                           NOT FOR PUBLICATION                            FILED
                    UNITED STATES COURT OF APPEALS                         FEB 10 2020
                                                                      MOLLY C. DWYER, CLERK
                                                                        U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

SHARRIEFF BROWN,                                No.    18-56432

                Petitioner-Appellant,           D.C. No.
                                                2:12-cv-09126-DMG-MRW
 v.

CALIFORNIA DEPARTMENT OF                        MEMORANDUM*
CORRECTIONS AND
REHABILITATION,

                Respondent-Appellee.

                   Appeal from the United States District Court
                      for the Central District of California
                     Dolly M. Gee, District Judge, Presiding

                     Argued and Submitted November 8, 2019
                              Pasadena, California

Before: SCHROEDER and FRIEDLAND, Circuit Judges, and SILVER,** District
Judge.

      Petitioner-Appellant Sharrieff Brown appeals the district court’s denial of

his petition for habeas corpus relief from his California state conviction for second-



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The Honorable Roslyn O. Silver, United States District Judge for the
District of Arizona, sitting by designation.
degree murder and assault on a child resulting in death. At Brown’s trial, the State

had called as a witness a medical examiner who testified that the victim child’s

injuries were not consistent with Brown’s account that an accidental fall had

caused the child’s death. The district court denied Brown’s petition for habeas

relief as to his claim of ineffective assistance of counsel based on his trial

counsel’s failure to discover and utilize impeachment evidence showing that the

medical examiner had a history of changing his testimony in outcome-

determinative ways in homicide cases, as to a related claim that the State’s failure

to disclose impeachment material about the medical examiner amounted to a

violation of Brady v. Maryland, 373 U.S. 83 (1963), and as to a cumulative error

claim. It then granted a certificate of appealability as to all such claims. We

affirm.

      We review the denial of a habeas petition de novo, and any findings of fact

made by the district court for clear error.1 Washington v. Lampert, 422 F.3d 864,

869 (9th Cir. 2005). We may affirm on any ground supported by the record. Id.

      Because Brown failed to raise the operative ineffective assistance of counsel

claim within one year of the date on which his state judgment became final by the



      1
        Brown argues that we should review some of his claims for clear error
because they rest on underlying factual disputes. Because no factual disputes are
relevant to our holding, however, we do not apply the clear error standard to any of
the issues herein.

                                           2
conclusion of direct review or expiration of the time for seeking such review, or

within one year of any other tolling event, the claim was untimely. See 28 U.S.C.

§ 2244(d).

      Brown argues that the claim was timely because his obligation to raise it was

tolled, pursuant to 28 U.S.C. § 2244(d)(1)(D), to within one year of “the date on

which the factual predicate of the claim . . . could have been discovered through

the exercise of due diligence.” We disagree.

      The factual predicate for a habeas petition based on ineffective assistance of

counsel exists when the petitioner has discovered (or with the exercise of due

diligence could discover) facts suggesting both deficient performance and

prejudice. Hasan v. Galaza, 254 F.3d 1150, 1154 (9th Cir. 2001). Brown argues

that the factual predicate of his claim was his 2014 discovery that, at the time his

trial counsel was litigating his case, the Los Angeles County Public Defender’s

(“LACPD”) Office, where counsel worked, had boxes containing relevant

impeachment material that counsel nevertheless did not discover or utilize. Brown

contends that it was not until he learned that the impeachment materials were in the

possession of his counsel’s own office that he could overcome the strong

presumption that his counsel had furnished adequate performance. See Cullen v.

Pinholster, 563 U.S. 170, 189 (2011); Strickland v. Washington, 466 U.S. 688,

689-90 (1984).


                                          3
      This argument fails because Brown clearly was aware of the basis for his

ineffective assistance of counsel claim long before 2014. The factual predicate of

Brown’s ineffective assistance of counsel claim is the medical examiner’s history

of changing his medical testimony, which Brown knew about at least by November

2012, when his habeas counsel copied at the prosecutor’s office boxes of

impeachment material about the medical examiner.2 Brown’s counsel’s failure to

find or use widely available impeachment information and to do so after becoming

aware of a California Supreme Court case identifying the existence of that

information, see People v. Salazar, 112 P.3d 14 (Cal. 2005), likely was sufficient

to support a claim that counsel’s performance fell below prevailing professional

standards, see Reynoso v. Giurbino, 462 F.3d 1099, 1112 (9th Cir. 2006)

(explaining that failure to investigate possible methods of impeachment may

constitute ineffective assistance of counsel). And discovery that the LACPD in

fact had boxes of impeachment material made no material difference as to whether

Brown could establish prejudice. See Hasan, 254 F.3d at 1154-55 (concluding

that, although petitioner had earlier knowledge of some facts suggesting that

counsel had been deficient, the factual predicate of his claim arose after new


      2
         We need not resolve whether Brown knew of this factual predicate even
earlier, such as at the time of trial. But, unlike our specially concurring colleague,
we conclude that it was unreasonable for Brown’s habeas counsel, after copying
boxes of impeachment material, to continue to believe that Brown’s trial counsel
had conducted an adequate investigation.

