                                                                             FILED
                           NOT FOR PUBLICATION
                                                                             MAR 17 2017
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


JACK M. HEWSON, JR.,                             Nos. 16-35136
                                                      16-35202
              Petitioner-Appellee/
              Cross-Appellant,                   D.C. No. 2:15-cv-00136-SMJ

 v.
                                                 MEMORANDUM*
JAMES KEY, Acting Superintendent
Airway Heights Corrections Center,

              Respondent-Appellant/
              Cross-Appellee.


                   Appeals from the United States District Court
                       for the Eastern District of Washington
                  Salvador Mendoza, Jr., District Judge, Presiding

                       Argued and Submitted March 8, 2017
                               Seattle, Washington

Before: GRABER, IKUTA, and HURWITZ, Circuit Judges.

      Warden James Key appeals the district court’s grant of Jack Hewson’s

habeas petition on the ground that his conviction was obtained through the

presentation of false evidence in violation of Napue v. Illinois, 360 U.S. 264


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
(1959). Hewson cross-appeals the district court’s denial of habeas relief on two

claims that the government withheld evidence in violation of Brady v. Maryland,

373 U.S. 83 (1963). We have jurisdiction under 28 U.S.C. §§ 1291 and 2253, and

we review de novo the district court’s ruling on a petition for a writ of habeas

corpus. Cheney v. Washington, 614 F.3d 987, 993 (9th Cir. 2010). We reverse the

grant of relief.

       Assuming without deciding that we review Hewson’s Napue claim de novo,

it fails on the merits. As Hewson recognizes, his habeas petition does not

challenge the state trial court’s decision to limit the cross-examination of Delao

regarding the potential prison sentences he faced before striking a plea bargain; the

Napue claim is instead that the prosecution should have corrected Delao’s false

testimony. But, Delao’s challenged testimony was not false. Nothing in the record

indicates that Delao lied when he testified that he got “three years off the sentence”

imposed by a federal court as a result of his cooperation. Delao’s comment that he

“didn’t really save [himself] much” by virtue of his cooperation was a subjective

assessment, rather than false testimony. Delao disclosed to the jury that he was a

cooperating witness who received benefits in exchange for his testimony, and the

jury was not left with an overall “false impression” about his relationship with the

State. See Alcorta v. Texas, 355 U.S. 28, 31 (1957) (per curiam). Hewson was not


                                           2
precluded from eliciting testimony about the number or nature of state court

charges that Delao faced. Because Hewson’s claim fails under de novo review, it

necessarily fails under AEDPA’s more deferential standard. See Berghuis v.

Thompkins, 560 U.S. 370, 390 (2010).

      Hewson’s Brady claims also fail under de novo review. See id. Even if the

allegedly suppressed evidence relating to Oakes’s and Hoofman’s prior criminal

histories had impeachment value, it was cumulative of other impeaching evidence

produced at trial, including Oakes’s and Hoofman’s accurate testimonies about

their cooperation deals with the State.1 Considering the alleged Brady materials

cumulatively and in light of the full body of evidence introduced at trial, including

the State’s compelling evidence of Hewson’s guilt (such as eyewitness testimony

from the victim, and evidence of financial motive), “there is no reasonable

probability that the result of the proceeding would have been different” had the

materials been used at trial. Reis-Campos v. Biter, 832 F.3d 968, 978 (9th Cir.

2016) petition for cert. filed — U.S.L.W. — (U.S. Feb. 23, 2017) (No. 16-8109);

see also Barker v. Fleming, 423 F.3d 1085, 1100 (9th Cir. 2005).



      1
        In addition to evidence supporting an inference of Oakes’s bias in favor of
the State, other evidence adduced at trial fairly supported an inference that Oakes
was personally prejudiced against Hewson because Hewson had once fired Oakes
from a job.
                                          3
For the foregoing reasons, we reverse the grant of habeas relief.

REVERSED.




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