                      FOR PUBLICATION

    UNITED STATES COURT OF APPEALS
         FOR THE NINTH CIRCUIT


 LA CARL MARTEZ DOW,                               No. 11-17678
           Petitioner-Appellant,
                                                     D.C. No.
                     v.                           4:06-cv-01219-
                                                       PJH
 TIM VIRGA, Warden,
            Respondent-Appellee.                     OPINION


         Appeal from the United States District Court
            for the Northern District of California
         Phyllis J. Hamilton, District Judge, Presiding

                   Argued and Submitted
        February 14, 2013—San Francisco, California

                     Filed September 5, 2013

Before: Stephen Reinhardt and Milan D. Smith, Jr., Circuit
    Judges, and James G. Carr, Senior District Judge.*

                   Opinion by Judge Reinhardt




  *
    The Honorable James G. Carr, Senior District Judge for the U.S.
District Court for the Northern District of Ohio, sitting by designation.
2                          DOW V. VIRGA

                           SUMMARY**


                          Habeas Corpus

    The panel reversed the district court’s denial of a
28 U.S.C. § 2254 habeas corpus petition alleging
prosecutorial misconduct when the prosecutor knowingly
elicited and then failed to correct false testimony.

    During trial, a detective testified that Dow, rather than his
attorney, requested that each of the participants in a lineup
wear a bandage under his right eye at the location at which
petitioner had a small scar under his; the attorney made this
request out of concern that the witness might falsely identify
petitioner because he was the only participant with a facial
scar. The prosecutor argued that petitioner had demonstrated
consciousness of guilt by trying to hide his scar to prevent his
identification. The panel held that, after the state court found
misconduct, it applied a harmlessness standard that is
contrary to that required by Napue v. Illinois, 360 U.S. 264
(1959). The panel further held that, had the state court
applied the proper standard in rejecting petitioner’s claim, it
would have unreasonably applied clearly established federal
law.




  **
     This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                        DOW V. VIRGA                          3

                         COUNSEL

Marc J. Zilversmit (argued), San Francisco, California, for
Petitioner-Appellant.

Glenn R. Pruden, Supervising Deputy Attorney General
(argued), Kamala D. Harris, Attorney General of California,
Gerald A. Engler, Senior Assistant Attorney General,
Gregory A. Ott, Deputy Attorney General, San Francisco,
California, for Respondent-Appellee.


                          OPINION

REINHARDT, Circuit Judge:

     La Carl Martez Dow’s state court trial for second degree
robbery involved textbook prosecutorial misconduct,
recognized as such by the California Court of Appeal (“state
court”). In the course of the trial, the prosecutor knowingly
elicited and then failed to correct false testimony. That
testimony, by Detective Oglesby, was that Dow (rather than
his attorney) made the request that each of the participants in
a lineup wear a bandage under his right eye at the location at
which Dow had a small scar under his. Then, based on this
evidence, the prosecutor told the jury during closing
argument that Dow had demonstrated consciousness of guilt
by trying to hide his scar in order to prevent the sole
eyewitness from identifying him. Dow contended that the
prosecutor’s eliciting of false testimony and failure to correct
it violated his federal constitutional rights. The state
appellate court held that misconduct had occurred. It stated:
4                      DOW V. VIRGA

       We find that misconduct occurred. Although
       Detective Oglesby testified that defendant
       made the request to have “the band-aid placed
       beneath all the participants’ right eyes,” the
       prosecutor was aware that representation of
       the evidence was erroneous.             More
       importantly, by asserting that defendant was
       attempting to “hide” his scar, the prosecutor
       was mischaracterizing the evidence.

The prosecutor’s misconduct violates the basic tenet of Napue
v. Illinois, which prohibits “soliciting false evidence,” and
requires the prosecutor to not “allow[] it to go uncorrected
when it appears.” 360 U.S. 264, 269 (1959). Nonetheless,
the state court upheld Dow’s conviction because it found that
it was not reasonably likely that, absent the misconduct, Dow
would have obtained a more favorable verdict; in other
words, it held that the error was harmless.