                                           4
information enabled a petitioner for the first time to make a prejudice argument in

good faith).

      To the extent Brown argues that his ineffective assistance of counsel claim is

timely under a rationale that it relates back to either his first or his first amended

habeas petition, we disagree. A claim may only relate back to an exhausted claim,

see King v. Ryan, 564 F.3d 1133, 1142 (9th Cir. 2009), and none of the claims

asserted in Brown’s initial federal petitions were exhausted. Accordingly, because

the factual predicate for Brown’s claim arose no later than November 2012, no

other tolling events occurred in the year following that date, and Brown’s claim

could not relate back to a claim in any prior petition, Brown’s second amended

petition was untimely and we affirm its denial.

      Second, the district court did not err in denying Brown’s Brady claim as

unexhausted. To exhaust a habeas claim, a petitioner must clearly describe to the

state court both the facts underlying the claim and the “specific federal

constitutional guarantee” on which the claim is based. Gray v. Netherland, 518

U.S. 152, 162-63 (1996). Brown’s petition to the California Supreme Court did

not do this. To the contrary, it explicitly disavowed the Brady claim Brown had

asserted in his first amended petition, gave no clear indication that Brown sought

to raise a new Brady claim, and referenced the state’s Brady obligations and failure

to disclose information about the medical examiner to Brown’s counsel only in the


                                            5
course of explaining its claims for ineffective assistance of counsel and

prosecutorial misconduct. It was therefore insufficient to present a Brady claim to

the California Supreme Court. See Gray, 518 U.S. at 163; Castillo v. McFadden,

399 F.3d 993, 999 (9th Cir. 2005) (explaining that the “citation of a relevant

federal constitutional provision in relation to some other claim does not satisfy the

exhaustion requirement”). Accordingly, we affirm the district court’s dismissal of

Brown’s petition as to the Brady claim.

      Finally, because “no error of constitutional magnitude occurred, no

cumulative prejudice is possible,” Hayes v. Ayers, 632 F.3d 500, 524 (9th Cir.

2011), and the district court therefore properly denied the writ as to Brown’s

cumulative error claim.

      AFFIRMED.




                                          6
                                                                         FILED
Brown v. CDCR, No. 18-56432
                                                                          FEB 10 2020
ROSLYN O. SILVER, District Judge, concurring.                        MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS

      I concur in the judgment affirming the District Court’s denial of Brown’s

Brady and cumulative error claims, and in the judgment affirming the District

Court’s denial of Brown’s ineffective assistance of counsel claim. However, I write

separately because I view the ineffective assistance of counsel claim as timely such

that resolving the claim on the merits is required. Pursuant to 28 U.S.C. § 2244(d),

I find the relevant “factual predicate” for Brown’s ineffective assistance of counsel

claim to be the discovery by Brown’s habeas counsel on January 29, 2014, that the

Los Angeles County Public Defender’s (“LACPD”) Office had in its possession

before Brown’s trial a copy of impeachment material (the “Ribe boxes”)

demonstrating instances where medical examiner Dr. Ribe had changed his

testimony. The one-year clock began running when Brown obtained sufficient

knowledge that his trial counsel had failed to conduct an adequate pre-trial

investigation: the necessary “facts suggesting both unreasonable performance and

resulting prejudice.” Hasan v. Galaza, 254 F.3d 1150, 1154 (9th Cir. 2001).

      The majority considers the factual predicate to be Dr. Ribe’s history of

changing his medical testimony, and from this the majority concludes that the

November 2012 discovery by habeas counsel of copies of the Ribe boxes in the Los

Angeles District Attorney’s (“LADA”) Office was sufficient to start “[t]he ‘due
diligence’ clock . . . ticking.” Ford v. Gonzalez, 683 F.3d 1230, 1235 (9th Cir.

2012). In my view, Brown did not know, nor through diligence could Brown have

discovered, the “vital facts” at the time of his trial. And I disagree with the

majority’s conclusions that Dr. Ribe’s history of inconsistent testimony was enough

to start the clock. This decision is based on what occurred at a pretrial conference

when Deputy Public Defender Joel Lofton (“Lofton”) was specifically told by the

prosecution that the Ribe boxes did not exist.

      On April 26, 2010, at the pretrial hearing, the trial judge sua sponte raised the

question of “a host of [Fed. R. Evid.] 402 issues attendant with Dr. Ribe.” Brown’s

trial counsel, Lofton, stated that he had not spoken with Deputy District Attorney

Kelly Cromer (“Cromer”) “at all about Dr. Ribe” and that he didn’t “have any 402’s

on Ribe.” Cromer then argued the Ribe boxes should be excluded from the cross-

examination of Dr. Ribe.      Lofton responded to Cromer by characterizing her

statement as an assertion that “the People have a document of Dr. Ribe, they keep a

file on Dr. Ribe,” and stating “in that case the defense is asking for it.” Cromer then

responded unequivocally that LADA did not have any impeachment material that

Lofton could request and receive, stating: “No, and counsel is mistaken; there are no

files that the People keep on Dr. Ribe.”

