’s capital trial.
The California trial court on post-conviction review granted
a discovery motion that would have revealed the suppressed
evidence. But the California Supreme Court reversed the trial
court’s discovery order and refused to enter one of its own.
The suppressed evidence shows not only that Acker was a
jailhouse informant expecting to receive advantageous treat-
ment in return for his testimony. Acker was also, unbe-
knownst to Gonzales and his attorneys, a schizophrenic who
had repeatedly faked suicide attempts to obtain desired prison
transfers; had attempted to bribe a prison psychologist for a
good report; had previously said that he was turning his life
around in order to obtain release from prison, but had com-
mitted thefts and a first-degree murder upon his release,
before testifying at Gonzales’s trial that he was testifying as
part of an effort to turn his life around; and had earlier been
described by state correctional officers as “considered capable
of any measure of brutality in the service of achieving what
he wants to do.”

   I explain below the procedural history of Gonzales’s Brady
claim, and why, given that history, Pinholster does not pre-
vent us from deciding that claim now.

                 A.   Acker’s Role at Trial

   Judge Clifton accurately describes the events of Gonzales’s
trial. I provide more detail to show fully Acker’s importance
to the state’s case against Gonzales, and the extent to which
Acker was — or, more accurately, was not — impeached at
trial.

            1.    Acker’s Substantive Testimony

   Gonzales’s conviction was based on his murder of a police
officer. The officer was part of a team conducting a drug raid
20740                  GONZALEZ v. WONG
of Gonzales’s parents’ home. When the police entered, Gon-
zales was braced against a wall pointing a shotgun at the door.
He fired and killed one of the officers. Gonzales’s guilt-phase
defense was that he thought the people entering his house
were not police, but rather were members of the rival Bassett
gang.

   The prosecution’s evidence supported two somewhat dif-
ferent stories. The first was that Gonzales must have known,
based on the facts on the day of the raid, that the people
breaking open his parents’ front door were police officers. As
Judge Clifton describes, the police officers testified that they
repeatedly announced they were police before entering and
that they had entered the house with their badges visible.
Another officer with expertise in gang activity testified that
the area where Gonzales’s parents lived did not have a high
level of gang activity, that the gang activity that did take place
consisted of drive-by shootings rather than home invasions,
and that a typical member of the Bassett gang looked and
dressed nothing like the plain-clothes officers who conducted
the raid. This evidence suggested it was unlikely that Gon-
zales mistook the plain-clothes officers for members of the
Bassett gang.

   The second story was that Gonzales had been told in
advance that the police were coming to conduct the raid, and
that he had formed, well in advance of the raid, an intent to
kill a police officer. This story, obviously much more damn-
ing to Gonzales, came entirely from the testimony of William
Acker. Acker was a jailhouse informant. Acker’s story was
generally consistent through Gonzales’s guilt trial, first
penalty-phase trial, and second penalty-phase trial. Acker tes-
tified that Gonzales had approached him while they were in
prison cells in the same row shortly after Gonzales was
arrested. Acker testified that in discussions during the next
two weeks, Gonzales told him the details of his crime.
According to Acker, Gonzales told him that he had been
tipped off by a friend that the police were going to raid his
                       GONZALEZ v. WONG                   20741
house. Gonzales thus knew the police were coming and was
“on point” all day waiting, in Acker’s words, to “bag a cop.”
According to Acker, Gonzales “knew it was a cop. He knew
he was going to kill one. He aimed to kill.” Acker testified
that when he asked Gonzales why he was so determined to
kill a police officer, Gonzales described to him “a real sick
philosophy about how to protect the pad.” Gonzales wanted
to shoot a cop because “[t]hey got that coming.” Acker also
testified that Gonzales had told him that his defense strategy
would be to claim that he thought the police officers were
members of the Bassett gang.

                  2.    Acker’s Importance

   Acker’s testimony was important in the guilt phase
because, if believed, it demonstrated that Gonzales knew well
in advance of the raid that the men conducting the raid were
police officers. However, all the prosecution needed to show
in the guilt phase was that Gonzales knew that the men were
police officers at the time he fired. Acker’s testimony was
thus useful but not essential to the guilty verdict. In the pen-
alty phase, however, Acker provided the crucial testimony. In
arguing why Gonzales deserved the death penalty, the prose-
cution’s main theory of aggravation was that Gonzales had
planned in advance to “bag a cop.” In his opening statement
in the second penalty-phase trial, Ronald Bowers, the prose-
cutor, said that “the evidence will show that the defendant
planned to kill a cop. Not that it was thought of lightly, that
it was just a split-second situation, spontaneous, but he
planned to kill a cop. Something to the effect he was going
to bag a cop.” The evidence that Gonzales had planned in
advance to kill a police officer came only from Acker, and the
expression “bag a cop” came only from Acker. In his closing
statement, Bowers’s chronology of when and how Gonzales
formulated his plan to “bag a cop” came entirely from
Acker’s testimony.

   Acker’s importance in the penalty phase is also demon-
strated by a memorandum Bowers wrote to his supervisor
20742                  GONZALEZ v. WONG
after Gonzales’s first penalty-phase trial resulted in a mistrial.
The jury, which consisted of six men and six women, had
hung with nine in favor of death and three in favor of life
without parole. Bowers wrote:

    I talked to the jurors afterwards and most of them
    found William Acker’s testimony to be credible. It
    was interesting that the women (especially the youn-
    ger women) were totally convinced by Acker’s state-
    ments. Some of the men only partially believed what
    he said. I hope to retry the penalty phase if down-
    town approves the retrial and Bill Acker is available
    and is willing to testify.

This memorandum makes clear that Bowers was not willing
to retry the penalty phase without Acker. It further suggests
that women were more likely to believe Acker. The jury in the
second penalty-phase trial had eleven women and one man.
Gonzales’s trial took place before the Supreme Court decided
J.E.B. v. Alabama, 511 U.S. 127 (1994), and it was thus per-
missible for the prosecutor to seek women on the jury.

   Attacking Acker’s truthfulness was crucial to the penalty-
phase defense strategy. Ralph Bencangey, Gonzales’s lawyer,
decided not to attack the guilt-phase jury’s conclusion that at
the time he fired the gun Gonzales knew the men were police
officers, but to rather attack Acker’s testimony that Gonzales
had planned in advance the murder of a police officer. Ben-
cangey told the second penalty-phase jury that the guilt-phase
jury “could well have thought that at the time it occurred and
the way that it occurred, [Gonazales] should have known that
they were police officers at that time rather than . . . a long
period in advance.” Bencangey told the jury in his opening
statement that he would show that “if [Gonzales] is guilty, as
the jury has previously stated, it would not be based on some
advance plan that the prosecution is talking about, some spe-
cial plan to kill a police officer.” Bencangey made this same
argument in his closing.
                       GONZALEZ v. WONG                    20743
   To succeed with this strategy, it was crucial to impeach
Acker. In his opening statement Bencangey said that “the
People are asking for a death penalty verdict, really based on
the absolute truth of everything that Mr. Acker has said. It
must be absolutely true.”

                 3.   Impeachment of Acker

   Over the course of one guilt-phase trial and two penalty-
phase trials, the prosecution disclosed only two documents
concerning Acker to the defense: Acker’s rap sheet and a tran-
script of Acker’s initial statement to investigators. The rap
sheet was incomplete and inaccurate. It included several prop-
erty crimes and Acker’s conviction for first-degree murder.
But it failed to include several of Acker’s convictions, and it
incorrectly stated that Acker was sentenced to life without
parole for the murder when he was actually sentenced to life
with possibility of parole. Acker’s initial statement to investi-
gators provided no impeachment material because Acker told
them basically the same story he later told at trial.

   Bencangey was thus severely limited in his ability to
impeach Acker. During cross-examination in the guilt-phase
trial, Acker admitted he was hopeful that in exchange for his
testimony he would be transferred to an out-of-state prison.
He said he was interested in such a transfer because he hated
gangs, and the gangs hated him in return. Acker also admitted
that he had given information to the police about crimes on
two prior occasions. First, he gave information about his
wife’s involvement in a murder that he and his wife had com-
mitted in Hawaii. Second, he spoke with the police about a
murder that had taken place on his row in jail. Everyone on
his row, however, had been required to speak to the police
about that murder.