    Dow’s claim comes to us on a petition for habeas corpus.
Applying the deferential standards of the Antiterrorism and
Effective Death Penalty Act of 1996 (“AEDPA”), we
conclude that the state court’s decision upholding Dow’s
conviction was “contrary to” and/or an “unreasonable
application” of Supreme Court precedent. Specifically, in
rejecting Dow’s claim, the state court applied a harmlessness
standard that is “contrary to” the harmlessness standard
required by Napue v. Illinois. The Napue standard is different
from the ordinary harmlessness standard, and is referred to in
Napue and its progeny as a “materiality” standard. We so
refer to it here. Even were we to presume, as the state urges,
that the state court applied the Napue materiality standard
when rejecting Dow’s claim, its application of that standard
would have constituted an “unreasonable application” of
                           DOW V. VIRGA                                5

clearly established Supreme Court law. As the Napue error
is without doubt “material,” we reverse the district court’s
denial of Dow’s petition and remand with instructions to
grant the writ of habeas corpus.1

       FACTS & PROCEDURAL BACKGROUND

I. The Robbery and Investigation

    Because our “review is limited to the record that was
before the state court that adjudicated the claim on the
merits,” Cullen v. Pinholster, 131 S. Ct. 1388, 1398 (2011),
we do not look to facts beyond the state court record. We
therefore rely upon the California Court of Appeal’s
statement of facts in People v. Dow, No. A105381 (Cal. Ct.
App. Oct. 22, 2004) (unpublished). According to the state
court:

    One night in November 2002, Felix Sablad was working
as a cashier in the convenience store at the Olympian Gas
Station in Daly City, California. An individual, later
identified by Sablad as Dow, entered the store, approached
the cash register, and asked for a certain type of medication
that Sablad explained the store did not carry. After walking
around the store as if he were looking for something, the
perpetrator returned to the register, placed a package of gum
on the counter, and briefly engaged Sablad in idle
conversation. As Sablad opened the cash register, the
perpetrator produced a very small silver handgun and ordered
him to hand over the money. Sablad was frightened, but


 1
   Because we grant the writ on Dow’s claim of knowingly eliciting false
testimony, we do not reach his claim of ineffective assistance of counsel
based on counsel’s failure to object to that testimony.
6                       DOW V. VIRGA

placed the money on the counter with his left hand as he
attempted to press the “panic button” at the bottom of the
cash register with his right hand. The perpetrator yelled,
“what the fuck are you doing, man,” and aimed the gun at
Sablad’s head. Sablad turned away from the perpetrator and
indicated that he should take the money, less than $300, from
the register. The perpetrator did so and ran outside.

    Sablad pushed the panic buttons on both cash registers
and yelled to the assistant manager, “call the police. We were
robbed.” He then went outside the store and observed the
perpetrator driving away. The police arrived shortly
thereafter and took a description of the suspect: “an African-
American male, dark-skinned, medium build approximately
five foot ten inches tall to six feet tall,” 25 to 35 years old,
with a “scar somewhere on his face.” According to Sablad,
the man was “wearing a plain gray sweatshirt and sweat pants
and a ball cap.” Months later, Sablad told the investigating
officers that “he just remembered that the robber was missing
a tooth.” The police used the security video recording to
produce still images of the perpetrator, but these images were
not clear enough to show the robbery or to permit the
identification of the perpetrator. Other than two partial
fingerprints that could not be used for identification, no
physical evidence was retrieved from the scene of the crime.

    Dow became a suspect in the Olympian Gas Station
robbery as a result of his alleged involvement in another
robbery. After executing a search warrant at Dow’s home,
the detective assigned to the case—Detective Oglesby—
seized a generic gray sweatsuit that resembled the one worn
by the perpetrator in the security video. Over two months
after the robbery, Oglesby prepared a photo lineup for Sablad
to view that included Dow’s photograph among eight others.
                           DOW V. VIRGA                                7

Sablad selected Dow’s photograph as one that “resembles”
the robber, although he mentioned, “I can’t see the scar on the
photo.” Several months later, Sablad was shown a live lineup
at the district attorney’s office using five individuals,
including Dow. Dow’s lawyer, who was present at the
lineup, expressed concern that Sablad might falsely identify
Dow because Dow was the only lineup participant with a
facial scar. As a result, counsel asked the district attorney’s
office to ensure that each individual in the lineup wore a
bandage to cover the area under his right eye, the area in
which Dow had a small scar. Sablad again identified Dow at
the live lineup. He also acknowledged that Dow was the only
person to appear in both the photo and live lineups.