      The record of the pretrial hearing makes clear that Lofton had a right to rely

on Cromer’s unambiguous representation that “there are no files that the People keep


                                           2
on Dr. Ribe” and then conduct no further investigation.          Given the strong

presumption of adequate assistance, Brown would have had no reason to assume that

Lofton’s reliance on Cromer’s representation constituted ineffective assistance of

counsel. Cullen v. Pinholster, 563 U.S. 170, 189 (2011).

      In November 2012, Brown’s habeas counsel discovered the Ribe boxes were

in fact in the possession of LADA at the time of trial, contrary to Cromer’s

representation. Cromer’s misrepresentation at the trial impacted Brown’s Brady and

prosecutorial misconduct claims such that the magistrate judge granted a Rhines stay

to permit exhaustion of those claims, but it did not impact Brown’s claim that his

trial counsel was ineffective.

      Because the claim is timely, I then reach the merits of the ineffective

assistance of counsel claim, and it fails. To establish counsel’s assistance was

constitutionally ineffective, a petitioner must prove counsel’s performance was

deficient, such that the “representation fell below an objective standard of

reasonableness,” and prove that the deficient performance prejudiced the defense

such that “the decision reached would reasonably likely have been different absent

the errors.” Strickland v. Washington, 466 U.S. 668, 687–88, 696 (1984). The

Strickland standard for deficient performance is highly demanding, and requires the

petitioner prove “gross incompetence.” Kimmelman v. Morrison, 477 U.S. 365, 382

(1986). To meet the Strickland standard for prejudice, the petitioner must show “a


                                         3
‘substantial,’ not just ‘conceivable,’ likelihood of a different result.” Cullen, 563

U.S. at 189 (citing Harrington v. Richter, 562 U.S. 86, 112 (2011)).

      Furthermore, under the Antiterrorism and Effective Death Penalty Act, the

relevant question when assessing an exhausted claim of ineffective assistance of

counsel is not whether the two prongs of Strickland were met, but “whether the state

court’s application of the Strickland standard was unreasonable.” Atwood v. Ryan,

870 F.3d 1033, 1056 (9th Cir. 2017) (quoting Harrington, 562 U.S. at 101). In other

words, “‘the question is not whether counsel’s actions were reasonable,’ but

‘whether there is any reasonable argument that counsel satisfied Strickland’s

deferential standard.’” Martinez v. Ryan, 926 F.3d 1215, 1226 (9th Cir. 2019)

(quoting Harrington, 562 U.S. at 105).

      I agree with the District Court that “[o]n habeas review, the state court would

be hard pressed to say that the lawyer’s inaction met the standard of professionalism

expected of a competent defender.” Lofton’s failure to search LACPD’s internal

database of impeachment material, despite a protocol encouraging such searches and

the obvious need to investigate the key prosecution witness, constituted deficient

performance. Furthermore, Lofton’s failure to consult with his direct supervisor

(who had personal knowledge of the Ribe boxes and in fact had previously used

them to impeach Dr. Ribe’s credibility in a different case, and who regularly directed

all LACPD attorneys working on cases involving Dr. Ribe to “make the appropriate


                                          4
arrangements to view and review the materials maintained by the office”), during

his very first murder trial, constituted gross incompetence.

      But the state court’s finding that Brown was not prejudiced by Lofton’s

failures was reasonable. The trial judge was familiar with the impeachment material

and explicitly narrowed the scope of allowable cross-examination on Dr. Ribe’s

changed opinions to avoid “open[ing] up th[e] can of worms” of Ribe’s previous

testimony, basing his ruling “on [California Evidence Code §] 352 grounds.” Thus,

even had Lofton searched the database or spoken to his supervisor and thus obtained

the Ribe boxes, Lofton may not have been able to use them effectively at trial. Such

trial-within-a-trial issues are the type of state law evidentiary issue which are

generally exempt from federal constitutional review. Estelle v. McGuire, 502 U.S.

62, 67–68 (1991) (“[I]t is not the province of a federal habeas court to reexamine

state-court determinations on state-law questions.”). Furthermore, even if Lofton

had successfully impeached Dr. Ribe’s credibility, the jury could still have found

Dr. Ribe more credible than defense expert Dr. Bonnell, who was impeached in a

manner that cast a shadow on his competence and credibility. Brown has not shown

a substantial likelihood of a different result. Cullen, 563 U.S. at 189.

      Because Brown’s ineffective assistance of counsel claim fails on the merits, I

concur in the judgment affirming the District Court’s dismissal of Brown’s habeas

petition.


                                          5