   By the time of the first penalty-phase trial, Acker had given
information in several more cases. In addition to having given
information about his wife and the jailhouse murder, Acker
20744                  GONZALEZ v. WONG
admitted giving information to the police in the cases of four
other criminal defendants: Anthony Davis, Raymond LaScola,
Edwin Guy Williams, and Johnny Torres. In violation of
Brady, the prosecutor had not disclosed to Gonzales Acker’s
involvement in these cases. Bencangey had nonetheless
learned of Acker’s involvement when he discovered the tran-
script of Acker’s testimony in the preliminary hearing in the
LaScola case. In all four of the cases, Acker claimed the
defendant confessed to him. In some of them, Acker testified
in court, and in some he only spoke to the police. Although
Bencangey did not know it during trial, we now know that the
LaScola case was dropped because then-Head Deputy District
Attorney (now our colleague) Stephen Trott had concluded
that Acker was an unreliable witness. Judge Trott’s view,
expressed in a deposition taken in connection with Gonzales’s
federal habeas petition, was that Acker’s testimony was “cer-
tainly nothing that a jury ever should rely on if that’s all there
was to convict Dr. La Scola.” Judge Trott described Acker as
a “classic psychopath” and “a truly evil guy who delighted in
sticking guns in people’s mouths to try to get them to, quote,
‘crap in their pants.’ ”

   To justify his practice of informing, Acker testified that not
only was he giving information in order to obtain a transfer
to an out-of-state prison, but he was also seeking a new
“moral balance.” He testified that he wanted to “do something
right for a change, to do something real.” “I’m trying to bal-
ance out the wrong that I’ve been through, you know, stop
somebody else from going out and killing someone again.”

   In the second penalty-phase trial, Acker again discussed the
information he had provided in the other cases, and he dis-
cussed his involvement in yet another case. He again testified
that his reason for providing this information was both his
desire to transfer to an out-of-state prison and his desire to
“start a different direction for myself.” Before the second
penalty-phase trial, Bencangey had discovered that the state
had promised Acker that they would remove a tattoo from his
                       GONZALEZ v. WONG                    20745
back that read “Paramount.” When Bencangey attempted to
question Acker about the tattoo, Bowers objected. In a confer-
ence with the judge, Bowers said he wanted to prevent ques-
tioning about Acker’s tattoo because “we have tried to change
the identity of this informant, for his own safety.” Bencangey
replied that “up until this hearing, until I found out, I’d asked
that witness if anything else was offered to him in exchange
for his testimony, and the district attorney’s office has never
been forthcoming in telling me that they had promised to
change his identity and surgically remove tattoos off him and
give him a different name. I’ve only found this out recently.”

   The trial judge allowed Bencangey to question Acker about
the tattoo. Bencangey attempted to impeach Acker by sug-
gesting that the tattoo was a symbol of Acker’s gang member-
ship, and that the tattoo removal and the identity change was
another part of what the state had offered him in exchange for
testifying. Acker denied that he was in a gang, claiming that
he had the tattoo to represent that he was from the city of Par-
amount.

  The second penalty-phase jury, consisting of eleven women
and one man, returned a unanimous verdict in favor of death.

B.   Report of the 1989-90 Los Angeles County Grand Jury

   Gonzales was sentenced to death in May 1981. In October
1988, Los Angeles Sheriff’s Department deputies learned that
a jailhouse informant, Leslie White, was writing an article in
which he planned to explain how informants were acquiring
knowledge about defendants they had never met in order to
fabricate those defendants’ confessions. Report of the 1989-
90 Los Angeles County Grand Jury, June 26, 1990, at 69
[hereinafter “Grand Jury Report”]. White agreed to demon-
strate the technique to the Sheriff’s Department. The report of
what White did is worth repeating in full. The report does not
identify White by name, but refers to him as “the informant.”
20746                 GONZALEZ v. WONG
       The sergeant gave the informant the name of an
    inmate who was being held in the Hall of Justice Jail
    on murder charges. The informant, representing him-
    self to be an employee of a bail bond company, cal-
    led the jail’s Inmate Reception Center and was able
    to obtain the inmate’s booking number, date of birth,
    color of eyes and hair, height, weight, race (Cauca-
    sian), bail ($100,000), case number, date of arrest,
    arresting agency (Sheriff’s Special Enforcement
    Bureau), next court date, and where the inmate was
    housed in the jail.

       The informant next called the records section of
    the District Attorney’s Office. He said he was a Dep-
    uty District Attorney and asked for information on
    the inmate’s case. He was given the name of the
    Deputy District Attorney prosecuting the case, the
    Deputy District Attorney’s telephone number, and
    the name of a witness.

      A few calls later, the informant called Sheriff’s
    Homicide and said he was “Sergeant Stevens” at the
    Central Jail. He was able to obtain the name of the
    murder victim, and the victim’s age and race.

       The informant then called the Deputy District
    Attorney who was handling the case, initially identi-
    fying himself as “Sergeant Williams” with the Los
    Angeles Police Department. The Deputy District
    Attorney responded to the informant’s questions by
    stating, “I’ll tell you anything you want to know
    about the case,” and proceeded to provide details
    about what the victim was wearing, where his body
    was found, the fact that the coroner’s report said that
    death resulted from suffocation and/or drugs, that the
    victim’s blood contained a fatally high amount of
    methamphetamine, that the defendant confessed to
    stuffing the victim in a trunk, and the prosecutor’s
                      GONZALEZ v. WONG                     20747
    personal opinion of the likely defense in the case.
    Near the end of the conversation, the informant gave
    his name as “Sergeant Johnson.”

      At this point, the informant said he had obtained
    enough details about the case to enable him to fabri-
    cate a jail house confession which would be accepted
    by detectives. He then proceeded to demonstrate
    how he could arrange for contact between himself
    and the inmate to support the fabricated confession.

       The informant called a department of the Superior
    Court in Van Nuys, identifying himself as Deputy
    District Attorney “Michaels” with the Organized
    Crime Unit downtown. In response to the infor-
    mant’s request, the court bailiff ordered the infor-
    mant and the inmate to be transported to Van Nuys
    the following day.

Id. at 69-71. White indicated that a fabricated confession
based on this information would be sufficient to get him a
“hell of a deal” with prosecutors. Id. at 71. His information
was believable both because he knew many facts about the
defendant that he apparently could only have obtained from
the defendant, and because he had arranged to be in the same
place as the defendant so that it was possible that the defen-
dant could have confessed to him. White said that the “key”
to the operation is that the District Attorneys

    want to win. So if I come forward with the informa-
    tion as detailed as that they’re gonna use it. Because
    the jury not knowing the system or how it works, is
    going to believe when I get up there with all these
    details and facts, that this guy sat in the jail cell, or
    he sat on the bus, or he sat in the holding tank some-
    where, or told me through a door or something,
    they’re gonna believe me.
20748                 GONZALEZ v. WONG
Id. at 72.

   White’s demonstration led to the empanelling of an investi-
gatory Grand Jury to look into the improper use of informant
testimony by the Los Angeles County District Attorney’s
Office. The Grand Jury’s investigation took place between
1989 and 1990, and covered the period from 1979 through
1990. The grand jurors and their investigators spoke to
twenty-five informants. The Grand Jury concluded that “the
experiences and perceptions of these informants generally
reflect those of the informant population at large.” Id. at 8.
The grand jurors also spoke to and heard testimony from a
large number of people in the Los Angeles County Sheriff’s
Department (which administers the jails where the informants
were housed), the Los Angeles District Attorney’s Office, and
the defense bar. The Grand Jury’s 150-page report paints a
harrowing picture of the role of jailhouse informants in the
Los Angeles County criminal justice system during this
period.

   The report gave a detailed description of jailhouse infor-
mants’ “astonishing ability to discover information about
crime in order to concoct a confession by another inmate.” Id.
at 31. Credibility of jailhouse informants is often based on the
supposed fact that they could only have obtained certain
information about a crime from the defendant himself. The
report describes cases in which law enforcement officers
either fed information about other inmates to informants, or
left informants in a room with documents from other inmates’
cases. Id. at 27-28. Sometimes law enforcement officials
would signify to informants that a new inmate was “hot,”
thereby giving the informants an implicit instruction to pro-
vide testimony inculpating the inmate. Informants would
sometimes obtain information by getting friends who were not
incarcerated to go to a defendant’s preliminary hearing and
get information, or would simply get unwitting defendants to
describe crimes. In one case, a defendant described to an
informant a crime he had witnessed, but not committed, and
                      GONZALEZ v. WONG                   20749
the informant turned it into a confession. Id. at 30. Often
informants would “offer to assist [a] defendant in his case and
thereby elicit the defendant’s knowledge of law enforce-
ment’s version of the crime.” Id. at 31 n.16.