II. State Court Trials

     Dow had two jury trials in California state court. Dow’s
first trial ended in a deadlocked jury, requiring the judge to
declare a mistrial. At Dow’s second jury trial, however, he
was convicted of second degree robbery. The judge then
sentenced him to fifteen years of imprisonment. His claim of
constitutional error arises from the prosecutor’s conduct at
the second trial.

     A. The Evidence

    The prosecution’s case against Dow turned on the
reliability of Sablad’s identification of Dow as the
perpetrator.2 Although Sablad testified that he was confident


 2
   The only other evidence linking Dow to the crime was the generic grey
sweatsuit found in Dow’s residence. Sablad identified the gray sweatsuit,
seized from Dow’s home, as consistent with the clothing worn by the
perpetrator.
8                       DOW V. VIRGA

of his identification, he made a number of important,
inconsistent statements over the course of the investigation
and prosecution regarding his memory of the perpetrator’s
appearance, including the location of a scar on the
perpetrator’s face and the existence and location of a missing
tooth. Shortly after the robbery, Sablad told the officer that
he was not sure where the scar was located on the
perpetrator’s face; at the preliminary hearing, he said the scar
was on the right jaw line; then, at the first trial, he testified
that the scar was on the right side of the face adjacent to the
eyebrow and going downward; finally, at the second trial,
Sablad stated, looking at the defendant, that he could not see
the scar he remembered on the perpetrator’s face. As to the
missing tooth, Sablad remembered this fact only months after
he gave his initial description of the perpetrator to the police.
Then, he gave inconsistent testimony as to which tooth was
missing: at the first trial, Sablad testified that the perpetrator
was missing a lower right tooth; then, at the second trial, he
testified that the missing tooth might have been on the top.

    To corroborate Sablad’s identification, Detective
Oglesby, who set up the photo and live lineups, testified that
Dow has a small scar below his right eye that is visible from
“a foot or two away,” but not from “a distance,” and that he
has “a gap” between his two front teeth. Detective Oglesby
did not mention a missing tooth, either upper or lower.

    The defense sought to undermine Sablad’s identification
by using expert testimony. Dr. Robert Shomer testified
regarding the (un)reliability of eyewitness identification
generally. He also testified that eyewitness testimony can
often be influenced by numerous factors, including the
amount of stress on the eyewitness at the time of the incident,
the race of the perpetrator, whether the perpetrator used a
                       DOW V. VIRGA                          9

weapon, and the lineup procedures used by the police.
Shomer testified that it was his opinion that the lineup
procedures used in Dow’s case were not reliable and were
unduly suggestive.

   B. The Constitutional Error

    Two relevant events form the basis of Dow’s claim that
his second trial was constitutionally infirm. First, during the
prosecutor’s direct examination of Detective Oglesby, she
asked: “At whose request was the band-aid placed beneath all
of the participants’ right eyes?” Oglesby responded, “Mr.
Dow’s.” This testimony was false. In addition, as the state
appellate court stated, the prosecutor knew at the time that
this “representation was erroneous.” Nevertheless, the
prosecutor did not correct the detective’s testimony.

    Second, the prosecutor exploited her knowing
presentation of false evidence by arguing that Dow had
requested the placement of the band-aids in order to hide his
scar, thus indicating consciousness of guilt. Defense counsel
objected to this line of argument, but was overruled. The
exchange during the prosecutor’s closing remarks in rebuttal
was as follows:

       [PROSECUTOR]: . . . . But who knows the
       defendant’s face better than anyone else in
       this courtroom? The defendant. If there is no
       noticeable scar on his face, why did he
       demand that –

       [DEFENSE COUNSEL]: Excuse me, I’m
       sorry. Objection. There’s no evidence as to
10                   DOW V. VIRGA

     whose initiative it was that band-aids were
     placed on the faces.

