                                                                            FILED
                           NOT FOR PUBLICATION                              JUN 09 2015

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



                            FOR THE NINTH CIRCUIT


TERRY D. BEMORE,                                 No. 12-99005

              Petitioner - Appellant,            D.C. No. 3:08-cv-00311-LAB-
                                                 WVG
  v.

KEVIN CHAPPELL, Warden,                          MEMORANDUM*

              Respondent - Appellee.


                    Appeal from the United States District Court
                      for the Southern District of California
                     Larry A. Burns, District Judge, Presiding

                    Argued and Submitted September 10, 2014
                            San Francisco California

Before: REINHARDT, GOULD, and BERZON, Circuit Judges.

       Terry Bemore appeals denial of habeas relief from his first degree murder

conviction and death sentence. In an opinion filed concurrently with this

memorandum, we address Bemore’s claims of ineffective assistance by his trial

counsel. We resolve the remainder of his claims here.



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      1. The California Supreme Court reasonably applied Supreme Court law, 28

U.S.C. § 2254(d)(1), in concluding that the state did not violate Brady v. Maryland,

373 U.S. 83 (1963), or Napue v. Illinois, 360 U.S. 264 (1959), in connection with

the testimony of Latonya Wadley, Kim Strickler, Troy Patterson, Glen Heflin, and

Echo Ramey. Bemore has not shown “a reasonable probability that, had the

evidence been disclosed to the defense, the result of the proceeding would have

been different.” Kyles v. Whitley, 514 U.S. 419, 433 (1995) (quoting United States

v. Bagley, 473 U.S. 667, 682 (1983) (opinion of Blackmun, J.)); see also Morris v.

Ylst, 447 F.3d 735, 745 (9th Cir. 2006) (“The test for prejudice for a [Napue] claim

is the same as that for materiality in a Brady claim.”).

      The state did not disclose that it helped Wadley and Strickler obscure their

whereabouts before trial: Wadley was given room and board in kind, while

Strickler had her food stamps and Medi-Cal card forwarded so that her address was

not searchable through social services registries. Evidence of this assistance is

“favorable” to the defense, but does not meet the additional requirement of

materiality, Brady, 373 U.S. at 87, as it is improbable that the jury would have

believed Strickler’s and Wadley’s testimony was biased because of it. See Bagley,

473 U.S. at 675. Rather, had the jurors known of these protective actions, they




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would likely have drawn the adverse inference that Wadley and Strickler feared

retaliation for testifying.

       No Brady violation arose from the fact the Heflin and Patterson received

prison transfers. A tape recording discussing Heflin’s transfer was disclosed to the

defense, and the transfer was effectively disclosed to the jury in McKechnie’s cross

examination of Heflin. Additionally, the jury knew that Heflin was a repeat

jailhouse informant and had received a five-year sentence reduction in exchange

for his testimony. Any additional loss of credibility that he might have suffered in

the eyes of the jury due to the promise of a prison transfer was not likely to alter

the results of the proceeding. Kyles, 514 U.S. at 433. As to Patterson, the memo

from District Attorney Stephen Anear arranging a possible prison transfer was not

material for the same reason that the services for Wadley and Strickler were not

material—if disclosed, it would have indicated that Patterson feared retaliation.

       Patterson and Ramey made potentially misleading and possibly false

statements on the stand: Patterson, regarding whether the state arranged his prison

transfer, whether he was offered a deal in exchange for his testimony, whether the

police told him he was a suspect in Muck’s murder, and whether he was on trial for

attempted murder; Ramey, about observing Bemore the night of Muck’s murder.

It is not clear these statements were false, but a “prudent prosecutor” might have


                                           3
sought correction or clarification before the jury. United States. v. Agurs, 427 U.S.

97, 108 (1976). Nevertheless, given the other testimony against Bemore, it was not

an unreasonable application of Napue for the state court to conclude there was no

prejudice. See Ylst, 447 F.3d at 745. Patterson admitted he had asked the state for

a prison transfer and that he had indeed been transferred; he also acknowledged

that he had previous felony convictions and that he had been offered a five-year

sentence reduction for cooperating with the investigation. Ramey’s testimony, if

indeed it was false, was cumulative, as there were numerous witnesses who gave

similar testimony about Bemore’s behavior the night of the murder.

      2. The California Supreme Court reasonably denied the claim that state

appellate counsel, Matthew Newman, was constitutionally ineffective and had a

conflict of interest. Counsel was not ineffective for conceding the torture special

circumstance in the reply brief.

      A criminal appellate counsel has no “constitutional duty to raise every

nonfrivolous issue requested by the defendant.” Jones v. Barnes, 463 U.S. 745, 746

(1983); see also id. at 751–54. By contrast, counsel has “wide latitude . . . in

making tactical decisions.” Strickland v. Washington, 466 U.S. 674, 689 (1984).

Further, the California Supreme Court addressed the torture claim anyway and




                                           4
offered numerous reasons to support its holding that the evidence supported the

verdict.

      In any event, with respect to his conflict of interest claim, Bemore has not

shown how the alleged conflict affected the quality of Newman’s

representation—specifically, how or why a conflict between his roles as a

prosecutor and as Bemore’s attorney caused him not to contest the torture special

circumstance in his brief, or why Newman’s political campaigning affected the

quality of his representation. Cuyler v. Sullivan, 446 U.S. 335, 348–350 (1980).

Finally, any breakdown in communication between Bemore and his attorney does

not justify relief without a showing that it affected counsel’s performance. Cuyler,

446 U.S. at 348.

      3. The California Supreme Court was reasonable to reject Bemore’s claims

of instructional error at the penalty phase. Bemore acknowledges that Supreme

Court precedent holds that a jury may consider prior unadjudicated offenses at

sentencing. See Nichols v. United States, 511 U.S. 738, 747 (1994). He likewise

offers no Supreme Court authority holding that a jury must find each aggravating

factor at the penalty stage unanimously. Apprendi v. New Jersey, 530 U.S. 466

(2000), addressed sentence-enhancing factors, not factors at a capital sentencing

that “guide the making of [the] choice between the alternative verdicts of death and


                                          5
life imprisonment.” Poland v. Arizona, 476 U.S. 147, 156 (1986) (alteration in

original) (quoting Bullington v. Missouri, 451 U.S. 430, 438 (1981)) (internal

quotation mark omitted). Excerpts from Supreme Court opinions speaking to a

general need for reliability in capital proceedings do not amount to binding

precedent on an otherwise open question. See Carey v. Musladin, 549 U.S. 70,

76–77 (2006).

      4. Because we vacate Bemore’s death sentence in the concurrently filed

opinion, we do not address his claims that California’s death penalty scheme is

unconstitutional because it is arbitrary and capricious, and constitutes cruel and

unusual punishment.

      AFFIRMED.




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