                                                                           FILED
                           NOT FOR PUBLICATION
                                                                           DEC 02 2016
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


RICKEY DENNIS COOPER,                            No.   15-15755

              Petitioner-Appellant,              D.C. No.
                                                 3:97-cv-00222-JCM-WGC
 v.

JO GENTRY, Warden,                               MEMORANDUM*

              Respondent-Appellee.


                    Appeal from the United States District Court
                             for the District of Nevada
                     James C. Mahan, District Judge, Presiding

                    Argued and Submitted November 17, 2016
                            San Francisco, California

Before: MELLOY,** CLIFTON, and WATFORD, Circuit Judges.

      The Nevada Supreme Court adjudicated Rickey Cooper’s claims under

Brady v. Maryland, 373 U.S. 83 (1963), and Napue v. Illinois, 360 U.S. 264

(1959), on the merits. See Cooper v. Neven, 641 F.3d 322, 333 (9th Cir. 2011). As


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
            The Honorable Michael J. Melloy, United States Circuit Judge for the
U.S. Court of Appeals for the Eighth Circuit, sitting by designation.
                                                                            Page 2 of 3
a result, we must review the Nevada Supreme Court’s ruling under the deferential

standard prescribed by 28 U.S.C. § 2254(d).

      The Nevada Supreme Court determined that there was no “reasonable

possibility” that Donnell Wells’ recanted testimony or the prosecution’s failure to

disclose the payment of money to Wells affected the outcome of the trial. The

court based its conclusion on the fact that other evidence at trial established

Cooper’s guilt. For example, other eyewitnesses testified that Cooper was in the

front passenger seat of the car from which gun shots were fired; that Cooper

extended a gun out of the front passenger window; that Cooper fired the gun; and

that victim Ricky Williams ran away from the car, clutching his chest, as the gun

was drawn back into the car. In light of this evidence, the Nevada Supreme

Court’s decision was not contrary to, or an unreasonable application of, clearly

established federal law as determined by the Supreme Court of the United States.

Nor was it based on an unreasonable determination of the facts.

        The Nevada Supreme Court’s application of the reasonable possibility

standard amounts to a ruling that Cooper failed to satisfy the materiality standard

necessary to prevail on either a Brady or a Napue claim. The reasonable

possibility standard is equivalent to the materiality standard for Napue claims. See

United States v. Bagley, 473 U.S. 667, 679–80 & n.9 (1985). And, because the
                                                                           Page 3 of 3
materiality standard for Brady claims is more demanding than the reasonable

possibility standard, Strickler v. Greene, 527 U.S. 263, 291 (1999), failure to

satisfy the reasonable possibility standard necessarily forecloses relief under

Brady.

      AFFIRMED.