   The Grand Jury found that the Sheriff’s Department facili-
tated informants’ collection of information by placing infor-
mants near defendants from whom it wanted a confession.
According to the Grand Jury:

    It has long been suspected that Sheriff’s Department
    deputies intentionally placed informants with
    inmates “from whom law enforcement could use a
    confession.” The Sheriff’s Department denies such a
    practice has ever existed, however, the Grand Jury
    received evidence which indicated the placing of
    inmates for the purpose of gathering information has
    occurred.

Id. at 58 (quoting letter of Nov. 1, 1988, from a supervisory
Deputy District Attorney to the District Attorney’s Director of
Bureau, Branch and Area Operations). The Grand Jury went
on to describe numerous instances in which it concluded that
informants had been placed near defendants from whom
authorities wanted confessions. Id. at 60-68.

   In addition to their ability to discover information about
defendants, the informants had no scruples about perjuring
themselves.

    An appalling number of instances of perjury or other
    falsifications to law enforcement during the past ten
    years were described by informants. Undeniably, a
    significant number of informants do not tend to feel
    constrained by external or internal values to refrain
    from lying, regardless of the consequences to other
    inmates.
20750                  GONZALEZ v. WONG
Id. at 18-19. One informant confessed in the mid-1970s to a
crime he had not committed. In 1979, a psychiatrist diagnosed
this informant as a pathological liar. Prosecutors subsequently
used this informant’s testimony against defendants in either
five or six cases. Id. at 16.

   The number of informants was staggering. One defense
attorney described a case in which, at the preliminary hearing,
eight jailhouse informants claimed his client made incriminat-
ing statements. Other informants called the attorney and
offered to testify on his client’s behalf. The attorney described
the preliminary hearing as “a dream world where everybody
was either lying or fabricating or then recanting a prior lie or
then making something up. It got to be a nightmare where you
couldn’t believe one person or the other.” Id. at 39.

   High profile cases attracted the most informants. In some
cases, up to twenty informants would come forward claiming
to have heard a confession. Id. at 111. The Grand Jury found
a general consensus among defense attorneys that “jail house
informants seemed to invariably be available to testify in
important cases.” Id. at 37. Of all the death penalty cases tried
in Los Angeles from 1978 through 1990, approximately one
third involved a jailhouse informant testifying that the defen-
dant had confessed to him. Id.

   The Grand Jury found that informants were given numer-
ous benefits. Examples include being transferred to a cell with
a TV, coffeepot, and other amenities, being taken outside the
jail for lunch, having witness protection money paid to an
informant’s wife, and having a girlfriend being held on a one
million dollar bail released on her own recognizance. Id. at
13-15. At least two informants testified to instances where
they or an informant they knew were transferred to a jail per-
ceived to be more desirable. Id. at 14. The Grand Jury also
found many examples of prosecutors dropping charges, writ-
ing letters on informants’ behalf to the parole board, or asking
a court to impose a lower sentence. Id. at 13.
                      GONZALEZ v. WONG                   20751
   Benefits to informants were not generally disclosed to the
defense. The prosecutors’ rationale for failing to disclose the
benefits was that there was only an implicit understanding
that the authorities would help the informant in exchange for
his testimony. The Grand Jury explained:

    The entire circumstances regarding benefits and the
    expectations of benefits, in many cases, are not ade-
    quately presented to the judge or jury for them to
    have the necessary factual basis to evaluate the testi-
    mony of the informant. This is particularly so when
    an agreement on the extent of benefits is not made
    with the informant until after the testimony.

Id. at 76. Later, along similar lines, the Grand Jury found:

    The practice of waiting until after the testimony is
    provided, before the informant’s pending case is
    dealt with, may lend itself to some troubling results.
    This may provide the informant with a basis for
    assuming that his sentence will be measured by the
    assistance he provides the prosecution by his testi-
    mony. In view of the benefits that he may be seeking
    by his testimony, the potential for perjury or shading
    of testimony for the prosecution must be recognized.

Id. at 95 (emphasis omitted). One defense attorney, in testi-
mony to the Grand Jury, described the system as being like

    a ‘secret society’ where even though nothing is said,
    the prosecutors and the informants know that some
    benefit will flow to the informant for his testimony.
    The defense attorney explained it was extremely dif-
    ficult to try to impeach jail house informants when
    there was nothing in the record relating to benefits
    they were to receive from their testimony.

Id. at 39.
20752                 GONZALEZ v. WONG
   The Grand Jury concluded that the Los Angeles District
Attorney’s office was aware of abuses concerning jailhouse
informants well before Leslie White’s 1988 revelations. Evi-
dence supporting this conclusion went back to the late 1970s.
Id. at 97. The Grand Jury was particularly critical of the Dis-
trict Attorney’s office’s failure to keep any database of jail-
house informants. Id. at 105-117. It noted that in the high
profile cases in which twenty informants would claim to have
heard a confession, the informants “were narrowed to a very
few, sometimes to only one or two witnesses. No record was
kept of those who were rejected and the reasons for that deter-
mination. If the informants were again to offer testimony in
other cases, there existed no systematic means to review the
knowledge obtained by the earlier prosecutor.” Id. at 111.

   The Grand Jury report discussed a proposal to create a
repository of very basic information about jailhouse infor-
mants. The District Attorney’s office rejected this proposal.
“The reason consistently offered by officials for deciding
against the informant system was that defendants might dis-
cover information contained in the index.” Id. at 115. The
report found that “[n]either a defendant’s rights to know about
information affecting the credibility of an informant, nor a
prosecutor’s obligation to disclose such information to a
defendant, was ever mentioned during the discussion of the
pros and cons of an informant index, according to all sources
of evidence presented to the Grand Jury.” Id. at 117.

  The Grand Jury reached two overarching conclusions:

    A.   The Los Angeles County District Attorney’s
         Office failed to fulfill the ethical responsibilities
         required of a public prosecutor by its deliberate
         and informed declination to take the action nec-
         essary to curtail the misuse of jail house infor-
         mant testimony.

    B.   The Los Angeles County Sheriff’s Department
         failed to establish adequate procedures to con-
                        GONZALEZ v. WONG                     20753
            trol improper placement of inmates with the
            foreseeable result that false claims of confes-
            sions or admissions would be made.

Id. at 6.

   The Grand Jury discussed potential relief for defendants,
like Gonzales, who had been convicted based on informants’
potentially false testimony during the period covered by the
report. “Because the judgments are final, the review must be
sought by Petition for Writ of Habeas Corpus. In filing such
petitions, certain factual allegations must be made which are
legally sufficient to support the relief sought. It is difficult and
in some cases likely not possible to allege sufficient facts
without discovery.” Id. at 152. The Grand Jury noted that the
question of whether defendants could get such post-judgment
discovery was currently before the California Supreme Court.
Id. The Grand Jury was almost certainly referring to Gon-
zales’s case which was then pending in that Court. The Grand
Jury noted that the District Attorney’s office had been cooper-
ative during the investigation. It expressed the hope that “[i]n
the event post-conviction discovery is denied by the [Califor-
nia] Supreme Court . . . the District Attorney will be equally
cooperative in considering the needs of affected parties for the
information necessary to pursue their remedies.” Id. at 153.

 C.   State Court Proceedings After the Grand Jury Report

  The Grand Jury’s hope went unfulfilled. As I describe
below, the District Attorney’s office did not remain “equally
cooperative” in Gonzales’s case, and the California Supreme
Court denied post-conviction discovery.

   Gonzales was sentenced to death on May 7, 1981. Shortly
thereafter, Gonzales filed a habeas petition in the California
Supreme Court. He filed an amended habeas petition on June
10, 1986. Between the time of his death sentence and his
habeas filings, Gonzales had been able to obtain almost no
20754                  GONZALEZ v. WONG
additional information concerning Acker. He raised a Brady
claim in his state habeas petition, but his discussion of the
claim was brief, occupying only six of seventy-seven pages.
In this initial habeas petition, Gonzales claimed that the prose-
cutor had not disclosed the extent of Acker’s cooperation with
the police in other cases. Gonzales argued that this violated
Brady because such information would have allowed him to
argue that Acker’s testimony violated the Sixth Amendment
based on Massiah v. United States, 377 U.S. 201 (1964), and
United States v. Henry, 447 U.S. 264 (1980). See People v.
Gonzalez, 800 P.2d 1159, 1192 (Cal. 1990).