     THE COURT: Overruled. There was such
     evidence.

     [THE PROSECUTOR]: If he does not have a
     scar on his face, why did, as Detective
     Oglesby testified, why did he ask that a
     band-aid be placed under his right eye about
     the exact same location where you can see, in
     the pictures that Detective Cisneros took,
     what looks to be a scar. What was he trying
     to hide if there’s nothing.

     ...

     [THE PROSECUTOR]: . . . The defendant’s
     actions speak for themselves. He knows
     what’s on his face, and he knows what he was
     trying to hide when he had that band-aid
     placed under his right eye.

     [DEFENSE COUNSEL]: Objection. I need
     to phrase an objection. This is outside the
     scope of evidence. The implication that is
     being made —

     THE COURT: It simply is not outside the
     scope of the evidence. Of that I am sure. But
     once again, the jury, if there’s any question in
     the jury’s mind about what the testimony was
     on that point, you can have it re-read.
                       DOW V. VIRGA                         11

       [DEFENSE COUNSEL]: I also object to the
       implication that this somehow represents a
       consciousness of guilt when, in fact, the very
       instructions that are given with respect to how
       to conduct these things say you should try to
       obstruct a scar.

       THE COURT: The objection is overruled.
       Go ahead. This is just argument based on the
       evidence.

       [THE PROSECUTOR]: Thank you, Your
       Honor. . . . The pictures at the live lineup,
       sure, they show the mouths of these people
       closed. And you don’t know for sure what
       happened before or what happened after. But
       I suggest this to you. A person who is careful
       enough to have concealed a distinguishing
       mark on his face, do you think that that person
       would be showing a victim, a potential
       witness in this case, a prominent gap between
       his two front teeth.

III.   State Appellate Court Decision and Habeas
       Proceedings

    On October 22, 2004, the California Court of Appeal
affirmed the trial court judgment in an unpublished opinion.
Dow had argued to the state court that the prosecutorial
misconduct in this case violated his federal constitutional
rights because “[w]here a prosecutor deceived a jury
regarding the true nature of evidence, reversal ‘is required if
the evidence could in any reasonable likelihood have affected
the judgment of the jury,’” citing Giglio v. United States,
12                          DOW V. VIRGA

405 U.S. 150, 154 (1972), which in turn cites Napue v.
Illinois, 360 U.S. 264, 271 (1959). The state court found that
“misconduct occurred” because “the prosecutor was aware
that [Detective Oglesby’s] representation of the evidence was
erroneous.” Nonetheless, the state court affirmed Dow’s
conviction. It concluded that Dow had not shown that it was
“‘reasonably probable that a result more favorable to the
defendant would have occurred’ absent the misconduct,”
citing People v. Welch, 20 Cal. 4th 701, 753 (1999).

    The standard that the state court applied is the state law
standard for reviewing the harmlessness of non-constitutional
errors. The state court reasoned that the misconduct was
harmless because defense counsel was able to object and
present a contrary view from which the jury could have
understood that “the reason for the bandages was to facilitate
a fair lineup,” “Sablad’s identification testimony was strong”
and corroborated by the gray sweatsuit, and “[t]he presence
of a scar on the defendant’s face was only a minor aspect of
the identification process, and was in fact not seen by the
witness either in the lineups or at the trial.” As the state court
concluded, “a more favorable verdict to defendant was not
reasonably probable without the misconduct.”

