                                                                           FILED
                            NOT FOR PUBLICATION                            MAR 20 2014

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



                            FOR THE NINTH CIRCUIT


ANNE MARIE HARRISON,                             No. 11-55400

              Petitioner - Appellant,            D.C. No. 2:09-cv-07983-JSL-RZ

  v.
                                                 MEMORANDUM*
DEBORAH K. JOHNSON,

              Respondent - Appellee.


                     Appeal from the United States District Court
                        for the Central District of California
                  J. Spencer Letts, Senior District Judge, Presiding

                       Argued and Submitted March 4, 2014
                              Pasadena, California

Before: BYBEE, BEA, and CHRISTEN, Circuit Judges.

       Petitioner Anne Marie Harrison appeals the district court’s denial of her

petition for a writ of habeas corpus, alleging that the California Supreme Court

erred in rejecting her Napue false evidence and Brady suppression of material

evidence claims. Because Harrison’s federal habeas petition was filed after the



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
enactment of AEDPA in 1996, that statute governs her petition. See Woodford v.

Garceau, 538 U.S. 202, 210 (2003). This Court will grant Harrison’s petition only

if the California Supreme Court’s denial of Harrison’s state habeas petition

“resulted in a decision that was contrary to, or involved an unreasonable

application of, clearly established Federal law, as determined by the Supreme

Court of the United States” or “resulted in a decision that was based on an

unreasonable determination of the facts in light of the evidence presented in the

State court proceeding.” 28 U.S.C. § 2254(d)(1)–(2). Because the California

Supreme Court summarily denied Harrison’s state habeas petition, this Court

“must determine what arguments or theories . . . could have supported . . . the state

court’s decision; and then [we] must ask whether it is possible fairminded jurists

could disagree that those arguments or theories are inconsistent with the holding in

a prior decision of [the United States Supreme] Court.” Harrington v. Richter, 131

S. Ct. 770, 786 (2011) (emphasis added).

      First, Harrison’s Napue false evidence claim based on Michael Lopez’s

allegedly false trial testimony fails because Harrison has not shown that Lopez’s

trial testimony was false, nor that the prosecution “knew or should have known”

that this testimony was false. See Hein v. Sullivan, 601 F.3d 897, 908 (9th Cir.

2010) (stating that to prevail on a Napue claim, a defendant “must show that (1) the


                                           2
testimony (or evidence) was actually false, (2) the prosecution knew or should

have known that the testimony [or evidence] was actually false, and (3) that the

false testimony [or evidence] was material.” (alterations in original) (internal

quotation marks and citation omitted)). In particular, a witness’s “later recantation

of his trial testimony does not [necessarily] render his earlier testimony false.” See

Allen v. Woodford, 395 F.3d 979, 994 (9th Cir. 2005). Similarly, Harrison’s Napue

false evidence claim based on Detective McElderry’s allegedly false trial testimony

fails because the California Supreme Court could have reasonably concluded that

this testimony was not false.

      Second, Harrison’s Brady suppression of evidence claim based on an

“implied agreement” between Lopez and the prosecution fails because Harrison

has not shown that any such agreement existed. See Jackson v. Brown, 513 F.3d

1057, 1071 (9th Cir. 2008) (stating that to succeed on a Brady claim, a defendant

must demonstrate three elements: “(1) The evidence at issue must be favorable to

the accused . . . , (2) that evidence must have been suppressed by the State, and (3)

prejudice must have ensued” (internal quotation marks omitted)). As the district

court noted, “[Harrison’s] speculation that there must have been a promise or deal,

or even that Lopez believed there must have been a promise, is not sufficient to

show that there was any such deal that needed to be disclosed.” ER 18. Finally,


                                           3
Harrison’s Brady claim based on her assertion that Lopez’s trial testimony was

“cross-contaminated” by information from Juan Tovar’s recorded jail cell

conversation with Jonathan Miramontes fails because Harrison has not shown that

any such “cross-contamination” occurred. Nor has Harrison shown the prosecution

suppressed evidence of cross-contamination. Harrison cross-examined Lopez at

trial and could have questioned Lopez about whether he was told of Tovar’s

statement to Miramontes. Moreover, the California Supreme Court could have

reasonably refused to believe Lopez’s 2007 declaration, upon which Harrison

relies to support her claim that the “cross-contamination” evidence existed.

      Ultimately, the California Supreme Court could have reasonably rejected

both of Harrison’s Napue claims and both of Harrison’s Brady claims. We

therefore AFFIRM the district court’s denial of Harrison’s petition for a writ of

habeas corpus.

      AFFIRMED.




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