   In October 1988, after Gonzales filed his amended state
habeas petition, Leslie White triggered the informant scandal
and subsequent Grand Jury investigation. The information
that came out during the investigation suggests strongly that
Acker was involved in the schemes described in the Grand
Jury report. First, Acker’s informing fit the time frame of the
report. The report covered 1979 through 1990. Gonzales’s
case, in 1979, was the first case in which Acker gave informa-
tion concerning an alleged confession. Acker then gave infor-
mation about five more alleged confessions over the next two
years. Second, Acker was placed near Gonzales for two
weeks shortly after Gonzales was arrested. Gonzales was
arrested on May 29, 1979. He had been shot and taken from
the scene in an ambulance, then later taken to the jail. His
conversations with Acker took place in early July 1979. This
sequence of events is consistent with the Grand Jury’s finding
that the Sheriff’s Department placed informants near inmates
from whom they wanted a confession. Third, the Sheriff’s
Department would have been particularly interested in a con-
fession from Gonzales because he had shot a Sheriff’s Depart-
ment deputy. Fourth, the Grand Jury found that jailhouse
informants were more likely to have allegedly heard confes-
sions in death penalty cases. Finally, Acker claimed to have
been helping Gonzales check the accuracy of his attorneys’
work when Gonzales allegedly confessed to him. The Grand
Jury found that informants would offer to assist inmates,
                      GONZALEZ v. WONG                    20755
based on their purported legal experience, in order to obtain
information about the inmates’ crimes. Grand Jury Report at
31.

   Starting in November 1988, while the Grand Jury investi-
gation was still ongoing, the District Attorney’s office began
to address its use of perjured testimony by jailhouse infor-
mants. In various memoranda, the office indicated that any
problems with the reliability of past jailhouse informants
would be revealed to the state courts. On November 17, 1988,
Chief Deputy District Attorney Gregory Thompson sent a
memorandum to the Deputy District Attorneys, alerting them
to the pending review of the office’s use of jailhouse infor-
mants. With respect to informants who had been used in the
past, Thompson wrote that “the most objective way to do this
is on a case by case basis before the court. This will insure an
independent review on the merits of each case.” On Novem-
ber 30, 1988, in a letter to various defense attorneys, includ-
ing Gonzales’s attorney, Thompson again emphasized his
intention to make information obtained available through
court proceedings:

    [W]e planned from the outset to make the informa-
    tion we obtained [through internal investigations]
    available to defense counsel on individual cases and
    anticipated that, in appropriate cases, that informa-
    tion would be thoroughly aired in open court. . . .
    The best forum for an objective, thorough examina-
    tion of the issues is in open court. . . . Further, the
    court is the only forum where any wrongs can be
    righted, where any breach in procedure can be
    assessed, where any prejudice can be weighed,
    where any injustice can be addressed. It is our aim
    that every pertinent, relevant issue on each contested
    case receive the careful and thorough attention of the
    court.

  Thompson also sent letters specifically addressed to attor-
neys representing clients in whose trials jailhouse informants
20756                  GONZALEZ v. WONG
had testified. The letter to Gonzales’s attorney informed him
of the investigation into the use of informants. The letter con-
cluded, “[S]ince the courtroom is the appropriate forum in
which to fully explore this issue, our office will join with you
in expediting the hearing of any appropriate motion you may
wish to bring.” Based in part on this letter, on March 29,
1989, Gonzales’s attorneys filed a 77-point discovery motion
with the state court judge who had presided over Gonzales’s
trial. The motion sought discovery of information that would
reveal whether the prosecution had violated its obligations
under Brady to disclose information concerning Acker.
Among the information requested was, “Any and all Califor-
nia Department of Corrections Health and Welfare Agency
records pertaining to WILLIAM GERALD ACKER.” The
primary basis for the motion was the information that had
come to light during the Grand Jury investigation of the infor-
mant scandal.

   The state court trial judge held an initial hearing on Gon-
zales’s discovery motion in June 1989. Despite the Los Ange-
les County District Attorney’s repeated prior statements that
it wanted to air in open court whatever information it pos-
sessed concerning jailhouse informants, it now argued that
because there was no proceeding currently before the trial
court, that court had no jurisdiction over the case. In response,
the judge noted the “very unique factual situation that’s
involved in this case.” He said that “if all of the information
is true with respect to the allegations that have been made by
[Gonzales’s attorneys], I think it puts this case in an entirely
different posture.” He stated that “fundamental fair play in
this case would indicate that [Gonzales] ought to get that
information.” In a second hearing in August, the trial judge
granted the discovery motion. He made clear his belief that
“the District Attorney’s Office has got to accept much of the
responsibility for what occurred, in the sense that . . . at no
time did your office ever maintain any coordinated effort . . .
so that the problems which arose could have been prevented.”
                      GONZALEZ v. WONG                    20757
   The state filed a writ of mandate with the California
Supreme Court, seeking to reverse the trial judge’s discovery
order. The state argued not only that the judge had no jurisdic-
tion to issue the discovery order, but also that “Gonzalez did
not make the showing necessary for a grant of discovery.”
The California Supreme Court consolidated the writ of man-
date appealing the trial judge’s discovery order with Gon-
zales’s habeas petition then pending in the Supreme Court.

   Gonzales offered to drop his discovery motion if a repre-
sentative of the District Attorney’s office would swear under
penalty of perjury that the state’s files contained no material
evidence relating to Acker’s testimony. The District Attor-
ney’s office did not accept the offer. Gonzalez, 800 P.2d at
1219 n.8 (Broussard, J., dissenting). Gonzales’s habeas attor-
ney wrote in one of her filings to the California Supreme
Court, referring to Thompson’s November 30, 1988, letter,
“For close to one year, Counsel in this case as well as other
cases, all of which are in differing procedural postures, have
attempted to ascertain the name of the mysterious but ‘appro-
priate motion’ that the District Attorney would join in. These
efforts have met with overwhelming silence.”

   The California Supreme Court granted the state’s writ of
mandate, reversing the trial judge’s discovery order. It con-
cluded that “the trial court lacked jurisdiction to order ‘free-
floating’ post-judgment discovery when no criminal proceed-
ing was then pending before it.” Gonzalez, 800 P.2d at 1203.
The Supreme Court also refused to grant discovery in the
pending state habeas petition Gonzales had filed directly in
the Supreme Court. Id. at 1205. The Court wrote that a habeas
corpus proceeding does not “trigger a right to unlimited dis-
covery.” Id. A habeas petition “must set forth specific facts
which, if true, would require issuance of the writ. Any peti-
tion that does not meet these standards must be summarily
denied, and it creates no cause or proceeding which would
confer discovery jurisdiction.” Id. Even treating the discovery
request and grand jury report as an amendment to the habeas
20758                  GONZALEZ v. WONG
petition, the Court concluded that Gonzales had failed to set
forth facts requiring the issuance of the writ. It wrote:

    At most, there are new indications that during the
    period 1979-1988, various residents of the Los
    Angeles County jail developed successful schemes
    for fabricating jailhouse confessions by other
    inmates, and that these practices were ignored or
    even encouraged by the authorities. However, noth-
    ing in the materials before us identifies Acker as a
    participant in the schemes alleged. Nor is there any
    specific indication that the prosecution’s files would
    yield information that substantially undermines
    Acker’s testimony. . . . [T]here is no postconviction
    right to “fish” through official files for belated
    grounds of attack on the judgment, or to confirm
    mere speculation or hope that a basis for collateral
    relief may exist.

Id. (footnotes omitted).

   The California Supreme Court thus concluded that despite
the revelations of the District Attorney’s massive use of per-
jured testimony of jailhouse informants; despite the District
Attorney’s failure to establish any database system concern-
ing jailhouse informants for fear that such a system would
undermine the effectiveness of their testimony at trial; despite
the similarities between Acker’s story and the schemes
detailed in the Grand Jury report; and despite the state’s assur-
ance in its letters to defense attorneys that it wanted any prob-
lems concerning jailhouse informants to be aired in court,
Gonzales’s attempt to discover potential Brady material con-
cerning the jailhouse informant’s testimony in his case was a
fishing expedition. The Court ended its opinion: “We expect
and assume that if the People’s lawyers have [Brady] infor-
mation in this or any other case, they will disclose it promptly
and fully.” Id. at 1206.
                        GONZALEZ v. WONG                 20759
                   D.    Psychiatric Reports

   The Court’s stated expectation and assumption were wrong.
The state disclosed nothing to Gonzales voluntarily. Gonzales
finally obtained a discovery order in his habeas proceeding in
federal court. Under compulsion of the federal court order, the
state finally revealed previously undisclosed information
about Acker. The most damning information was contained in
six psychiatric reports prepared while Acker was incarcerated
in California prisons. If the California Supreme Court had
allowed the discovery that Gonzales had sought — and indeed
had been granted by the trial court — these reports would
have been in the state court record on state habeas.