                           DISCUSSION

    Dow’s petition for habeas is governed by the strict
standards of AEDPA. Lindh v. Murphy, 521 U.S. 320,
326–27 (1997).3



 3
  On a petition for federal habeas, we review the last reasoned state-court
decision on Dow’s claim, in this case the California appellate court’s
unpublished opinion. See Ylst v. Nunnemaker, 501 U.S. 797, 806 (1991).
                        DOW V. VIRGA                         13

    Under AEDPA, we ask whether the state court’s
adjudication of the claim “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.”              28 U.S.C.
§ 2254(d)(1). A state court decision is “contrary to” clearly
established Supreme Court precedent “if it ‘applies a rule that
contradicts the governing law set forth in [Supreme Court]
cases.’” Early v. Packer, 537 U.S. 3, 8 (2002) (quoting
Williams v. Taylor, 529 U.S. 362, 405–06 (2000)); see also
Frantz v. Hazey, 533 F.3d 724, 734 (9th Cir. 2008) (en banc).
A state court decision constitutes an “unreasonable
application of” Supreme Court precedent if it is “objectively
unreasonable,” not merely if it applies that precedent
“erroneously or incorrectly.” Williams, 529 U.S. at 409, 411;
Bell v. Cone, 535 U.S. 685, 694 (2002).

                               I.

     The clearly established Supreme Court precedent, at the
time of Dow’s state court decision, was that a Napue
violation—a presentation to a fact-finder of false testimony
knowing it to be false—results in the reversal of a conviction
if “the false testimony could . . . in any reasonable likelihood
have affected the judgment of the jury . . . .” Giglio v. United
States, 405 U.S. 150, 153, 154 (1972) (quoting Napue v.
Illinois, 360 U.S. 264, 271 (1959)).

    In Napue, the prosecutor elicited and did not correct what
he knew to be false testimony—that the state’s principal
witness had not been promised any consideration by the State
in exchange for his testimony. 360 U.S. at 265, 267. The
Court explained that the principle that a prosecutor, working
on behalf of the state, may not knowingly use false testimony
14                          DOW V. VIRGA

to obtain a conviction is “implicit in any concept of ordered
liberty.” Id. at 269. The Court held that “a conviction
obtained through use of false evidence, known to be such by
representatives of the State” violates the Fourteenth
Amendment. Id. at 269.

    The Court reversed Napue’s conviction on the ground that
the false testimony “may have had an effect on the outcome
of the trial.” Id. at 272. As explained in subsequent opinions
applying the Napue standard, “a new trial is required if ‘the
false testimony could . . . in any reasonable likelihood have
affected the judgment of the jury . . . .” Giglio v. United
States, 405 U.S. 150, 153, 154 (1972) (quoting Napue,
360 U.S. at 271); see also Sivak v. Hardison, 658 F.3d 898,
912 (9th Cir. 2011); Libberton v. Ryan, 583 F.3d 1147, 1164
(9th Cir. 2009); Jackson v. Brown, 513 F.3d 1057, 1076 (9th
Cir. 2008).

    Although the government’s knowing use of false
testimony does not automatically require reversal, courts
apply a less4 demanding materiality standard to Napue errors:
whether “there is any reasonable likelihood that the false
testimony could have affected the judgment of the jury.”
United States v. Agurs, 427 U.S. 97, 103 (1976) (emphasis
added). This materiality standard is, in effect, a form of


  4
    Whether an appellate standard of review is relatively “less” or “more”
demanding typically depends on one’s point of view. We consider the
difference between the Napue materiality standard and the California
harmless error rule from the perspective of Dow, who is challenging his
conviction. Because the California harmless error rule applied by the state
court would require Dow to demonstrate a higher degree of prejudice in
order to merit relief, we consider that standard to be more strict than the
materiality standard under Napue. See, e.g., Bains v. Cambria, 204 F.3d
964, 976 (9th Cir. 2000).
                        DOW V. VIRGA                          15

harmless error review, but a far lesser showing of harm is
required under Napue’s materiality standard than under
ordinary harmless error review. See Smith v. Phillips,
455 U.S. 209, 220 n.10 (1982) (describing the “materiality
requirement” that applies to Napue and Giglio claims); see
also Hayes v. Brown, 399 F.3d 972, 984 (9th Cir. 2005) (en
banc). Napue requires us to determine only whether the error
could have affected the judgment of the jury, whereas
ordinary harmless error review requires us to determine
whether the error would have done so.

