                                                                           FILED
                           NOT FOR PUBLICATION                              JUL 25 2014

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



                            FOR THE NINTH CIRCUIT


MARTÍN SOTO, FONG                                No. 11-17051

             Petitioner-Appellant,               D. C. No. 4:04-cv-00068-DCB

  v.
                                                 MEMORANDUM*
CHARLES L. RYAN and CHARLES
GOLDSMITH, Warden,

             Respondent-Appellees.


                    Appeal from the United States District Court
                             for the District of Arizona
                     David C. Bury, District Judge, Presiding

                    Argued and Submitted September 10, 2013
                            San Francisco, California

Before: SCHROEDER and BYBEE, Circuit Judges, and TIMLIN, Senior District
Judge.**

       Martín Raùl Fong Soto (“Petitioner” or “Fong”) appeals the district court’s

denial of his 28 U.S.C. § 2254 petition for writ of habeas corpus. In a separate


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The Honorable Robert J. Timlin, Senior District Judge for the U.S.
District Court for the Central District of California, sitting by designation.
published opinion filed concurrently herewith, we affirm the district court’s denial

of the two certified claims Petitioner raises on appeal concerning prosecutorial

misconduct based on the government’s alleged knowing use of Detective Joseph

Godoy’s false testimony at trial and ineffective assistance of counsel based on

defense counsel’s decision to call state informant Keith Woods as a trial witness.

      This memorandum opinion addresses the designated “Uncertified Issues”

Petitioner includes in his opening brief, which he claims also entitle him to habeas

relief. We construe his inclusion and designation of these issues as a motion to

expand the Certificate of Appealability (“COA”). 9th Cir. R. 22-1(e).

      We deny Petitioner a COA on the following uncertified issues raised in his

opening brief because he has failed to make a substantial showing of the denial of a

constitutional right: 1) his claim that his rights to due process and conflict-free

counsel were violated when his trial and direct appellate attorney undertook the

representation of the prosecutor in Petitioner’s trial in various criminal

investigations and disciplinary proceedings arising out of the prosecutor’s

misconduct during the later trials of Petitioner’s co-defendants; 2) his claim that

the state violated his rights to due process and a fair trial by failing to disclose

certain benefits received by state informant Keith Woods. Hivila v. Wood, 195

F.3d 1098, 1104 (9th Cir. 1999); 28 U.S.C. § 2253(c)(2).


                                            2
      We grant Petitioner a COA on the remaining uncertified claims raised in his

opening brief because he has shown that these issues are debatable amongst jurists

of reason or raise questions that deserve encouragement to proceed further. Doe v.

Woodford, 508 F.3d 563, 567 (9th Cir. 2007) (qouting Barefoot v. Estelle, 463 U.S.

880, 893 n.4 (1983)). Nonetheless, upon review of the petition, the relevant

pleadings and record before this Court and the district court, and the district court’s

order denying habeas relief, we deny Petitioner relief on these now certified claims

for the reasons stated below.

      First, we deny Petitioner habeas relief on his claim that the state violated its

disclosure obligations under Brady v. Maryland, 373 U.S. 83 (1963), by failing to

disclose a September 9, 1992 investigative report authored by Detective Joseph

Godoy. While Petitioner argues that the state post-conviction relief court should

not have found credible the testimony of his criminal trial attorney and that

attorney’s paralegal representing that they had seen the report during Petitioner’s

earlier criminal trial, Petitioner has failed to show that the state court’s conclusion

that the September 9, 1992 report was disclosed was based on an unreasonable

determination of the facts. 22 U.S.C. § 2254(d)(2); Rice v. Collins, 546 U.S. 333,

341-42 (2006) (“Reasonable minds reviewing the record might disagree about the




                                            3
prosecutor’s credibility, but on habeas review that does not suffice to supersede the

trial court’s credibility determination.”).

      Second,1 Fong is not entitled to relief on his Brady claim alleging that the

state failed to disclose an undated investigative report authored by Detective

Reuben Nunez. He fails to show that any information contained in that report is

material under Brady. Henry v. Ryan, 720 F.3d 1073, 1080 (9th Cir. 2013) (“To

establish materiality, [a petitioner] must show that the state’s ‘nondisclosure was

so serious that there is a reasonable probability that the suppressed evidence would

have produced a different verdict.’” (citation omitted)).

      Third, Petitioner was not denied due process and a fair trial by the

prosecutor vouching for the credibility of Detective Joseph Godoy during closing

argument. The prosecutor’s comments during closing argument were made in

response to the defense theory that Detective Godoy repeatedly lied and

manufactured key evidence in the case and were an attempt to explain that the

evidence at trial at most showed that Detective Godoy made mistakes during the

investigation and prosecution of the case. United States v. Young, 470 U.S. 1,



      1
              Because we find Petitioner’s remaining claims meritless upon a de
novo review of the district court’s merits rulings, we refrain from addressing the
alternative arguments pressed by the state below asserting that these claims are
unexhausted or are otherwise procedurally defaulted.

                                              4
12-13 (1985); United States v. Necoechea, 986 F.2d 1273, 1279 (9th Cir. 1993)

(prosecutor allowed to argue in closing that witness is “telling the truth” and “not

lying” where “statements do not imply that the government is assuring [witness’s]

veracity, and do not reflect the prosecutor’s personal beliefs”).

      Moreover, even if the prosecutor’s comments were improper, Petitioner has

not shown that a reasonable jurist could find that they “had [a] substantial and

injurious effect or influence in determining the jury’s verdict[,]” considering other

evidence of Petitioner’s guilt and that the state trial court instructed the jury that

closing argument is not evidence. Turner v. Calderon, 281 F.3d 851, 868 (9th Cir.

2002) (first alteration in original) (internal quotations and citation omitted).

      Fourth, we also deny Petitioner habeas relief on his prosecutorial misconduct

claim alleging that the government fabricated state informant Keith Woods’

testimony at the criminal trial and thereby deprived Petitioner of due process and a

fair trial. The August 11, 2005 declaration of Keith Woods and the unsigned 2004

statement of his girlfriend, Tanisha Price-Woods, are too speculative to show that

the prosecution knew or should have known that any of defense witness Woods’

trial testimony was false under Napue v. Illinois, 360 U.S. 264 (1959). To the

extent any false testimony by defense witness Woods was presented at trial,

Petitioner also has failed to show that such testimony was material. Maxwell v.


                                            5
Roe, 628 F.3d 486, 508 (9th Cir. 2010) (false testimony of state’s “make-or-break”

witness material where his “testimony was the centerpiece of the prosecution’s

case” and all other evidence of guilt was weak and circumstantial).

      Petitioner likewise has not shown that he is entitled to evidentiary

development in federal court on any of his claims. 28 U.S.C. § 2254(e)(2); Cullen

v. Pinholster, 131 S. Ct. 1388, 1398-1401 (2011); Schriro v. Landrigan, 550 U.S.

465, 474 (2007) (“In deciding whether to grant an evidentiary hearing, a federal

court must consider whether such a hearing could enable an applicant to prove the

petition’s factual allegations, which, if true, would entitle the applicant to federal

habeas relief.”).

      The judgment of the district court is AFFIRMED.




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