   These psychiatric reports could have been used to impeach
Acker in three ways. First, they demonstrate that Acker was
willing to lie and manipulate prison medical staff in order to
get what he wanted. Psychiatric evaluations reveal that Acker
admitted attempting or faking suicide on three occasions in
order to obtain prison transfers. A 1972 Psychiatric Evalua-
tion reported that Acker admitted that he had faked suicide at
the Norwalk Receiving Center in order to be placed in the
hospital, from which it would be easier to escape. A 1973
Psychiatric Evaluation reported an attempted hanging, this
time in the California Men’s Colony (“CMC”) East Facility.
The Evaluation noted that Acker “stated that that was only a
gesture designed to prevent his egress from CMC East.”
Finally, a 1974 report describes another suicide attempt in
April or May of that year at K-Wing of the Duel Vocational
Institution (“D.V.I.”). Acker stated “that he made a suicidal
gesture in order to get out of K-Wing at D.V.I.” He claimed
that “his suicidal gesture was the only way that he could get
out of D.V.I.’s K-Wing. Claims that if he ever goes back [to]
that madness again at D.V.I. he will attempt the same thing
again; namely, a suicidal gesture.”

  Many of the psychiatric evaluations specifically noted
Acker’s manipulative behavior. One psychiatrist reported that
20760                  GONZALEZ v. WONG
Acker asked, “and it was my distinct impression that this was
made in all seriousness, as to ‘how much money would it take
to give me a good report.’ ” Another psychiatrist described
Acker as “the type of an individual who was constantly test-
ing me.” In a diagnostic study prepared for Acker’s sentenc-
ing for his murder conviction, Dr. Flanagan, who examined
Acker, recommended that Acker be “considered capable of
any measure of brutality in the service of achieving what he
wants to do.” He further described him as “intelligent, manip-
ulative, [and] unscrupulous.” The Social Evaluation included
in the diagnostic study noted that Acker had been “offered
therapy in the past and has used it as a tool to get out of prison
early and has not attempted to use it as a tool to change his
own behavior.” This evidence of Acker’s lying and manipula-
tion would have been extremely valuable to Gonzales, as Ben-
cangey had no examples during trial of Acker either lying or
manipulating to his own advantage. The evidence shows the
extent to which Acker was willing to go to obtain prison
transfers, the precise reason he testified he was informing
against Gonzales. Jurors could easily have concluded that if
Acker was willing to repeatedly fake suicide to obtain a
prison transfer, he would be willing to fabricate a confession
to obtain such a transfer.

   Second, these reports could have been used to impeach
Acker on his claim that he had started testifying because he
wanted to achieve a new “moral balance.” As I describe
above, Acker had testified that one of his primary motivations
for giving information to the authorities in Gonzales’s case
was to turn his life around and to do the right thing. In 1972,
Acker had told Dr. Land that he was now on the right path
because he had “undergone a religious experience” and he
“believes he has found the true religion.” After this claimed
conversion, Acker was released from prison. Acker then com-
mitted first-degree murder and numerous robberies. That
Acker had previously lied about turning his life around in
order to obtain his release from prison, and that in fact he had
not turned his life around, would have substantially under-
                      GONZALEZ v. WONG                    20761
mined his claim at Gonzales’s trial that he was testifying
because he wanted to achieve a new “moral balance.”

   Third, these reports could have been used as evidence of
Acker’s mental illness. Acker was diagnosed with “schizo-
phrenia, chronic, undifferentiated type” as early as 1974. In
1975, he was diagnosed with “[s]chizophrenia, residual type.”
A 1977 report noted that Acker “has a severe personality dis-
order, and he has previously been diagnosed as schizophre-
nic.” It further described him as “mentally unstable.” We have
repeatedly recognized the impeachment power of mental ill-
ness. See, e.g., Silva v. Brown, 416 F.3d 980 (9th Cir. 2005).

   During discovery for his federal habeas claim, Gonzales
was allowed to take Acker’s deposition. Acker’s response to
being confronted with these reports in his deposition suggests
how he would have responded on the witness stand during
trial. First, Acker repeatedly denied making suicidal gestures
to obtain transfers and denied bribing prison psychiatrists.
When confronted with the report from Dr. Land that he had
admitted to having faked suicide in order to be placed in the
hospital, Acker responded, “I don’t even know this dude,” and
denied that this had occurred. When confronted with another
report about the same incident, Acker described the report as
“a totally bogus statement right there.” When confronted with
the report in which he had admitted that his suicidal gesture
was the only way to get out of D.V.I.’s K-Wing, Acker denied
making the statement, saying, “That never happened, man.”
When confronted with another report about the K-Wing inci-
dent, Acker said, “I don’t think I ever said that. And if I did,
I lied.” Finally, in responding to Dr. Malloy’s report, which
recounted Acker’s attempt to bribe him, Acker denied the
incident, describing the report as “full of shit, man.” Second,
Acker attacked the psychiatrists who evaluated him. When
asked whether Dr. Flanagan was lying when he stated that
Acker would do anything to get what he wanted, Acker
responded, “Dr. Flanagan is full of crap.” He further stated,
while Gonzales’s federal habeas attorney was preparing a
20762                  GONZALEZ v. WONG
question, “If they’re psychiatrist things, don’t go there, man,
because they’re all mostly bogus.”

   Acker’s psychiatric reports, combined with his response to
those reports, would have severely undermined Acker’s credi-
bility at trial. The reports would have revealed that obtaining
a prison transfer was so important to Acker that he was will-
ing to fake suicide, manipulate medical professionals, and
bribe a prison psychiatrist. Acker’s responses to these reports
on the stand would have revealed Acker as a liar, consistently
denying events reported by prison psychiatrists.

   Gonzales, however, did not have these reports during trial,
for the state had successfully concealed them. Gonzales also
did not have these reports during his state habeas proceeding,
for the state, assisted by the ruling of the California Supreme
Court, had again successfully concealed them.

                         E.   Pinholster

   I believe we can consider the six psychiatric reports consis-
tent with the Supreme Court’s decision in Pinholster. I would
hold that when a petitioner’s inability to present Brady evi-
dence to the state courts is due to the refusal of the state court
to allow appropriate discovery, Pinholster does not bar fed-
eral courts from considering that evidence in the first instance.

   Pinholster does not answer the question whether federal
courts can consider evidence that a petitioner tried to discover
in state court, but was prevented from discovering by the state
court. Justice Sotomayor stated in her dissent in Pinholster, “I
assume that the majority does not intend to suggest that
review is limited to the state-court record when a petitioner’s
inability to develop the facts supporting his claim was the
fault of the state court itself.” 131 S. Ct. at 1417 n.5. Justice
Sotomayor cited the oral argument transcript in Bell v. Kelly,
a case in which this question was presented, but in which the
Supreme Court dismissed certiorari as improvidently granted.
                       GONZALEZ v. WONG                    20763
Bell v. Kelly, 553 U.S. 1031, 1031 (2008) (granting certiorari
on question of whether § 2254(d) applies to a claim predi-
cated on evidence the state court refused to consider and that
was properly received for the first time in an evidentiary hear-
ing on federal habeas); Bell v. Kelly, 555 U.S. 55, 55 (2008)
(dismissing certiorari as improvidently granted). The majority
in Pinholster never contradicted Justice Sotomayor’s assump-
tion.

   The state-court procedural history in Pinholster bears no
resemblance to this case. Pinholster made an ineffective assis-
tance of counsel claim in his state habeas petition. Pinholster,
131 S. Ct. at 1396. He relied primarily on the medical diagno-
sis of a single psychiatrist. Id. On federal habeas, Pinholster
presented evidence from two new medical experts who diag-
nosed him with organic personality syndrome and partial epi-
lepsy and brain injury. Id. at 1397. Pinholster could have
presented the opinions of these experts to the state court.
Indeed, the question presented in Pinholster was “[w]hether
a federal court may reject a state-court adjudication of a peti-
tioner’s claim as ‘unreasonable’ . . . based on a factual predi-
cate for the claim that the petitioner could have presented to
the state court but did not.” Pet. for Writ of Cert., Pinholster,
131 S. Ct. 1388 (No. 09-1088). The focus of the oral argu-
ment in Pinholster was on evidence that could have been
presented in state court. See, e.g., Transcript of Oral Argu-
ment at 29, Pinholster, 131 S. Ct. 1388 (No. 09-1088) (Justice
Kennedy: “Was it the court relied on different evidence, evi-
dence that was not in the State hearing? And that’s the ques-
tion, whether or not they can do that, if this evidence could
have been presented. And certainly it could have been pre-
sented.”); id. at 38 (Justice Alito: “The factual predicate of the
claim is the new evidence that’s brought forward in . . . the
Federal proceeding, and unless there is a good reason why
that wasn’t brought forward in the State proceeding, it
shouldn’t be considered.”).