    In short, prosecutorial misconduct of the kind that
occurred here violates the constitutional rights of the
defendant and requires a reversal of the conviction if (1) the
testimony was actually false, (2) the prosecutor knew it was
false, and (3) the false testimony was material (i.e., there is a
reasonable likelihood that the false testimony could have
affected the judgment). See Napue, 360 U.S. at 271–72.

                               II.

    The state court found that the first two requirements of a
Napue violation were met. It found that “the representation
of the evidence [that Dow requested the bandages] was
erroneous” and that “the prosecutor was aware” of this false
representation. The state raises no objection to these
findings. It acknowledges that “the state appellate court
found the first two prongs of the federal test satisfied,” and
that “the court of appeal found the prosecutor had committed
misconduct violative of Napue.” (emphasis added)

   Once the first two requirements of Napue are met, the
court must determine whether the error is material, that is,
whether “there is any reasonable likelihood that the false
16                           DOW V. VIRGA

testimony could have affected the judgment of the jury.”
Agurs, 427 U.S. at 103. It is clear from the state court’s
opinion, however, that it applied a state law standard for
harmless error review that is more difficult for the defendant
to meet than the standard prescribed by the Supreme Court.
The state court considered “whether it is ‘reasonably probable
that a result more favorable to the defendant would have
occurred’ absent the misconduct,” People v. Dow, 2004 WL
2367997, at *8 (Cal. Ct. App. Oct. 22, 2004) (citing People
v. Welch, 20 Cal. 4th 701, 753 (1999)) (emphasis added).5
Under that stricter standard, the court found that “a more
favorable verdict to [Dow] was not reasonably probable
without the misconduct.”6 On this basis, the state court
denied relief.

    The state court applied a harmlessness standard that is
“contrary to” clearly established Supreme Court precedent
because it should have applied the materiality standard
required for cases involving Napue errors, i.e., it should have
determined whether “there [was] any reasonable likelihood
that the false testimony could have affected the judgment of
the jury.” Agurs, 427 U.S. at 103. Application of the wrong
standard constituted an error of law that was contrary to
clearly established Supreme Court precedent. See Napue,
360 U.S. at 271–72; see also Caliendo v. Warden, 365 F.3d


  5
   California state appellate courts apply this harmless error standard in
reviewing “non-constitutional magnitude, trial type errors.” See Bains v.
Cambria, 204 F.3d 964, 971 n.2 (9th Cir. 2000) (describing the Watson
standard of review, which is the same as the standard applied by the state
court in Dow’s case).
 6
   That the state standard is stricter is also reflected in its use of the term
“reasonably probable,” in contrast to Napue’s use of the term “any
reasonable likelihood.”
                        DOW V. VIRGA                         17

691, 698 (9th Cir. 2004) (holding that “AEDPA’s
presumption of correctness does not apply to state court
findings arrived at through the use of erroneous legal
standards”); see also Bains, 204 F.3d at 975–76 (holding that
the California Court of Appeal erred under AEDPA by
applying California harmless error standard rather than
federal constitutional harmless error principles).

    Because the state court’s application of a stricter standard
than is permissible in the case of Napue error was “contrary
to” clearly established Supreme Court law, the “contrary to”
prong of AEDPA, § 2254(d)(1), has been satisfied. See
Towery v. Schriro, 641 F.3d 300, 307 (9th Cir. 2010)
(citations omitted); see also Early v. Packer, 537 U.S. 3, 8
(2002) (per curiam). Thus, we must next “resolve the claim
without the deference AEDPA otherwise requires.”
Crittenden v. Ayers, 624 F.3d 943, 954 (9th Cir. 2010)
(quoting Panetti v. Quarterman, 551 U.S. 930, 953 (2007)).
That is, we apply de novo review to Dow’s federal
constitutional claim. See Bains, 204 F.3d at 976.

                              III.