  Based on the revelations of the Los Angeles District Attor-
ney’s use of perjured testimony, Gonzales knew during his
20764                  GONZALEZ v. WONG
state habeas proceedings that there was a strong probability
that there was undisclosed Brady material about Acker. Gon-
zales also had letters from the state effectively inviting him to
file a discovery motion seeking such material. The state trial
judge who had presided over Gonzales’s trial granted his
post-trial discovery motion. But Gonzales was opposed on all
fronts by the state, and rejected on all fronts by the California
Supreme Court. Unlike Pinholster, who could have put the
relevant evidence before the state court but failed to do so,
Gonzales tried every means possible for putting the evidence
before the state court, but was prevented from doing so by the
combined actions of the prosecutor and the state Supreme
Court.

   As Judge Clifton’s opinion in this case notes, some of the
language in Pinholster could be read to cover this case. How-
ever, given that the language in Pinholster goes beyond the
question before the Court, and given the dramatic differences
between Pinholster and this case, I would not read the lan-
guage broadly to cover the case before us. “It is a maxim not
to be disregarded, that general expressions, in every opinion,
are to be taken in connection with the case in which those
expressions are used. If they go beyond the case, they may be
respected, but ought not to control the judgment in a subse-
quent suit when the very point is presented for decision.”
Cent. Va. Cmty. College v. Katz, 546 U.S. 356, 363 (2006)
(quoting Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 399-400
(1821)). I therefore read Pinholster as leaving open the ques-
tion whether federal courts can consider new evidence in a
§ 2254(d)(1) case when the petitioner’s failure to introduce
the evidence in state court was, as here, the “fault of the state
court itself.”

   I would hold that we can consider such evidence. A long-
standing rationale for excluding new evidence is that federal
courts should not reward petitioners whose failure to intro-
duce evidence in state court was due to their lack of diligence.
This diligence requirement is codified in 28 U.S.C.
                      GONZALEZ v. WONG                    20765
§ 2254(e)(2), which generally bars the introduction of evi-
dence on federal habeas if the petitioner “has failed to develop
the factual basis of a claim in State court proceedings.” The
Supreme Court has held that a petitioner has not “failed to
develop” the factual basis of a claim when the petitioner was
“not at fault” for the failure. See Holland v. Jackson, 542 U.S.
649, 652-53 (2004) (citing Williams v. Taylor, 529 U.S. 420,
431-37 (2000)). Before Pinholster, courts of appeal inter-
preted the diligence requirement in § 2254(e)(2) as the only
limitation on the introduction of new evidence in federal
court. See Pinholster, 131 S. Ct. at 1417 (Sotomayor, J., dis-
senting) (“The majority charts a . . . novel course that, so far
as I am aware, no court of appeals has adopted.”). So long as
the petitioner had satisfied the requirements of § 2254(e)(2),
courts of appeal had held that federal courts could consider
new evidence even for a claim governed by § 2254(d)(1).

   In Pinholster, the Court emphasized a different rationale
than lack of diligence by the petitioner for refusing to con-
sider evidence presented for the first time to a federal court.
The Court held that for a federal court to conclude that a state
court “unreasonabl[y] appli[ed]” federal law based on evi-
dence that was not before it is to bypass the state court’s
decision-making process. The Court’s holding was “com-
pelled by the broader context of the statute as a whole, which
demonstrates Congress’ intent to channel prisoners’ claims
first to the state courts.” Pinholster, 131 S. Ct. at 1398-99
(internal quotation marks and citations omitted). It was based
on prior cases holding that “review under § 2254(d)(1)
focuses on what a state court knew and did.” Id. at 1399.

   The Court’s interpretation of the “unreasonable applica-
tion” language as barring the introduction of new evidence in
federal court makes sense when the petitioner’s failure to
introduce the evidence in federal court was unrelated to any
defect in the state court process. However, when a petitioner’s
failure to introduce evidence before the state court is due to
the state court’s unwarranted refusal to allow the petitioner to
20766                 GONZALEZ v. WONG
discover the evidence, consideration of the new evidence by
the federal court is appropriate. The state court had the oppor-
tunity to obtain and consider the evidence, but chose not to do
so.

   In this case, the state court was presented with the same
well-founded discovery request that, in federal court, revealed
the undisclosed Brady material. In ruling on Gonzales’s dis-
covery request, the state Supreme Court knew that the Los
Angeles District Attorney’s office had been regularly using
the testimony of jailhouse informants who were unreliable
and had given perjured testimony. It knew that Acker was a
jailhouse informant whose story was very similar to the sto-
ries of many of the perjuring informants discussed in the
Grand Jury report. It knew that the District Attorney’s office
had told Gonzales’s counsel, as well as the counsel for other
defendants, that “the courtroom is the appropriate forum in
which to fully explore” issues relating to jailhouse informants,
but that the office had then opposed all discovery requests.
And it knew that the judge who had presided over Gonzales’s
trial, and who knew the case intimately, had been persuaded
to grant discovery.

   The California Supreme Court nevertheless blocked Gon-
zales’s attempts to obtain discovery to investigate Acker’s
reliability. As Justice Broussard noted in his dissent to the
Supreme Court’s decision, “whatever defendant tries, the
majority find a technical barrier.” Gonzalez, 800 P.2d at 1219
(Broussard, J., dissenting).

    Specifically, the majority conclude that (a) defendant
    cannot get discovery in connection with his auto-
    matic appeal because the appeal is limited to the
    appellate record; (b) he cannot get discovery in an
    independent trial court action because discovery
    must be ancillary to a pending proceeding; (c) he
    cannot get discovery in connection with his pending
    habeas corpus petition because the issue of Acker’s
                      GONZALEZ v. WONG                    20767
    perjury is not within the scope of the order to show
    cause; and, (d) even taking into account new allega-
    tions of Acker’s perjury and new evidence which
    gives plausibility to those allegations, he cannot
    obtain discovery by filing a new habeas corpus pro-
    ceeding alleging Acker’s perjury because, without
    discovery, he cannot allege sufficient facts proving
    Acker’s perjury to state a prima facie case. In short,
    the majority pose a perfect “Catch—22” logical
    conundrum, under which defendant cannot obtain
    discovery of the law enforcement records because
    without the information contained in those records
    he cannot file an action that would support discov-
    ery.

Id. In this circumstance, when the state court was faced with
the same well-founded discovery request later presented to the
federal court, it does not serve AEDPA’s goals to send the dil-
igent petitioner back to the very state court that blocked his
attempt to discover the evidence in the first place.

   Reading Pinholster to apply to a case where petitioner’s
failure to introduce the relevant evidence in state court is the
fault of that court is inconsistent with one of the traditional
purposes of federal habeas relief, which is to remedy inade-
quate state court factfinding. In Townsend v. Sain, the
Supreme Court held that a federal district court must grant an
evidentiary hearing to a habeas applicant if “the fact-finding
procedure employed by the state court was not adequate to
afford a full and fair hearing.” 372 U.S. 293, 313 (1963),
overruled on other grounds by Keeney v. Tamayo-Reyes, 504
U.S. 1, 5-6 (1992). The “adequacy of a state-court procedure
under Townsend is largely a function of the circumstances and
the interests at stake. In capital proceedings generally, this
Court has demanded that factfinding procedures aspire to a
heightened standard of reliability.” Ford v. Wainwright, 477
U.S. 399, 411 (1986). To hold that an improper state court
denial of discovery necessary to develop a federal constitu-
20768                 GONZALEZ v. WONG
tional claim prevents a federal court from considering in the
first instance evidence discovered during federal habeas
unnecessarily binds the federal court to the inadequate fact-
finding of the state court.

   I would therefore hold that Pinholster does not bar our con-
sideration of the evidence discovered by Gonzales. I would
not reach the question of whether the Brady claim Gonzales
raised in federal court is sufficiently distinct from the claim
he raised in state court to constitute a “new claim.” See Pin-
holster, 131 S. Ct. at 1401 n.10; id. at 1417-19 (Sotomayor,
J., dissenting).

                         Conclusion

   I fully concur in the general application of Rhines to cases
in which new evidence is introduced on federal habeas. How-
ever, for the reasons I have just given, I believe that in this
case we have the authority, consistent with Pinholster, to
decide Gonzales’s Brady claim now. I would prefer to exer-
cise that authority.



O’SCANNLAIN, Circuit Judge, dissenting in part:

   I concur in most of the court’s lead opinion today. With
respect, however, I must dissent from its reversal and remand
of Gonzales’s claims pertaining to the alleged suppression of
impeachment evidence. The test the lead opinion crafts
directly conflicts with the Supreme Court’s recent holding
that “evidence introduced in federal court has no bearing” on
claims that have been adjudicated on the merits before a state
court. Cullen v. Pinholster, 131 S. Ct. 1388, 1400 (2011).

                               I

  As the lead opinion and the concurrence thoroughly dis-
cuss, Jesse Gonzales stands convicted of the intentional mur-
                       GONZALEZ v. WONG                    20769
der of Los Angeles County Sheriff’s Deputy Jack Williams.
Gonzales has never denied that he killed his victim or that he
intended to do so. Therefore, the only issue at his trial was
whether he knew that Deputy Williams was a peace officer in
the pursuit of his duties.

   A primary issue throughout Gonzales’s quest for post-
conviction relief has been whether he had sufficient opportu-
nity to impeach William Acker, a fellow inmate who testified
that Gonzales confessed to wanting to “bag a cop.” See Peo-
ple v. Gonzalez, 800 P.2d 1159, 1166 (Cal. 1990). As a result,
the issue in this appeal is whether the California courts have
already adjudicated this claim on the merits.

   Acker told largely the same story regarding Gonzales’s
confession at the guilt phase trial and at both penalty phase
trials in the state court. See id. at 1166-68. With every
recounting, defense counsel more aggressively and exten-
sively attacked the story’s credibility. By the time the second
penalty jury handed down its verdict, Acker had admitted that
he testified in order to motivate authorities to transfer him to
an out-of-state facility, that he was capable of lying to achieve
his purposes, and that he had given information in more than
half a dozen other cases, both before and after Gonzales’s
trial. Id. at 1168.

   Nonetheless, in state post-conviction proceedings, Gon-
zales argued that by failing to disclose a complete picture of
Acker’s interactions with the police, prosecutors deprived him
of a fair opportunity to cross-examine Acker in violation of
Brady v. Maryland, 373 U.S. 83 (1963). He also argued that
his attorney provided constitutionally deficient counsel under
Strickland v. Washington, 466 U.S. 668 (1984) by failing to
discover this impeachment evidence.

    The California Supreme Court soundly rejected these argu-
ments, noting that at all stages of the trial, “cross-examination
. . . [had] exposed evasiveness and inconsistencies in Acker’s
20770                  GONZALEZ v. WONG
claims about the exact nature of his relationship with the
authorities.” Gonzalez, 800 P.2d at 1193. It found that the
“additional details [discovered by Gonzales during state pro-
ceedings did] not paint a significantly different picture of
Acker’s character and motives than appears on the record.”
Id. And it held that “[e]ven if this information was overlooked
by trial counsel or should have been proffered by the prosecu-
tion, its omission was harmless beyond a reasonable doubt
and does not undermine confidence in the guilt or penalty ver-
dicts.” Id.

   In September 1996, Gonzalez petitioned for a federal writ
of habeas corpus. Discovery in the federal proceeding
revealed a total of six newly-obtained psychological reports,
each of which drew a different conclusion about Acker’s
mental health. Memorandum and Order Denying Petitioner’s
Second Motion for Reconsideration, No 2:95-cv-02345-JVS,
(C.D. Cal. 2008) (hereinafter “Second Reconsideration
Order”). Acker’s first examination in August 1972 revealed
“no evidence of psychosis.” Id. at 33. In 1973, doctors noted
that Acker was “depressive” and that he had “an extremely
poor image of himself.” Id. at 30 (internal quotation marks
omitted). It was not until June 1974 that anyone suggested
that Acker had schizophrenia. Id. at 31. A second opinion
given only a month later found no “overt psychiatric condi-
tion.” Id. at 33. In 1975, a staff psychologist once again men-
tioned schizophrenia. Id. at 32. But in his most recent
evaluation, Chief Psychiatrist R.L. Flanagan refused as unnec-
essary Acker’s requested psychiatric medication. Id. 28-30.

   At most, these reports suggest that Acker has an antisocial
personality and that he tries to manipulate the prison system
to obtain transfers to his preferred place of detention. The dis-
trict court concluded that while “the investigation ‘increased
the quantity and the quality of possible impeachment matter
against Acker,’ ” the withheld information was not material
because Acker was already extensively impeached and was
not the only evidence relating to the special circumstance.
                       GONZALEZ v. WONG                    20771
Second Reconsideration Order at 40 (quoting Order on
Respondent’s (sic) [First] Motion for Reconsideration, No
2:95-cv-02345-JVS, (C.D. Cal. 2003)). As such, the court
denied him habeas relief. Id. at 52, 77.

                               II

   Because Gonzalez filed his habeas petition after April 24,
1996, our authority to grant him relief is limited by the
Antiterrorism and Effective Death Penalty Act (“AEDPA”).
See Lindh v. Murphy, 521 U.S. 320, 326 (1997). As the
Supreme Court has repeatedly reminded us, we may not grant
relief in an AEDPA case just because we would have come
to a different conclusion regarding a particular prisoner’s
claim. See Harrington v. Richter, 131 S. Ct. 770, 786 (2011).
Instead “[a] state court’s determination that a claim lacks
merit precludes federal habeas relief so long as ‘fairminded
jurists could disagree’ on the correctness of the state court’s
decision.” Id. (quoting Yarborough v. Alvarado, 541 U.S.
652, 664 (2004)).

  Applying this standard, the lead opinion properly deter-
mines that the California Supreme Court’s finding of “no
prejudice [from any failure to provide Brady information],
based on the material known to it at the time of its decision,
was not unreasonable.” Slip op. at 20706 n.10.

   Rather than consigning this conclusion to a footnote, we
should have made it the end of our review. Just last Term, the
Court unequivocally held that “[i]f a claim has been adjudi-
cated on the merits by a state court, a federal habeas petitioner
must overcome the limitation of § 2254(d)(1) on the record
that was before that state court.” Pinholster, 131 S. Ct. at
1400. Because “evidence introduced in federal court has no
bearing on § 2254(d)(1) review,” a state court’s decision on
20772                      GONZALEZ v. WONG
the merits simply may not be impugned on the basis of such
evidence.1

                                     III

   Apparently displeased that we may not grant Gonzales
habeas relief based upon information introduced in federal
court, the lead opinion today patches together an end run
around Pinholster’s holding from (1) a hypothetical problem
cited in its dissent, (2) a hypothetical solution posed in a con-
currence, (3) a footnote in the majority opinion responding to
both, and (4) an incredibly broad definition of the word “claim.”2

   Writing in dissent in Pinholster, Justice Sotomayor rumi-
nated about the plight of a defendant who discovers additional
evidence of prosecutorial misconduct after he exhausts all
possible methods of relief. In her hypothetical, the defen-
dant’s initial habeas petition brings an unsuccessful Brady
claim. Id. at 1418. The defendant then discovers additional
   1
     Given the Court’s deliberate use of the term “hold” and the centrality
of the question to the case, I am perplexed by the concurrence’s attempt
to dismiss this language as dicta. There simply is no open question of
“what federal courts should do when confronted with . . . evidence” not
yet presented to the state court. Slip op. at 20737. If “evidence introduced
in federal court has no bearing on § 2254(d)(1) review,” Pinholster, 131
S. Ct. at 1400, it has no influence in federal habeas petitions.
   2
     Responding to Part III of the lead opinion, I respectfully must insist
that it creates an unacceptably broad definition of what constitutes a new
claim. Otherwise, it is unclear on what basis it may grant any relief. For
if—as the lead opinion’s response seems to concede—Gonzales’s claim is
not new, AEDPA’s “backward-looking language requires an examination
of the state-court decision at the time it was made.” Pinholster, 131 S. Ct.
at 1400 (emphasis added). Developments in the record or in the law
between the last state decision on the merits and our review on habeas are
simply irrelevant. Id.; see also Greene v. Fisher, No. 10-637, 2011 WL
5335411 (U.S. Nov. 8, 2011). As is whether we think that “focus[ing] on
what a state court knew and did,” Pinholster, 131 S. Ct. at 1399, creates
“an unjust and illogical result,” slip op. at 2-736. Because that is precisely
what Congress has said, Pinholster, 131 S. Ct. at 1399, it is precisely what
“the law requires.” Slip op. at 20736.
                          GONZALEZ v. WONG                         20773
exculpatory statements that were suppressed by the prosecu-
tion, but “state law would not permit the petitioner to present
the new evidence in a successive petition.” Id. (citing Virginia
state law). In a footnote, the Court majority suggested that in
such circumstances, the defendant “may well present a new
claim.” Id. at 1401 n.10; see also id. at 1412 (Breyer, J. con-
curring). It refused, however, to adopt Justice Sotomayor’s
view. Id. at 1401 n.10.