    Applying de novo review, we conclude that Dow prevails
on his Napue claim because he meets the materiality standard.
This standard, which requires us to determine whether “there
is any reasonable likelihood that the false testimony could
have affected the judgment of the jury,” Agurs, 427 U.S. at
103 (emphasis added), is easily met here. The evidence
against Dow was weak and the prosecutor’s arguments
undoubtedly had an effect on the jury’s decision. Thus, Dow
was deprived of his constitutional right to due process of law.
18                      DOW V. VIRGA

     Dow’s first trial resulted in a deadlocked jury, proof that
his case was a close one. See Kennedy v. Lockyer, 379 F.3d
1041, 1056 n.18 (9th Cir. 2004) (fact that jury was
deadlocked in first trial showed that the question of “guilt or
innocence was a close one”); Caliendo, 365 F.3d at 699 (fact
that jury was deadlocked in first trial indicates error in second
trial was prejudicial). At the second trial, like the first, the
prosecution’s case against Dow consisted principally of
Sablad’s identification and a generic gray sweatsuit recovered
from Dow’s apartment. By that point, Sablad’s identification
had been severely undermined by his inconsistent recollection
of Dow’s appearance. During the investigation, Sablad told
the detective that he did not know the location of the scar that
he remembered having been on the perpetrator’s face. At the
preliminary hearing, he said that the scar was on the right jaw
line. Then, at the first trial, Sablad described it as a longer
scar near the eyebrow and slanting downward. When
questioned at the second trial, he looked at Dow and said that
he could not even see the scar about which he had previously
testified. In contrast, when Detective Oglesby was called by
the prosecution to explain the lineups, he testified that the
scar was a small one under Dow’s right eye. He added that
the scar could be seen from a foot or two away, but not from
a distance. As to Sablad’s belated recollection of a missing
tooth, Sablad first said it was a lower right tooth and then that
it might have been on top. Detective Oglseby, however,
testified that Dow (like many others) has only a gap between
his two front teeth. He did not mention any missing tooth,
top or bottom. Following this inconsistent testimony from
the prosecution’s central witnesses, Dr. Shomer, the expert
witness for the defense, provided extensive testimony as to
the unreliability of eyewitness identifications generally and
in the case of Dow in particular. He also emphasized the
                       DOW V. VIRGA                        19

suggestiveness of the police procedures used throughout the
investigation.

    Here, it is reasonably likely that the false testimony and
the prosecutor’s arguments based on that testimony had a
material effect on the outcome of the jury’s deliberations.
The case was a weak one that hinged almost entirely on
Sablad’s inconsistent eyewitness testimony. The prosecutor
argued on the basis of the evidence admitted in violation of
Napue that Dow had acted in a manner consistent with a
consciousness of guilt. This argument bolstered the
prosecution’s case that Dow was guilty by interjecting a new
reason for the jury to convict him. The jury may well have
concluded that the questionable identification was validated
by Dow’s supposed self-incriminating act. Moreover, the
Napue violation was particularly egregious because it
adversely affected Dow’s due process interest in a lineup that
was not unduly suggestive, see Manson v. Brathwaite,
432 U.S. 98, 107–09 (1977); Neil v. Biggers, 409 U.S. 188,
198 (1972), and negatively affected his counsel’s effort to
ensure a fair trial by portraying it as an acknowledgment of
guilt.

    Furthermore, the prosecutor made her improper argument
during her rebuttal, leaving the defense with no opportunity
to respond, beyond the limited response counsel made by
objecting. The fact that the objection may have made the jury
aware of another inference to be drawn from the false
evidence does not turn “what was otherwise a tainted trial
into a fair one.” Napue, 360 U.S. at 270.
20                          DOW V. VIRGA

    Finally, the jury rendered a guilty verdict after hearing the
false testimony while the first jury, which did not hear that
testimony, failed to do so.7

    Thus, we conclude that there is a “reasonable likelihood
that the false testimony could have affected the judgment of
the jury.” Agurs, 427 U.S. at 103. Because the prosecutor’s
actions during his state court trial violated Dow’s
constitutional rights to due process, reversal is required and
we are compelled to grant the writ of habeas corpus.

                                    IV.

    Nonetheless, the state asserts that the state court’s
decision is entitled to AEDPA deference because it implicitly
applied the Napue materiality requirement and implicitly
rejected Dow’s claim as not material. This contention has no
merit because, as the state conceded, “the state appellate court
found the first two prongs of the federal test satisfied,” and
“the court of appeal found the prosecutor had committed
misconduct violative of Napue.” It would stretch our
credulity to believe that, having explicitly applied the
traditional state court harmless error standard to the violation,
and having done so erroneously, the state court also implicitly
applied the proper Napue standard. Our conclusion is
confirmed by the fact that the state court reached a result that
may well have been appropriate under Welch, but that would
have been unreasonable to reach under Napue.




  7
    We note that the state does not contend that there were any other
material differences between the first and second trials, and the state court
opinion does not suggest any.
                            DOW V. VIRGA                                 21

    Even if we were to assume, however, that the state court
did reject Dow’s Napue claim on materiality grounds after
applying the Napue standard, we would reach the same
ultimate outcome, because finding the Napue violation in this
case to be immaterial would be “objectively unreasonable”
and, therefore, satisfy the “unreasonable application” prong
of § 2254(d)(1). Williams v. Taylor, 529 U.S. 362, 409, 411
(2000). In light of the Supreme Court’s clearly established
precedent on Napue violations, there was no “reasonable
basis for the state court to deny relief” on materiality grounds.
Harrington v. Richter, 131 S. Ct. 770, 784 (2011).

    Our conclusion follows from our earlier analysis of
Dow’s claim. Not only does Dow prevail on his claim under
Napue because there is a “reasonable likelihood that the false
testimony could have affected the judgment of the jury,”
Agurs, 427 U.S. at 103, but to conclude that the violation was
not material under Napue would, in light of our earlier
description of the facts, be beyond the scope of “possibility
for fairminded disagreement.” Harrington, 131 S. Ct. at
787.8 As we have explained, the evidence in Dow’s case was

 8
   The “fairminded jurist” standard is an objective standard of law, not a
reference to the quality of the judge making the decision. The standard,
therefore, does not require us to evaluate whether the individual jurists are
“fairminded” in the sense that they are generally impartial and honest
adjudicators, but rather whether there could objectively be fairminded
disagreement as to the outcome dictated by the Supreme Court’s clearly
established law. Fairminded jurists can make mistakes in legal reasoning
or judgment, and if such a mistake is beyond reasonable legal
disagreement, the “fairminded jurist” standard is satisfied.

     Were we to apply a fairminded jurist standard literally, a federal court
could never reverse a state court’s habeas decision. For every state
appellate court contains at least one fairminded jurist, if not a majority of
its supreme court or appellate court members who voted to reject the
22                          DOW V. VIRGA

extremely weak.          It depended solely on Sablad’s
identification of Dow as the perpetrator (and the fact that
Dow possessed a generic gray sweatsuit), but Sablad made
materially inconsistent statements regarding both the
perpetrator’s scar and a purportedly missing tooth—at one
point stating that the scar was on the right jaw line, at another
that it ran down his face from the eyebrow. Dow’s scar,
however, is small and located directly under his eye. Nor
does Dow have a missing tooth. Moreover, the prosecutor’s
Napue violation gave the jury an independent (and improper)
basis for finding Dow guilty—that his actions were evidence
of his consciousness of guilt. Given these facts, any
conclusion that the Napue violation in Dow’s case did not
meet the materiality requirement would be objectively
unreasonable. Thus, even the “unreasonable application”
prong of § 2254(d)(1) is satisfied here.

                           CONCLUSION

    Because it is clear that the constitutional violation at issue
here requires reversal under Napue, we REVERSE the
judgment of the district court, and REMAND with directions
to issue a writ of habeas corpus, releasing Dow from
detention unless the state retries him within a reasonable
period of time to be determined by the district court.

     REVERSED and REMANDED.




petitioner’s arguments. When we reverse a state court’s habeas decision
we are surely not saying that all the state court justices whom we are
reversing are not fairminded jurists, but rather that objectively the answer
is one that a fairminded jurist should reach.