   Ignoring the fact that unlike Justice Sotomayor’s hypotheti-
cal prisoner Gonzales could, and should, have sought to file
a new state petition,3 the court today snatches that suggestion
and treats it as the law. Then, without analysis, the court con-
cludes that rather than entering “new evidence [which] merely
bolsters [his old] Brady claim,” id. at 1418, Gonzales has
presented an entirely new claim. Slip op. at 20701. Slip op.
at 20737 (Fletcher, W., concurring) (“I agree with Judge Clif-
ton, that we may treat [evidence that was not before the state
court] in the same way we treat unexhausted claims.”). The
lead opinion places no limits on this conclusion other than
that the state court could reasonably find in Gonzales’s favor.

   I cannot ascribe to this view. Not only does it virtually
ignore Pinholster, it is inconsistent with prior Supreme Court
case law that has carefully distinguished between “the presen-
tation of additional facts to the district court” and “the sub-
stance of [a petitioner’s] claim.” Vasquez v. Hillery, 474 U.S.
254, 258 (1986). Until today, we have never treated new evi-
dence to be an entirely new claim unless it “place[d] the case
in a significantly different . . . evidentiary posture.” Aiken v.
Spalding, 841 F.2d 881, 883 (9th Cir. 1988) (internal quota-
tion marks omitted); see also id. at 884 (Poole, J., dissenting)
(requiring that the new evidence “fundamentally alter[ ] the
nature of [the] claim” for relief).
  3
   California has a general “policy . . . to deny a new application unless
there has been a change in the facts or law,” but its Supreme Court has
long held that “this policy is discretionary.” In re Bevill, 442 P.2d 679,
684 n.9 (Cal. 1968).
20774                  GONZALEZ v. WONG
   Furthermore, the lead opinion’s conclusion severely under-
mines “AEDPA’s goal of promoting . . . finality,” Pinholster,
131 S. Ct. at 1401 (internal quotation marks omitted) and of
“ ‘reduc[ing] delays in the execution of state and federal crim-
inal sentences, particularly in capital cases.’ ” Rhines v.
Weber, 544 U.S. 269, 276 (2005) (quoting Woodford v. Gar-
ceau, 538 U.S. 202, 206 (2003)).

   While the lead opinion appeals to comity and federalism as
alternative purposes of AEDPA, its opinion does little, if any-
thing to serve these important considerations. Its rule as to
what constitutes a “new claim” arguably entitles state court
prisoners to the opportunity to re-litigate any claim so long as
they introduce some modicum of new evidence that, when
aggregated with the existing evidence, would allow a reason-
able state court to find in the petitioner’s favor. It is difficult
to see how federalism and comity are served by requiring the
state courts to reconsider so many “new claims” while a fed-
eral habeas court looms in the background.

                                IV

   Gonzales’s Brady and Strickland claims are not new. As in
the state court, he alleges that the prosecutors violated their
Brady obligation by failing to disclose impeachment evidence
pertaining to Acker. While the specific items about which he
complains are different, the claim relates to the same duty by
the same prosecutor as it pertained to the same witness. Noth-
ing in the new evidence “place[s] the case in a significantly
different evidentiary posture” when compared to the appropri-
ate standard. Aiken, 841 F.2d at 883-84 (internal quotation
marks omitted).

   Because this is an AEDPA case, we may grant habeas relief
only if “the state court confronts a set of facts materially
indistinguishable from those at issue in a decision of the
Supreme Court and, nevertheless, arrives at a result different
from its precedent.” Lambert v. Blodgett, 393 F.3d 943, 974
                          GONZALEZ v. WONG                          20775
(9th Cir. 2004) (citing inter alia Lockyer v. Andrade, 538 U.S.
63, 73(2003)). The lead opinion cites no such case. The
Supreme Court case on which its analysis depends, Banks v.
Dretke, 540 U.S. 668 (2004), is easily distinguishable from
Gonzales’s situation. There, the prosecutor concealed that the
witness at the heart of his case was a paid informant. Id. at
702. As a result, the defense was able to impeach this witness
using only two other witnesses who were themselves
impeached and evidence of drug use that the prosecutor was
able to turn to his advantage. Id. Under such circumstances,
the Court concluded that the concealed evidence was not
cumulative. Id.

   By contrast, as the district court found here, Acker was “ex-
tensively impeached” based on his own admissions of his
willingness and motivation to lie. Second Reconsideration
Order at 63. And such secondary evidence of his propensity
to lie was, in fact, cumulative. His testimony was also “less
central than the petitioner [and now the lead opinion and the
concurrence] would have [us] believe.” Id. As the lead opin-
ion notes, to have the necessary special circumstance, Gon-
zales need only have known that Williams was a peace officer
in the performance of his duties when he pulled the trigger.
Slip op. at 20730-31 & n.16. The testimony of several police
officers regarding the implausibility of Gonzales’s story also
went to that point. As such, the state court could reasonably
deny Gonzales relief without violating Banks, and Gonzales
is not in a fundamentally different evidentiary position.4

   That this newly discovered evidence does not present a new
claim is even more apparent with Gonzales’s arguments based
  4
    In an AEDPA case, our prior case law may serve only as persuasive
authority, Mejia v. Garcia, 534 F.3d 1036, 1042 (9th Cir. 2008). And sim-
ilar considerations make the lead opinion’s analogy to cases such as Silva
v. Brown unpersuasive. 416 F.3d 980, 984, 989 (9th Cir. 2005) (conclud-
ing that impeachment evidence regarding a witnesses whose testimony
“the district attorney . . . agreed. . . would be necessary to convict” the
defendant was material).
20776                  GONZALEZ v. WONG
on Strickland. If Gonzales’s attorney did not violate profes-
sional standards by not discovering Acker’s other criminal
convictions, which were matters of public record, see Gon-
zales, 800 P.3d at 1193 (declining to fault Gonzales’s attorney
for failing to discover additional evidence to impeach Acker),
he could not have committed such a violation by failing to
discover the contents of Acker’s psychological reports, which
were not similarly available. Second Reconsideration Order at
49-50 (discussing this Strickland claim).

                                V

    Even if the lead opinion and the concurrence were correct
and the psychological reports fundamentally altered the nature
of Gonzales’s claims, it still errs by ordering the district court
to retain jurisdiction while Gonzales exhausts these claims. In
Rhines, the Court concluded that a district court may in its
discretion stay and abate a federal habeas petition, but “only
in limited circumstances.” 544 U.S. at 277. The Court warned
that “[s]tay and abeyance, if employed too frequently, has the
potential to undermine the[ ] . . . purposes” of AEDPA. Id. In
particular, the Court instructed that the petition “should not be
stayed indefinitely. . . . And if a petitioner engages in abusive
litigation tactics or intentional delay, the district court should
not grant him a stay at all.” Id. at 277-78.

   Contrary to the lead opinion’s assertion, Gonzales has
engaged in intentionally dilatory litigation tactics. He learned
of the psychological reports in 2003. Second Reconsideration
Order at 28. But, rather than requesting a stay so that he could
present the supposedly new claims in the State courts, Gonza-
lez pressed ahead with not one, but two motions for reconsid-
eration. As a result, the State has been arguing lack of
exhaustion for the better part of a decade, id. at 41 (discussing
the State’s opposition to the First Motion for Reconsidera-
tion), yet Gonzales never sought to stay the federal proceed-
ings to go back to the state court.
                     GONZALEZ v. WONG                  20777
   For the forgoing reasons, while I join most of the court’s
lead opinion, I respectfully dissent from its decision to
remand Gonzales’s claims.
